Hazardous Materials. (a) For the purposes hereof, the term "Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon. (b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of any Hazardous Materials in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws. (c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease. (d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then: (i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease. (ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 3 contracts
Samples: Lease Agreement (TBS International PLC), Lease Agreement (TBS International LTD), Lease Agreement (TBS International LTD)
Hazardous Materials. The Lessee shall comply with the following provisions concerning Hazardous Materials:
(a) For No Hazardous Materials shall be used, treated, kept, stored, sold, released, discharged or disposed of from, on, about, under, or into the purposes hereof, Premises or within the term "Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil Reserve except in compliance with all Applicable Laws and petroleum derivatives and products, asbestos, lead paint and radon.as approved by the Lessor in writing;
(b) Tenant represents and warrants that, except as herein set forth, it will not The Lessee shall use, store or manage, treat, keep, store, release discharge and dispose of any its approved Hazardous Materials in accordance with all Applicable Laws. The Lessee is responsible for timely acquisition of any permits required for its Hazardous Materials and related activities and will be fully responsible for compliance with the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners provisions and chemicals to maintain the Building or Property. Storage conditions of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.permits;
(c) Landlord represents If any Hazardous Materials Occurrence caused by Lessee results in any contamination of the Premises, other Reserve property or neighboring property, the Lessee shall promptly take all actions at its sole expense as are required to comply with Applicable Laws and warrants to Tenant thatallow the Premises or such other property to be used free of any use restriction imposed under Applicable Laws as a result of the Hazardous Materials Occurrence. Except in cases of emergency, the Lessor’s written approval of such actions shall first be obtained;
(d) Lessee at its expense shall be responsible for the abatement of Hazardous Materials in accordance with Applicable Laws in, on, or under the Premises as of the date on which Landlord shall deliver possession of Commencement Date and thereafter; and
(e) If the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until Lessee discovers any unapproved Hazardous Materials found in or on the Building Premises or Property have been removed, and Landlord has supplied Tenant with becomes aware of a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property Hazardous Materials Occurrence related to the condition which existed Premises, the Lessee shall immediately prior to such removal and/or otherwise in conformance with notify the terms of this LeaseLessor.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 3 contracts
Samples: Lease Agreement, Lease Agreement, Lease Agreement
Hazardous Materials. The following provisions apply to Hazardous Materials associated with the Premises:
(a) For the purposes hereof, the term "No Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that Materials may be deemed hazardous to human used, treated, kept, stored, sold, released, discharged or animal healthdisposed of from, including without limitationon, oil about, under, or into the Premises, except in compliance with all Applicable Laws and petroleum derivatives and products, asbestos, lead paint and radon.as approved by the Lessor in writing;
(b) Tenant represents and warrants that, except as herein set forth, it will not The Lessee must use, store or manage, treat, keep, store, release, discharge and dispose of any its approved Hazardous Materials in accordance with all Applicable Laws. The Lessee is responsible for timely acquisition of any permits required for its Hazardous Materials and related activities and will be fully responsible for compliance with the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners provisions and chemicals to maintain the Building or Property. Storage conditions of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.permits;
(c) Landlord represents If any Hazardous Materials Occurrence caused by the Lessee results in any contamination of the Premises, other Park Area property or neighboring property, the Lessee must promptly take all actions at its sole expense as are required to comply with Applicable Laws and warrants to Tenant thatallow the Premises or such other property to be used free of any use restriction imposed under Applicable Laws as a result of the Hazardous Materials Occurrence. Except in cases of emergency, the Lessor’s written approval of such actions must first be obtained;
(d) The Lessee at its expense is responsible for the abatement of Hazardous Materials in accordance with Applicable Laws in, on, or under the Premises as of the date on which Landlord shall deliver possession of Commencement Date and thereafter; and
(e) If the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until Lessee discovers any unapproved Hazardous Materials found in or on the Building Premises or Property have been removed, and Landlord has supplied Tenant with becomes aware of a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property Hazardous Materials Occurrence related to the condition which existed Premises, the Lessee must immediately prior to such removal and/or otherwise in conformance with notify the terms of this LeaseLessor.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 3 contracts
Samples: Lease Agreement, Lease Agreement, Lease Agreement
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises or the Site (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard household cleaning products and office products that may contain 1-lazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith, to the extent of a violation by Tenant of the provisions of this Section 5.3 of the Lease, shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. Landlord hereby consents to the use by Tenant of the kinds and quantities of Hazardous Materials shown in the foregoing-delivered Environmental Questionnaire, provided Tenant shall comply with all applicable laws and regulations pertaining to the generation, storage, use and disposal of such Hazardous Materials. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to Tenant thatinspect, as of sample and/or monitor the date on which Landlord shall deliver possession of the Property to TenantPremises, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease Site and/or the soil or groundwater thereunder at any time to the contrary, determine whether Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Material on, under or about the Premises and/or the Site caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises and/or the Site without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials that on, under, from or about the Premises and/or the Site.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Site and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not have causednot, Landlord shallwithout Landlord’s prior written consent, with diligence, remove or remediate or cause the remediation or removal of same take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Site or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent required permitted by Lawslaw, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Site and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claimjudgments, suitfines, or action regarding any such Hazardous Materials (whether alleged or real)demands, and/or regarding the removal claims, recoveries, deficiencies, costs and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation expenses (including without limitationlimitation attorneys’ fees, testing and professional costs) from Fixed Rent court costs and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the presence use, generation, storage, treatment, release, on- or release off-site disposal or transportation of any Hazardous Materials on, into, from, under or about the Premises, the Building and the Site and any other real or personal property owned by Landlord caused or permitted by Tenant, Tenant shall remove its agents, employees, contractors, licensees or remediate same to invitees, specifically including without limitation the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result cost of any claimrequired or necessary repair, suitrestoration, cleanup or action regarding any such Hazardous Materials (whether alleged or real)detoxification of the Premises, and/or regarding the removal and remediation of same.the
Appears in 3 contracts
Samples: Industrial Lease (Intralase Corp), Industrial Lease (Intralase Corp), Industrial Lease (Advanced Medical Optics Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord: (A) to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products, and (B) to utilize within the Premises those Hazardous Materials in kind and content listed on the Environmental Questionnaire delivered to Landlord prior to the execution of this paragraph may constitute Lease, provided that Tenant shall comply with all applicable laws with respect to such Hazardous Materials and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of such Hazardous Materials. Notwithstanding The Hazardous Materials and amount of the Hazardous Materials consented to under the foregoing Subsection 5.3(b)(B) cannot be thereafter prohibited or reduced by Landlord unless such action is mandated by a change in applicable law or upon mutual agreement by the parties. Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any other provision such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices: Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder within ten (10) days of demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant’s indemnity contained in this Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials (except standard office products that may contain Hazardous Materials permitted under Section 5.3(b) above) which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials (except standard office products that in doing somay contain Hazardous Materials permitted under Section 5.3(b) above) upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in substantial compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to enter upon the Premises upon reasonable notice to Tenant that(except in cases of emergency when no notice shall be required), as and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the date on which Landlord shall deliver possession storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Property Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent (which consent shall not be unreasonably withheld), take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval (which approval shall not be free from contamination unreasonably withheld), specifying the actions to be taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of samePremises that Landlord brings to Tenant’s attention.
Appears in 2 contracts
Samples: Industrial Lease (Cryocor Inc), Industrial Lease (Cryocor Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises collectively, the “Permitted Hazmats”): (i) a reasonable quantity of standard office and cleaning products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products; and (ii) those Hazardous Materials in kind and content listed on the Survey Form delivered to Landlord prior to the execution of this Lease. Tenant shall comply with all applicable laws with respect to the Permitted Hazmats, and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all Permitted Hazmats. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees; subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, subtenants, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant; s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 2 contracts
Samples: Lease (Inari Medical, Inc.), Lease (Inari Medical, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 2 contracts
Samples: Lease Agreement (Phage Biotechnology CORP), Lease (4-D Neuroimaging)
Hazardous Materials. (a) For the purposes hereofTenant agrees that Tenant, the term "Hazardous Materials" its agents and contractors, licensees, or invitees shall includenot handle, without limitationuse, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not usemanufacture, store or dispose of any flammables, explosives, radioactive materials, hazardous wastes or materials, toxic wastes or materials, or other similar substances, petroleum products or derivatives (collectively “Hazardous Materials”) on, under, or about the Premises or the Property, without Landlord’s prior written consent (which consent shall not be unreasonably withheld as long as Tenant demonstrates and documents to Landlord’s reasonable satisfaction (i) that such Hazardous Materials (A) are necessary or useful to Tenant’s business; and (B) will be used, kept, and stored in compliance with all Environmental Laws relating to any Hazardous Materials so brought or used or kept in or about the Premises or the Property; and (ii) that Tenant will give all required notices concerning the presence in or on the Premises or the Property or the release of such Hazardous Materials from the Premises provided that Tenant may handle, store, use or dispose of products containing small quantities of Hazardous Materials, which products are of a type customarily found in offices and households (such as aerosol cans containing insecticides, toner for copies, paint, paint remover, and the like), provided further that Tenant shall handle, store, use and dispose of any such Hazardous Materials in a safe and lawful manner and shall not allow such Hazardous Materials to contaminate the Building Premises or the environment. As to Tenant’s use and operations at the Premises, Tenant shall comply with all federal, state and local laws and ordinances relating to the protection of the environment or the keeping, use or disposition of environmentally hazardous materials, substances, or wastes, presently in effect or hereafter adopted, all amendments to any of them, and all rules and regulations issued pursuant to any of such laws or ordinances (collectively “Environmental Laws”). Tenant further agrees that Tenant will not discharge, release, or otherwise dispose of any Hazardous Materials into the groundwater under the Premises. If Tenant shall at any time fail to comply with this paragraph. Tenant shall immediately notify Landlord in writing of such noncompliance. As defined in Environmental Laws, Tenant is and shall be deemed to be the “operator” of Tenant’s “facility” and the “owner” of all Hazardous Materials brought on the Premises by Tenant, its agents, employees, contractors or invitees, and the wastes, by-products, or residues generated, resulting, or produced therefrom. Tenant’s insurance, if any is carried at Tenant’s sole election, insuring against claims of the type dealt with in this Article shall be considered primary coverage for claims against the Premises and underlying land arising out of or under this paragraph. Tenant shall not install any underground or above ground storage tanks on the Premises or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that In performing any or all alterations of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Premises permitted by the Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not install any Hazardous Material in the Premises without the specific consent of Landlord. Any increase in the premiums for necessary insurance on the Property that arises from Tenant’s use and/or storage of Hazardous Materials shall be obligated solely at Tenant’s expense. Tenant shall procure and maintain, at its sole expense, such additional insurance as may be necessary to accept possession comply with any insurance requirement of any Federal, State or local governmental agency with jurisdiction pertaining or related to Tenant’s use of the Building and Property until any Premises. If Landlord, in its sole discretion, believes that the Premises or the environment have become contaminated with Hazardous Materials found by Tenant, its subtenants, occupants, employees, agents, or contractors, that must be removed under any applicable Environmental Law, Landlord, in or on addition to its other rights under this Lease, may enter upon the Building or Property have been removed, Premises and Landlord has supplied Tenant with a certificate obtain samples from the appropriate governmental authority Premises, including without limitation the soil and groundwater under the Premises, for the purposes of analyzing the same to determine whether and to what extent the Premises or the environment have become so contaminated. Tenant shall reimburse Landlord for the costs of any inspection, sampling and analysis that such removal has been completed, and Landlord has restored the Building and Property to the condition discloses contamination for which existed immediately prior to such removal and/or otherwise in conformance with Tenant is liable under the terms of this Lease.
(d) IfArticle. Tenant may not perform any sampling, at any time during the Termtesting, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard drilling to the presence or release of locate any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause on the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Premises without Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' ’s prior written notice of Xxxxxx’s election to remove or remediate consent. Without limiting the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenantabove, Tenant shall remove or remediate same to the extent required by Lawsreimburse, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costsclaims, losses, liabilities, damages, costs and expenses, and/or liabilities including without limitation, any actual or asserted failure of Tenant to fully comply with all applicable Environmental Laws, and any loss of rental income, loss due to business interruption, and attorneys’ fees and costs, arising out of or in any way connected with the use, manufacture, storage, or disposal of Hazardous Materials by Tenant, its subtenants, occupants, employees, agents, contractors or invitees (including reasonable attorneys' feescollectively “Tenant Parties”) which Landlord may suffer as a result on, under or about the Premises including, without limitation, the costs of any claimrequired or necessary investigation, suitrepair, cleanup or detoxification and the preparation of any closure or other required plans in connection herewith, whether voluntary or compelled by governmental authority. The indemnity obligations of Tenant under this clause shall survive any termination of this Lease. At Landlord’s option, Tenant shall perform any required or necessary investigation, repair, cleanup, or action regarding detoxification of the Premises arising from Tenant’s or its subtenants’, occupants’, employees’, agents’, or contractors’ breach of the provisions of this Article. In such case, Landlord shall have the right, in its sole discretion, to approve all plans, consultants, and cleanup standards. Tenant shall provide Landlord on a timely basis with (i) copies of all documents, reports, and communications with governmental authorities; and (ii) notice and an opportunity to attend all meetings with regulatory authorities. Tenant shall comply with all notice requirements and Landlord and Tenant agree to cooperate with governmental authorities seeking access to the Premises for purposes of sampling or inspection. No disturbance of Tenant’s use of the Premises resulting from activities conducted pursuant to this paragraph or arising from Tenant’s breach of the provisions of this Article shall constitute an actual or constructive eviction of Tenant from the Premises (unless otherwise permitted by Applicable Laws). It shall not be unreasonable for Landlord to withhold its consent to any such proposed Assignment if (i) the proposed assignee’s or sublessee’s anticipated use of the Premises involves the generation, storage, use, treatment or disposal of Hazardous Materials other than customary office and household products which are used in compliance with applicable Environmental Laws; (whether alleged ii) the proposed assignee or real)sublessee has been required by any prior landlord, and/or regarding lender, or governmental authority to take remedial action in connection with Hazardous Materials contaminating a property, if the removal and contamination resulted from such assignee’s or sublessee’s actions or use of the property in question; or (iii) the proposed assignee or sublessee is subject to an enforcement order issued by any governmental authority in connection with the use, disposal, or storage of a Hazardous Material. Tenant’s obligations under this Article shall survive the expiration or earlier termination of this Lease. Landlord shall deliver the Premises to Tenant in compliance with all Applicable Laws, including but not limited to Environmental Laws, as of the respective Commencement Dates. Tenant shall not be responsible for any direct or indirect payments by Operating Expenses or otherwise for any contamination, investigation or remediation of samecaused by any person or entity other than Tenant Parties.
Appears in 2 contracts
Samples: Standard Industrial Lease Agreement, Standard Industrial Lease (Wells Real Estate Investment Trust Ii Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501 (o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other toxic or hazardous substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time, upon reasonable prior notice except in cases of emergency, to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or Long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants, or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found have no liability or responsibility with respect to the Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials which Tenant proves were not caused or on knowingly permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Not by way of limitation of the Building foregoing (and not withstanding anything to the contrary contained in the foregoing), Tenant shall have no liability or Property, then:
responsibility with respect to Hazardous Materials (i) with regard present at or about the Premises or Project prior to the presence or release of any Hazardous Materials that Tenant shall not have causedCommencement Date, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard that emanate onto the Premises or Project from outside thereof that are not the responsibility of Tenant under the foregoing provisions of this Section 5.3, or (iii) that are introduced to the presence Premises or release Project by Landlord, Landlord’s agents, contractors, vendors or employees or other tenants of the Project. Notwithstanding the preceding three sentences, Tenant agrees to notify its agents, employees, contractors, licensees, subtenants, and invitees of any exposure or potential exposure to Hazardous Materials caused by at the Premises that Landlord brings to Tenant, ’s attention. Tenant shall remove or remediate same hereby acknowledges that this disclosure satisfies any obligation of Landlord to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees Tenant pursuant to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitCalifornia Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 2 contracts
Samples: Lease Agreement, Lease (Ruckus Wireless Inc)
Hazardous Materials. (a) For the purposes hereof, the term "Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of any Hazardous Materials in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to To the extent that Company has actual knowledge of the presence of hazardous chemical substances on a Company Facility at the commencement of Provider’s performance of activities on such Company Facility that could in Company’s opinion (i) Confidential 41 pose hazards to human health or release safety of Provider’s or Provider’s Personnel working on the Company Facility given the scope of Provider’s Services to be performed or (ii) significantly affect Provider’s performance hereunder on such Company Facility, if requested in writing by Provider prior to commencement of its performance on such Company Facility, Company shall disclose such pre-existing conditions to Provider. Conditions, including the presence of any Hazardous Materials that Tenant hazardous chemical substance, described or referenced in any reports or studies given to or made available to Provider, or in any studies or investigations by Provider, shall not be deemed to have causedbeen disclosed upon receipt by Provider of such information. If Company provides any such disclosure(s) of pre-existing conditions to Provider, Landlord shall, Provider shall fully review and familiarize itself with diligence, remove or remediate or cause such disclosure(s) and shall (A) exercise the remediation or removal Standard of same to Care in dealing with the extent required by Lawsdisclosed pre-existing conditions; (B) conform to, and otherwise not interfere with any existing programs, controls, limitations or activities which are in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer place as a result of any claimthe presence of such substances, suitand (C) take such steps (and require all contractors to take such steps) in accordance with the Standard of Care, including but not limited to workplace controls, required use of personal protective equipment, or action regarding limitations on location and scope of Services to address any such Hazardous Materials (whether alleged hazard to human health or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leasesafety.
(ii) Provider must comply with regard all Applicable Laws in the performance of its obligations hereunder including without limitation those regarding hazardous and toxic substances and associated disclosure requirements. Additionally, Provider must comply with Company’s chemical release and hazardous and toxic substances disclosure and notification requirements, including those specified in the Chemical Release/Hazardous and Toxic Substances Disclosure Requirements Appendix attached hereto. For Services performed in California or Company’s Facilities, Provider shall comply with the requirements of the Safe Drinking Water and Toxic Enforcement Act of 1986 and amendments thereto (commonly referred to as “Proposition 65”). Such compliance may require the posting of notices on the Company Facility to warn people on the Company Facility of the potential for exposure to products which contain certain levels of chemicals known to the presence State of California to cause cancer, birth defects or other reproductive harm, as identified and listed by the Governor or the Health and Welfare Agency of the State of California pursuant to the requirements of Proposition 65. Provider shall inquire of its Subcontractors whether they have received any such warning notices from product manufacturers for products being used on the Company Facility, and shall ensure that any such notice, or a general warning sign, is posted conspicuously on the Company Facility so that it is likely to be read and understood by those who may be affected. Provider shall maintain records of any inquiries of its Subcontractors, and any responses received from them, and shall make these records available to any individual who inquires about potential exposures. If Provider causes or discovers (i) a reportable release of a hazardous substance or extremely hazardous substance; or (ii) a discharge or release, or potential discharge or release, of a regulated quantity of a listed chemical into a source of drinking water, which includes discharges or releases onto or into land, or into air, so long as the chemical will be deposited directly and immediately into a source of drinking water, then Provider shall immediately stop the activities causing or threatening such discharge or release, prevent or limit human, environmental, or natural resource exposure to the discharge or release, and take reasonable steps to stop any continuing discharge or release. Provider shall immediately notify Company that such a discharge or release of any Hazardous Materials caused by Tenant, Tenant shall remove has occurred or remediate same is threatened. Company will then determine whether the substances that gave rise to the extent actual or threatened discharge or release may be used at the Company Facility or need to be removed from the Company Facility in order to comply with the requirements of Proposition 65.
(iii) In the event that the removal or remediation of hazardous or toxic substances (other than a Provider Substance Release, as defined below) located on the Company Facility is required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against under any and all costs, damages, expenses, and/or liabilities Applicable Law (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real“Company Substance Condition”), and/or regarding then Company shall be responsible for the removal and or remediation of same.such Company
Appears in 2 contracts
Samples: Integrated Facilities Management Services Agreement, Integrated Facilities Management Services Agreement (Amgen Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products; and to utilize within the Premises those Hazardous Materials in kind and content listed on the Survey Form delivered to Landlord prior to the execution of this Lease, provided that Tenant shall comply with all applicable laws with respect to such Hazardous Materials and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of such Hazardous Materials. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials that on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not have causednot, Landlord shallwithout Landlord’s prior written consent, with diligencewhich consent may be given or withheld in Landlord’s sole and absolute discretion, remove or remediate or cause the remediation or removal of same take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent required permitted by Lawslaw, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including reasonable without limitation attorneys' ’ fees) which Tenant may suffer , court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may deduct have caused or permitted the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by TenantLandlord, Tenant shall remove shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be taken by Tenant to return the Premises, the Building or remediate same the Project or any other real or personal property owned by Landlord to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees condition existing prior to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result the introduction of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.such
Appears in 2 contracts
Samples: Lease (Tarsus Pharmaceuticals, Inc.), Lease (Tarsus Pharmaceuticals, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their -------- ------- original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant's indemnity contained in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached --------- hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall have no liability or --------- responsibility with respect to the Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials which were not caused or --------- permitted by Tenant, its agents, employees, contractors, licensees or invitees. Landlord shall take responsibility, at its sole cost and expense, for any time during the Termgovernmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials shall be found conditions described in or this Section 5.3(f). The foregoing obligation on the Building part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney's fees) of defending Tenant (with attorneys reasonably acceptable to Tenant) from and against any legal action or Propertyproceeding instituted by any governmental agency in connection with such clean-up, then:remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention.
(ig) with regard to If the presence or release of any Hazardous Materials that Tenant on, under, from or about the Premises or the Project caused by Landlord, its authorized agents or employees, results in (i) injury to any person, or (ii) injury to or any contamination of the Premises or the Project at levels which require clean-up or remediation under applicable laws, Landlord, at its expense (which shall not have causedbe included in Operating Expenses), Landlord shall, with diligence, remove or remediate or cause shall promptly take all actions necessary to return the remediation or removal of same Premises and the Project to the extent required by Lawscondition existing prior to the introduction of such Hazardous Materials, or to such condition as is satisfactory to all governmental agencies asserting jurisdiction, and in compliance with Lawsto remedy or repair any such injury or contamination, and at Landlord's sole cost; and Landlord agrees to defendincluding, indemnifywithout limitation, and hold Tenant harmless from and against any and all costsclean-up, damagesremediation, expensesremoval, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result disposal, neutralization or other treatment of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(iih) with regard to If the presence or release of any Hazardous Materials caused by Landlord, its authorized agents or employees, renders the Premises untenantable in whole or in part or results in Tenant being required to vacate the Premises in whole or in part pursuant to an order or requirement of any governmental agency or authority, then the Basic Rent, Operating Expenses, insurance premiums, and other charges, if any, payable by Tenant hereunder for the period during which the Premises (or a portion thereof) remain so impaired shall be abated in proportion to the degree to which Tenant's use of the Premises is impaired and for the period of such impairment. If the period of such impairment shall exceed two hundred seventy (270) days, Tenant shall remove or remediate same have the right to terminate this Lease upon written notice to Landlord given within ten (10) days following the extent required by Laws, and in compliance with Laws, and at passage of such two hundred seventy (270) day period. Tenant's sole cost; termination of the Lease pursuant to this Section 5.3(h) shall be effective as of the date of such notice.
(i) In the event of any foreclosure of a mortgage or deed of trust encumbering the Building and/or the Project, the obligations on the part of Landlord contained in Sections 5.3(f) and Xxxxxx agrees (g) above shall be personal to defend, indemnify Landlord and hold Landlord harmless from and shall not be binding on nor inure against any and all costslender acquiring the Building and/or the Project by foreclosure of its mortgage or deed of trust or deed in lieu of foreclosure, damagesor any successor in interest to such lender.
(j) Except as disclosed in Section 5.3(f) above (and/or as may otherwise be disclosed to Tenant in writing), expensesLandlord represents that, and/or liabilities to "Landlord's knowledge" (including reasonable attorneys' fees) as hereinafter defined), there are no Hazardous Materials in or about the Premises which Landlord may suffer as a result are in violation of any claimapplicable federal, suitstate or local law, ordinance or action regarding any such regulation. As used herein, "Landlord's knowledge" shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees of Landlord responsible for Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samecompliance matters.
