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<br />personal injury, property damage, contamination of, or adverse effects upon, the environment or
<br />natural resources), and costs and damages of every kind, nature and description (including but
<br />not limited to attorneys' fees and court costs; with counsel reasonably acceptable to the Agency
<br />and the City; and any expenses associated with the investigation, assessment, monitoring,
<br />response, removal, treatment, abatement or remediation of Hazardous Materials), and
<br />administrative, enforcement or judicial proceedings, whether known or unknown, and which
<br />directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleged to
<br />be caused by, arise from, or relate to, the presence, release or discharge, or alleged presence,
<br />release or discharge, of any Hazardous Materials in, on or under the Property, or the failure to
<br />comply with Environmental Laws, whether or not any insurance policies shall have been
<br />determined to be applicable to any such claims, demands, suits, actions, losses, liabilities,
<br />expenses, penalties, fines, orders, judgments, injunctive or other relief, costs, damages, or
<br />administrative, enforcement or judicial proceedings; provided, however that the same shall not
<br />apply to instances involving the sole negligence of the Agency or the City. It is further agreed that
<br />the Agency and the City do not, and shall not, waive any rights against the Participant which they
<br />may have by reason of this indemnity and hold harmless agreement because of the acceptance
<br />by the Agency, or the deposit with the Agency by the Participant, of any of the insurance policies
<br />described in this Agreement.
<br />
<br />F. Default
<br />
<br />Notwithstanding any of the provisions of this Agreement, the Participant shall not be
<br />deemed to be in default of or in material non-compliance with this Agreement unless the
<br />Participant has received written notice of the violation or deficiency and the Participant fails to
<br />cure such violation or deficiency within thirty (30) days after receipt of written notice or, if the
<br />matter cannot be cured in thirty (30) days, fails to commence the cure within thirty (30) days and
<br />to diligently prosecute such cure.
<br />
<br />3.07 Excuse for Non-Performance
<br />
<br />The Participant shall be excused from performing any obligation or undertaking provided in this
<br />Agreement in the event and so long as the performance of any such obligation is prevented or delayed,
<br />retarded or hindered by act of God, fire, earthquake, floods, explosion, actions of the elements, war,
<br />invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor,
<br />equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts,
<br />action of labor unions, condemnation, requisition, laws, orders of governmental or civil or military or naval
<br />authorities, or any other cause, whether similar or dissimilar to the foregoing, not within the respective
<br />control of the Participant.
<br />
<br />3.08 Hold Harmless
<br />
<br />The Participant shall hold the Agency, its elective and appointive boards, commissions, officers,
<br />agents and employees harmless from and against any or all loss, liability, expense, claim, costs, suits,
<br />damages of every kind, nature and description directly or indirectly arising from the performance of the
<br />obligations or undertakings of the Project by the Participant. The Participant shall defend the Agency and
<br />its elective and appointive boards, commissions, officers, agents and employees from any suits or actions
<br />at law or in equity for damages caused or alleged to have been caused, by reason of any of the
<br />obligations or undertakings of the Project by the Participant.
<br />
<br />ARTICLE FOUR
<br />
<br />GENERAL CONDITIONS
<br />
<br />4.01 Bindinq Effect
<br />
<br />This Agreement shall be binding upon the Agency and the Participant and upon their respective
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