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and assist the Developer in obtaining access to the Development Property for the
<br />purposes of conducting such due diligence work.
<br />(e) Developer's sole remedy for City's failure or inability to comply with
<br />Section (a) above is termination of this Agreement as provided in Article V hereof and
<br />release of the Letter of Credit, provided that the City shall be entitled to draw on the
<br />Letter of Credit for all unreimbursed City Costs incurred by it in connection with the
<br />Project.
<br />(1) Developer may, prior to September 1, 1999, notify the City in writing that it
<br />desires to delete from the Development Property those parcels shown at items 1 and 4 of
<br />Exhibit A due to the economic infeasibility of the Project. In the event the City approves
<br />such deletion, the City shall have no obligation to acquire said parcels and the Final Plans
<br />will be prepared to provide for a smaller Project in accordance with such plans and
<br />specifications as are mutually acceptable to the City and the Developer.
<br />Section 3.2. Hazardous Substance: Indemnity by Developer.
<br />(a) If the City or the Developer acquires the Development Property or any
<br />portion thereof, then as to the portion acquired, the Developer hereby agrees to defend,
<br />indemnify and hold harmless the City, its officers, employees, agents, successors and
<br />assigns (hereinafter collectively referred to as the "Indemnitees ") from and against, and
<br />shall reimburse each such Indemnitee for, any and all loss, claim, liability, damage,
<br />judgment, penalty, injunctive relief, injury to person, property or natural resources
<br />(including all costs associated therewith), cost, expense, action or cause of action arising
<br />as a result of any past, present or future existence, use, handling, storage, transportation,
<br />manufacture, release or disposal (collectively the "Occurrence ") of any Hazardous
<br />Substance in, on or under the Development Property, whether the Occurrence is
<br />foreseeable or unforeseeable, regardless of the source, the time of the Occurrence or the
<br />time of discovery (hereafter collectively referred to as "Loss "). The foregoing
<br />indemnification against Loss includes, without limitation, indemnification against all
<br />costs in law or in equity of removal, response, investigation, or remediation of any kind,
<br />and disposal of such Hazardous Substance, all costs of determining whether the
<br />Development Property is in compliance with, and of causing the Development Property to
<br />be in compliance with, all applicable Environmental Laws, and the Indemnitees°
<br />reasonable attorneys° and consultants° fees, court costs and expenses incurred in
<br />connection with any thereof.
<br />(b) The obligations of the Developer to indemnify the Indemnitees shall survive
<br />termination of this Agreement, or the City taking title to all or any part of the
<br />I058683.RED
<br />V5 to V4; 7/14/99
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