Appears in 1 contract
Hazardous Materials. TENANT covenants and agrees that, with respect to any hazardous, toxic or special wastes, materials or substances including asbestos, waste oil and petroleum products (a) For the purposes hereof, the term "Hazardous Materials" ") which TENANT, its agent or employees, may use, handle, store or generate in the conduct of its business at the leased premises TENANT will: (i) comply with all applicable laws, ordinances and regulations which relate to the treatment, storage, transportation and handling of the Hazardous Materials; (ii) that TENANT will in no event permit or cause any disposal of Hazardous Materials in, on or about the leased premises and in particular will not deposit any Hazardous Materials in, on or about the floor or in any drainage system or in the trash containers which are customarily used for the disposal of solid waste; (iii) that with respect to any off-site disposal, shipment, storage, recycling or transportation of any Hazardous Materials, TENANT shall properly package the Hazardous Materials and shall cause to be executed and duly filed and retain all records required by federal, state or local law; (iv) that TENANT will at all reasonable times permit LANDLORD or its agents or employees to enter the leased premises to inspect the same for compliance with the terms of this paragraph and will further provide upon five (5) days' notice from LANDLORD copies of all records which TENANT may be obligated to obtain and keep in accordance with the terms of this paragraph; (v) that upon termination of this lease, TENANT will, at its expense, remove all Hazardous Materials from the leased premises and comply with applicable state, local and federal laws as the same may be amended from time to time; and (\ii) TENANT further agrees to deliver the leased premises to LANDLORD at the termination of this lease free of all Hazardous Materials. The terms used in this paragraph shall include, without limitation, hazardous or toxic all substances, materials that may be deemed hazardous to human materials, etc., designated by such terms under any laws, ordinances or animal healthregulations, including without limitationwhether federal, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store state or dispose of any Hazardous Materials in the Building or Propertylocal. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord TENANT further agrees to defend, indemnify, hold harmless and hold Tenant harmless from indemnify LANDLORD for and against any and all claims, loss, costs, damages, damages and expenses, and/or liabilities (including reasonable attorneys' fees) , which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate arise in the manner specified event that TENANT fails to comply with any of the provisions contained in this Section, within Article. The terms of this Article shall expressly survive the specified time periods, then, Tenant may give Landlord 10 days' prior written notice expiration or earlier termination of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaselease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Commercial Lease (Growlife, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided under or about the Premises for the succeeding twelve-month period. In addition, to the extent that in doing soTenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample, and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by LawsSection 5.3, and in compliance connection therewith Tenant shall provide Landlord with Lawsfull access to all relevant facilities, records and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalfpersonnel. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall so remove or remediate have the Hazardous Materialsright, Tenant may deduct but not the costs for such removal obligation, without limitation upon any of Landlord's other rights and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord remedies under this Lease.
(ii) with regard , to immediately enter upon the presence or release of any Hazardous Materials caused by Premises without notice and to discharge Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and 's obligations under this Section 5.3 at Tenant's sole cost; expense, including without limitation the taking of emergency or long-term remedial action. Landlord and Xxxxxx agrees its agents shall endeavor to defendminimize interference with Tenant's business in connection therewith, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding but shall not be liable for any such Hazardous Materials (whether alleged or real)interference. In addition, and/or regarding Landlord, at Tenant's expense, shall have the removal right, but not the obligation, to join and remediation of same.participate in any legal proceedings
Appears in 1 contract
Samples: Industrial Lease (Jni Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions reasonably approved in advance in writing by Landlord that are necessary to return the Premises and the Site and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. However, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Site or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Site from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term caused by Tenant, its agents and employees or (B) on, into, from, under or about the Premises, the Building or the Site and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Site, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Site as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Site or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials shall be found at the Site known by Landlord to exist as of the date of this Lease, as more particularly described in or on the Building or Property, then:
(i) with regard Exhibit C attached hereto. Notwithstanding anything to the presence contrary contained herein, Tenant shall have no liability or release of responsibility with respect to the Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease (Endwave Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises or the Site (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain ---------------- such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord only, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached --------- hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises, the Site and/or the soil groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith, Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises and/or the Site caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises and/or the Site without notice and to discharge Tenant's obligations under this Section 5.3 at Tenants expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises and/or the Site.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises and/or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of Premises and/or the Site, or (iii) injury to or contamination or any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises, the Site and Property shall be free from contamination any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not be obligated not, without Landlord's prior written consent, take any remedial action in response to accept possession of the Building and Property until presence or any Hazardous Materials found on, under or about the Premises, the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or on about the Building Premises, the Site or Property have been removedany other affected real or personal property owned by Landlord (i) imposes all immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion or Landlord's interest in the Premises, the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Site and any other real or personal property owned by Landlord caused or permitted by Tenant its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Site and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such actions is required or necessary during the Term or after the expiration of this Lease. If Landlord has supplied at any time discovers that Tenant with or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a certificate Hazardous Material on under, from or about the appropriate governmental authority that such removal has been completedPremises, the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord has restored a comprehensive plan, subject to Landlord's approval, specifying the Building and Property actions to be taken by Tenant to return the Premises, the Site or any other real or personal property owned by Landlord to the condition which existed immediately existing prior to the introduction of such removal and/or otherwise Hazardous Materials. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in conformance equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Premises and/or the Site known by Landlord to exist is of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no --------- liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which --------- Tenant shall proves were not have caused, Landlord shall, with diligence, remove caused or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises and/or the Site that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Samples: Sublease Agreement (Artest Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials material or waste.
(b) Except for Hazardous Materials reasonably required to conduct Tenant’s business in the Premises and disclosed to Landlord as provided in Section 5.3(c) below, Tenant shall not cause or knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released, or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as cleaning supplies, photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of all such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may require that Tenant demonstrate that any such Hazardous Materials will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize any environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant’s indemnity contained in this Section 5.3.
(c) Prior to the execution of this Lease, Tenant shall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed hazardous incorporated into this Lease for all purposes, and Landlord shall be entitled to human rely fully on the information contained therein. Promptly following request by Landlord (but not more often than annually during the Lease Term), Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials, if any, which were stored, generated, used, released and/or disposed of on, under or animal healthabout the Premises since the last such disclosure, as well as those items which Tenant desires to store, generate, use, release and/or dispose of on, under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental documents relating thereto to reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall use commercially reasonable efforts to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference absent Landlord’s willful misconduct. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to substantially the same condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, oil and petroleum derivatives and productsany cleanup, asbestosremediation, lead paint and radon.
(b) removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant represents and warrants thatshall not, except as herein set forthwithout Landlord’s prior written consent not to be unreasonably withheld, it will not useconditioned or delayed, store or dispose take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the Building event that the presence of Hazardous Materials on, under or Property. Xxxxxxxx agrees that Tenant may use such commercial about the Premises or household type cleaners and chemicals the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to maintain the Building health, safety or Property. Storage welfare of any individual or (ii) is of such chemicals a nature that an immediate remedial response is also permittednecessary and it is not possible to obtain Landlord’s consent before taking such action. Landlord and Tenant acknowledge that any or all of To the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination fullest extent permitted by Hazardous Materials. Notwithstanding anything in this Lease to the contrarylaw, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation reasonable attorneys' ’ fees) which Tenant may suffer as a result , court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Buildings and the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any claimrequired or necessary repair, suitrestoration, cleanup or detoxification of the Premises, the Buildings and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action regarding any such Hazardous Materials (whether alleged is required or real), and/or regarding necessary during the removal and remediation Term or after the expiration of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or releasethis Lease. If Landlord shall fail to commence at any time discovers that Tenant or cause its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the commencement to remediate in release of Hazardous Materials on, under from or about the manner specified in this Section, within Premises or the specified time periods, thenProject or any other real or personal property owned by Landlord, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on shall, at Landlord’s behalf. If Tenant shall so remove or remediate request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s reasonable approval, specifying the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable actions to be taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.to
Appears in 1 contract
Samples: Sublease Agreement (Palm Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and it’s agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initialed in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, all its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard certain facts relating to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and Project as more particularly described in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this LeaseExhibit C attached hereto.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize a third party environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and Tenant agrees that the reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand. In addition, Landlord my utilize a third party environmental consultant to conduct periodic inspections of the storage, generation, use, release and/or disposal of Hazardous Materials by Tenant on and from the Premises and, in the Building or Property. Xxxxxxxx agrees event such inspections reveal that Tenant may is in violation of its obligations under this Section with respect to the storage, generation, release, disposal or use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision , Tenant shall bear the reasonable costs incurred by Landlord in connection with such inspections.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and Master Lessor, and any successors to all or any portion of Landlord’s and/or Master Lessor’s interest in the Premises and in the Project and in any other real or personal property owned by Landlord or Master Lessor, from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord or Master Lessor caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord or Master Lessor, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord or Master Lessor, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord or Master Lessor, to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall which were not have caused, Landlord shall, with diligence, remove caused or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease (Sonics, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs reasonably incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant's indemnity contained in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials, if any, which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant shall not have causedMaterial on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord shalland its agents shall have the right, with diligencebut not the obligation, remove or remediate or cause the remediation or removal without limitation upon any of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; other rights and Landlord agrees remedies under this Lease, to defendimmediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, indemnifyincluding, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing the taking of emergency or long-term remedial action. Landlord and professional costs) from Fixed Rent its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and other amounts payable participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant to Landlord under this Leaseor its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(iie) with regard to If the presence or release of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, Tenant at its expense, shall remove promptly take all actions necessary to return the Premises and the Project and any other affected real or remediate same personal property owned by Landlord to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees condition existing prior to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result the introduction of any claim, suit, or action regarding any such Hazardous Materials (whether alleged and to remedy or real)repair any such injury or contamination, and/or regarding the removal and remediation including, without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of same.any such
Appears in 1 contract
Samples: Lease Agreement (Broadcom Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includemeans (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person's possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises (collectively, the “Permitted HazMats”): (i) a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not "White Out", and the like), provided however, that Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products; and (ii) those Hazardous Materials in kind and content listed on the Survey Form delivered to Landlord prior to the execution of this Lease. Tenant shall comply with all applicable laws with respect to the Permitted Hazmats, and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all Permitted Hazmats. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. including without limitation, conditions for proper containment and ventilation of such Materials. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, use, store execute and dispose deliver to Landlord a Hazardous Material Survey Form (the "Survey Form") in the form of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Exhibit J attached hereto; and Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease hereby consents to the contrarykinds and quantities of Hazardous Materials to be used by Tenant in the Premises as shown in the Environmental Questionnaire delivered to Landlord prior to the execution of this Lease. For so long as the kinds and quantities of Hazardous Materials used by Tenant in the Premises are not materially different from those shown in the Environmental Questionnaire, Tenant shall not be obligated required to accept possession purchase the Hazardous Materials “impairment” insurance specified in Section 1 of the attached Exhibit D. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. Upon written request by Landlord, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, release and/or dispose of on, under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide Landlord, upon written request, with complete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's storage, generation, use, release and/or disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with IOPLEGAL-4-47 - 242884 - 0.1 any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building and Property until or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees caused or permitted the release of any Hazardous Materials found in on, under, from or on about the Premises, the Building or Property have been removedthe Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord has supplied a comprehensive plan, subject to Landlord's approval, specifying the actions to be taken by Tenant with a certificate from to return the appropriate governmental authority that such removal has been completedPremises, and Landlord has restored the Building and Property or the Project or any other real or personal property owned by Landlord to the condition which existed immediately existing prior to the introduction of such removal Hazardous Materials. Upon Landlord's approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to cleanup, remediate and/or otherwise remove all such Hazardous Materials in conformance accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, subtenants, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease Agreement (Cepheid)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products and cleaning materials that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant shall not have causedMaterial on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, and affecting the Premises or any adjacent Property, Landlord shalland its agents shall have the right, with diligence, remove or remediate or cause but not the remediation or removal obligation (without limitation upon any of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; other rights and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord remedies under this Lease.
), after notice to Tenant and Tenant's failure to discharge its obligations under this Section 5.3 after such notice (ii) with regard to provided that no notice shall be required in the presence or release case of any Hazardous Materials caused by Tenantemergency), Tenant shall remove or remediate same to immediately enter upon the extent required by Laws, Premises without notice and in compliance with Laws, and at to discharge Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.obligations under this
Appears in 1 contract
Samples: Industrial Lease (Quantum Corp /De/)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includemeans (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person's possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the "Survey Form") in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. Following the written request of Landlord on or after each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. Except in cases of emergency (where no notice shall be required), Landlord shall provide Tenant with at least 48 hours prior written notice or any such inspection, which shall occur during normal business hours, and Landlord shall use its reasonable efforts to minimize any interference with Tenant’s business operations during any such inspection. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease: (i) to enter upon the Premises following 10 days prior written notice to Tenant thatand Tenant’s failure to cure within said 10 days, as to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, and (ii) in cases of emergency, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection with any such entry on the Premises. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the date on which Landlord shall deliver possession storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, subtenants, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Property Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, subtenants, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, subtenants, contractors, licensees or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that which Tenant shall proves were not have causedcaused or permitted by Tenant, Landlord shallits agents, with diligenceemployees, remove subtenants, contractors, licensees or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, subtenants, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of those Hazardous Materials conditions described in compliance with Lawsthis Section 5.3(f) for which Tenant has no liability or responsibility. The foregoing obligation on the part of Landlord shall include the reasonable costs (including, and at Landlord's sole cost; and Landlord agrees to defendwithout limitation, indemnify, and hold reasonable attorney’s fees) of defending Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of XxxxxxTenant’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaseattention.
(iig) with regard Except as disclosed in Section 5.3(f) above (and/or as may otherwise be disclosed to Tenant in writing), Landlord warrants that, to “Landlord’s knowledge” (as hereinafter defined), there are no Hazardous Materials in or about the presence or release Premises which are in violation of any applicable federal, state or local law, ordinance or regulation. As used herein, “Landlord’s knowledge” shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samematters.
Appears in 1 contract
Samples: Lease (Lantronix Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), and reasonable quantity of laboratory products that may contain Hazardous Materials (such as acetone, isopropyl alcohol, Propanol, Amber clean, Alpha Flux, PC board etching solution, vacuum pump oil (ULVAC SMR-100), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed bx Xxxxnt to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclxxxxx Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, May 5, 2005 701423328v1 used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. Xx xxxition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any xxxxx proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials that on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not have causednot, Landlord shallwithout Landlord's prior written consent, with diligence, remove which consent may be given or remediate or cause the remediation or removal of same to the extent required by Laws, and withheld in compliance with Laws, and at Landlord's sole costand absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazarxxxx Xxxerials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and Landlord agrees (xx) xx of such a nature that an immediate remedial response is necessary and it is not possible to defendobtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys acceptable to Landlord) Landlord and Master Lessor, and any successors to all or any portion of Landlord's and/or Master Lessor's interest in the Premises and in the Project and in any other real or personal property xxxxx by Landlord or Master Lessor, from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including reasonable without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) which Tenant may suffer on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord or Master Lessor caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord or Master Lessor, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any claimtime discovered that Tenant or its agents, suitemployees, contractors, licensees or action regarding invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord or Master Lessor, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord or Master Lessor, to the condition existing prior to the introduction of such Hazardous Materials. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or sooner termination of this Lease. May 5, 2005 701423328v1
(whether alleged f) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall have no liability or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail responsibility with respect to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous MaterialsMaterials facts described in Exhibit C, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant nor with respect to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials which Tenant proves were neither released on the Premises during the Term nor caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any expoxxxx xr potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation ox Xxxxlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants thatshall have the right, except as herein set forth, it will not use, store or dispose without obtaining prior written consent of Landlord but with written notice to Landlord prior to first usage of any particular Hazardous Materials, to utilize within the Premises a reasonable quantity of Hazardous Materials in connection with Tenant’s business operations in the Building or Property. Xxxxxxxx agrees Premises, provided however, that (i) Tenant may shall follow all instructions on the packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Tenant understands that Landlord may utilize an environmental consultant to assist in determining Tenant’s compliance with this paragraph Section 5.3 in connection with the storage, use, release, and/or disposal of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Xxxxxx to Landlord as additional rent hereunder upon demand.
(c) Tenant shall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in a form (which may constitute Hazardous Materialsbe electronic and/or accessed via an internet link) provided by Landlord within 10 days following Xxxxxxxx’s written request therefor. Notwithstanding any other provision The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant mayshall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Xxxxxx’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Xxxxxx’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises and Property shall be free from contamination the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not not, without Landlord’s prior written consent, which consent may be obligated given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to accept possession the presence of the Building and Property until any Hazardous Materials found on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or on about the Building Premises or Property the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Buildings or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Buildings and the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Buildings or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may have been removedcaused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Buildings or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord has supplied a comprehensive plan, subject to Landlord’s approval, specifying the actions to be taken by Tenant with a certificate from to return the appropriate governmental authority that such removal has been completedPremises, and the Buildings or the Project or any other real or personal property owned by Landlord has restored the Building and Property to the condition which existed immediately existing prior to the introduction of such removal Hazardous Materials. Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to cleanup, remediate and/or otherwise remove all such Hazardous Materials in conformance accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials which Tenant proves were not caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Notwithstanding the preceding two sentences, Xxxxxx agrees to notify its agents, employees, contractors, licensees, subtenants, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Xxxxxx’s attention. Tenant shall not have causedhereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord, to the best of its knowledge, represents to Tenant that except for normal janitorial, maintenance and office supplies and except as otherwise disclosed herein, no hazardous or toxic materials are present in or about the Buildings. Should any such materials be discovered and should their remediation be legally required, then unless such materials were introduced by Tenant, its agents, employees, subtenants, vendors, licensees, invitees or contractors, Landlord shall, with diligence, remove or shall remediate or cause the remediation or removal of same to the extent required by Laws, at its expense and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and shall hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate cost in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaseconnection therewith.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease (Axonics, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listing and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have causedthe right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees condition existing prior to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result the introduction of any claim, suit, or action regarding any such Hazardous Materials (whether alleged and to remedy or real)repair any such injury or contamination, and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and any cleanup, remediation, removal, disposal, neutralization or other amounts payable by treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant to Landlord under this Lease.
(ii) with regard shall not, without Landlord's prior written consent, take any remedial action in response to the presence or release of any Hazardous Materials caused on, under or about the Premises or the Project or any other affected real or personal property owned by TenantLandlord or enter into any similar agreement, Tenant shall remove consent, decree or remediate same other compromise with any governmental agency with respect to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real)claims; provided however, and/or regarding Landlord's prior written consent shall not be necessary in the removal and remediation event that the presence of same.Hazardous Materials on, under
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), PROVIDED HOWEVER, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the ""Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permits applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including, without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Materials on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove agrees to notify its agents, employees, contractors, licensees, and invitees of any exposure or remediate same potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Except as disclosed in EXHIBIT C (and/or as may otherwise be disclosed to Tenant in writing), Landlord represents that, to the extent required by Lawsbest of its all actual knowledge without duty of inquiry or investigation whatsoever, and there are no Hazardous Materials in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) or about the Premises which Landlord may suffer as a result are in violation of any claimapplicable federal, suitstate or local law, ordinance or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameregulation.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office and cleaning products that may contain Hazardous Materials (such as photocopy toner, “White Out”, glue, ink, janitorial cleaning supplies, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials (excluding those referred to in the second sentence of this Section 5.3(b) above) by Tenant on and from the Premises, and Tenant agrees that any reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord to conduct periodic inspections unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant’s indemnity obligations contained in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials (excluding those referred to in the second sentence of Section 5.3(b) above) which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials (excluding those referred to in doing sothe second sentence of Section 5.3 (b) above) upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, at Landlord’s expense (except as otherwise expressly provided herein), to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, and in connection therewith Tenant shall, at reasonable times and in a manner as to minimize interference with Tenant’s business, provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project, in each case as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which were neither released on the Premises during the Term nor caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Landlord shall take responsibility, at its sole cost and expense, for any Hazardous Materials classified as such and existing in the Premises as of the date of this Lease and required to be removed, encapsulated or treated under any applicable law, or any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of the Hazardous Materials conditions described in this Section 5.3(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney’s fees) of defending Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease (AutoTrader Group, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents, if any, relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall use reasonable efforts to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of samePremises that Landlord brings to Tenant’s attention.
Appears in 1 contract
Hazardous Materials. Except as provided in Paragraph 9(b)(1) below Tenant shall not use, generate, manufacture, produce, store, release, discharge, or dispose of, on, under or about the Premises or any part of the Project, or transport to or from the Premises or any part of the Project, any Hazardous Material (as defined below) or allow its employees, agents, contractors, licensees, invitees or any other person or entity to do so.
(1) Notwithstanding the foregoing, Tenant shall be permitted to use and store in, and transport to and from, the Premises the Hazardous Materials identified on EXHIBIT D hereto and by this reference incorporated herein, including wastes generated from the use of such identified Hazardous Materials ("Permitted Hazardous Materials") so long as: (a) For each of the purposes hereofPermitted Hazardous Materials is used or stored in, or transported to and from, the term "Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous Premises only to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
the extent necessary for Tenant's operation of its business at the Premises; (b) at no time shall any Permitted Hazardous Material be on, under or about the Premises in excess of the quantity specified therefor in EXHIBIT D; and (c) the conditions set forth in this Paragraph 9(b) are strictly complied with. If Tenant represents and warrants that, except as herein set forth, it will not desires to use, store in, or dispose of any transport to the Premises Hazardous Materials other than Permitted Hazardous Materials used by Tenant in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date quantities designated on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, EXHIBIT D Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and notify Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within least thirty (30) days prior to such proposed use, storage or transportation, and any such use, storage or transportation of knowledge additional Hazardous Materials (and any related amendment or supplement of EXHIBIT D) shall be subject to Landlord's prior written consent, which consent may be withheld in Landlord's sole discretion. The right to use and store in, and transport to and from, the Premises the Permitted Hazardous Materials is personal to Advanced Polymer and may not be assigned or otherwise transferred by Advanced Polymer without the prior written consent of Landlord, which consent may be withheld in Landlord's sole discretion. Any consent by Landlord pursuant to Paragraph 15 of this Lease to an assignment, transfer, subletting, mortgage, pledge, hypothecation or encumbrance of this Lease, and any interest therein or right or privilege appurtenant thereto, shall not constitute consent by Landlord to the use or storage in, or transportation to, the Premises of any Hazardous Material (including a Permitted Hazardous Material) by any such assignee, sublessee or transferee unless Landlord expressly agrees otherwise in writing. Any consent by Landlord to the use or storage in, or transportation to or from the Premises, of any Hazardous Material (including a Permitted Hazardous Material) by an assignee, sublessee or transferee of Tenant shall not constitute a waiver of Landlord's right to refuse such consent as to any subsequent assignee or transferee.
(2) Tenant shall comply with and shall cause Tenant's employees, agents, contractors, licensees and invitees (collectively, "Tenant's Agents") to comply with, and shall keep and maintain the Premises and cause Tenant's Agents to keep and maintain the Premises, in compliance with all Environ-mental Laws (as defined below). Neither Tenant nor Tenant's Agents shall violate, or cause or permit the Premises to be in violation of, any Environmental Laws. Tenant shall, at its own expense during Tenant's use or occupancy, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for Tenant's use of the Premises. Following the Commencement Date or such earlier date as Tenant takes possession of or commences use of the Premises for construction of Tenant Improvements or otherwise, Tenant shall cause any and all Hazardous Materials removed from the Premises to be removed and transported solely by duly licensed handlers to duly licensed facilities for final disposal of such presence or releasematerials and wastes. If Landlord shall fail to commence or cause Tenant acknowledges that the commencement to remediate in sewer piping at the manner specified in this SectionProject is made of ABS plastic. Accordingly, within the specified time periods, then, Tenant may give Landlord 10 days' without Landlord's prior written notice of Xxxxxx’s election consent, which may be given or withheld in Landlord's sole discretion, only ordinary domestic sewage is permitted to remove or remediate be put into the Hazardous materials on Landlord’s behalfdrains at the Premises. UNDER NO CIRCUMSTANCES SHALL TENANT EVER DEPOSIT ANY ESTERS OR KETONES (USUALLY FOUND IN SOLVENTS TO CLEAN UP PETROLEUM PRODUCTS) IN THE DRAINS AT THE PREMISES. If Tenant desires to put any substances other than ordinary domestic sewage into the drains, it shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant first submit to Landlord under this Lease.
