Common use of ENVIRONMENTAL LIABILITY BASELINE Clause in Contracts

ENVIRONMENTAL LIABILITY BASELINE. (1) The Sublessee assumes financial responsibility to the Borough for any Contamination in, on, and under the Sublease Premises and any Affected Property, except for Contamination that is identified in an Environmental Liability Baseline. This is without prejudice to the Sublessee's right to seek contribution or indemnity from either prior Sublessees of the Sublease Premises and Affected Property, or other potentially responsible parties except for the Borough. (2) The procedures for establishing an Environmental Liability Baseline shall be as follows: (a) If the Sublessee wants to establish an Environmental Liability Baseline for all or any portion of the Sublease Premises, the Sublessee shall provide the Borough with an Environmental Assessment for that portion of the Sublease Premises. The Environmental Assessment shall be performed according to standard industry procedures. (b) If the Sublessee discovers Contamination in, on, or under the surface of the Sublease Premises, for any portion of the Contamination to be considered for inclusion in the Environmental Liability Baseline, the Sublessee must demonstrate by clear and convincing evidence to the satisfaction of the Borough that the Contamination proposed for inclusion was not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities nor assumed by the Sublessee by reason of assignment. In light of the Sublessee's responsibility under Article VIII, Operations, (C) Sublessee's Control and Responsibility, of this Sublease for the acts of its sub-sublessees, contractors, and guests on the Sublease Premises, Contamination caused or Materially Contributed To by activities of the Sublessee's sub-sublessees, contractors, and guests on the Sublease Premises are deemed to be Materially Contributed To by the Sublessee. (c) Only that portion of Contamination not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities, nor assumed by the Sublessee by reason of assignment, shall be included in the Environmental Liability Baseline. (3) The procedures for adding to an existing Environmental Liability Baseline shall be as follows: (a) If, after an Environmental Liability Baseline is established for any portion of the Sublease Premises, the Sublessee discovers Contamination in, on, or under the surface of that portion of the Sublease Premises having an Environmental Liability Baseline, which Contamination the Sublessee or the Sublessee's operations or activities did not cause or Materially Contribute To, and which the Sublessee did not assume by reason of assignment, the Sublessee may, at its own cost, submit an additional Environmental Assessment reflecting that information to the Borough for the Borough's consideration to add to the Environmental Liability Baseline. The Sublessee's additional Environmental Assessment must demonstrate by clear and convincing evidence to the satisfaction of the Borough which portion of the additional Contamination on the Sublease Premises was not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities nor assumed by the Sublessee by reason of assignment. (b) Only that portion of Contamination not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities, nor assumed by the Sublessee by reason of assignment, may be added to the existing Environmental Liability Baseline. (4) When the Borough receives the Sublessee's Environmental Assessment to establish the Environmental Liability Baseline or to add to an existing Environmental Liability Baseline, the Borough, in its sole discretion, will do one of the following: (a) Accept the findings of the Sublessee's Environmental Assessment as the Environmental Liability Baseline for that portion of the Sublease Premises being assessed or to add to the existing Environmental Liability Baseline. (b) Reject the findings of the Sublessee’s Environmental Assessment for that portion of the Sublease Premises being assessed and of the Sublessee the opportunity to perform additional environmental testing if the Borough determines in writing that the findings of the Environmental Assessment are inadequate to develop an Environmental Liability Baseline or to add to an existing Environmental Liability Baseline. The Borough's written rejection of the Sublessee's submittal(s) will be based on failure of the Sublessee's Environmental Assessment to either: (i) follow generally accepted professional practices in determining the environmental condition of the Sublease Premises and the presence of Contamination in, on, or under the surface of the Sublease Premises; or (ii) demonstrate the portion of the Contamination that was not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities, nor assumed by the Sublessee by reason of assignment. (c) Perform additional environmental testing at the Borough's expense to verify the environmental condition of that portion of the Sublease Premises being assessed. If the results of the Borough's tests conflict with the Sublessee's Environmental Assessment, the Borough and the Sublessee will negotiate in good faith an Environmental Liability Baseline or an addition to the existing Environmental Liability Baseline for that portion of the Sublease Premises being assessed. (5) If, after the Environmental Liability Baseline for any portion of the Sublease Premises is established, it is discovered that the presence of a Hazardous Substance identified in the Environmental Liability Baseline was caused or Materially Contributed To by the Sublessee or its operations, or assumed by the Sublessee by reason of assignment, the Environmental Liability Baseline shall be amended to delete that portion of the Contamination. The Borough will have the burden of proof in establishing that the Sublessee caused or Materially Contributed To this Contamination or that the Contamination was assumed by the Lessee by reason of assignment.

