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to enter into and perform under this Agreement; and, (ii) all authorizations and approvals required <br />to make this Agreement binding upon City have been duly obtained. <br />6.9 Litigation Expenses. If either of the parties institutes any legal action against the <br />other in connection with any controversy related to, concerning or arising out of this Agreement, <br />or any facts based upon or involving this Agreement, then the prevailing party, whether in court, <br />through mediation, arbitration or by way of out-of-court settlement, shall be entitled to recover <br />from the non -prevailing party such prevailing party's reasonable attorneys' fees, court costs, <br />expert witness fees and other expenses relating to such controversy, including such fees, costs <br />and expenses on appeal, if any; and the arbitrator(s), if any, is hereby authorized to make such <br />an award to the prevailing party in arbitration. <br />6.10 Termination. In the event this Agreement terminates, no termination shall release <br />any party in default and this Agreement shall survive for purposes of allowing a party to enforce <br />its rights and remedies under this Agreement in the event of a default. All indemnification <br />provisions and any other provision that by its nature cannot be performed during the term of this <br />Agreement shall survive the termination of this Agreement. <br />6.11 Defense of Third Party Claims. To the fullest extent permitted by law, Auto Mall <br />shall indemnify, defend and hold harmless the City, its officers, agents, and employees from and <br />against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and <br />costs in the event that a third party files litigation challenging the validity or enforceability of this <br />Agreement, or any Loan Repayments. The City and Auto Mall may jointly defend the Agreement <br />and/or Loan Repayments. If the litigation is filed only against the City, Auto Mall may move to <br />intervene as a defendant, respondent or real party in interest, based upon the nature and form of <br />the litigation. <br />6.12 Force Maieure. The obligations by either party hereunder shall not be deemed in <br />default and times for performance hereunder shall. be extended where delays are caused by <br />fire/casualty losses; strikes, riots or war; litigation; unusually severe weather; inability to secure <br />necessary labor, materials or tools because of a shortage in the market; delays of any contractor, <br />subcontractor or supplier; unjustified acts or failure to act by City in the processing or approval of <br />plans or permits or inspection or approvals of improvements; acts of God, or other similar causes <br />without the fault and beyond the reasonable control of the party, despite the party's diligent efforts <br />(collectively, 'force majeure"), if written notice is provided to the other party within a reasonable <br />period following commencement of any such circumstances and, provided further, that the <br />extension of time shall be only for the period of the force majeure delay. Adverse market <br />conditions or the inability to obtain financing shall not constitute an event of force majeure. <br />6.13 Counterparts. This Agreement may be executed in two or more counterparts, each <br />of which when so executed and delivered shall be deemed an original and all of which, when <br />taken together, shall constitute one and the same instrument. <br />9 <br />75A-29 <br />