(ii) with regard to a complete description of each such substance, including its chemical composition, and a sample of such substance suitable for laboratory testing. Landlord shall promptly determine whether or not the presence or release of any Hazardous Materials caused by substance can be deposited into the drains and its determination shall be absolutely binding on Tenant. Upon demand, Tenant shall remove or remediate same to reimburse Landlord for expenses incurred by Landlord in making such determination. If any substances not so approved hereunder are deposited in the extent required by Laws, and drains in compliance with Laws, and at Tenant's sole cost; Premises, Tenant shall be liable to Landlord for all damages resulting therefrom, including, but not limited to, all costs and Xxxxxx agrees to defend, indemnify and hold expenses incurred by Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, in repairing or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding replacing the removal and remediation of samepiping so damaged.
Appears in 1 contract
Samples: Lease Agreement (Advanced Polymer Systems Inc /De/)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant shall not have causedMaterial on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord shalland its agents shall have the right, with diligencebut not the obligation, remove or remediate or cause the remediation or removal without limitation upon any of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; other rights and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord remedies under this Lease.
(ii) with regard , to immediately enter upon the presence or release of any Hazardous Materials caused by Premises without notice and to discharge Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and 's obligations under this Section 5.3 at Tenant's sole cost; expense, including without limitation the taking of emergency or long-term remedial action. Landlord and Xxxxxx agrees its agents shall endeavor to defendminimize interference with Tenant's business in connection therewith, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding but shall not be liable for any such Hazardous Materials (whether alleged interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or real), and/or regarding the removal and remediation of same.actions initiated in connection with any claims arising
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like) (the "Permitted Materials"), PROVIDED HOWEVER, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials (other than the Permitted Materials) by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials (other than the Permitted Materials) by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. Except as set forth in subsection 5.3(f), below, if Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials which were not caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the brings to Tenant's attention. Any remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged from the Premises or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to Project the presence of which was not caused or release of any Hazardous Materials caused permitted by Tenant, Tenant its agents, employees, contractors, licensees, or invitees shall remove be at the cost of Landlord or remediate any third party who may be responsible for the same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer shall not be included as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameBuilding Cost.
Appears in 1 contract
Samples: Industrial Lease (Scoop Inc/De)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease (Ydi Wireless Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out,” common office cleaning supplies and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and as additional rent hereunder upon demand; however, Tenant acknowledge that shall have no obligation to reimburse Landlord for any or all costs incurred in connection with any periodic inspections of the cleaners and chemicals described Premises pursuant to this Section 5.3(b) unless Tenant shall be in default of its obligations under this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. Upon the written request of Landlord, on each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. The foregoing inspections, sampling and/or monitoring shall be at Landlord’s sole cost and expense unless Tenant shall be in default of its obligations under this Section 5.3. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease (Biolase Technology Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove which were neither released on the Premises during the Term nor caused or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease (Netlist Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which Tenant shall not have causedproves were neither released on the Premises during the Term nor caused or permitted by Tenant, Landlord shallits agents, with diligenceemployees, remove contractors, licensees or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in compliance with Lawsthis Section 5.3(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, and at Landlordwithout limitation, reasonable attorney's sole cost; and Landlord agrees to defend, indemnify, and hold fees) of defending Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this LeaseTenant's attention.
(iig) with regard Except as disclosed in Section 5.3(f) above (and/or as may otherwise be disclosed to Tenant in writing), Landlord represents that, to "Landlord's knowledge" (as hereinafter defined), there are no Hazardous Materials in or about the presence or release Premises which are in violation of any applicable federal, state or local law, ordinance or regulation. As used herein, "Landlord's knowledge" shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samematters.
Appears in 1 contract
Samples: Lease (Intest Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local haw or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), PROVIDED HOWEVER, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terns of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results is (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety of welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, flues, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, tinder or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in it EXHIBIT C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Samples: Industrial Lease (Sensar Corp /Nv/)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s reasonable discretion in accordance with this Section 5.3. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises (collectively, the “Permitted Hazmats”): (i) a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner,“White Out”, it will not and the like), provided however, that Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products; and (ii) those Hazardous Materials in kind and content listed on the Survey Form delivered to Landlord prior to the execution of this Lease. Tenant shall comply with all applicable laws with respect to the Permitted Hazmats, and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all Permitted Hazmats. Landlord may, in its reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, use, release, and/or disposal of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Xxxxxx agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Xxxxxx shall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the Building or Propertyform of Exhibit J attached hereto. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and chemicals Landlord shall be entitled to maintain rely fully on the Building or Propertyinformation contained therein. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all On each anniversary of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Commencement Date until the expiration or sooner termination of this Lease, Tenant mayshall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Xxxxxx’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Xxxxxx’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to to the “Required Condition” (as hereinafter defined) and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. As used herein, “Required Condition” shall mean returning the Premises and the Project and any other directly affected real or personal property owned by Landlord to a condition that is required by applicable federal, state or local law, regulation or order, including without limitation, performing any required cleanup, remediation, removal, disposal, neutralization or other treatment of Hazardous materials. Notwithstanding the foregoing, Tenant shall not have causednot, Landlord shallwithout Landlord’s prior written consent, with diligencewhich consent may be given or withheld in Landlord’s sole and absolute discretion, remove or remediate or cause the remediation or removal of same take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Xxxxxxxx’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent required permitted by Lawslaw, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including reasonable without limitation attorneys' ’ fees) which Tenant may suffer , court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may deduct have caused or permitted the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by TenantLandlord, Tenant shall remove shall, at Xxxxxxxx’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s reasonable approval, specifying the actions to be taken by Tenant to return the Premises, the Building or remediate same the Project or any other real or personal property owned by Landlord to the extent required by LawsRequired Condition. Upon Landlord’s approval of such plan, Tenant shall, at its expense, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result without limitation of any claimrights and remedies of Landlord under this Lease or at law or in equity, suitimmediately implement such plan and proceed to cleanup, or action regarding any remediate and/or remove all such Hazardous Materials (whether alleged in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or real), and/or regarding the removal and remediation sooner termination of samethis Lease.
Appears in 1 contract
Samples: Lease (Capstone Dental Pubco, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includemeans (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person's possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the "Survey Form") in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. Following the written request of Landlord on or after each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. Except in cases of emergency (where no notice shall be required), Landlord shall provide Tenant with at least 24 hours prior verbal notice or any such inspection, which shall occur during normal business hours, and Landlord shall use its reasonable efforts to minimize any interference with Tenant’s business operations during any such inspection. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection with any such entry in the Premises. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that which Tenant shall proves were not have causedcaused or permitted by Tenant, Landlord shallits agents, with diligenceemployees, remove contractors, licensees, subtenants or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, subtenants, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of those Hazardous Materials conditions described in compliance with Lawsthis Section 5.3(f) for which Tenant has no liability or responsibility. The foregoing obligation on the part of Landlord shall include the reasonable costs (including, and at Landlord's sole cost; and Landlord agrees to defendwithout limitation, indemnify, and hold reasonable attorney’s fees) of defending Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Except as disclosed in Exhibit H (whether alleged or realand/or as may otherwise be disclosed to Tenant in writing), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail warrants that, to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on “Landlord’s behalf. If Tenant shall so remove knowledge” (as hereinafter defined), there are no Hazardous Materials in or remediate about the Hazardous Materials, Tenant may deduct Premises as of the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under date of this Lease.
(ii) with regard to the presence or release Lease which are in violation of any applicable federal, state or local law, ordinance or regulation. As used herein, “Landlord’s knowledge” shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samematters.
Appears in 1 contract
Samples: Lease Agreement (Lantronix Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which were not caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in this Section 5.3(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney's fees) of defending Tenant shall not have caused, Landlord shall, (with diligence, remove or remediate or cause the remediation or removal of same attorneys reasonably acceptable to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless Tenant) from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Notwithstanding the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Samples: Industrial Lease (Naturade Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding any other provision Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that the reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon written demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including, without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, reasonable attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of samePremises that Landlord brings to Tenant’s attention.
Appears in 1 contract
Samples: Industrial Lease (GoRemote Internet Communications, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person's possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate, or as Ground Lessor may require, with respect to Tenant's use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord's consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall use commercially reasonable efforts to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Ground Lessor, Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors or licensees (including, without limitation, subtenants of Tenant). Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord. ARTICLE VI.
Appears in 1 contract
Samples: Lease Agreement (Hireright Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" means (i) any "hazardous material'' as defined in Section 25501 (o) of the California Health and Safety Code, (ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous materials, substances, wastes or materials as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may result in liability to any person or entity as a result of such person's possession, use, storage, release or distribution of such substance or matter under any statutory or common law theory. Tenant shall includenot cause any Hazardous Materials to be introduced on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without limitationobtaining prior written consent of Landlord, hazardous or toxic substancesto use standard and commercially reasonable quantities of any fuel necessary for Tenant to operate the Generator (as defined in Exhibit G hereto), materials and to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), and provided however, that (i) Tenant shall maintain such products :n their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole but reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use, storage and/or disposal of any Hazardous Materials requiring Landlord's consent. If Tenant uses any Hazardous Materials requiring Landlord's consent, then Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, use, release, and/or disposal of such Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any reasonable out-of-pocket costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder promptly upon demand. Prior to the execution of this Lease, Tenant shall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the "Survey Form") in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed hazardous incorporated into this Lease for all purposes, and Landlord shall be entitled to human rely fully on the information contained therein. If Tenant uses any Hazardous Materials requiring Landlord's consent, then on each anniversary of the Commencement Date until the expiration or animal healthsooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, release and/or dispose of on, under or about the Premises for the succeeding twelvemonth period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential, but subject to Landlord's signing . Tenant's standard non-disclosure agreement, provided such agreement is reasonable) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials on the Project. Landlord and its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused by Tenant, its agents, employees, contractors, licensees, subtenants or invitees in violation of applicable law or this Lease, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice in the event of an emergency, but otherwise with reasonable prior notice, and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, and shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises in violation of applicable law or this Lease. If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to remedy or repair any such injury or contamination, including without limitation, oil and petroleum derivatives and productsany cleanup, asbestosremediation, lead paint and radon.
(b) Tenant represents and warrants thatremoval, except as herein set forthdisposal, it will not use, store neutralization or dispose other treatment of any such Hazardous Materials in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners as and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Lawsapplicable law. Notwithstanding the foregoing, and in compliance with LawsTenant shall not, and at without Landlord's sole costprior written consent, which consent shall not be unreasonably withheld, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and Landlord agrees (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to defendobtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys reasonably acceptable to Landlord and Tenant's insurance carrier) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including reasonable without limitation attorneys' fees) which Tenant may suffer , court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project in violation of applicable law or this Lease caused by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises. the Building and the Project in accordance with applicable law, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may deduct have caused the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused on, under, from or about the Premises, the Building or the Project in violation of applicable law or this Lease, Tenant shall, at Landlord's request, promptly prepare and submit to Landlord a comprehensive plan, subject to Landlord's reasonable approval, specifying the actions to be taken by Tenant to remediate such Hazardous Materials in accordance with applicable law. Upon Landlord's approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, as soon as reasonably possible implement such plan and proceed to cleanup, remediate and/or remove all such Hazardous Materials in accordance with all applicable laws and as required by such plan. The provisions of this Section 5.3(e) shall expressly survive the expiration or sooner termination of this Lease. Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Notwithstanding the foregoing or anything to the contrary contained in this Lease, Tenant shall have no liability or responsibility with respect to the Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that were not introduced by Tenant, its agents, employees, contractors, licensees, subtenants or invitees in violation of applicable law or this Lease. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsuse reasonable efforts to notify its agents, employees, contractors, licensees, subtenants, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost; cost and Xxxxxx agrees to defendexpense, indemnify and hold for any governmentally ordered clean-up, remediation, removal, disposal, neutralization or other treatment of those Hazardous Materials conditions described in Section 5.3(f) above for which Tenant has no liability or responsibility. The foregoing obligation on the part of Landlord harmless shall include the reasonable costs (including, without limitation, reasonable attorney's fees) of defending Tenant from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Except as disclosed in Section 5.3(f) above (whether alleged or realand/or as may otherwise be disclosed to Tenant in writing), and/or regarding Landlord warrants that, to "Landlord's knowledge" (as hereinafter defined), there are no Hazardous Materials in or about the removal and remediation Premises as of samethe date of this Lease which are in violation of any applicable federal, state or local law, ordinance or regulation. As used herein, "Landlord's knowledge" shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials compliance matters.
Appears in 1 contract
Samples: Sublease (Upwork Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of any Except for those Hazardous Materials in identified on the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals Environmental Questionnaire approved by Landlord prior to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant shall not cause or knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, store release and/or disposal of such Hazardous Materials by Tenant on and dispose of same from the Premises, and Tenant agrees that any costs reasonably incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as herein set forth, provided that in doing soadditional rent hereunder upon demand; however, Tenant complies shall have no obligation to reimburse Landlord for any costs incurred in connection with Lawsany environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant's indemnity contained in this Section 5.3.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease Prior to the contraryexecution of this Lease, Tenant shall not complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removeddeemed incorporated into this Lease for all purposes, and Landlord has supplied shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant with a certificate from shall disclose to Landlord in writing the appropriate governmental authority that such removal has been completednames and amounts of all Hazardous Materials, if any, which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and Landlord has restored which Tenant desires to store, generate, use, release and/or dispose of on, under or about the Building and Property Premises for the succeeding twelve-month period. In addition, to the condition extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which existed immediately prior may be characterized as confidential) relating to such removal water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or otherwise in conformance disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by LawsSection 5.3, and in compliance connection therewith Tenant shall provide Landlord with Lawsfull access to all relevant facilities, records and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalfpersonnel. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and is not in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation provisions of same.this Section 5.3,
Appears in 1 contract
Samples: Industrial Lease (Omm Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and if any other provision such inspection reveals a violation by Tenant of its obligations under this Section, Tenant agrees that any costs reasonably incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant shall not have causedMaterial on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord shalland its agents shall have the right, with diligencebut not the obligation, remove or remediate or cause the remediation or removal without limitation upon any of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; other rights and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(iie) with regard to If the presence or release of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, Tenant at its expense, shall remove promptly take all actions necessary to return the Premises and the Project and any other affected real or remediate same personal property owned by Landlord to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.condition existing
Appears in 1 contract
Samples: Industrial Lease (Broadcom Corp)
Hazardous Materials. Tenant shall not cause, or allow any of Tenant's Parties to cause, any Hazardous Materials to be generated, stored, used, treated, removed, transported, handled and disposed of on or about the Premises, the Building or the Project without Landlord's prior written approval, provided that, Tenant shall be permitted to use the Disclosed Hazardous Materials in the ordinary course of its business subject to the conditions and requirements of this Lease. Landxxxx'x xonditional authorization of the Disclosed Hazardous Materials shall be strictly limited to the types of quantities described in Exhibit F, and shall not be construed as an authorization for Tenant to generate, store, use, treat, remove, transport, handle or dispose of any additional quantities of Disclosed Hazardous Materials or any other Hazardous Materials in, on, about or under the Premises, Building or the Project. Tenant acknowledges that any change in the types or quantities or Disclosed Hazardous Materials described in Exhibit F, or any change in the means and methods of generating, storing, treating, removing, transporting, handling or disposing of such Disclosed Hazardous Materials, shall require the prior written approval of Landlord in each instance. Tenant represents and warrants to Landlord that (a) For prior to its use of Hazardous Materials on the purposes hereofPremises, it will have received or obtained issuance of, and will maintain in effect, all permits, approvals, licenses, or other authorizations necessary for Tenant's activities with respect to the Disclosed Hazardous Materials, and (b) Tenant has not been cited, fined, or otherwise found to be in violation of any governmental requirement or fire, safety and insurance requirements or regulations applicable to any Disclosed Hazardous Materials, and (b) Tenant has not been cited, fined, or otherwise found to be in violation of any governmental requirement or fire, safety and insurance requirements or regulations applicable to any Disclosed Hazardous Materials or any other Hazardous Materials in any other leased premises. At least once during each twelve (12) month of the Lease Term, Tenant shall provide Landlord with an inventory list describing the minimum and maximum quantities of each of the Disclosed Hazardous Materials generated, stored, used, treated, removed, transported, handled and disposed of on or about the Premises, the term Building or the Project the succeeding twelve (12) months, and a copy of its Hazardous Materials Management Plan ("HMMP") in the form submitted by Tenant to the fire department. Tenant agrees to notify Landlord immediately if Tenant receives notification or otherwise becomes aware of: (a) any threatened or actual release, spill or discharge of any other any Disclosed Hazardous Materials in, on, about or under the Premises, the Building or the Project, or (b) any threatened or actual lien, action, or proceeding or notice that any Disclosed Hazardous Materials or any other Hazardous Materials is not being generated, stored, used, treated, removed, transported, placed, manufactured, handled, or disposed of in strict compliance with any and all governmental requirements and regulations or applicable fire, safety or insurance requirements and regulations. If Tenant or any of Tenant's Parties is partially or wholly responsible or potentially responsible for such condition, situation, lien, action or notice, Tenaxx'x xotice to Landlord shall include a statement as to the actions Tenant proposes to take in response to such condition, situation, lien, action or notice. As used in this Lease, "Hazardous Materials" shall include, without limitationbut not be limited to, hazardous, toxic and radioactive materials and those substances defined as "hazardous or substances," "hazardous materials," "hazardous wastes," "toxic substances," or other similar designations in any federal, materials that may be deemed hazardous to human state, or animal healthlocal law, including without limitationregulation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of any Hazardous Materials in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permittedordinance. Landlord shall have the right at all reasonable times to inspect the Premises and to conduct tests and investigations to determine whether Tenant acknowledge that any or is in compliance with the foregoing provisions. The costs of all of the cleaners such inspections, tests and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, investigations shall be borne by Tenant may, use, store and dispose of same as herein set forth, provided that so long as Tenant is not in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Default hereunder Tenant shall not be obligated to accept possession responsible for the cost of more than one (1) inspection per calendar year and Tenant's liability for the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that cost of each such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials inspection shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that not exceed $5,000 per inspection. Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, defend (by counsel selected by Landlord and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused approved by Tenant, Tenant which approval shall remove or remediate same to the extent required by Lawsnot be unreasonably withheld), and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify protect and hold Landlord harmless from and against any all liabilities, losses, actually incurred costs and all costs, damages, expenses, and/or liabilities (including demands, causes of action, claims or judgments directly or indirectly arising out of the use, generation, storage or disposal of Hazardous Materials by Tenant or any of Tenant's Parties, which indemnity shall include, without limitation, reasonable attorneys' and consultants' fees) which , the cost of any required or necessary repair, cleanup or detoxification, and the preparation of any closure or other required plans, whether such action is required or necessary prior to or following the termination of this Lease. Neither the written consent by Landxxxx xx the use, generation, storage or disposal of Hazardous Materials nor the strict compliance by Tenant with all laws pertaining to Hazardous Materials shall excuse Tenant from Tenant's obligation of indemnification pursuant to this Paragraph 4.D. Txxxxx'x obligations pursuant to the foregoing indemnity shall survive the termination of this Lease. RULES AND REGULATIONS 5. Tenant shall faithfully observe and comply with any rules and regulations not in conflict with this Lease Landlord may suffer as a result from time to time prescribe in writing for the purpose of any claimmaintaining the proper care, suitcleanliness, safety, traffic flow and general order of the Premises, the Building, or action regarding the Project. Tenant shall cause Tenaxx'x Xarties to comply with all such rules and regulations. Landlord shall not be responsible to Tenant for the non-compliance by any such Hazardous Materials (whether alleged other tenant or real), and/or regarding occupant of the removal Building or the Project with any of the rules and remediation of sameregulations.
Appears in 1 contract
Samples: Lease Agreement (Vaxgen Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" means (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, (ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous materials, substances, wastes or materials as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may result in liability to any person or entity as a result of such person's possession, use, storage, release or distribution of such substance or matter under any statutory or common law theory. ThermoGenesis Holdings Inc. Lease
(b) Tenant shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) in violation of applicable law without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions us Landlord deems appropriate with respect to Tenant's use, storage and/or disposal of any Hazardous Materials requiring Landlord's consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, use, release, and/or disposal of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant shall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, release and/or dispose of on, under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) ,elating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's storage, generation, use, release and/or disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises. ThermoGenesis Holdings Inc. Lease
(e) If the presence of any Hazardous Materials on, under, from or about the Premises caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord, or (B) on, into, from, under or about the Premises, the Building and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, hazardous the cost of any required or toxic substancesnecessary repair, materials restoration, cleanup or detoxification of the Premises, the Building and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of the Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Teem, or that Tenant or its agents, employees, contractors, licensees or invitees may be deemed hazardous to human have caused or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose permitted the release of any Hazardous Materials in on, under, from or about the Premises, the Building or Property. Xxxxxxxx agrees that any other real or personal property owned by Landlord, Tenant may use such commercial or household type cleaners shall, at Landlord's request, immediately prepare and chemicals submit to maintain Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be taken by Tenant to return the Premises, the Building or Property. Storage any other real or personal property owned by Landlord to the condition existing prior to the introduction of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding Upon Landlord's approval of such plan, Tenant shall, at its expense, and without limitation of any other provision rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to cleanup, remediate and/or remove all such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(cSection 5.3(e) Landlord represents and warrants to Tenant that, as of shall expressly survive the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials shall be found in or on at the Building known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall have no liability or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invite of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of same.Landlord. ThermoGenesis Holdings Inc. Lease
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofTo Landlord’s knowledge without investigation, the term "Premises and the Building are concurrently in compliance with all applicable Environmental Laws, and no Hazardous Materials" Materials (other than cleaning agents used in the course of regular janitorial services) exist on, about, or under, the Premises or the Building. Landlord and Tenant agree that, during the Term, each will comply with all Laws, including, without limitation, all Environmental Laws, governing, and all procedures established by Landlord for the use, abatement, removal, storage, disposal or transport of any Hazardous Substances and any required or permitted alteration, repair, maintenance, restoration, removal or other work in or about the Building or the Premises that involves or affects any Hazardous Substances. Except for the lawful use of cleaning agents used in the course of regular janitorial service and laser printer toner cartridges that are disposed of in compliance with applicable Environmental Laws, and such materials of the type and quality consistent with Tenant’s Permitted Use, no Hazardous Substances will be stored, used, released, produced, processed or disposed of in, on or about, or transported to or from, the Building or the Premises by Tenant or any of Tenant’s agents, employees or contractors, without first obtaining Landlord’s express written consent (any Hazardous Substances which are stored, used, released, produced, processed or disposed in, on or about, or transported to or from, the Building or the Premises by any of such persons or entities upon such express written consent are called “Tenant’s Hazardous Substances”). Any such use, storage, disposal or production of the Hazardous Substances permitted by this Section 7.1(b) shall be done in compliance with all Environmental Laws and so as not to result in the Premises being in violation of any Environmental Laws. Upon the Expiration Date or earlier termination of this Lease Tenant, at its expense, will take all action necessary to restore the Building and the Premises to the condition existing prior to the introduction of Tenant’s Hazardous Substances, whether such action is required by any governmental authority in order to comply with applicable Laws or reasonably required by Landlord in order for Landlord to make the same economic use of the Building and the Premises as Landlord could have made prior to the introduction of Tenant’s Hazardous Substances. Such action may include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose the investigation of any Hazardous Materials in the environmental condition of the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to TenantPremises, the Building preparation of remediation plans or feasibility studies and Property shall be free from contamination the performance of cleanup, remedial, removal or restoration work. Tenant will obtain Landlord’s written approval before undertaking any action required by Hazardous Materials. Notwithstanding anything in this Lease to the contrarySection 7.1(b), Tenant shall which approval will not be obligated to accept possession of unreasonably withheld so long as the Building proposed actions will not have an avoidable material and Property until any Hazardous Materials found in or adverse effect on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, Premises. Each party will indemnify and hold Tenant the other and the other’s Affiliates harmless from and against any and all costsclaims, damages, expenses, and/or costs and liabilities (including reasonable attorneys' ’ fees) which Tenant may suffer as a result arising out of or in connection with any claim, suit, or action regarding any breach by such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation party of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord its covenants under this LeaseSection 7.1(b). The parties’ obligations under this Section 7.1(b) will survive the expiration or early termination of the Term.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease Agreement (Encision Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(k) of the California Health and Safety Code, without limitation(ii) any other substance or mater which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit 8 attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and dispose release and/or disposed of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by the Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Samples: Industrial Lease (Dental Medical Diagnostic Systems Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have causedthe right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials, on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees condition existing prior to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result the introduction of any claim, suit, or action regarding any such Hazardous Materials (whether alleged and to remedy or real)repair any such injury or contamination, and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and any cleanup, remediation, removal, disposal, neutralization or other amounts payable by treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant to Landlord under this Lease.
