Common use of Hazardous Substance Indemnification Clause in Contracts

Hazardous Substance Indemnification. 11.2.1 In addition to the Indemnifications set forth in Section 22, Developer shall Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, in response to, or in any manner relating to: (i) Developer’s breach of any obligation under this DDA with respect to Hazardous Substances; (ii) Developer’s violation of any Environmental Law on or relative to the Project Site; (iii) a City Party’s indemnification of the State under the Public Trust Exchange Agreement or the State Parks Agreement for the environmental condition of certain land conveyed to the State; provided that if this DDA is terminated for any reason, Developer’s Indemnification under this clause (iii) with respect to any real property for which Developer did not obtain a Sub-Phase Approval shall terminate on the earlier of (A) the date that the Agency enters into a new disposition and developer agreement or similar agreement with a developer that covers the applicable real property, and (B) four (4) years following the date of termination of this DDA with respect to such real property; or (iv) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance- related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred during the period of Developer’s ownership of such real property or was caused, contributed to, or exacerbated by Developer or others for whom Developer is responsible; provided that this clause (iv) shall not apply as to the Agency and any other City Party to the extent that such violation, Release, threatened Release, condition, contamination or nuisance was caused, contributed to or exacerbated by the Agency or such other City Party, respectively. In addition, notwithstanding the termination language in clause (iii) of the foregoing sentence, Developer’s Indemnification under this Section 11.2.1 shall not terminate (x) with respect to the real property for which Developer obtained a Sub-Phase Approval or (y) to the extent the Indemnification obligation is covered under clauses (i), (ii), or (iv) of this Section 11.2.1. Subject to the foregoing, Developer’s obligations under this Section 11.2.1 shall: (1) apply regardless of the availability of insurance proceeds; and (2) survive the expiration or other termination of this DDA and the Agency’s issuance of the Certificate of Completion for all of the Infrastructure related to such Lot. If it is reasonable to assert that a claim for Indemnification under this Section 11.2.1 is covered by a pollution liability insurance policy under which the Agency and/or such other City Party is an insured party, any indemnity or other provision of any of the Land Acquisition Agreements or any indemnification under applicable law, then the Agency shall reasonably cooperate with Developer in asserting a claim or claims under such insurance policy, indemnification or other provisions but without waiving any of its rights under this Section 11.2.1 including the right to Indemnification during the assertion of any such claims. Developer specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification provision of this Section 11.2.1, even if allegations are or may be groundless, false or fraudulent. Developer’s obligation to defend shall arise at the time such claim is tendered to Developer and shall continue at all times thereafter. 11.2.2 In addition to the Indemnifications set forth in Section 22, Vertical Developers shall each Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, in response to, or in any manner relating to (i) such Vertical Developer’s violation of any Environmental Law on or relative to the Project Site or (ii) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred during the period of such Vertical Developer’s ownership of such real property or was caused, contributed to, or exacerbated by such Vertical Developer or others for whom such Vertical Developer is responsible; provided that this clause (ii) shall not apply as to the Agency and any other City Party to the extent that such violation, Release, threatened Release, condition, contamination or nuisance was caused, contributed to or exacerbated by the Agency or such other City Party, respectively. A Vertical Developer’s obligations under this Section 11.2.2 shall (1) apply regardless of the availability of insurance proceeds and (2) survive the expiration or other termination of this DDA and the Agency’s issuance of the Certificate of Completion for all of the Vertical Improvements for such Vertical Developer. If it is reasonable to assert that a claim for Indemnification under this Section 11.2.2 is covered by a pollution liability insurance policy under which the Agency and/or such other City Party is an insured party, any indemnity or other provision of any of the Land Acquisition Agreements or any indemnification under applicable law, then the Agency shall reasonably cooperate with Vertical Developer in asserting a claim or claims under such insurance policy, indemnification or other provisions but without waiving any of its rights under this Section 11.2.2 including the right to Indemnification during the assertion of any such claims. Each Vertical Developer specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification provision of this Section 11.2.2, even if allegations are or may be groundless, false or fraudulent. A Vertical Developer’s obligation to defend shall arise at the time such claim is tendered to such Vertical Developer and shall continue at all times thereafter.