ENVIRONMENTAL LIABILITY BASELINE. (1) The Sublessee has the sole responsibility under this Sublease to ascertain the environmental condition and presence of Hazardous Substance existing in, on, and under the surface of the Sublease Premises, and is conclusively presumed to have caused or Materially Contributed To any Contamination of or originating on the Sublease Premises except as identified in an Environmental Liability Baseline accepted by the Borough. (2) The Sublessee assumes financial responsibility to the Borough for any Contamination in, on, and under the Sublease Premises and any Affected Propertyaffected property, except for Contamination that is identified in an Environmental Liability Baseline. This is without prejudice to the Sublessee's right to seek contribution or indemnity from either prior Sublessees of the Sublease Premises and Affected Propertyproperty, or other potentially responsible parties except for the Borough. (23) The procedures for establishing an Environmental Liability Baseline shall be as follows: (a) If the Sublessee wants to establish an Environmental Liability Baseline for all or any portion of the Sublease Premises, the Sublessee shall provide the Borough with an Environmental Assessment for that portion of the Sublease Premises. The Environmental Assessment shall be performed according to standard industry procedures. (b) If the Sublessee discovers Contamination in, on, or under the surface of the Sublease Premises, for any portion of the Contamination to be considered for inclusion in the Environmental Liability Baseline, the Sublessee must demonstrate by clear and convincing evidence to the satisfaction of the Borough that the Contamination proposed for inclusion was not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities nor assumed by the Sublessee by reason of assignment. In light of the Sublessee's responsibility under Article VIII8, Operations, (CA) Sublessee's Control and Responsibility, of this Sublease for the acts of its sub-sublessees, contractors, and guests on the Sublease Premises, Contamination caused or Materially Contributed To by activities of the Sublessee's sub-sublessees, contractors, and guests on the Sublease Premises are deemed to be Materially Contributed To by the Sublessee. (c) Only that portion of Contamination not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities, nor assumed by the Sublessee by reason of assignment, shall be included in the Environmental Liability Baseline. (34) The procedures for adding to an existing Environmental Liability Baseline shall be as follows: (a) If, after an Environmental Liability Baseline is established for any portion of the Sublease Premises, the Sublessee discovers Contamination in, on, or under the surface of that portion of the Sublease Premises having an Environmental Liability Baseline, which Contamination the Sublessee or the Sublessee's operations or activities did not cause or Materially Contribute To, and which the Sublessee did not assume by reason of assignment, the Sublessee may, at its own cost, submit an additional Environmental Assessment reflecting that information to the Borough for the Borough's consideration to add to the Environmental Liability Baseline. The Sublessee's additional Environmental Assessment must demonstrate by clear and convincing evidence to the satisfaction of the Borough which portion of the additional Contamination on the Sublease Premises was not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities nor assumed by the Sublessee by reason of assignment. (b) Only that portion of Contamination not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities, nor assumed by the Sublessee by reason of assignment, may be added to the existing Environmental Liability Baseline. (45) When the Borough receives the Sublessee's Environmental Assessment to establish the Environmental Liability Baseline or to add to an existing Environmental Liability Baseline, the Borough, in its sole discretion, will do one of the following: (a) Accept the findings of the Sublessee's Environmental Assessment as the Environmental Liability Baseline for that portion of the Sublease Premises being assessed or to add to the existing Environmental Liability Baseline. (b) Reject the findings of the Sublessee’s Environmental Assessment for that portion of the Sublease Premises being assessed and of the Sublessee the opportunity to perform additional environmental testing if the Borough determines in writing that the findings of the Environmental Assessment are inadequate to develop an Environmental Liability Baseline or to add to an existing Environmental Liability Baseline. The Borough's written rejection of the Sublessee's submittal(s) will be based on failure of the Sublessee's Environmental Assessment to either: (i) follow generally accepted professional practices in determining the environmental condition of the Sublease Premises and the presence of Contamination in, on, or under the surface of the Sublease Premises; or (ii) demonstrate the portion of the Contamination that was not caused or Materially Contributed To by the Sublessee or the Sublessee's operations or activities, nor assumed by the Sublessee by reason of assignment. (c) Perform additional environmental testing at the Borough's expense to verify the environmental condition of that portion of the Sublease Premises being assessed. If the results of the Borough's tests conflict with the Sublessee's Environmental Assessment, the Borough and the Sublessee will negotiate in good faith an Environmental Liability Baseline or an addition to the existing Environmental Liability Baseline for that portion of the Sublease Premises being assessed. (56) If, after the Environmental Liability Baseline for any portion of the Sublease Premises is established, it is discovered that the presence of a Hazardous Substance identified in the Environmental Liability Baseline was caused or Materially Contributed To by the Sublessee or its operations, or assumed by the Sublessee by reason of assignment, the Environmental Liability Baseline shall be shallbe amended to delete that portion of the Contamination. .. The Borough will have the burden of proof in establishing that the Sublessee caused or Materially Contributed To this Contamination or that the Contamination was assumed by the Lessee Sublessee by reason of assignment.