(ii) with regard shall not, without Landlord's prior written consent, take any remedial action in response to the presence or release of any Hazardous Materials caused on, under or about the Premises or the Project or any other affected real or personal property owned by TenantLandlord or enter into any similar agreement, Tenant shall remove consent, decree or remediate same other compromise with any governmental agency with respect to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.claims; provided however,
Appears in 1 contract
Samples: Industrial Lease (Sionix Corp /Ut/)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing: (A) Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products; and (B) Landlord hereby consents to the use by Tenant of the kinds and quantities of Hazardous Materials shown in the Environmental Questionnaire delivered to Landlord prior to the execution of this paragraph may constitute Lease, provided that all of the terms and conditions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such Hazardous Materials. Notwithstanding Landlord may, in reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any other provision such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder, during business hours upon at least 24 hours prior written or oral notice, to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have causedthe right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees condition existing prior to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result the introduction of any claim, suit, or action regarding any such Hazardous Materials (whether alleged and to remedy or real)repair any such injury or contamination, and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard absolute discretion, take any remedial action in response to the presence or release of any Hazardous Materials caused on, from, under or about the Premises or the Project or any other affected real or personal property owned by TenantLandlord or enter into any similar agreement, Tenant shall remove consent, decree or remediate same other compromise with any governmental agency with respect to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real)claims; provided however, and/or regarding Landlord’s prior written consent shall not be necessary in the removal and remediation of same.event that the presence of
Appears in 1 contract
Samples: Lease (Ista Pharmaceuticals Inc)
Hazardous Materials. (aA) For The Company represents, warrants and covenants that the purposes hereofCompany has not used Hazardous Materials on, from or affecting the term "Project Facility in any manner that violates any Applicable Law, including but not limited to those governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials" shall include, without limitationand, hazardous to the best of the Company’s knowledge, no prior owner of the Project Facility or toxic substancesany tenant, materials subtenant, prior tenant or prior subtenant has used Hazardous Materials on, from or affecting the Project Facility in any manner that may be deemed hazardous to human or animal healthviolates any Applicable Law, including without limitationbut not limited to those governing the use, oil and petroleum derivatives and productsstorage, asbestostreatment, lead paint and radontransportation, manufacture, refinement, handling, production or disposal of Hazardous Materials.
(bB) Tenant represents and warrants thatThe Company shall keep or cause the Project Facility to be kept free of all Hazardous Materials, except as herein set forthpermitted in accordance with Applicable Laws. Without limiting the foregoing, it will the Company shall not usecause or permit the Project Facility to be used to generate, store manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or dispose process Hazardous Materials, except in compliance with all Applicable Laws, nor shall the Company cause or permit, as a result of any intentional or unintentional act or omission on the part of the Company or any tenant or subtenant of the Company, an unlawful release of Hazardous Materials in onto the Building Project Facility or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding onto any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Lawsproperty.
(cC) Landlord represents The Company shall comply, and warrants to Tenant that, as ensure compliance by all tenants and subtenants of the date on which Landlord Company, with all Applicable Laws regarding Hazardous Materials whenever and by whomever triggered, and shall deliver possession obtain and comply, and ensure that all tenants and subtenants of the Property to TenantCompany obtain and comply, the Building with any and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contraryall approvals, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in registrations or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Leasepermits required thereunder.
(dD) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to To the extent required by any State or federal environmental regulator, the Company shall (1) conduct and complete all investigations, studies, sampling, and testing, and all remedial, removal, and other actions necessary to clean up, remove or contain all Hazardous Material on, from or affecting the Project Facility (a) in accordance with all Applicable Laws, and in compliance with Laws(b) to the satisfaction of the Agency, and at Landlord's sole cost; (c) in accordance with the orders and Landlord agrees to directives of all federal, state and local governmental authorities and (2) defend, indemnify, and hold Tenant harmless the Agency and its employees, agents, officers and members from and against any and all costsclaims, demands, penalties, fines, liabilities, settlements, damages, expensescosts or expenses of whatever kind or nature, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claimknown or unknown, suitcontingent or otherwise, arising out of, or action regarding in any such Hazardous Materials way related to, (whether alleged a) the presence, disposal, release or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or threatened release of any Hazardous Materials caused used, transported, stored, manufactured, refined, handled, produced or disposed of on or in the Project Facility which are on, from or affecting soil, water, vegetation, buildings, personal property, persons, animals or otherwise, (b) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials, (c) any lawsuit brought or threatened, settlement reached, or any, government order relating to such Hazardous Materials, and/or (d) any violations of Applicable Laws that are based upon or in any way related to such Hazardous Materials, including, without limitation, attorney and consultant fees, investigation and laboratory fees, court costs and litigation expenses. Costs under this subsection (D) will be repaid immediately with interest at the Default Interest Rate or the maximum permitted by Tenantlaw, Tenant whichever is less.
(E) In the event the Project Facility is foreclosed by the Agency, or the Company tenders a deed in lieu of foreclosure, the Company shall remove or remediate same deliver the Project Facility to the extent required by Lawspurchaser free of any and all Hazardous Materials (except Hazardous Materials the presence of which do not violate any Federal, State or local laws, ordinances, rules and regulations governing the use and storage such materials), so that the condition of the Project Facility shall conform with all Applicable Laws affecting the Project Facility.
(F) The Company agrees that the Agency and its officers, agents or representatives, may with reasonable notice, at any reasonable time and at the Company’s expense, inspect the Company’s books and records and inspect and conduct any tests on the Project Facility, including taking soil samples, in order to determine that the Company is in compliance with all Applicable Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord . The Agency may suffer as not exercise this right more than once a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameyear.
Appears in 1 contract
Samples: Lease Agreement
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 2.5501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises or the Site (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), PROVIDED HOWEVER, that (i)Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handing, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises, the Site and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises and/or the Site caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises and/or the Site without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises and/or the Site.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises and/or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises and/or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises, the Site and Property shall be free from contamination any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not be obligated not, without Landlord's prior written consent, take any remedial action in response to accept possession the presence of the Building and Property until any Hazardous Materials found on, under or about the Premises, the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or on about the Building Premises, the Site or Property have been removedany other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises, the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Site and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any requited or necessary repair, restoration, cleanup or detoxification of the Premises, the Site and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord has supplied at any time discovers that Tenant with or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a certificate Hazardous Material on, under, from or about the appropriate governmental authority that such removal has been completedPremises, the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord has restored a comprehensive plan, subject to Landlord's approval, specifying the Building and Property actions to be taken by Tenant to return the Premises, the Site or any other real or personal property owned by Landlord to the condition which existed immediately existing prior to the introduction of such removal and/or otherwise Hazardous Materials. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in conformance equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Premises and/or the Site known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises and/or the Site that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Samples: Industrial Lease (Endwave Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto upon at least one (1) business day’s prior written notice from Landlord. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall which were not have caused, Landlord shall, with diligence, remove caused or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease Agreement (Masimo Corp)
Hazardous Materials. (a) For In connection with Tenant’s use and/or occupancy of the purposes hereofPremises, Tenant shall comply with all Laws relating to industrial hygiene and environmental conditions on, under or about the Premises including, but not limited to, soil and ground water conditions. Without limiting the generality of the foregoing, Tenant and Landlord shall not transport, use, store, maintain, generate, manufacture, handle, dispose, release or discharge any “Hazardous Material” (as defined below) upon or about the Premises, nor permit Tenant’s Employees or other occupants of the Premises to engage in such activities upon or about the Premises. However, the foregoing provisions shall not prohibit the transportation to and from, and the use, storage, maintenance and handling within, the Premises of substances customarily used in connection with normal office use provided: (a) such substances s hall be used and maintained only in such quantities as are reasonably necessary for the permitted use of the Premises set forth in provision (1) of the Fundamental Lease Provisions, strictly in accordance with Laws and the manufacturer’s instructions therefor, (b) such substances shall not be disposed of, released or discharged on the Premises, and shall be transported to and from the Premises in compliance with all applicable Laws, and as Landlord shall reasonably require, (c) if any applicable Law or the Tenant’s trash removal contractor requires that any such substances be disposed of separately from ordinary trash, Tenant shall make arrangements at Tenant’s expense for such disposal directly with a qualified and licensed disposal company at a lawful disposal site (subject to scheduling and approval by Landlord), and shall ensure that disposal occurs frequently enough to prevent unnecessary storage of such substances in the Premises, and (d) any remaining such substances shall be completely , properly and lawfully removed from the Premises upon expiration or earlier termination of this Lease. Landlord shall have the right, at the following times, to enter the Premises in order to inspect same and to conduct any testing, monitoring or analysis reasonably required in connection therewith (collectively “Inspection”):
(i) Once in any calendar year upon reasonable notice to Tenant;
(ii) At any time during the Term of this Lease if, in Landlord’s reasonable judgment, Tenant is violating the use restrictions of this Lease or is not in strict compliance with the regulations, roles or procedures of any applicable governmental entity with respect to the transport, use, storage, maintenance, generation, manufacturing, handling, disposal, release or discharge of Hazardous Materials at the Premises, in which case Landlord shall give notice to Tenant of the reason for the Inspection and Tenant shall provide Landlord with access to the Premises for such Inspection within live (5) days of any such notice; provided, however, that in an emergency situation Tenant will provide Landlord with immediate access to the Premises. If Tenant is violating the use restrictions of this Lease or is not in strict compliance with the regulations, rules or procedures of the applicable governmental entity, then all reasonable costs and expenses reasonably incurred by Landlord in connection with any Inspection shall become due and payable by Tenant as additional rent, within ten (10) days of presentation by Landlord of ml invoice therefor. If a dispute exists between Landlord and Tenant as to whether Landlord has sufficient reason to believe that Tenant may be violating the use restrictions of this Lease or may not be in compliance with any other provision of this Lease or any applicable governmental entity with respect to the transport, use, storage, maintenance, generation, manufacturing, handling, disposal, release or discharge of Hazardous Materials at the Premises, Tenant will provide Landlord with access to the Premises for an In spection in accordance with the provisions of the immediately preceding paragraph; provided, however, that if there is no such violation or strict non-compliance, Landlord shall be liable for the cost and expense incurred by Landlord in connection with such Inspection. Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup or other regulatory action taken or threatened by any governmental or regulatory authority with respect to the presence of any Hazardous Material on the Premises or the migration thereof from or to other property, (ii) any demands or claims made or threatened by any party against Tenant or the Premises relating to any loss or injury resulting from any Hazardous Material, (iii) any release, discharge or non-routine, improper or unlawful disposal or transportation of any Hazardous Material on or from the Premises, and (iv) any matters where Tenant is required by law to give a notice to any governmental or regulatory authority respecting any Hazardous Material on the Premises. Landlord shall have the right (but not the obligation) to join and participate, as a party, in any legal proceedings or actions affecting the Premises initiat ed in connection with any environmental, health or safety law. At such times as Landlord may reasonably request, Tenant shall provide Landlord with a written list identifying any Hazardous Material then used, stored, or maintained upon the Premises, the use and approximate quantity of each such material, a copy of any material safety data sheet (“MSDS”) issued by the manufacturer thereof, written information concerning the removal, transportation and disposal of the same, and such other information as Landlord may reasonably require or as may be required by applicable law. The term "“Hazardous Materials" Material” for purposes hereof shall mean any chemical, substance, material or waste or component thereof which is now or hereafter listed, defined or regulated as a flammable explosive, radioactive material, hazardous or toxic chemical, substance, material or waste or component thereof (whether injurious by themselves or in conjunction with other materials) by any federal, state or local governing or regulatory body having jurisdiction, or which would trigger any employee or community “right-to-know” requirements adopted by any such body, or for which any such body has adopted any requirements for the preparation or distribution of an MSDS. Without limiting the generality of the foregoing, Hazardous Material shall include, but not be limited to substances defined as “hazardous substances”, “hazardous materials”, or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; and those substances defined as “hazardous wastes” in Section 25117 of the California Health & Safety Code or as “hazardous substances” in Section 25316 of the California Health & Safety Code; and in the regula tions adopted and publications promulgated from time to time pursuant to said laws. If any Hazardous Material is released, discharged or disposed of by Tenant, Tenant’s Employees or any other occupant of the Premises, on or about the Premises in violation of the foregoing provisions, Tenant shall immediately, properly and in compliance with applicable laws clean up and remove the Hazardous Material from the Building and any other allotted property and clean or replace any affected personal property (whether or not owned by Landlord), at Tenant’s expense. Such clean-up and removal work shall be subject to Landlord’s prior written approval (except in emergencies), and shall include, without limitation, hazardous any testing, investigation, and the preparation and implementation of any remedial action plan required by any governmental body having jurisdiction or toxic substancesreasonably required by Landlord. If Tenant shall fail to comply with the provisions of this Section within five (5) days after written notice by Landlord, materials that or such shorter time as may be deemed hazardous required by applicable law or in order to human minimize any hazard to persons or animal healthproperty, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
Landlord may (b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of any Hazardous Materials in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant but shall not be obligated to accept possession of the Building and Property until to) arrange for such compliance directly or as Tenant’s agent through contractors or other parties selected by Landlord, at Tenant’s expense (without limiting Landlord’s other remedies under this Lease or applicable law). If any Hazardous Materials found in Material is released, discharged or disposed of on or about the Building Premises and such r xxxxxx, discharge or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall disposal is not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant Tenant’s employees or other occupants of the Premises, such release, discharge or disposal shall remove or remediate same be deemed damage under Article 13 of the Lease to the extent required by Lawsthat the Premises are affected thereby; in such case, Landlord and in compliance with Laws, Tenant shall have the obligations and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result rights respecting such damage provided under ARTICLE 13 of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameLease.
Appears in 1 contract
Samples: Lease Agreement (Ikos Systems Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto upon at least one (1) business day’s prior written notice from Landlord. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall which were not have caused, Landlord shall, with diligence, remove caused or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease (Masimo Corp)
Hazardous Materials. (a) For TENANT shall not cause or permit any hazardous material to be brought upon, kept or used in or about the purposes hereofPremises by TENANT, its agents, employees, contractors or invitees, or engage in or permit any other entity to engage in operations at or upon the term "Hazardous Materials" shall includePremises which involve the generation, manufacture, refining, transportation, treatment, storage, handling or disposal of hazardous substances or hazardous waste, without limitationthe prior written consent of LANDLORD (which LANDLORD shall not unreasonably withhold as long as TENANT demonstrates to LANDLORD's reasonable satisfaction that such hazardous material, substance or waste is necessary or useful to TENANT's business and will be used, kept, generated, manufactured, refined, transported, treated, handled, disposed of and stored in manner that complies with any and all laws regulating any such hazardous material waste or toxic substance). LANDLORD hereby consents to all hazardous materials, substances and wastes and activities related hereto existing on the Premises at the time immediately prior to the date hereof or used by Torque Engineering Corporation. TENANT shall comply with the Environmental Protection Act and all other federal, state, and local laws and ordinances relating to the environment, and with the rules, orders, and regulations issued and promulgated thereunder. TENANT shall be responsible for obtaining and maintaining any and all permits required for any and all operations performed on Premises including but not limited to construction and operation of any paint booths, fuel systems, or any other similar type of fixtures, operations, or processes. TENANT warrants that it will maintain and use the Premises free from contamination by or from any "hazardous substances" or hazardous waste of any type or nature (as such terms are defined and/or used in applicable local, state or federal law or the regulations issued under them). TENANT further covenants that it will not cause or permit to exist the releasing, spilling, leaking, pumping, pouring, omitting, emptying, or dumping from or on or about the Premises of any such hazardous materials. TENANT agrees to indemnify and hld harmless LANDLORD or its successors or assigns from any and all liability, damages, costs, claims, suits, actions, legal or administrative proceedings, fines, penalties, interest, losses, expenses, consultant's fees, expert fees, and reasonable attorney's fees resulting from or arising out of or in any way connected with injury to or the death of any person or physical damage to property of any kind wherever located and by whomever owned arising out of or in any way connected with injury to or the death of any person or physical damage to property of any kind wherever located and by whomever owned arising out of or in any way connected with the presence on, in, or under the Premises of any hazardous materials in violation of the provisions of the Paragraph. This indemnification is an independent covenant and shall survive the termination of this lease. LANDLORD will perform a Phase Environmental Site Assessment, according to current American Society for Testing & Materials (ASTM) standards, at LANDLORD's expense prior to the execution of this lease to determine if any condition existed before this Lease. Before the end of the lease term, at TENANT's expense, TENANT shall cause a Phase I Environmental Site Assessment, according to current ASTM standards, of the Premises to be performed by a firm acceptable to LANDLORD, and TENANT shall correct any environmental problems which were identified in that may environmental audit at TENANT's sole cost and expense, to the satisfaction of LANDLORD and its counsel. Any pre-existing conditions shall be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonthe sole responsibility of the LANDLORD.
(b) Tenant represents LANDLORD represents, warrants and warrants covenants to TENANT that, to LANDLORD's best actual knowledge, including any duty of investigation or inquiry, LANDLORD has not caused or permitted the Premises, the building, or any other structures and other improvements on the land underlying the Premises and building and such common areas (all such buildings, structures and improvements being hereinafter referred to collectively as the "Project Improvements") or the land underlying the building, to be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or process any hazardous substances or hazardous materials or any other dangerous or toxic substances, or solid waste, except as herein set forthin compliance with all applicable federal, it will state and local laws or regulations, and LANDLORD has not usecaused or permitted and, store or dispose of any Hazardous Materials in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all after reasonable investigation, has no knowledge of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision presence of this Lease, Tenant may, use, store and dispose or of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in a release or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or threatened release of any Hazardous Materials that Tenant shall hazardous substances or hazardous materials at, on, from or under the Premises, the building or any other project improvements or the land including but not have causedlimited to soil and groundwater underlying the building or any other project improvements, Landlord shallat, with diligenceon, remove from, under or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result off of any claim, suit, other property and affecting or action regarding impacting the building or any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate other project improvements in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.way
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous MaterialsHAZARDOUS MATERIALS" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials in typical quantities for office uses (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenants storage, use and disposal of all such products. Landlord may, in this paragraph its sole and absolute discretion, place such conditions as Landlord deems appropriate or may constitute require with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "ENVIRONMENTAL QUESTIONNAIRE") in the form of Exhibits attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for me twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to die condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered mat Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as. more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C. nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain ---------------- such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials requested for use by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand if Tenant is in violation of its obligations under this Section.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. --------- The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel after reasonable prior notice under the circumstances except in the event of an emergency when no advance notice shall be required. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (I) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products ("Normal Office Products") that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not use"White Out", store or dispose and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any Hazardous Materials (other than Normal Office Products) and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, generation, release, disposal or Property. Xxxxxxxx use of Hazardous Materials (other than Normal Office Products) by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. Landlord's activities pursuant to the preceding sentence shall be at Landlord's cost, with reasonable advance written or oral notice to Tenant, and with minimal disruption of Tenant's use and occupancy of the date on which Landlord shall deliver possession Premises. If Tenant is not in compliance with any of the Property provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises by Tenant, its agents, employees, contractors, licensees or invites, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Site introduced by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Site and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent shall not be unreasonably withheld, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Site or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before talking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Site by Tenant, its agents, employees, contractors, licensees or invitees during the Term. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Site and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Site as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises, the Building or the Site during the Term by Tenant or its agents, employees, contractors licensees or invitees, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Site to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Site known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent notify its agents, employees, contractors, licensees, and invitees as required by Laws, and in compliance with Laws, and law of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Samples: Lease (Micrus Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (I) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage. use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products. and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage. use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used. released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant thatIn addition, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contraryextent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall not promptly provide Landlord with complete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be obligated characterized as confidential) relating to accept possession of the Building and Property until any Hazardous Materials found in water discharges, air pollution, waste generation or on the Building or Property have been removeddisposal, and Landlord has supplied Tenant with a certificate from underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the appropriate governmental authority that such removal has been completedrelease, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials,
(d) Landlord has restored and its agents shall have the Building and Property right, but not the obligation, to inspect, sample and/or monitor the condition which existed immediately prior Premises and/or the soil or groundwater thereunder at any time to such removal and/or otherwise in conformance determine whether Tenant is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant shall not have causedMaterial on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord shalland its agents shall have the right, with diligencebut not the obligation, remove or remediate or cause the remediation or removal without limitation upon any of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal other rights and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord remedies under this Lease.
(ii) , to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with regard Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the presence storage, generation, use, release and/or disposal by Tenant or release its agents, employees, contractors, licensees, subtenants or invitees of any Hazardous Materials caused by Tenanton, Tenant shall remove under, from or remediate same to about the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samePremises.
Appears in 1 contract
Hazardous Materials. (aA) For The Company represents, warrants and covenants that the purposes hereofCompany has not used Hazardous Materials on, from or affecting the term "Project Facility in any manner which violates any Applicable Law, including but not limited to those governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials" shall include, without limitationand, hazardous to the best of the Company’s knowledge, no prior owner of the Project Facility or toxic substancesany tenant, materials that may be deemed hazardous to human subtenant, prior tenant or animal healthprior subtenant has used Hazardous Materials on, from or affecting the Project Facility in any manner which violates any Applicable Law, including without limitationbut not limited to those governing the use, oil and petroleum derivatives and productsstorage, asbestostreatment, lead paint and radontransportation, manufacture, refinement, handling, production or disposal of Hazardous Materials.
(bB) Tenant represents and warrants thatThe Company shall keep or cause the Project Facility to be kept free of all Hazardous Materials, except as herein set forthpermitted in accordance with Applicable Laws. Without limiting the foregoing, it will the Company shall not usecause or permit the Project Facility to be used to generate, store manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or dispose process Hazardous Materials, except in compliance with all Applicable Laws, nor shall the Company cause or permit, as a result of any intentional or unintentional act or omission on the part of the Company or any tenant or subtenant of the Company, an unlawful release of Hazardous Materials in onto the Building Project Facility or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding onto any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Lawsproperty.
(cC) Landlord represents The Company shall comply with, and warrants to Tenant that, as ensure compliance by all tenants and subtenants of the date on which Landlord Company with, all Applicable Laws regarding Hazardous Materials whenever and by whomever triggered, and shall deliver possession obtain and comply with, and ensure that all tenants and subtenants of the Property to TenantCompany obtain and comply with, the Building any and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contraryall approvals, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in registrations or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Leasepermits required thereunder.
