Agmt16 MidPen Housing Corporation

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4.1 Right of Access. During the Term, Developer and its consultants shall have the right of reasonable access to the Property during normal business hours for the purposes of inspection, environmental assessments, soils testing, and similar work, provided that except as otherwise agreed upon in writing, Developer shall not interfere with the operations of existing licensees of the Property who use portions of the site for parking. Developer shall provide City with reasonable advance notice prior to entry on the Property, and shall provide not less than 24-hours' notice of any intent to conduct borings or other invasive testing. City's advance written approval shall be required for the conduct of borings or other invasive testing, and any such testing shall be conducted on Saturdays to avoid disrupting use of the site for parking purposes. Developer agrees that unless City agrees otherwise in writing,Developer shall repair,restore,and return the Property and all improvements located thereon to their condition immediately prior to any such testing at Developer's sole cost and expense. Prior to entry onto the Property, Developer shall provide evidence satisfactory to City that Developer and its consultants carry liability insurance consistent with City requirements,naming the City as an additional insured. Developer shall at all times keep the Property free and clear of all liens and encumbrances related to Developer's inspection activities on the Property. 4.2 Indemnitv. Developer shall indemnify, defend, and hold the City and its elected and appointed officers, officials, employees, consultants, agents and representatives (collectively, the "Indemnitees")harmless from and against all liability,loss,cost,claim,demand,action,suit,legal or administrative proceeding, penalty, deficiency, fine, damage and expense (including without limitation reasonable attorneys' fees and costs) (all of the foregoing, collectively "Claims") arising out of the entry onto the Property by Developer and Developer's agents, employees, consultants, representatives and contractor except to the extent any such Claim results from pre- existing conditions or from the Indemnitees' gross negligence or willful misconduct. Developer's defense and indemnity obligations pursuant to this Section 4.2 shall survive the expiration or earlier termination of this Agreement. ARTICLE V DEFAULT AND REMEDIES 5.1 Default. Failure by either Party to negotiate in good faith as provided in this Agreement shall constitute an event of default under this Agreement. The nondefaulting Party shall give written notice of a default to the defaulting Party, specifying the nature of the default and the required action to cure the default. If a default remains uncured fifteen (15) days after receipt by the defaulting Party of such notice,the non-defaulting Party may,as its sole remedy,terminate this Agreement, and upon such termination the rights and obligations of the Parties hereunder shall terminate except as expressly provided otherwise in this Agreement. Without limiting the generality of the foregoing, neither Party shall be entitled to recover damages for a default hereunder. 5.2 Waiver of Lis Pendens. It is expressly understood and agreed by the Parties that no lis pendens shall be filed against any portion of the Property with respect to this Agreement or any dispute or act arising from this Agreement. This Section shall survive the expiration or termination of this Agreement. REV:05-18-16 VR ATTY/AGR.2016.103/MID PEN HOUSING Page 6 of il