(dD) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to To the extent required by any State or federal environmental regulator, the Company shall (1) conduct and complete all investigations, studies, sampling, and testing, and all remedial, removal, and other actions necessary to clean up, remove or contain all Hazardous Material on, from or affecting the Project Facility (a) in accordance with all Applicable Laws, and in compliance with Laws(b) to the satisfaction of the Agency, and at Landlord's sole cost; (c) in accordance with the orders and Landlord agrees to directives of all federal, state and local governmental authorities and (2) defend, indemnify, and hold Tenant harmless the Agency and its employees, agents, officers and members from and against any and all costsclaims, demands, penalties, fines, liabilities, settlements, damages, expensescosts or expenses of whatever kind or nature, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claimknown or unknown, suitcontingent or otherwise, arising out of, or action regarding in any such Hazardous Materials way related to, (whether alleged a) the presence, disposal, release or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or threatened release of any Hazardous Materials caused used, transported, stored, manufactured, refined, handled, produced or disposed of on or in the Project Facility which are on, from or affecting soil, water, vegetation, buildings, personal property, persons, animals or otherwise, (b) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials, (C) any lawsuit brought or threatened, settlement reached, or any, government order relating to such Hazardous Materials, and/or (d) any violations of Applicable Laws which are based upon or in any way related to such Hazardous Materials, including, without limitation, attorney and consultant fees, investigation and laboratory fees, court costs and litigation expenses. Costs under this subsection (D) will be repaid immediately with interest at the Default Interest Rate or the maximum permitted by Tenantlaw, Tenant shall remove whichever is less.
(E) The Company agrees that the Agency and its officers, agents or remediate same representatives, may with reasonable notice, at any reasonable time and at the Company’s expense, inspect the Company’s books and records and inspect and conduct any tests on the Project Facility, including taking soil samples, in order to determine that the extent required by Laws, and Company is in compliance with all Applicable Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord . The Agency may suffer as not exercise this right more than once a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameyear.
Appears in 1 contract
Samples: Lease Agreement
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such commercially reasonable conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding any other provision Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of this Leaseapproval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant mayon or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, store release and/or disposal of such Hazardous Materials by Tenant on and dispose of same from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as herein set forth, provided that in doing so, Tenant complies with Lawsadditional rent hereunder upon demand.
(c) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to If the presence or release of any Hazardous Materials that on, under, from or about the Premises caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (d) injury to or any contamination of the Premises, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not have causednot, Landlord shallwithout Landlord's prior written consent, with diligence, remove or remediate or cause the remediation or removal of same take any remedial action in response to the extent required presence of any Hazardous Materials on, under or about the Premises or any other affected real or personal property owned by LawsLandlord or enter into any similar agreement, and in compliance consent, decree or other compromise with Lawsany governmental agency with respect to any Hazardous Materials claims; provided however, and at Landlord's sole cost; prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and Landlord agrees it is not possible to defendobtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including reasonable without limitation attorneys' fees) which Tenant may suffer as a result , court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any claimrequired or necessary repair, suitrestoration, cleanup or detoxification of the Premises, the Building and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action regarding any such Hazardous Materials (whether alleged is required or real), and/or regarding necessary during the removal and remediation Term or after the expiration of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or releasethis Lease. If Landlord shall fail to commence at any time discovers that Tenant or cause its agents, employees, contractors, licensees or invitees may have caused or permitted the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of a Hazardous Material on, under, from or about the Premises or any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.other real or
Appears in 1 contract
Samples: Industrial Lease (Minimed Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3. and in connection therewith Tenant shall provide Landlord, as after reasonable notice, with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3. or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property own by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and that it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord. ARTICLE VI.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants thatshall not cause or knowingly permit its agents, except as herein set forthemployees, it will not contractors, licensees or invitees to bring upon, store, use, store generate, release or dispose of any Hazardous Materials on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and in the event any other provision violations of this Section 5.3 are found, then Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises by Tenant or its agents, employees, contractors, licensees or invitees for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the storage, use, generation, release or disposal of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials as required by law. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Tenant may have knowingly permitted its agents, employees, contractors, licensees or invitees to release a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, or caused such release, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials which Tenant proves were neither released on the Premises during the Term nor caused by Tenant, its agents, employees, contractors, licensees or invitees. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense and not have causedas a Project Cost, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in this Section 5.3(f). The foregoing obligation on the part of Landlord shallshall include the reasonable costs (including, without limitation, reasonable attorney’s fees) of defending Tenant (with diligence, remove or remediate or cause the remediation or removal of same attorneys reasonably acceptable to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless Tenant) from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agent employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of XxxxxxTenant’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaseattention.
(iig) with regard to In the presence or release event of any foreclosure of a mortgage or deed of trust encumbering the Building and/or the Project, the obligations on the part of Landlord contained in Section 5.3(f) above shall be personal to Landlord and shall not be binding on nor inure against any lender acquiring the Building and/or the Project by foreclosure of its mortgage or deed of trust or deed in lieu of foreclosure, or any successor in interest to such lender
(h) Except as disclosed in Section 5.3(f) above (and/or as may otherwise be disclosed to Tenant in writing), Landlord represents that to “Landlord’s knowledge” (as hereinafter defined), there are no Hazardous Materials caused by Tenant, Tenant shall remove in or remediate same to about the extent required by Laws, and Project which are in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result violation of any claimapplicable federal, suitstate or local law, ordinance or action regarding any such regulation. As used herein, “Landlord’s knowledge” shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samecompliance matters.
Appears in 1 contract
Samples: Lease (Raining Data Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises or the Site (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord: (A) to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out," and the like), provided, however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products, and (B) to utilize those Hazardous Materials in kind and quantity as set forth on Tenant's Environmental Questionnaire delivered to Landlord prior to the execution of this paragraph may constitute Lease, provided that all of the terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of such Hazardous Materials. Notwithstanding Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any Hazardous Materials other provision than those described in the preceding sentence, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand, provided Tenant has been the cause of the contamination justifying the use of the environmental consultant.
(c) Prior to the execution of this Lease, Tenant mayshall complete, use, store execute and dispose deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property Exhibit B attached hereto. The completed Environmental Questionnaire shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.deemed incorporated into
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s reasonable discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products (“Normal Office Products”) that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not use“White Out”, store or dispose and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any Hazardous Materials (other than Normal Office Products) and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, generation, release, disposal or Property. Xxxxxxxx use of Hazardous Materials (other than Normal Office Products) by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve (12) month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve (12) month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. Landlord’s activities pursuant to the preceding sentence shall be at Landlord’s cost, with reasonable advance written or oral notice to Tenant, and with minimal disruption of Tenant’s use and occupancy of the Premises. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project introduced by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing as of the date on Commencement Date, and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent shall not be unreasonably withheld, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall deliver possession not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the Property to use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project by Tenant, its agents, employees, contractors, licensees or invitees during the Term. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises, the Building or the Project during the Term by Tenant or its agents, employees, contractors, licensees or invitees, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall have no liability or responsibility with respect to the Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials which Tenant proves were neither released on the Premises during the Term nor caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Further, Landlord shall take responsibility, at any time during the Termits sole cost and expense and not as a Project Cost, Hazardous Materials shall be found in or on the Building or Property, then:
for (i) with regard to the presence any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or release other treatment of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, conditions described in this Section 5.3(f) and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suitExhibit C, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to for any third party (including, but not limited to, governmental) legal action against Tenant (and/or judgment resulting from such action) arising from the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and conditions described in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or realthis Section 5.3(f), and/or regarding the removal and remediation of same.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs reasonably incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant's indemnity contained in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials, if any, which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including, without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall be free from contamination the Project and any other real or personal property owned by Hazardous Materials. Notwithstanding anything in this Lease to Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the contrarycost of any required or necessary repair, Tenant shall not be obligated to accept possession restoration, cleanup or detoxification of the Premises, the Building and Property until the Project and any Hazardous Materials found in other real or on the Building or Property have been removedpersonal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord has supplied at any time discovers that Tenant with or its agents, employees, contractors, licensees or invitees have caused or knowingly permitted the release of a certificate Hazardous Material on, under, from or about the appropriate governmental authority that such removal has been completedPremises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord has restored a comprehensive plan, subject to Landlord's reasonable approval, specifying the Building and Property actions to be taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition which existed required under all applicable environmental laws. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately prior implement such plan and proceed to cleanup such removal and/or otherwise Hazardous Materials in conformance accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) If, at any time during If the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that on, under, from or about the Premises or the Project caused by Landlord, its authorized agents or employees, and not introduced by Tenant, its agents, employees, contractors, licensees, or invitees results in (i) injury to any person, or (ii) injury to or any contamination of the Premises or the Project at levels which require clean-up or remediation under applicable laws, Landlord, at its expense (which shall not be included in Operating Expenses), shall promptly take all actions necessary to return the Premises and the Project to the condition existing prior to the introduction of such Hazardous Materials, or to such condition as is satisfactory to all governmental agencies asserting jurisdiction, and to remedy or repair any such injury or contamination, including, without limitation, any clean-up, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials.
(g) If the release of Hazardous Materials caused by Landlord, its authorized agents or employees, renders the Premises untenantable in whole or in part or results in Tenant being required to vacate the Premises in whole or in part pursuant to an order or requirement of any governmental agency or authority, then the Base Rent, Real Property Taxes, insurance premiums, and other charges, if any, payable by Tenant hereunder for the period during which the Premises (or a portion thereof) remain so impaired shall be abated in proportion to the degree to which Tenant's use of the Premises is impaired and for the period of such impairment. If the period of such impairment shall exceed seven (7) months, Tenant shall not have causedthe right to terminate this Lease upon written notice to Landlord given within ten (10) days following the passage of such seven (7) month period. Tenant's termination of the Lease pursuant to this Paragraph shall be effective as of the date of such notice.
(h) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord shallto exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall have no liability or responsibility with diligence, remove or remediate or cause the remediation or removal of same respect to the extent required Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials which were not caused or knowingly permitted by LawsTenant, its agents, employees, contractors, licensees or invitees. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in compliance this Section 5.3(h). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney's fees) of defending Tenant (with Laws, and at Landlord's sole cost; and Landlord agrees attorneys reasonably acceptable to defend, indemnify, and hold Tenant harmless Tenant) from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention.
(whether alleged or real)i) The obligations on the part of Landlord contained in Sections 5.3(f) and 5.3(h) above are personal to Landlord and shall not be binding on, and/or regarding nor inure against any successor in interest to Landlord as of the removal and remediation owner of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this SectionPremises, within the specified time periodsincluding, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable any lender acquiring the Premises by Tenant to Landlord under this Leaseforeclosure of its mortgage or deed of trust or deed in lieu of foreclosure.
(iij) with regard Except as disclosed in Section 5.3(h) above (and/or as may otherwise be disclosed to Tenant in writing), Landlord represents that, to the presence best of its actual knowledge without duty of inquiry or release investigation whatsoever, there are no Hazardous Materials in or about the Premises which are in violation of any Hazardous Materials caused by Tenantapplicable federal, Tenant shall remove state or remediate same to the extent required by Lawslocal law, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, ordinance or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameregulation.
Appears in 1 contract
Samples: Industrial Lease (Broadcom Corp)
Hazardous Materials. (a) For the purposes hereofAs used in this Lease, the term "“Hazardous Materials" shall includeMaterial” means any flammable items, without limitationexplosives, radioactive materials, hazardous or toxic substances, materials that may be deemed material or waste or related materials, including any substance defined as or included in the definition of “hazardous to human substances”, “hazardous wastes”, “hazardous materials” or animal health“toxic substances” now or subsequently regulated under any applicable federal, state or local laws or regulations, including without limitationlimitation petroleum-based products, oil paints, solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and petroleum derivatives and other chemical products, asbestos, lead paint PCBs and radon.
similar compounds, and including any different products and materials which are subsequently found to have adverse effects on the environment or the health and safety of persons. Tenant shall not cause or permit any Hazardous Material to be generated, produced, brought upon, used, stored, treated or disposed of in or about the Premises by Tenant, its agents, employees, contractors, sublessees or invitees without the prior written consent of Landlord; provided, however, Tenant shall be allowed to store and use nominal amounts of commercially available cleaning products without the consent of Landlord. Tenant shall provide Landlord with ten (b10) days advance written notice, setting forth an itemization of all such Hazardous Materials, with a detailed description thereof, and the intended volume, location and use of such Materials at the Premises, prior to the use or allowance of any such cleaning products or any other products, materials or substances which are Hazardous Materials as defined above or which have or may have adverse effects on the environment or the health and safety of persons. Landlord shall be entitled to take into account such other factors or facts as Landlord deems to be relevant in determining whether to grant or withhold consent to Tenant’s proposed activity with respect to Hazardous Material. In no event, however, shall Landlord be required to consent to the installation or use of any storage tanks in or on the Premises. To the extent Tenant represents is allowed to store and warrants that, except as herein set forth, it will not use, store or dispose of use any Hazardous Materials in or about the Building or PropertyPremises in accordance with the provisions of this Section, Tenant shall be obligated to provide Landlord with a Phase I Environmental Report prepared in accordance with current ASTM standards (“Phase I”). Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners The Phase I, addressed and chemicals certified to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this LeaseLandlord’s lender, Tenant mayif any, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, shall be dated as of the date on which Landlord Tenant vacates the Premises. Tenant shall deliver possession bear the cost of the Property to Tenant, the Building Phase I and Property shall also be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against responsible for any and all costs, damagespenalties and fines incurred for any environmental contamination and subsequent remediation at the Project. Should Tenant fail to timely deliver to Landlord the Phase I, expenses, and/or liabilities Landlord may cause a Phase I to be prepared to like effect and Tenant shall be liable to Landlord for one hundred thirty percent (including reasonable attorneys' fees130%) which of the cost of said Phase I. Should the Phase I provided by either Landlord or Tenant may suffer as state that a result of any claim, suit, hazardous condition exists in or action regarding any such Hazardous Materials on the Project or that the Premises cannot be used or leased in a hazard- free condition (whether alleged or realunless the hazardous condition existed prior to the Commencement Date under the Lease), and/or regarding the removal and remediation of same. Landlord Tenant shall diligently commence or forthwith cause the commencement of such remediation within thirty (30) days of knowledge of such presence or releasehazardous condition to be fully corrected at Tenant’s expense. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, thenIn addition, Tenant may give shall be required to pay to Landlord 10 days' prior written notice monthly, on or before the first day of Xxxxxx’s election each month, an amount equal to one hundred thirty percent (130%) of Base Rent and Additional Rent due under the Lease for the last year of the Lease Term, for any period following expiration of the Lease Term until the Premises is restored to a hazard free condition. This requirement shall not be construed as an extension of an expired or terminated Lease, but solely as damages to Landlord due to such hazardous condition(s) existing at the Project which prevent Landlord from re-leasing the Premises. Tenant, following such expiration or termination of this Lease, shall be allowed access to the Project, only to the extent necessary to remove or remediate otherwise correct any hazardous condition, and shall conduct no gainful business activity whatsoever at said Premises. The provisions of this Section shall survive the Hazardous materials on Landlord’s behalf. If Tenant shall so remove expiration or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under any termination of this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501 (o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants thatshall not cause or knowingly permit its agents, except as herein set forthemployees, it will not contractors, licensees or invitees to bring upon, store, use, store generate, release or dispose of any Hazardous Materials on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises collectively, the “Permitted HazMats”): (i) a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products; and (ii) those Hazardous Materials in such quantities and in such manner as described in the Building or PropertySurvey Form delivered to Landlord prior to the execution of this Lease. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners shall comply with all applicable laws with respect to the Permitted Hazmats, and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all Permitted Hazmats. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, storage and/or disposal of any other Hazardous Materials requiring Landlord’s consent, including without limitation, conditions for proper containment and ventilation of such Hazardous Materials. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, use, release, and/or disposal of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and in the event any other provision violations of this Section 5.3 are found, then Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises by Tenant or its agents, employees, contractors, licensees, subtenants or invitees for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the storage, use, generation, release or disposal presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees, subtenants, or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned or leased by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials as required by law. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned or leased by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises, and Ground Lessor and any successors to Ground Lessor’s interest under the Ground Lease, from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant may have knowingly permitted its agents, employees, contractors, licensees, subtenants or invitees to release any Hazardous Materials on, under, from or about the Premises, the Building or the Project, or caused such release, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials which were not caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Notwithstanding the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees, subtenants, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Landlord acknowledges and agrees with Tenant that the Hazardous Materials described on Exhibit H shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same be deemed to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable be “knowingly permitted” by Tenant to Landlord for any purposes under this Lease.
(iig) with regard to the presence Landlord shall take responsibility, at its sole cost and expense, for any clean-up, remediation, removal, disposal, neutralization, monitoring, investigation or release of any other treatment of, or response to, those Hazardous Materials caused by Tenantconditions described in Section 5.3(f) above for which Tenant has no liability or responsibility, Tenant shall remove or remediate same to the extent that such cleanup, remediation, removal, disposal, neutralization, monitoring, investigation or other treatment or response is required by Lawsapplicable law, and in compliance with Lawsor to the extent that a failure to so cleanup, and at Tenant's sole cost; and Xxxxxx agrees remediate, remove, dispose, neutralize, monitor, investigate or otherwise treat or respond to defendsuch Hazardous Materials conditions would be a violation of applicable law. The foregoing obligation on the part of Landlord shall include the reasonable costs (including, indemnify and hold Landlord harmless without limitation, reasonable attorney’s fees) of defending Tenant from and against any and all costslegal action or proceeding instituted by any governmental agency or other third party (excluding Tenant’s agents, damagesemployees, expensescontractors, licensees, subtenants or invitees) in connection with such clean-up, remediation, removal, disposal, neutralization, monitoring, investigation or other treatment of or response to such conditions, provided that Tenant promptly tenders such defense to Landlord.
(h) Except as disclosed in Section 5.3(f) above (and/or liabilities as may otherwise be disclosed to Tenant in writing), Landlord warrants that, to “Landlord’s knowledge” (including reasonable attorneys' fees) as hereinafter defined), there are no Hazardous Materials in or about the Premises which Landlord may suffer as a result are in violation of any claimapplicable federal, suitstate or local law, ordinance or action regarding any such regulation. As used herein, “Landlord’s knowledge” shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samecompliance matters.
Appears in 1 contract
Samples: Lease (Arista Networks, Inc.)
Hazardous Materials. Tenant covenants and agrees that it shall not cause or permit any Hazardous Material (aas defined below) For to be brought upon, kept, or used in or about the purposes hereofPremises or Building by Tenant, its agents, employees, contractors or invitees. The foregoing covenant shall not extend to substances typically found or used in general administrative office applications so long as (i) such substances and any equipment which generates such substances are maintained only in such quantities as are reasonably necessary for Tenant's operations in the Premises, (ii) such substances are used strictly in accordance with the manufacturers' instructions therefor, (iii) such substances are not disposed of in or about the Building in a manner which would constitute a release or discharge thereof, and (iv) all such substances and any equipment which generates such substances are removed from the Building by Tenant upon the expiration or earlier termination of this Lease. Any use, storage, generation, disposal, release or discharge by Tenant of Hazardous Materials in or about the Building as is permitted pursuant to this Section shall be carried out in compliance with all applicable federal, state and local laws, ordinances, rules and regulations. Moreover, no Hazardous Materials resulting from any operations by Tenant shall be stored or maintained by Tenant in or about the Building for more than ninety (90) days prior to removal by Tenant. Tenant shall, annually within thirty (30) days after Tenant's receipt of Landlord's written request therefor, provide to Landlord a written list identifying any Hazardous Materials then maintained by Tenant in the Building, the term "use of each such Hazardous Materials" shall includeMaterial and the approximate quantity of each such Hazardous Material so maintained by Tenant, without limitationtogether with written certification by Tenant stating, hazardous in substance, that neither Tenant nor any person for whom Tenant is responsible has released or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of discharged any Hazardous Materials in or about the Building or PropertyBuilding. Xxxxxxxx agrees In the event that Tenant proposes to conduct any use or to operate any equipment which will or may use such commercial utilize or household type cleaners and chemicals to maintain generate a Hazardous Material other than as specified in the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this first paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Leasesubsection, Tenant mayshall first in writing submit such use or equipment to Landlord for approval, use, store and dispose of same as herein set forth, provided that which approval may be granted or withheld in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord's sole discretion. No approval by Landlord shall deliver possession relieve Tenant of any obligation of Tenant pursuant to this subsection, including the Property removal, clean-up and indemnification obligations imposed upon Tenant by this subsection. Tenant shall, within five (5) days after receipt thereof, furnish to Tenant, Landlord copies of all notices or other communications received by Tenant with respect to any actual or alleged release or discharge of any Hazardous Material in or about the Premises or the Building and Property shall, whether or not Tenant receives any such notice or communication, notify Landlord in writing of any discharge or release of Hazardous Material by Tenant or anyone for whom Tenant is responsible in or about the Premises or the Building. In the event that Tenant is required to maintain any Hazardous Materials license or permit in connection with any use conducted by Tenant or any equipment operated by Tenant in the Premises, copies of each such license or permit, each renewal or revocation thereof and any communication relating to suspension, renewal or revocation thereof shall be free from contamination furnished to Landlord within five (5) days after receipt thereof by Hazardous MaterialsTenant. Notwithstanding anything in Compliance by Tenant with the two immediately preceding sentences shall not relieve Tenant of any other obligation of Tenant pursuant to this Lease to subsection. Upon any violation of the contraryforegoing covenants, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) Ifobligated, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at LandlordTenant's sole cost; , to clean-up and remove from the Building all Hazardous Materials introduced into the Building by Tenant or any person or entity for whom Tenant is responsible. Such clean-up and removal shall include all testing and investigation required by any governmental authorities having jurisdiction and preparation and implementation of any remedial action plan required by any governmental authorities having jurisdiction. All such clean-up and removal activities of Tenant shall, in each instance, be conducted to the satisfaction of Landlord agrees and all governmental authorities having jurisdiction. Landlord's right of entry pursuant to defendArticle 16 above shall include the right to enter and inspect the Premises for violations of Tenant's covenants herein. Notwithstanding and in addition to the provisions of Article 14 above, Tenant shall indemnify, defend and hold Tenant harmless Landlord and Landlord's Related Parties from and against any and all costsclaims, damagesliabilities, expenseslosses, and/or liabilities actions, costs and expenses (including reasonable attorneys' feesfees and costs of defense) which Tenant may suffer incurred by such indemnified persons, or any of them, as a the result of (i) the introduction into or about the Building by Tenant or anyone for whom Tenant is responsible of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence usage, storage, maintenance, generation, disposition or disposal by Tenant or anyone for whom Tenant is responsible of Hazardous Materials in or about the Building, (iii) the discharge or release in or about the Building by Tenant or anyone for whom Tenant is responsible of any Hazardous Materials, (iv) any injury to or death of persons or damage to or destruction of property resulting from the use, introduction, maintenance, storage, generation, disposal, disposition, release or discharge by Tenant or anyone for whom Tenant is responsible of Hazardous Materials caused by Tenantin or about the Building, and (v) any failure of Tenant or anyone for whom Tenant is responsible to observe the foregoing covenants of this subsection. Upon any violation of the foregoing covenants, Landlord shall be entitled to exercise all remedies available to a landlord against a defaulting tenant, including but not limited to those set forth in Article 21 above. Without limiting the generality of the foregoing, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx expressly agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding that upon any such Hazardous Materials violation Landlord may, at its option, (whether alleged i) immediately terminate this Lease or real), and/or regarding (ii) continue this Lease in effect until compliance by Tenant with its clean- up and removal covenant notwithstanding any earlier expiration date of the removal and remediation term of samethis Lease. No action by Landlord hereunder shall impair the obligations of Tenant pursuant to this subsection.
Appears in 1 contract
Samples: Office Lease (Intek Information Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Tenant shall not cause or Propertypermit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Xxxxxxxx agrees Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding the foregoing, Tenant may use such commercial or household type cleaners materials as are necessary for Broadcom’s research and chemicals development operations as long as such use(s) comply with all applicable laws.
(c) Prior to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with reasonable access to all facilities, records and personnel related thereto, provided Landlord shall provide Tenant with reasonable prior notice. If Tenant is not in compliance with any of the date provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice in the case of emergency, and otherwise on which reasonable prior notice, and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall deliver possession endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent shall not be unreasonably withheld, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease, and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials or remediation thereof. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found have no liability or responsibility with respect to the Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials which Tenant proves were not caused or placed on the Premises by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Landlord hereby represents and warrants that to the best of Landlord’s knowledge, other than as set forth in Exhibit C, as of the date of this Lease, no other Hazardous Materials are present in, on or around the Building or Propertythe Project. Landlord agrees to indemnify and hold harmless Tenant and Tenant’s employees, then:
(i) agents, directors, officers and partners from claims arising from the breach of the warranty contained herein. Nothing in this Section or this Lease shall require Tenant to indemnify Landlord with regard to the presence respect to, or release of clean up or remediate any Hazardous Materials that Tenant shall not have causedwhich were on or in the Premises, Landlord shall, with diligence, remove the Building or remediate or cause the remediation or removal of same Project prior to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) date this Lease was executed or which Tenant may suffer as a result of any claim, suit, were placed on or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this SectionPremises, within the specified time periodsBuilding or the Project by anyone other than Tenant or Tenant’s agents, thencontractors, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove subtenants or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaserepresentatives.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease (Broadcom Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants thatshall not cause or knowingly permit its agents, except as herein set forthemployees, it will not contractors, licensees or invitees to bring upon, store, use, store generate, release or dispose of any Hazardous Materials on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Additionally, Tenant shall be permitted to use such Hazardous Materials in such quantities and in such manner as described in this paragraph may constitute Hazardous Materialsthe Environmental Questionnaire (defined below). Notwithstanding Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, storage and/or disposal of any other provision Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, use, release, and/or disposal of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and, in the event any violations of this Section 5.3 are found, then Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises by Tenant or its agents, employees, contractors, licensees or invitees for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the storage, use, generation, release or disposal of any Hazardous Materials on, under, from or about the Premises or the Site caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Site and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials as required by law. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Site or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Site and any other real or personal property owned by Landlord knowingly caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Site and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Site as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant may have knowingly permitted its agents, employees, contractors, licensees or invitees to release a Hazardous Material on, under, from or about the Premises, the Building or the Site or any other real or personal property owned by Landlord, or caused such a release, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Site or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Site known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which Tenant shall not have causedproves were neither released on the Premises during the Term nor caused by Tenant, Landlord shallits agents, with diligenceemployees, remove contractors, licensees or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense and not as a Site Cost, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in compliance this Section 5.3(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney’s fees) of defending Tenant (with Laws, and at Landlord's sole cost; and Landlord agrees attorneys reasonably acceptable to defend, indemnify, and hold Tenant harmless Tenant) from and against any and all costslegal action or proceeding instituted by any governmental agency in connection with such clean-up, damagesremediation, expensesremoval, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claimdisposal, suit, neutralization or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement other treatment of such remediation within thirty (30) days of knowledge of conditions, provided that Tenant promptly tenders such presence or release. If Landlord shall fail defense to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(iig) with regard to In the presence or release event of any foreclosure of a mortgage or deed of trust encumbering the Building and/or the Site, the obligations on the part of Landlord contained in Section 5.3(f) above shall be personal to Landlord and shall not be binding on nor inure against any lender acquiring the Building and/or the Site by foreclosure of its mortgage or deed of trust or deed in lieu of foreclosure, or any successor in interest to such lender
(h) Except as disclosed in Section 5.3(f) above (and/or as may otherwise be disclosed to Tenant in writing), Landlord represents that to “Landlord’s knowledge” (as hereinafter defined), there are no Hazardous Materials caused by Tenant, Tenant shall remove in or remediate same to about the extent required by Laws, and Site which are in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result violation of any claimapplicable federal, suitstate or local law, ordinance or action regarding any such regulation. As used herein, “Landlord’s knowledge” shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samecompliance matters.
Appears in 1 contract
Samples: Lease (Senorx Inc)
Hazardous Materials. (a) For Tenant, at its sole cost and expense, shall comply with all laws relating to the purposes hereofstorage, the term "Hazardous Materials" shall includeuse, handling and disposal of hazardous, toxic or radioactive matter including, without limitation, hazardous those materials identified in Sections 66680 and 66685 of Title 22 of the California Administrative Code, Division 4, Chapter 30 (“Title 22”), as amended from time to time (collectively, “Hazardous Materials”). Tenant shall notify Landlord and provide to Landlord a copy or toxic substances, materials that may be deemed hazardous copies of any environmental entitlements or inquiries related to human or animal health, including without limitation, oil the Premises. The clean-up and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose disposal of any Hazardous Materials released onto or about the Project by Tenant or its agents, contractors or employees shall be performed by Tenant at Tenant’s sole cost and expense and shall be performed in accordance with all applicable laws, rules, regulations and ordinances, pursuant to a site assessment and removal/remediation plan prepared by a licensed and qualified geotechnical engineer and submitted to and approved in writing by Landlord prior to the Building or Propertycommencement of any work. Xxxxxxxx agrees that Tenant The foregoing notwithstanding, Landlord in Landlord’s sole and absolute discretion may use such commercial or household type cleaners elect, by written notice to Tenant, to perform the clean-up and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permittedHazardous Materials from the Premises and/or the Project. In such event, Tenant shall pay to Landlord and Tenant acknowledge that any or all the reasonable cost of the cleaners and chemicals described in this paragraph may constitute Hazardous Materialssame upon receipt from Landlord of Landlord’s written invoice therefor. Notwithstanding any other term or provision of this Lease, Tenant mayshall permit Landlord or Landlord’s agents or employees to enter the Premises at any time, useupon reasonable prior notice, store and dispose of same as herein set forthto inspect, provided that in doing so, Tenant complies monitor and/or take emergency or long-term remedial action with Laws.
(c) Landlord represents and warrants respect to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in on or on affecting the Building Premises or Property have been removed, and Landlord has supplied Tenant to discharge Tenant’s obligations hereunder with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property respect to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real)when Tenant has failed, and/or regarding after demand by Landlord, to do so. In exercising its rights in the removal and remediation of same. immediate foregoing, Landlord shall diligently commence take all reasonable measures to not interfere with or cause interrupt the commencement operation of such remediation Tenant’s business in the Premises. All costs and expenses incurred by Landlord in connection with performing Tenant’s obligations hereunder shall be reimbursed by Tenant to Landlord within thirty (30) days of knowledge Tenant’s receipt of such presence written request therefor. Notwithstanding anything to the contrary herein this Section 20.2, Lease, or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, thenanywhere else, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election shall not be responsible for, shall have no liability or obligations with respect to, and shall not be obligated to remove pay for or remediate take any action with respect to (i) the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release existence of any Hazardous Materials caused by Tenanton, Tenant shall remove within, under, from and/or about the Premises or remediate same Project which occurred or existed prior to the extent required date of the delivery of the Premises by Laws, and in compliance with Laws, and at Landlord to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may place such reasonable conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize a third party environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of those Hazardous Materials by Tenant on or about the Premises requiring Landlord’s consent, and Tenant agrees that the reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder within thirty (30) days after demand. In addition, Landlord may utilize a third party environmental consultant to conduct periodic inspections of the storage, generation, use, release and/or disposal of Hazardous Materials by Tenant on and from the Premises and, in the Building or Property. Xxxxxxxx agrees event such inspections reveal that Tenant may is in violation of its obligations under this Section with respect to the storage, generation, release, disposal or use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision , Tenant shall bear the reasonable costs incurred by Landlord in connection with such inspections.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials. Except to the extent required by law or legal process, Landlord shall use its commercially reasonable efforts to keep any of the foregoing documents and reports, which are not a matter of public information and which are delivered by Tenant with a confidentiality requirement, confidential and shall not disclose same to third parties other than its consultants, attorneys and lenders.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto upon reasonable prior notice and with a Tenant escort, which Tenant agrees to make reasonably available. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials that on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, subtenants, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the “Required Condition” (as hereinafter defined), and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent shall not have causedbe unreasonably withheld, Landlord shallconditioned or delayed, with diligence, remove or remediate or cause the remediation or removal of same take any remedial action in response to the extent presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. As used herein, “Required Condition” shall mean returning the Premises and the Project and any other directly affected real or personal property owned by Landlord to a condition that is both (A) required by Lawsapplicable federal, state or local law, regulation or order, including without limitation, performing any required cleanup, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials, and in compliance with Laws(B) wherein Landlord’s marketability, use and at Landlord's sole cost; leasing of the Premises and Landlord agrees to defendthe Project as commercial properties shall not be materially impaired. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and hold Tenant harmless defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all costsliabilities, losses, damages, expensesdiminution in value, and/or liabilities judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including reasonable without limitation attorneys' ’ fees) which Tenant may suffer , court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, subtenants, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, subtenants, contractors, licensees or invitees may deduct have caused or permitted the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by TenantLandlord, Tenant shall remove shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be taken by Tenant to return the Premises, the Building or remediate same the Project or any other real or personal property owned by Landlord to the extent required by Lawscondition existing prior to the introduction of such Hazardous Materials. Upon Landlord’s approval of such plan, Tenant shall, at its expense, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result without limitation of any claimrights and remedies of Landlord under this Lease or at law or in equity, suitimmediately implement such plan and proceed to cleanup, or action regarding any remediate and/or remove all such Hazardous Materials (whether alleged in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or real), and/or regarding the removal and remediation sooner termination of samethis Lease.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), PROVIDED HOWEVER, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their -------- ------- original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such reasonable conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached --------- hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing to the best of Tenant's knowledge the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) If, at any time during If the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that on, under, from or about the Premises or the Project caused by Landlord, its authorized agents or employees, and not introduced by Tenant, its agents, employees, contractors, licensees, or invitees results in (i) injury to any person, or (ii) injury to or any contamination of the Premises or the Project at levels which require clean- up or remediation under applicable laws, Landlord, at its expense (which shall not be included in Operating Expenses), shall promptly take all actions necessary to return the Premises and the Project to the condition existing prior to the introduction of such Hazardous Materials, or to such condition as is satisfactory to all governmental agencies asserting jurisdiction, and to remedy or repair any such injury or contamination, including, without limitation, any clean-up, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials.
(g) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall not have caused, Landlord shall, no liability or --------- responsibility with diligence, remove or remediate or cause the remediation or removal of same respect to the extent required Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials which were not caused or --------- knowingly permitted by LawsTenant, its agents, employees, contractors, licensees or invitees. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in compliance this Section 5.3(g). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney's fees) of defending Tenant (with Laws, and at Landlord's sole cost; and Landlord agrees attorneys reasonably acceptable to defend, indemnify, and hold Tenant harmless Tenant) from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention.
(whether alleged or real)h) The obligations on the part of Landlord contained in Sections 5.3(f) and 5.3(g) above are personal to Landlord and shall not be binding on, and/or regarding nor inure against any successor in interest to Landlord as of the removal and remediation owner of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this SectionPremises, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable any lender acquiring the Premises by Tenant to Landlord under this Leaseforeclosure of its mortgage or deed of trust or deed in lieu of foreclosure.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Industrial Lease (Information Management Associates Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous materials” as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises or the Site (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises, the Site and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises and/or the Site caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises and/or the Site without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises and/or the Site.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises and/or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises and/or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises, the Site and Property shall be free from contamination any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not be obligated not, without Landlord’s prior written consent, take any remedial action in response to accept possession the presence of the Building and Property until any Hazardous Materials found on, under or about the Premises, the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or on about the Building Premises, the Site or Property have been removedany other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises, the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Site and any other real or personal properly owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Site and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord has supplied at any time discovers that Tenant with or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a certificate Hazardous Material on, under, from or about the appropriate governmental authority that such removal has been completedPremises, the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord has restored a comprehensive plan, subject to Landlord’s approval, specifying the Building and Property actions to be taken by Tenant to return the Premises, the Site or any other real or personal property owned by Landlord to the condition which existed immediately existing prior to the introduction of such removal and/or otherwise Hazardous Materials. Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in conformance equity, Immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Premises and/or the Site known by landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of any Hazardous Materials that Tenant shall not have causedfacts described in Exhibit C, Landlord shall, nor with diligence, remove or remediate or cause the remediation or removal of same respect to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) hazardous Materials which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suit, exposure or action regarding any such Hazardous potential exposure to hazardous Materials (whether alleged or real), at the Premises and/or regarding the removal and remediation of sameSite that Landlord brings to Tenant’s attention.
Appears in 1 contract
Samples: Industrial Lease (Sunpower Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding any other provision Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that the reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon written demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including, without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(p) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant maystorage, use, store release, and/or disposal of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and dispose of same from the Premises, and Xxxxxx agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as herein set forth, provided that in doing so, Tenant complies with Lawsadditional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Xxxxxx shall complete, execute and deliver to Landlord represents a Hazardous Material Survey Form (the “Survey Form”) on a form provided by Landlord. The completed Survey Form shall be deemed DocuSign Envelope ID: B966CD56-D004-47EC-A282-964B9CCA451B
(d) Landlord and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with access to those facilities, records and personnel related thereto reasonably necessary to confirm Tenant’s compliance therewith. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Xxxxxx’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Xxxxxx’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Xxxxxxxx’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.its DocuSign Envelope ID: B966CD56-D004-47EC-A282-964B9CCA451B
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereof, the term "Hazardous Materials" Tenant shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store generate, manufacture, produce, store, release, discharge, or dispose of, on, under or about the Premises or any part of the Project, or transport to or from the Premises or any part of the Project, any Hazardous Materials Material or allow its employees, agents, contractors, licensees, invitees or any other person or entity to do so. The foregoing covenant shall not extend to insignificant amounts of substances typically found or used in general office applications so long as (i) such substances are maintained only in such quantities as are reasonably necessary for Tenant's operations in the Premises, (ii) such substances are used strictly in accordance with the manufacturers' instructions therefor and all applicable laws, (iii) such substances are not disposed of in or about the Building or Property. Xxxxxxxx agrees that Tenant may use the Project in a manner which would constitute a release or discharge thereof, and (iv) all such commercial or household type cleaners and chemicals to maintain substances are removed from the Building and the Project by Tenant upon the expiration or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision earlier termination of this Lease, . Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If after demand therefor, provide to Landlord shall fail to commence or cause the commencement to remediate a written list identifying any Hazardous Materials then maintained by Tenant in the manner specified in this SectionBuilding, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice use of Xxxxxx’s election to remove or remediate the each such Hazardous materials on Landlord’s behalf. If Tenant shall Material so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable maintained by Tenant together with written certification by Tenant stating, in substance, that neither Tenant nor any person for whom Tenant is responsible has released or discharged any Hazardous Materials in or about the Building or the Project. Landlord's right of entry pursuant to Landlord under Section 7.03 of this LeaseLease shall include the right to enter and inspect the Premises for violations of Tenant's covenant herein.
(b) Hazardous Materials shall include by way of illustration, and without limiting the generality of the definition of Hazardous Materials in Section 1.03, the following: (i) those substances included within the definitions of "hazardous substances," "hazardous materials," "toxic substances" or "solid waste" under all present and future federal, state and local laws (whether under common law, statute, rule, regulation or otherwise) relating to the protection of human health or the environment, including California Senate Xxxx 245 (Statutes of 1987, Chapter 1302), the Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as Proposition 65) and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 ET SEQ., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 ET SEQ., and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, ET SEQ., all as heretofore and hereafter amended, or in any regulations promulgated pursuant to said laws; (ii) with regard those substances defined as "hazardous wastes" in Section 25117 of the California Health & Safety Code or as "hazardous substances" in Section 25316 of the California Health & Safety Code, or in any regulations promulgated pursuant to said laws; (iii) those substances listed in the presence United States Department of Transportation Table (49 CFR 172.101 and amendments thereto) or release designated by the Environmental Protection Agency (or any successor agency) as hazardous substances (SEE, E.G., 40 CFR Part 302 and amendments thereto); (iv) such other substances, materials and wastes which are or become regulated under applicable local, state or federal law or by the United States government or which are or become classified as hazardous or toxic under federal, state or local laws or regulations, including California Health & Safety Code, Division 20, and Title 26 of the California Code of Regulations; and (v) any Hazardous Materials caused material, waste or substance which contains petroleum, asbestos or polychlorinated biphenyls, is designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act of 1977, 33 U.S.C. Sections 1251, ET SEQ. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act of 1977 (33 U.S.C. Section 1317) or contains any flammable, explosive or radioactive material.
(c) To the extent permitted by TenantLaw, Tenant shall remove or remediate same to the extent required by Lawshereby indemnifies, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defendprotect, indemnify defend and hold Landlord harmless from and the Indemnitees harmless, against any and all costsactions, damagesclaims, demands, liability, costs and expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result fees and expenses for the defense thereof, arising out of any and all of (i) the introduction into the Project by Tenant, its employees, agents, contractors, licensees, invitees or any other person or entity for whom Tenant is responsible (collectively, "Tenant's Agents") of any Hazardous Material, (ii) the usage by Tenant or Tenant's Agents of Hazardous Materials in or about the Project, (iii) the discharge or release in or about the Project by Tenant or Tenant's Agents of any Hazardous Material, (iv) any injury to or death of persons or damage to or destruction of property resulting from the use by Tenant or Tenant's Agents of Hazardous Materials in or about the Project, and (v) any failure of Tenant or Tenant's Agents to observe the foregoing covenants. In case of any action or proceeding brought against the Indemnitees by reason of any such claim, suitupon notice from Landlord, Tenant covenants to defend such action or proceeding by counsel chosen by Landlord, in Landlord's sole discretion. Landlord reserves the right to settle, compromise or dispose of any and all actions, claims and demands related to the foregoing indemnity. The foregoing indemnity shall not operate to relieve Landlord of any liability Landlord has under Environmental Laws to the extent Hazardous Materials are present on, under or about the Premises or the Project prior to delivery to Tenant of possession of the Premises.
(d) Tenant acknowledges that the sewer piping at the Project is made of ABS plastic. Accordingly, without Landlord's prior written consent, which may be given or withheld in Landlord's sole discretion, only ordinary domestic sewage is permitted to be put into the drains at the Premises. UNDER NO CIRCUMSTANCES SHALL Tenant EVER DEPOSIT ANY ESTERS OR KETONES (USUALLY FOUND IN SOLVENTS TO CLEAN UP PETROLEUM PRODUCTS) IN THE DRAINS AT THE PREMISES. If Tenant desires to put any substances other than ordinary domestic sewage into the drains, it shall first submit to Landlord a complete description of each such substance, including its chemical composition, and a sample of such substance suitable for laboratory testing. Landlord shall promptly determine whether or not the substance can be deposited into the drains and its determination shall be absolutely binding on Tenant. Upon demand, Tenant shall reimburse Landlord for expenses incurred by Landlord in making such determination. If any substances not so approved hereunder are deposited in the drains in Tenant's Premises, Tenant shall be liable to Landlord for all damages resulting therefrom, including but not limited to all costs and expenses incurred by Landlord in repairing or replacing the piping so damaged.
(e) Upon any violation of any of the foregoing covenants, in addition to all remedies available to a landlord against the defaulting tenant, including but not limited to those set forth in Article Eleven of this Lease, Tenant expressly agrees that upon any such violation Landlord may, at its option (i) immediately terminate this Lease by giving written notice to Tenant of such termination, or (ii) continue this Lease in effect until compliance by Tenant with its clean-up and removal covenant (notwithstanding the expiration of the Term). No action regarding any such Hazardous Materials (whether alleged or real), and/or regarding by Landlord hereunder shall impair the removal and remediation obligations of sameTenant pursuant to this Section 7.02.
Appears in 1 contract
Samples: Lease Agreement (Netobjects Inc)
Hazardous Materials. (aA) For the purposes hereof, the term "Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose of any No Hazardous Materials in (as defined herein) shall be Handled (as defined herein) upon, about, above or beneath the Premises or any portion of the Building or Propertythe Complex by or on behalf of a Responsible Party (as defined herein) unless the Hazardous Materials are listed in Exhibit D hereto and then only in the quantities listed in the exhibit. Xxxxxxxx agrees that Tenant may use Any such commercial Hazardous Materials so Handled, or household type cleaners and chemicals to maintain the Building presence or Property. Storage migration of such chemicals which is also permitted. Landlord and Tenant acknowledge that any or all a result of the cleaners and chemicals described in this paragraph may constitute act or omission of a Responsible Party, shall be known as Tenant's Hazardous Materials. Notwithstanding any other provision the foregoing, Landlord acknowledges that, due to Tenant's permitted use of the Premises, as indicated in Paragraph 6.01 of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any will occasionally Handle Hazardous Materials found in or on the Building or Property have been removedPremises which are in transit to their final destination; however, such presence and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms Handling of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in compliance with all applicable federal, state, local and environmental laws and regulations and the following guidelines: (i) no nuclear or explosive materials will be Handled by Tenant on the Premises, except such radioactive isotopes as Tenant may Handle from time to time; provided that such Handling shall be in accordance with the U.S. Department of Transportation regulations and the International Airtransport Association Dangerous Goods regulations; (ii) all Hazardous Materials will be Handled in a well-marked area which is segregated from other storage and handling areas and is used exclusively for hazardous materials; (iii) Hazardous Materials will be Handled in such a way that any such Materials which are incompatible or reactive to each other shall be kept separate at all times such Materials are on the Premises; (iv) Hazardous Materials shall only be Handled on the Premises for a maximum period of twenty-four (24) hours; (v) Tenant shall provide written documents or other written evidence to Landlord upon execution of the Lease that all personnel who are responsible for the Handling or other contact with Hazardous Materials have been properly trained, in accordance with any applicable laws and/or regulations, to handle spills of Hazardous Materials and that the required, appropriate spill response equipment is maintained on site; (vi) Tenant will provide Landlord with written evidence that it is maintaining the appropriate insurance coverage for the occasional presence of such Hazardous Materials on the Premises upon execution of this Lease; and (vii) Tenant will provide Landlord with written evidence that all of its employees whose responsibilities include driving Tenant's trucks or other vehicles are licensed in accordance with state, federal and local laws and regulations to transport and Handle Hazardous Materials. Also, notwithstanding the foregoing, normal quantities of those Tenant Hazardous Materials customarily used in the conduct of general administrative and executive office activities (e.g., copier fluids and cleaning supplies) may be Handled at the Premises without Landlord's prior written consent.
(B) Tenant's Hazardous Materials shall be Handled at all times in compliance with the manufacturer's instructions therefore and all applicable Environmental Laws (as defined herein). Tenant's Hazardous Materials shall not be disposed of, released, discharged or permitted to spill, leak or migrate upon about, above or beneath the Premises or any portion of the Building.
(C) Tenant agrees to maintain only the Hazardous Materials listed in Schedule 1 to Exhibit D in or on at the Premises or the Building an only in the quantities listed in Schedule 1 to Exhibit D. Tenant further agrees that changes to the type and quantities of such Tenant's Hazardous Materials may be done only with the prior written consent of the Landlord, which consent shall not be unreasonably withheld. Tenant further agrees that Landlord shall have the right to inspect the Building to verify the types and quantities of the materials stored therein.
(D) Notwithstanding the obligation of Tenant to indemnify Landlord pursuant to this Lease, Tenant shall, at its sole cost and expense, promptly take all actions required by any Regulatory Authority, or necessary for Landlord to make full economic use of the Premises or any portion of the Building or Propertythe Complex which requirements or necessity arises from the Handling, then:
(i) with regard presence or migration of Tenant's Hazardous Materials upon, about, above or beneath the Premises or any portion of the Building or Complex. Such actions shall include, but not be limited to, the investigation of the environmental condition of the Premises or any portion of the Building or the Complex the preparation of any feasibility studies or reports and the performance of any cleanup, remedial, removal or restoration work. Tenant shall take all actions necessary to restore the Premises or any portion of the Building or the Complex to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.condition
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their -------- ------- original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such commercially reasonable conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached --------- hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (d) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) --------- responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall which were not have caused, Landlord shall, with diligence, remove caused or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused --------- permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous MaterialsHAZARDOUS MATERIALS" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord: (A) to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products, and (B) to utilize within the Premises those Hazardous Materials in kind and content listed on the Environmental Questionnaire delivered to Landlord prior to the execution of this paragraph may constitute Lease, provided that Tenant shall comply with all applicable laws with respect to such Hazardous Materials and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of such Hazardous Materials. Notwithstanding Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any other provision such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless such costs are covered by Tenant's indemnity obligations contained in this Section 5.3.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "ENVIRONMENTAL QUESTIONNAIRE") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which Tenant shall not have causedproves were neither released on the Premises during the Term nor caused or permitted by Tenant, Landlord shallits agents, with diligenceemployees, remove contractors, licensees or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in compliance this Section 5.3(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney's fees) of defending Tenant (with Laws, and at Landlord's sole cost; and Landlord agrees attorneys reasonably acceptable to defend, indemnify, and hold Tenant harmless Tenant) from and against any and all costslegal action or proceeding instituted by any governmental agency in connection with such clean-up, damagesremediation, expensesremoval, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claimdisposal, suit, neutralization or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement other treatment of such remediation within thirty (30) days of knowledge of conditions, provided that Tenant promptly tenders such presence or release. If Landlord shall fail defense to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(iig) with regard to In the presence or release event of any Hazardous Materials caused by Tenantforeclosure of a mortgage or deed of trust encumbering the Building and/or the Project, Tenant the obligations on the part of Landlord contained in Section 5.3(f) above shall remove or remediate same be personal to the extent required by Laws, Landlord and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and shall not be binding on nor inure against any and all costs, damages, expenses, lender acquiring the Building and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result the Project by foreclosure of any claim, suitits mortgage or deed of trust or deed in lieu of foreclosure, or action regarding any successor in interest to such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samelender.
Appears in 1 contract
Samples: Lease (Endocare Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous MaterialsHAZARDOUS MATERIALS" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) any toxic or hazardous materials, hazardous or toxic substances, wastes or materials that may be deemed hazardous as defined pursuant to human any other applicable state, federal or animal healthlocal law or regulation, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon(iii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building foregoing, Tenant shall have the right, without *** Confidential treatment has been requested for the redacted text of this document. The confidential redacted text has been omitted and filed separately with the Securities and Exchange Commission. obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in its reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or Propertyuseful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Xxxxxxxx agrees that Notwithstanding the foregoing, Tenant may use such commercial or household type cleaners materials as are necessary for Broadcom's research and chemicals development operations as long as it complies with all applicable laws.
(c) Prior to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "ENVIRONMENTAL QUESTIONNAIRE") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with reasonable access to all facilities, records and personnel related thereto, provided Landlord shall provide Tenant with reasonable prior notice. If Tenant is not in compliance with any of the date provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice in the case of emergency, and otherwise on which reasonable prior notice, and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall deliver possession endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Site caused by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises and Property shall be free from contamination the Site and any other affected real or personal property owned by Landlord to the condition existing *** Confidential treatment has been requested for the redacted text of this document. The confidential redacted text has been omitted and filed separately with the Securities and Exchange Commission. prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not, without Landlord's prior written consent, which consent shall not be obligated unreasonably withheld, take any remedial action in response to accept possession the presence of any Hazardous Materials on, from, under or about the Premises or the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Site or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Buildings or the Site and any other real or personal property owned by Landlord caused by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building(s) and the Site and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease, and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building(s) or the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and Property until submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be taken by Tenant to return the Premises, the Building(s) or the Project or any Hazardous Materials found in other real or on the Building or Property have been removed, and personal property owned by Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately existing prior to the introduction of such removal and/or otherwise Hazardous Materials. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in conformance equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Site known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found have no liability or responsibility with respect to the Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials which Tenant proves were not caused or placed on the Premises by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's attention. Landlord hereby represents and warrants that to the best of Landlord's knowledge, other than as set forth in Exhibit C, as of the date of this Lease, no other Hazardous Materials are present in, on or around the Building or Propertythe Site. Landlord agrees to indemnify and hold harmless Tenant and Tenant's employees, then:
(i) agents, directors, officers and partners from claims arising from the breach of the warranty contained herein. Nothing in this Section or this Lease shall require Tenant to indemnify Landlord with regard respect to the presence or release of any Hazardous Materials that Tenant shall not have causedwhich were on or in the Premises, Landlord shall, with diligence, remove the Building or remediate or cause the remediation or removal of same Site prior to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) date this Lease was executed or which Tenant may suffer as a result of any claim, suit, were placed on or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this SectionPremises, within the specified time periods, then, Building or the Site by anyone other than Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; agents, contractors, subtenants or representatives. *** Confidential treatment has been requested for the redacted text of this document. The confidential redacted text has been omitted and Xxxxxx agrees to defend, indemnify filed separately with the Securities and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameExchange Commission.
Appears in 1 contract
Samples: Lease Agreement (Broadcom Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant shall maintain -------- ------- such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand if Tenant is in violation of its obligations under this Section.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. --------- The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self- reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel after reasonable prior notice under the circumstances except in the event of an emergency when no advance notice shall be required. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises and Property shall be free from contamination the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not be obligated not, without Landlord's prior written consent, take any remedial action in response to accept possession the presence of the Building and Property until any Hazardous Materials found on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or on about the Building Premises or Property have been removedthe Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Buildings and the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Buildings and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord has supplied at any time discovers that Tenant with or its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the release of a certificate Hazardous Material on, under, from or about the appropriate governmental authority that such removal has been completedPremises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord has restored a comprehensive plan, subject to Landlord's approval, specifying the Building and Property actions to be taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition which existed immediately existing prior to the introduction of such removal and/or otherwise Hazardous Materials. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in conformance equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit ------- C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard - respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with --------- respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises or the Site (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to use, store, handle and dispose of within the Premises (a) reasonable quantities of customary janitorial supplies that may contain Hazardous Materials, (b) packaged products intended for resale to consumers that may contain Hazardous Materials (including, without limitation, hair spray, household cleaners, automotive products, antifreeze, dog food, fertilizer), and (c) standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided -------- however, that (i) Tenant shall maintain such supplies and products in their ------- original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners use, storage, handling and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord supplies and Tenant acknowledge that any or products, and shall otherwise comply with all applicable laws with respect to such supplies and products (including, without limitation, securing all required governmental approvals relating to the lawful use, storage, handling and disposal of such supplies and products), and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's use, storage, handling and disposal of all such supplies and products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached --------- hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises, the Site and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises and/or the Site caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises and/or the Site without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises and/or the Site.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises and/or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises and/or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Building Premises, the Site and Property shall be free from contamination any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding anything in this Lease to the contraryforegoing, Tenant shall not be obligated not, without Landlord's prior written consent, take any remedial action in response to accept possession the presence of the Building and Property until any Hazardous Materials found on, under or about the Premises, the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or on about the Building Premises, the Site or Property have been removedany other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises, the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Site and any other real or personal property owned by Landlord to the extent that such use, generation, storage, treatment, release, on- or off- site disposal and/or transportation is caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Site and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord has supplied at any time discovers that Tenant with or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a certificate Hazardous Material on, under, from or about the appropriate governmental authority that such removal has been completedPremises, the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord has restored a comprehensive plan, subject to Landlord's approval, specifying the Building and Property actions to be taken by Tenant to return the Premises, the Site or any other real or personal property owned by Landlord to the condition which existed immediately existing prior to the introduction of such removal and/or otherwise Hazardous Materials. Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in conformance equity, immediately implement such plan and proceed to cleanup such Hazardous Materials in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Premises and/or the Site known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no --------- liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, --------- proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises and/or the Site that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention in the form of a written notice, setting forth with particularity the exposure or potential exposure to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samerefers.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" ” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, (ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous materials, substances, wastes or materials as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may result in liability to any person or entity as result of such person’s possession, use, release or distribution of such substance or matter under any statutory or common law theory.
(b) Except for ordinary quantities of office and cleaning supplies customarily used in projects similar to the Project, which shall be used in full compliance with all Hazardous Materials laws, Tenant shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord: (A) to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products, and (B) to utilize within the Premises those Hazardous Materials in kind and content listed on the Environmental Questionnaire delivered to Landlord prior to the execution of this Lease to the extent the use of such Hazardous Materials are permitted by Landlord’s insurance and do not increase the amount of the premiums of such insurance, provided that Tenant shall comply with all applicable laws with respect to such Hazardous Materials and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of such Hazardous Materials. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall be in default under this Section 5.3 and such costs are covered by Tenant’s indemnity obligations contained in this Section 5.3.
(c) Prior to the execution of this Lease, Tenant shall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, release and/or dispose of on, under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and Master Lessor, and any successors to all or any portion of Landlord’s and/or Master Lessor’s interest in the Premises and in the Project and in any other real or personal property owned by Landlord or Master Lessor, from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials by Tenant or Tenant’s agents, employees, contractors, licensees or invitees on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord or Master Lessor. Such indemnity obligation shall specifically include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not use, store or dispose the cost of any Hazardous Materials in the Building required or Property. Xxxxxxxx agrees that Tenant may use such commercial necessary repair, restoration, cleanup or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all detoxification of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to TenantPremises, the Building and Property shall the Project and any other real or personal property owned by Landlord or Master Lessor, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord or Master Lessor, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord or Master Lessor, to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which were not used, generated, stored, treated, released, disposed or transported on- or off-site, by Tenant shall not have causedor Tenant’s agents, Landlord shallemployees, with diligencecontractors, remove licensees or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Provided such information is accurate, Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall take responsibility, at its sole cost and expense, for any govenrmentally-required clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in compliance with Lawsthis Section 5.3(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, and at Landlord's sole cost; and Landlord agrees to defendwithout limitation, indemnify, and hold reasonable attorney’s fees) of defending Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of XxxxxxTenant’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaseattention.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease (Lsi Logic Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials (other than reasonable quantities of standard office products that may contain Hazardous Materials) which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials which Tenant proves were not caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord. Landlord shall not have causedtake responsibility, at its sole cost and expense, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of Hazardous Materials conditions described in this Section 5.3(f). The foregoing obligation on the part of Landlord shallshall include the reasonable costs (including, with diligencewithout limitation, remove or remediate or cause the remediation or removal reasonable attorney’s fees) of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold defending Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of XxxxxxTenant’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaseattention.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501 (n) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and(iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office and cleaning products that may contain Hazardous Materials (such as photocopy toner, “White Out”, glue, ink, janitorial cleaning supplies, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 21 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials (excluding those referred to in the second sentence of this Section 21 (b) above) by Tenant on and from the Premises, and Tenant agrees that any reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord to conduct periodic inspections unless Tenant shall be in default under this Section 21 and such costs are covered by Tenant’s indemnity obligations contained in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision Section 21.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit F attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials (excluding those referred to in the second sentence of Section 21 (b) above) which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that under or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials (excluding those referred to in doing sothe second sentence of Section 21(b) above) upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, at Landlord’s expense (except as otherwise expressly provided herein), to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 21, and in connection therewith Tenant shall, at reasonable times and in a manner as to minimize interference with Tenant’s business, provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 21, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 21 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project, in each case as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 21(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that which were neither released on the Premises during the Term nor caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Landlord shall take responsibility, at its sole cost and expense, for any Hazardous Materials classified as such and existing in the Premises as of the date of this Lease and required to be removed, encapsulated or treated under any applicable law, or any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of the Hazardous Materials conditions described in this Section 21(f). The foregoing obligation on the part of Landlord shall include the reasonable costs (including, without limitation, reasonable attorney’s fees) of defending Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease (AutoTrader Group, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” means (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the “Survey Form”) in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants, or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real property adjoining the Project owned by Landlord, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real property adjoining the Project owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real property adjoining the Project owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real property adjoining the Project owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii} is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord, and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other adjoining real property owned by Landlord, from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other adjoining real property owned by Landlord, which are caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real property adjoining the Project owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real property adjoining the Project owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real property adjoining the Project owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that which Tenant shall proves were not have causedcaused or permitted by Tenant, Landlord shallits agents, with diligenceemployees, remove contractors, licensees, subtenants or remediate or cause invitees. Notwithstanding the remediation or removal of same preceding two sentences, Tenant agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, subtenants, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord.
(g) Landlord shall take responsibility, at its sole cost and expense and not as a Project Cost, for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or other treatment of those Hazardous Materials conditions described in compliance with LawsSection 5.3(f) above for which Tenant has no liability or responsibility. The foregoing obligation on the part of Landlord shall include the reasonable costs (including, and at Landlord's sole cost; and Landlord agrees to defendwithout limitation, indemnify, and hold reasonable attorney’s fees) of defending Tenant harmless from and against any legal action or proceeding instituted by any governmental agency in connection with such clean-up, remediation, removal, disposal, neutralization or other treatment of such conditions, provided that Tenant promptly tenders such defense to Landlord. Tenant agrees to notify its agents, employees, contractors, licensees, and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result invitees of any claim, suit, exposure or action regarding any such potential exposure to Hazardous Materials (whether alleged or real), and/or regarding at the removal and remediation of same. Premises that Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail brings to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of XxxxxxTenant’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Leaseattention.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease (Boot Barn Holdings, Inc.)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(k) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), PROVIDED HOWEVER, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the Building or Property. Xxxxxxxx agrees that Tenant may storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused by Tenant, its agents, employees, contractors, licensees or invitees, specifically including without limitation the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall include“HazardousMaterials” includes(i) any “hazardousmaterial” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, ‘White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii)all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or Propertyuseful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Xxxxxxxx Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, upon reasonable notice and in a manner designed to reasonably minimize the impact on Tenant’s business, use and enjoyment of the Building and/or the Premises, to inspect, sample and or monitor the Premises and/or the soil or groundwater thereunder so long as Landlord has a reasonable basis to conclude that a discharge has occurred and in order to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, upon reasonable notice to Tenant that(except in the case of emergency when no notice shall be required) to enter upon the Premises and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, as including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenants business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the date on which Landlord shall deliver possession storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Site caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Property Premises or the Site, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Site and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Site or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Site or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Site and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Site and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property the Site and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Site as a result of such Hazardous Material or remediation thereof. If it at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Site or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s reasonable approval (which shall not be free from contamination unreasonably withheld or conditioned), specifying the actions to be taken by Tenant to return the Premises, the Building or the Site or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Site known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials which were neither released on the Premises during the Term nor caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant agrees to notify its agents, employees, contractors, licensees, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant shall not have causedhereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or any amendment or substitute thereto or any other disclosure obligations of Landlord, Landlord shallshall take responsibility, with diligenceat its sole cost and expense, remove for any governmentally-ordered clean-up, remediation, removal, disposal, neutralization or remediate or cause other treatment of Hazardous Materials conditions described in this Section 5.3(f). The foregoing obligation on the remediation or removal part of same to Landlord shall include the extent required by Lawsreasonable costs (including, and in compliance with Lawswithout limitation, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold reasonable attorney’s fees) of defending Tenant harmless from and against any and all costslegal action or proceeding instituted by any governmental agency in connection with such clean-up, damagesremediation, expensesremoval, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claimdisposal, suit, neutralization or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement other treatment of such remediation within thirty (30) days of knowledge of conditions, provided that Tenant promptly tenders such presence or release. If Landlord shall fail defense to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(iig) with regard to In the presence or release event of any foreclosure of a mortgage or deed of trust encumbering the Building and/or the Project, the obligations on the part of Landlord contained in Section 5.3(f) above shall be personal to Landlord and shall not be binding on nor inure against any lender acquiring the Building and/or the Project by foreclosure of its mortgage or deed of trust or deed in lieu of foreclosure, or any successor in interest to such lender,
(h) Except as disclosed in Section 5.3(f) above (and or as may otherwise be disclosed to Tenant in writing), Landlord represents that , to “Landlord’s knowledge” (as hereinafter defined), there are no Hazardous Materials caused by Tenant, Tenant shall remove in or remediate same to about the extent required by Laws, and Premises which are in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result violation of any claimapplicable federal, suitstate or local law, ordinance or action regarding any such regulation. As used herein, “Landlord’s knowledge” shall mean the actual knowledge, without duty of inquiry or investigation, of the current employees or authorized agents of Landlord responsible for Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of samecompliance matters.
Appears in 1 contract
Samples: Lease (Mirion Technologies, Inc.)
Hazardous Materials. (a) For Lessor warrants that there are no Hazardous Materials presently on site at the purposes hereofHotel. Lessee agrees not to use, generate, handle, store or dispose of Hazardous Materials in, on or under the term Hotel, or dispose of Hazardous Materials from the Hotel to any other location without the prior written consent of Lessor, which consent may be withheld in Lessors sole discretion, and then only in compliance with the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. § 6901 et seq., and all other applicable laws, ordinances and regulations; provided, however, Lessee may use any ordinary and customary cleaning supplies and other materials reasonably required to be used in the course of operating a hotel, so long as such use is in compliance with applicable Environmental Laws and does not expose the Leased Property to any meaningful risk of contamination. Lessee shall immediately notify Lessor of any incident that would require the filing of a notice under applicable federal, state, or local law. Except as otherwise provided herein, any use of Hazardous Materials in, on or under the Hotel shall not commence until all permits required therefor have been obtained by Lessee and thereafter Lessee shall provide to Lessor on an annual basis Lessee's certification that all such permits have been renewed with copies of such renewed permits. As used herein, "Hazardous Materials" shall mean and include, but shall not be limited to, any petroleum product and all hazardous or toxic substances or wastes including any asbestos-containing materials, waste oils, solvents and chlorinated oils, polychlorinated biphenyls (PCBs), or substances that are included under or regulated by any federal, state or local law, rule or regulation (whether now existing or hereafter enacted or promulgated, as they may be amended from time to time) pertaining to the environment, contamination or clean-up (all such laws, rules and regulations being referred to collectively as the “Environmental Laws”), including, without limitation, hazardous or toxic substancesthe Comprehensive Environmental Response Compensation and Liability Act of 1980, materials that may be deemed hazardous to human or animal healthas amended, including without limitation42 U.S.C. § 9601 and regulations adopted pursuant thereto. Lessee shall indemnify, oil defend upon demand and petroleum derivatives hold Lessor harmless from and productsagainst, asbestosany liabilities, lead paint losses, claims, damages, interest, penalties, fines, attorneys' fees, experts' fees, court costs, remediation costs, and radon.
(b) Tenant represents and warrants that, except as herein set forth, it will not other expenses which result from the use, store storage, handling, treatment, transportation, release, threat of release or dispose disposal of Hazardous Materials in, on, under or about the Hotel by Lessee or Lessee's agents, employees, contractors or invitees. Lessor shall indemnify, defend upon demand and hold Lessee harmless from and against, any liabilities, losses, claims, damages, interest, penalties, fines, attorneys' fees, experts' fees, court costs, remediation costs, and other expenses which result from the use, storage, handling, treatment, transportation, release, threat of release or disposal, occurring prior to, during, or after the term of this Agreement, of Hazardous Materials in, on, under or about the Hotel by Lessor or Lessor's agents, employees, contractors or invitees. Lessee shall notify Lessor of any release, or threat of release, of Hazardous Materials in, on, under or about the Hotel, whether or not such release is subject to reporting requirements under any Environmental Laws. Lessee shall, at its expense, be responsible for all monitoring, testing and/or remediation required in the Building or Property. Xxxxxxxx agrees that Tenant may use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage connection with a release of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision The provisions of this Lease, Tenant may, use, store and dispose of same as herein set forth, provided that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of Section 3.11 shall survive the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms earlier termination of this Lease.
(d) If, at any time during the Term, Hazardous Materials shall be found in or on the Building or Property, then:
(i) with regard to the presence or release of any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.
Appears in 1 contract
Samples: Lease Agreement
Hazardous Materials. Notwithstanding anything contained herein to the contrary:
A. Except as set forth in Section 28.J, Tenant covenants and agrees that it shall not cause, conduct, authorize or allow (i) the presence, generation, transportation, storage, treatment, or usage at the Premises, or any portion thereof, of any Hazardous Material in violation of or as would give rise to liability under Environmental Laws; (ii) a Release or threat of Release of any Hazardous Material on, under, about or in the Premises; or (iii) any violation of or liability under any Environmental Law at or with respect to the Premises or activities conducted thereon. For avoidance of doubt, nothing in this Section 28.A shall prohibit Tenant from using at the Premises (I) cleaning materials, pesticides, and other common household and office products, and/or (II) materials in connection with any fuel tanks, generators or the like on the Premises, and (III) the temporary storage in reasonable quantities of materials that are used in the ordinary course of Tenant’s Use, provided (a) For the purposes hereofsuch materials are properly stored in a manner and location meeting all applicable Environmental Laws, the term "Hazardous Materials" shall include, without limitation, hazardous or toxic substances, materials that may be deemed hazardous to human or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radon.
(b) Tenant represents shall have obtained any required permits and warrants thatshall pay any fees, except and (c) such materials shall be removed and disposed of by Tenant in accordance with all Environmental Laws; solely to the extent, with respect to each of the preceding clauses (I) (II) and (III), that any such use thereof is in compliance with Environmental Laws.
B. Except to the extent caused by Landlord or any Landlord Representatives’ gross negligence or intentional misconduct, Tenant shall, at its own cost, comply and ensure that the Premises and all operations and activities at the Premises comply with all Environmental Laws and the terms of this Lease with respect to Hazardous Materials. Tenant shall, at its own cost, obtain all permits, licenses and authorizations required under Environmental Laws for the operations and activities conducted at the Premises.
C. Landlord and Tenant, as herein set forthapplicable, it will not use, store or dispose shall promptly provide each other with written notice of any actual or potential violation of Environmental Laws, any Release of Hazardous Materials in or around the Building Premises that could impact the Premises or Property. Xxxxxxxx agrees require any investigation, remediation or other response action under Environmental Law, and any claim or threat of a claim asserting any liability under Environmental Laws relating to the Premises, and copies of all reports, site assessments, and material communications, permits or agreements to, from or with any governmental authority or other third party relating to such violation, Release or claim; provided that Tenant may use no such commercial notice shall be required for the matters identified in the Phase I Environmental Reports, Phase II Environmental Reports or household type cleaners and chemicals to maintain the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision environmental reports provided to Landlord by Tenant prior to the Effective Date of this Lease, Tenant maya list of which appears in Exhibit G attached hereto (collectively, usethe “Prior Environmental Reports”), store unless material new developments, claims or information arises after the Effective Date relating to such previous identified matters.
X. Xxxxxxxx and dispose Landlord’s Representatives, including such environmental consultants as Landlord may designate, shall have the right upon reasonable prior notice, and subject to Section 15 hereof, to enter the Premises and/or conduct appropriate tests and investigations for the purpose of same as herein set forth, provided assessing the condition of the Premises or ascertaining that in doing so, Tenant complies with Laws.
(c) Landlord represents and warrants to Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms of this LeaseLease and with all applicable Environmental Laws that relate in any way to the Premises.
(d) IfE. If the presence, at any time during the TermRelease, Hazardous Materials shall be found threat of Release, presence or placement on, in or on around the Building Premises, or Propertythe generation, then:
transportation, storage, use, treatment, or disposal at or around the Premises of any Hazardous Material by Tenant, Tenant’s Representatives, or by any third party other than Landlord or Landlord’s Representatives: (i) gives rise to any liability or obligation (including, but not limited to, any investigatory, remedial, removal, reporting, or other response action) under any Environmental Law, (ii) causes or threatens to cause any adverse effect on public health or occupational safety and health, (iii) pollutes or threatens to pollute the environment, or endanger human health, or (iv) otherwise violates Environmental Law, Tenant shall promptly take any and all remedial and removal actions required by Environmental Laws or otherwise necessary to clean up the Premises to comply with regard all environmental standards applicable to the Premises given its use at the time of the remediation and mitigate exposure to liability arising from the Hazardous Material.
F. Tenant and Landlord (solely to the extent Landlord receives written notice thereof from any governmental authority) shall promptly notify each other upon becoming aware of (or, with respect to Landlord, receiving written notice from a governmental authority of): (i) any enforcement action, investigation, cleanup, notice of violation, or other regulatory action taken or threatened against either party or otherwise related to the Premises by any governmental authority with respect to the presence or release of any Hazardous Material at the Premises, or the migration thereof from or to other property, (ii) any demands or claims made or threatened by any governmental authority or other person against either party hereto or otherwise relating to any actual or alleged violation of or liability under Environmental Laws or relating to any loss or injury resulting from any Hazardous Material or based on Environmental Laws, (iii) any Release of Hazardous Materials, unlawful discharge, or non-routine, improper or unlawful disposal or transportation of any Hazardous Material on or from the Premises, and (iv) any matters where Tenant or Landlord. as applicable, are required by Environmental Law to give a notice to any governmental authority respecting any Hazardous Materials that in, at, on, under or about the Premises, and Tenant and Landlord shall thereafter keep each other reasonably apprised with respect to the status and Tenant’s actions and Landlord’s actions, as applicable, to resolve such matters, and shall furnish Landlord and Tenant, as applicable, with such other documents and information as Landlord may reasonably request with respect thereto; provided that, for the avoidance of doubt, in no event shall the forgoing impose any liability or obligation on Landlord to resolve any such matters. At such times as Landlord may reasonably request, Tenant shall not have causedprovide Landlord with a written list identifying any Hazardous Material then actually known by Tenant to be used, stored, or maintained in, on or upon the Premises. In such case, Tenant shall if requested by Landlord shallprovide Landlord with information with respect to the use and approximate quantity of each such material, with diligencea copy of any Material Safety Data Sheet issued by the manufacturer therefor, remove written information concerning the removal, transportation, and disposal of the same, and such other information as the Landlord may reasonably require or remediate or cause the remediation or removal of same as may be required by applicable Environmental Laws.
G. Except to the extent required caused by LawsXxxxxxxx’s or Landlord’s Representatives’ gross negligence or intentional misconduct, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, Tenant shall indemnify, defend and hold Tenant harmless Landlord and the Landlord Indemnified Parties harmless, in the manner specified in Section 21, from and against any and all liability, claim, expense, cause of action, fines, judgments, settlements, investigation, monitoring and remediation costs, damagespenalties, expenses, and/or liabilities losses and damages (including reasonable attorneys' attorney’s, consultant’s and contractor’s fees) which resulting or arising from (i) the breach by Tenant may suffer as a result of its covenants and agreements set forth in this Section 28, (ii) the presence, Release, placement on, in or around the Premises, or the generation, transportation, storage, use, treatment or disposal at or around the Premises of any claimHazardous Materials before or during the Term and any Renewal Term, suitas applicable, by Tenant or any third party other than Landlord or Landlord’s Representatives, (iii) any violation of or obligation under Environmental Law before or during the Term and any Renewal Term, as applicable, by Tenant or any third party other than Landlord or Landlord’s Representatives, and (iv) claims by governmental authorities or other third parties associated with Hazardous Materials or violations of or obligations under Environmental Laws by Tenant or any third party other than Landlord or Landlord’s Representatives, or action regarding any such Hazardous Materials present at, on, under or about the Premises before or during the Term and any Renewal Term, as applicable, including, without limitation those that were discovered during the Term and any Renewal Term, as applicable, which were caused prior to the Term by Tenant or its agents, representatives, employees, contractors, subcontractors, licensees or invitees or any third party other than Landlord or Landlord’s Representatives. The foregoing indemnity obligations shall survive the expiration or earlier termination of this Lease.
H. Without limitation to the foregoing, Tenant shall, at its sole cost and expense, comply with all applicable Environmental Laws relating to the operation and use of all above ground and underground storage tanks (whether alleged “Tanks”) at any time located at the Premises, such compliance to include without limitation ensuring that all Tanks are equipped with leak detection systems and otherwise meet all applicable construction standards and technical requirements, are subject to regular inspections and tightness tests to confirm Tank integrity, and are covered by pollution insurance policies or real)other financial assurance mechanisms to the extent required under applicable Environmental Laws. Tenant shall upon Landlord’s written request provide Landlord copies of inspection reports, and/or regarding insurance policies, and other documentation reasonably necessary to confirm the compliance status of such Tanks. In the event of any spills, releases or evidence of leakage from or associated with the use of the Tanks, as required under Environmental Laws, Tenant shall, (i) report the same to the appropriate regulatory agency; (ii) conduct testing of environmental media to confirm the nature and extent of contamination, (iii) complete all remedial and corrective actions with respect to such spill, release or leakage; and (iv) upon completion of work provide Landlord a copy of a No Further Action letter or the equivalent determination from the applicable regulatory agency (“NFA”) with respect to the remedial work.
I. Upon the expiration or earlier termination of the Lease, at Xxxxxxxx’s request, Tenant, at its sole expense, shall remove from the Premises all Tanks, that are not in place on the Effective Date of this Lease, in accordance with all Environmental Laws and applicable commercial guidelines, perform post-removal testing of soil and groundwater to confirm the presence or absence of contamination associated with such Tanks, and to the extent that such removal involves any excavation or remedial work at the Premises, Tenant shall perform such remediation and restore the Premises to the same grade level as immediately prior to excavation using clean fill soil, and Tenant shall obtain and provide Landlord a copy of a NFA with respect to the Tank removal and remediation of same. remedial work, as applicable.
J. Notwithstanding anything to the contrary contained in this Section 28 or in this Lease, Landlord shall diligently commence or cause indemnify, defend and hold Tenant and the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate Tenant Indemnified Parties harmless, in the manner specified in this SectionSection 21, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused by Tenant, Tenant shall remove or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all actual liability, claim, expense, cause of action, fines, judgments, settlements, investigation, monitoring and remediation costs, damagespenalties, expenses, and/or liabilities losses and damages (including reasonable attorneys' out-of-pocket attorney’s, consultant’s and contractor’s fees) which Landlord may suffer as a result resulting or arising from (i) the Release at or around the Premises of any claim, suit, or action regarding any such Hazardous Materials to the extent caused by the gross negligence or intentional misconduct of Landlord or any Landlord Representatives, (whether alleged ii) any violation of Environmental Law to the extent caused by the gross negligence or real)intentional misconduct of Landlord or any Landlord Representatives, and/or regarding and (iii) claims by governmental authorities or other third parties associated with any Release of Hazardous Materials or violations of Environmental Laws, in each case to the removal and remediation extent caused by the gross negligence or intentional misconduct of sameLandlord or any Landlord Representatives. The foregoing indemnity obligations shall survive the expiration or earlier termination of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Citi Trends Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includeincludes (i) any "hazardous materials" as defined in Section 25501(n) of the California Health and Safety Code, without limitation(ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory, and (iii) any substance or matter which is in excess of permitted levels set forth in any federal, California or local law or regulation pertaining to any hazardous or toxic substancessubstance, materials that may be deemed hazardous to human material or animal health, including without limitation, oil and petroleum derivatives and products, asbestos, lead paint and radonwaste.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including, without limitation, the soil and groundwater thereunder) without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord: (A) to utilize products which may contain Hazardous Materials in connection with the Building or Property. Xxxxxxxx agrees operation of the "Backup Equipment" as hereinbefore defined, and (B) to utilize within the Premises standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), provided however, that (i) Tenant may use such commercial or household type cleaners and chemicals to shall maintain the Building or Property. Storage products referred to in Section (B) above in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all the products referred to in this paragraph may constitute Subsection (A) and (B) above. Landlord may, in its sole discretion, place such conditions as Landlord deems appropriate with respect to any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials requested for use by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision reasonable costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand if Tenant is in violation of its obligations under this Section.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "Environmental Questionnaire") in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all relevant facilities, records and personnel after reasonable prior notice under the circumstances except in the event of an emergency when no advance notice shall be required. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including, without limitation, the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, take any remedial action in response to the presence of any Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (I) imposes an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys reasonably acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, without limitation, attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees, specifically including, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and the Project and any other real or personal property owned by Landlord, and the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease. If Landlord at any time discovers that Tenant or its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the release of a Hazardous Material on, under, from or about the Premises or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this subsection (e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of sameattention.
Appears in 1 contract
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous Materials" shall includemeans (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person's possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, (1) to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will "White Out", and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products; and (2) to utilize within the Premises those Hazardous Materials in kind and content listed on the “Survey Form” (defined below) delivered to Landlord prior to the execution of this Lease (as such completed Survey Form may be amended from time to time by Tenant with Landlord’s approval, not to be unreasonably withheld), provided that Tenant shall comply with all applicable laws with respect to such Hazardous Materials and all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of such Hazardous Materials. Landlord may, in its sole and absolute discretion, place such reasonable conditions as Landlord deems appropriate with respect to Tenant's use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or, if Landlord reasonably believes that Tenant is in violation of this Section 5.3, to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord a Hazardous Material Survey Form (the "Survey Form") in the form of Exhibit J attached hereto. The completed Survey Form shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, at reasonable times, upon reasonable prior notice, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. Landlord shall keep confidential any of Tenant’s environmental records which are marked or otherwise designated by Tenant as “confidential” and shall not disclose same, without Tenant’s consent, to any person or entity other than Landlord’s financial, legal and other consultants with a “need to know”; provided, however, that Landlord may disclose same to any actual or prospective lender or buyer or pursuant to legal requirement. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees, and Tenant shall fail to cure such violation within three (3) days after written notice thereof, then Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises without further notice and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees, subtenants or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees, subtenants or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials by Tenant or Tenant’s agents, employees, contractors, licensees, subtenants or invitees and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's reasonable discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees, subtenants or invitees caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such plan (not to be unreasonably withheld), Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. In no event, however, shall Tenant have any liability for Hazardous Materials (1) existing on, under, from or on about the Premises, the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property Project prior to the condition Commencement Date, (2) which existed immediately prior are not caused or permitted to such removal and/or otherwise in conformance with migrate thereon by Tenant or Tenant’s agents, employees, contractors, licensees, subtenants or invitees, or (3) which are used, generated, stored, treated, released or disposed thereon by any party other than Tenant or Tenant’s agents, employees, contractors, licensees, subtenants or invitees. The provisions of this Section 5.3(e) shall expressly survive the terms expiration or sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit H attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit H, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were not caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees, subtenants or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, subtenants, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease Agreement (BioPharmX Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "Hazardous MaterialsHAZARDOUS MATERIALS" shall includeincludes (i) any "hazardous material" as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as result of such person's possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of knowingly permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord's sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, "White Out", and the like), PROVIDED HOWEVER, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant's storage, use and disposal of all such products. Landlord may, in this paragraph may constitute its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant's use of any such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant's business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Notwithstanding Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any other provision costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand; however, Tenant shall have no obligation to reimburse Landlord for any costs incurred in connection with any environmental consultant retained by Landlord pursuant to this Section unless Tenant shall not be in compliance of its obligations under this Section.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the "ENVIRONMENTAL QUESTIONNAIRE") in the form of EXHIBIT B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant's use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, upon at least 24 hours prior written or oral notice to Tenant, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant is complying with the terms of this Section 5.3, and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord's other rights and remedies under this Lease, to immediately enter upon the Premises with at least 24 hours prior written or oral notice to Tenant that(except in cases of emergency when no notice shall be required), as and to discharge Tenant's obligations under this Section 5.3 at Tenant's expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant's business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant's expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the date on which Landlord shall deliver possession storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or knowingly permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Property Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord's prior written consent, which consent may be given or withheld in Landlord's sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, from, under or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord's prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord's consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord's interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys' fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or knowingly permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether or not such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Material or remediation thereof. If it is at any time discovered that Tenant or its agents, employees, contractors, licensees or invitees may have caused or knowingly permitted the release of a Hazardous Material on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord's request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord's approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord's approval of such cleanup plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any cleanup such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in EXHIBIT C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in EXHIBIT C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and invitees of any exposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant's sole cost; and Xxxxxx agrees attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result of any claim, suitTenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease Agreement (Telenetics Corp)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and productsstorage, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and warrants thatgroundwater thereunder) without the prior written consent of Landlord, except which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as herein set forthphotocopy toner, it will not “White Out”, and the like), provided however, that (i) Tenant shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use and disposal of such products, and shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the other terms and provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products. Landlord may, in its sole and absolute discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use, store or dispose storage and/or disposal of any Hazardous Materials requiring Landlord’s consent. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the Building storage, use, release, and/or disposal of Hazardous Materials by Tenant on or Property. Xxxxxxxx about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant may use such commercial or household type cleaners and chemicals to maintain Landlord as additional rent hereunder upon demand.
(c) Prior to the Building or Property. Storage of such chemicals is also permitted. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. Notwithstanding any other provision execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s storage, generation, use, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder at any time to determine whether Tenant thatis complying with the terms of this Section 5.3, as and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any of the date on which provisions of this Section 5.3, or in the event of a release of any Hazardous Material on, under, from or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall deliver possession have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall endeavor to minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have the right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the Property storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials and to remedy or repair any such injury or contamination, including without limitation, any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and absolute discretion, take any remedial action in response to the presence of any Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under, from or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or any portion of Landlord’s interest in the Premises and the Project and any other real or personal property owned by Landlord from and against any and all liabilities, losses, damages, diminution in value, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including without limitation attorneys’ fees, court costs and other professional expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the use, generation, storage, treatment, release, on- or off-site disposal or transportation of Hazardous Materials (A) on, into, from, under or about the Premises during the Term regardless of the source of such Hazardous Materials unless caused solely by Landlord or (B) on, into, from, under or about the Premises, the Building or the Project and any other real or personal property owned by Landlord caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees. Such indemnity obligation shall specifically include, without limitation, the cost of any required or necessary repair, restoration, cleanup or detoxification of the Premises, the Building and Property shall the Project and any other real or personal property owned by Landlord, the preparation of any closure or other required plans, whether such action is required or necessary during the Term or after the expiration of this Lease and any loss of rental due to the inability to lease the Premises or any portion of the Building or Project as a result of such Hazardous Materials, the remediation thereof or any repair, restoration or cleanup related thereto. If it is at any time discovered that Hazardous Materials have been released on, into, from, under or about the Premises during the Term, or that Tenant or its agents, employees, contractors, licensees or invitees may have caused or permitted the release of any Hazardous Materials on, under, from or about the Premises, the Building or the Project or any other real or personal property owned by Landlord, Tenant shall, at Landlord’s request, immediately prepare and submit to Landlord a comprehensive plan, subject to Landlord’s approval, specifying the actions to be free from contamination taken by Tenant to return the Premises, the Building or the Project or any other real or personal property owned by Landlord to the condition existing prior to the introduction of such Hazardous Materials. Notwithstanding anything in Upon Landlord’s approval of such plan, Tenant shall, at its expense, and without limitation of any rights and remedies of Landlord under this Lease or at law or in equity, immediately implement such plan and proceed to the contrarycleanup, Tenant shall not be obligated to accept possession of the Building and Property until any remediate and/or remove all such Hazardous Materials found in accordance with all applicable laws and as required by such plan and this Lease. The provisions of this Section 5.3(e) shall expressly survive the expiration or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance with the terms sooner termination of this Lease.
(df) IfLandlord hereby discloses to Tenant, at any time during the Termand Tenant hereby acknowledges, certain facts relating to Hazardous Materials at the Project known by Landlord to exist as of the date of this Lease, as more particularly described in Exhibit C attached hereto. Tenant shall be found in have no liability or on the Building or Property, then:
(i) responsibility with regard respect to the presence or release of Hazardous Materials facts described in Exhibit C, nor with respect to any Hazardous Materials that Tenant shall not have caused, Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result of any claim, suit, proves were neither released on the Premises during the Term nor caused or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard to the presence or release of any Hazardous Materials caused permitted by Tenant, its agents, employees, contractors, licensees or invitees. Notwithstanding the preceding two sentences, Tenant shall remove or remediate same agrees to the extent required by Lawsnotify its agents, employees, contractors, licensees, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result invitees of any claim, suitexposure or potential exposure to Hazardous Materials at the Premises that Landlord brings to Tenant’s attention. Tenant hereby acknowledges that this disclosure satisfies any obligation of Landlord to Tenant pursuant to California Health & Safety Code Section 25359.7, or action regarding any such Hazardous Materials (whether alleged amendment or real), and/or regarding the removal and remediation substitute thereto or any other disclosure obligations of sameLandlord.
Appears in 1 contract
Samples: Lease Agreement (Illumina Inc)
Hazardous Materials. (a) For the purposes hereofof this Lease, the term "“Hazardous Materials" shall include” includes (i) any “hazardous material” as defined in Section 25501(o) of the California Health and Safety Code, without limitation(ii) hydrocarbons, polychlorinated biphenyls or asbestos, (iii) any toxic or hazardous or toxic materials, substances, wastes or materials that as defined pursuant to any other applicable state, federal or local law or regulation, and (iv) any other substance or matter which may be deemed hazardous result in liability to human any person or animal healthentity as a result of such person’s possession, including without limitationuse, oil and petroleum derivatives and products, asbestos, lead paint and radonrelease or distribution of such substance or matter under any statutory or common law theory.
(b) Tenant represents and warrants that, except as herein set forth, it will shall not use, store cause or dispose of permit any Hazardous Materials to be brought upon, stored, used, generated, released or disposed of on, under, from or about the Premises (including without limitation the soil and groundwater thereunder) without the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole and absolute discretion. Notwithstanding the Building or Property. Xxxxxxxx agrees foregoing: (A) Tenant shall have the right, without obtaining prior written consent of Landlord, to utilize within the Premises a reasonable quantity of standard office products that may contain Hazardous Materials (such as photocopy toner, “White Out”, and the like), provided however, that (i) Tenant may shall maintain such products in their original retail packaging, shall follow all instructions on such packaging with respect to the storage, use such commercial or household type cleaners and chemicals to maintain the Building or Property. Storage disposal of such chemicals is also permitted. Landlord products, and Tenant acknowledge that any or shall otherwise comply with all applicable laws with respect to such products, and (ii) all of the cleaners other terms and chemicals described provisions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such products; and (B) Landlord hereby consents to the use by Tenant of the kinds and quantities of Hazardous Materials shown in the Environmental Questionnaire delivered to Landlord prior to the execution of this paragraph may constitute Lease, provided that all of the terms and conditions of this Section 5.3 shall apply with respect to Tenant’s storage, use and disposal of all such Hazardous Materials. Notwithstanding Landlord may, in reasonable discretion, place such conditions as Landlord deems appropriate with respect to Tenant’s use of any other provision such Hazardous Materials, and may further require that Tenant demonstrate that any such Hazardous Materials are necessary or useful to Tenant’s business and will be generated, stored, used and disposed of in a manner that complies with all applicable laws and regulations pertaining thereto and with good business practices. Tenant understands that Landlord may utilize an environmental consultant to assist in determining conditions of approval in connection with the storage, generation, release, disposal or use of Hazardous Materials by Tenant on or about the Premises, and/or to conduct periodic inspections of the storage, generation, use, release and/or disposal of such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees that any costs incurred by Landlord in connection therewith shall be reimbursed by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant mayshall complete, execute and deliver to Landlord an Environmental Questionnaire and Disclosure Statement (the “Environmental Questionnaire”) in the form of Exhibit B attached hereto. The completed Environmental Questionnaire shall be deemed incorporated into this Lease for all purposes, and Landlord shall be entitled to rely fully on the information contained therein. On each anniversary of the Commencement Date until the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials which were stored, generated, used, released and/or disposed of on, under or about the Premises for the twelve-month period prior thereto, and which Tenant desires to store, generate, use, store and release and/or dispose of same as herein set forthon, provided that in doing sounder or about the Premises for the succeeding twelve-month period. In addition, to the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, Tenant complies shall promptly provide Landlord with Lawscomplete and legible copies of all the following environmental documents relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, emergency response or action plans, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents (even those which may be characterized as confidential) relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for Hazardous Materials; orders, reports, notices, listings and correspondence (even those which may be considered confidential) of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of Hazardous Materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage, release and/or disposal of Hazardous Materials.
(cd) Landlord represents and warrants its agents shall have the right, but not the obligation, to inspect, sample and/or monitor the Premises and/or the soil or groundwater thereunder, during business hours upon at least 24 hours prior written or oral notice, to determine whether Tenant that, as of the date on which Landlord shall deliver possession of the Property to Tenant, the Building and Property shall be free from contamination by Hazardous Materials. Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to accept possession of the Building and Property until any Hazardous Materials found in or on the Building or Property have been removed, and Landlord has supplied Tenant with a certificate from the appropriate governmental authority that such removal has been completed, and Landlord has restored the Building and Property to the condition which existed immediately prior to such removal and/or otherwise in conformance is complying with the terms of this Lease.
(d) IfSection 5.3, at and in connection therewith Tenant shall provide Landlord with full access to all facilities, records and personnel related thereto. If Tenant is not in compliance with any time during of the Termprovisions of this Section 5.3, Hazardous Materials shall be found or in or on the Building or Property, then:
(i) with regard to the presence or event of a release of any Hazardous Materials that Tenant Material on, under or about the Premises caused or permitted by Tenant, its agents, employees, contractors, licensees or invitees, Landlord and its agents shall have the right, but not the obligation, without limitation upon any of Landlord’s other rights and remedies under this Lease, to immediately enter upon the Premises without notice and to discharge Tenant’s obligations under this Section 5.3 at Tenant’s expense, including without limitation the taking of emergency or long-term remedial action. Landlord and its agents shall minimize interference with Tenant’s business in connection therewith, but shall not be liable for any such interference. In addition, Landlord, at Tenant’s expense, shall have causedthe right, but not the obligation, to join and participate in any legal proceedings or actions initiated in connection with any claims arising out of the storage, generation, use, release and/or disposal by Tenant or its agents, employees, contractors, licensees or invitees of Hazardous Materials on, under, from or about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about the Premises or the Project caused or permitted by Tenant or its agents, employees, contractors, licensees or invitees results in (i) injury to any person, (ii) injury to or any contamination of the Premises or the Project, or (iii) injury to or contamination of any real or personal property wherever situated, Tenant, at its expense, shall promptly take all actions necessary to return the Premises and the Project and any other affected real or personal property owned by Landlord shall, with diligence, remove or remediate or cause the remediation or removal of same to the extent required by Laws, and in compliance with Laws, and at Landlord's sole cost; and Landlord agrees condition existing prior to defend, indemnify, and hold Tenant harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result the introduction of any claim, suit, or action regarding any such Hazardous Materials (whether alleged and to remedy or real)repair any such injury or contamination, and/or regarding the removal and remediation of same. Landlord shall diligently commence or cause the commencement of such remediation within thirty (30) days of knowledge of such presence or release. If Landlord shall fail to commence or cause the commencement to remediate in the manner specified in this Section, within the specified time periods, then, Tenant may give Landlord 10 days' prior written notice of Xxxxxx’s election to remove or remediate the Hazardous materials on Landlord’s behalf. If Tenant shall so remove or remediate the Hazardous Materials, Tenant may deduct the costs for such removal and remediation (including without limitation, testing any cleanup, remediation, removal, disposal, neutralization or other treatment of any such Hazardous Materials. Notwithstanding the foregoing, Tenant shall not, without Landlord’s prior written consent, which consent may be given or withheld in Landlord’s sole and professional costs) from Fixed Rent and other amounts payable by Tenant to Landlord under this Lease.
(ii) with regard absolute discretion, take any remedial action in response to the presence or release of any Hazardous Materials caused on, from, under or about the Premises or the Project or any other affected real or personal property owned by TenantLandlord or enter into any similar agreement, consent, decree or other compromise with any governmental agency with respect to any Hazardous Materials claims; provided however, Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about the Premises or the Project or any other affected real or personal property owned by Landlord (i) imposes an immediate threat to the health, safety or welfare of any individual and (ii) is of such a nature that an immediate remedial response is necessary and it is not possible to obtain Landlord’s consent before taking such action. To the fullest extent permitted by law, Tenant shall remove indemnify, hold harmless, protect and defend (with attorneys acceptable to Landlord) Landlord and any successors to all or remediate same to the extent required by Laws, and in compliance with Laws, and at Tenant's sole cost; and Xxxxxx agrees to defend, indemnify and hold Landlord harmless from and against any and all costs, damages, expenses, and/or liabilities (including reasonable attorneys' fees) which Landlord may suffer as a result portion of any claim, suit, or action regarding any such Hazardous Materials (whether alleged or real), and/or regarding the removal and remediation of same.Landlord’s
Appears in 1 contract
Samples: Lease (Micro Therapeutics Inc)