Hazardous Substance Indemnification. 11.2.1 In addition to the Indemnifications set forth in Section 22, Developer shall Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, in response to, or in any manner relating to: (i) Developer’s breach of any obligation under this DDA with respect to Hazardous Substances; (ii) Developer’s violation of any Environmental Law on or relative to the Project Site; (iii) a City Party’s indemnification of the State under the Public Trust Exchange Agreement or the State Parks Agreement for the environmental condition of certain land conveyed to the State; provided that if this DDA is terminated for any reason, Developer’s Indemnification under this clause (iii) with respect to any real property for which Developer did not obtain a Sub-Phase Approval shall terminate on the earlier of (A) the date that the Agency enters into a new disposition and developer agreement or similar agreement with a developer that covers the applicable real property, and (B) four (4) years following the date of termination of this DDA with respect to such real property; or (iv) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance- Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred during the period of Developer’s ownership of such real property or was caused, contributed to, or exacerbated by Developer or others for whom Developer is responsible; provided that this clause (iv) shall not apply as to the Agency and any other City Party to the extent that such violation, Release, threatened Release, condition, contamination or nuisance was caused, contributed to or exacerbated by the Agency or such other City Party, respectively. In addition, notwithstanding the termination language in clause (iii) of the foregoing sentence, Developer’s Indemnification under this Section 11.2.1 shall not terminate (x) with respect to the real property for which Developer obtained a Sub-Phase Approval or (y) to the extent the Indemnification obligation is covered under clauses (i), (ii), or (iv) of this Section 11.2.1. Subject to the foregoing, Developer’s obligations under this Section 11.2.1 shall: (1) apply regardless of the availability of insurance proceeds; and (2) survive the expiration or other termination of this DDA and the Agency’s issuance of the Certificate of Completion for all of the Infrastructure related to such Lot. If it is reasonable to assert that a claim for Indemnification under this Section 11.2.1 is covered by a pollution liability insurance policy under which the Agency and/or such other City Party is an insured party, any indemnity or other provision of any of the Land Acquisition Agreements or any indemnification under applicable law, then the Agency shall reasonably cooperate with Developer in asserting a claim or claims under such insurance policy, indemnification or other provisions but without waiving any of its rights under this Section 11.2.1 including the right to Indemnification during the assertion of any such claims. Developer specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification provision of this Section 11.2.1, even if allegations are or may be groundless, false or fraudulent. Developer’s obligation to defend shall arise at the time such claim is tendered to Developer and shall continue at all times thereafter. 11.2.2 In addition to the Indemnifications set forth in Section 22, Vertical Developers shall each Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, in response to, or in any manner relating to (i) such Vertical Developer’s violation of any Environmental Law on or relative to the Project Site or (ii) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred during the period of such Vertical Developer’s ownership of such real property or was caused, contributed to, or exacerbated by such Vertical Developer or others for whom such Vertical Developer is responsible; provided that this clause (ii) shall not apply as to the Agency and any other City Party to the extent that such violation, Release, threatened Release, condition, contamination or nuisance was caused, contributed to or exacerbated by the Agency or such other City Party, respectively. A Vertical Developer’s obligations under this Section 11.2.2 shall (1) apply regardless of the availability of insurance proceeds and (2) survive the expiration or other termination of this DDA and the Agency’s issuance of the Certificate of Completion for all of the Vertical Improvements for such Vertical Developer. If it is reasonable to assert that a claim for Indemnification under this Section 11.2.2 is covered by a pollution liability insurance policy under which the Agency and/or such other City Party is an insured party, any indemnity or other provision of any of the Land Acquisition Agreements or any indemnification under applicable law, then the Agency shall reasonably cooperate with Vertical Developer in asserting a claim or claims under such insurance policy, indemnification or other provisions but without waiving any of its rights under this Section 11.2.2 including the right to Indemnification during the assertion of any such claims. Each Vertical Developer specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification provision of this Section 11.2.2, even if allegations are or may be groundless, false or fraudulent. A Vertical Developer’s obligation to defend shall arise at the time such claim is tendered to such Vertical Developer and shall continue at all times thereafter.

Hazardous Substance Indemnification. 11.2.1 In addition to the Indemnifications set forth in Section 22, Developer shall Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, or in response to, or in any manner relating to: : (ia) Developer’s breach of any obligation under this DDA with respect to Hazardous Substances; ; (iib) Developer’s violation of any Environmental Law on or relative to the Project Site; ; (iiic) a City Party’s indemnification of the State under the Public Trust Agreement Exchange Agreement or the State Parks Agreement for the environmental condition of certain land conveyed to the State; provided that if this DDA is terminated for any reason, Developer’s Indemnification under this clause (iiic) with respect to any real property for which Developer did not obtain a Sub-Sub- Phase Approval shall terminate on the earlier of (Ai) the date that the Agency Authority enters into a new disposition and developer development agreement or similar agreement with a developer that covers the applicable real property, and (Bii) four (4) years following the date of termination of this DDA with respect to such real property; or ; (ivd) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance- Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred commenced or was created during the period of Developer’s ownership of such real property or was caused, contributed to, or exacerbated by Developer or others for whom Developer is responsible; provided provided, that this clause (ivd) shall not apply as to the Agency and any other a City Party to the extent that such violation, Release, threatened Release, condition, contamination or nuisance commenced or was created by or caused, contributed to or exacerbated by the Agency or such other a City Party, respectively. In addition, notwithstanding the termination language in clause (iiic) of the foregoing sentence, Developer’s Indemnification under this Section 11.2.1 shall not terminate (x) with respect to the real property for which Developer obtained a Sub-Phase Approval or (y) to the extent the Indemnification indemnification obligation is covered under clauses (ia), (iib), or (ivd) of this Section Section 11.2.1. Subject to the foregoing, Developer’s obligations under this Section 11.2.1 shall: : (1) apply regardless of the availability of insurance proceeds; and (2) survive the expiration or other termination of this DDA and the AgencyAuthority’s issuance of the Certificate of Completion for all of the Infrastructure related to such Lot. If However, if it is reasonable to assert that a claim for Indemnification under this Section 11.2.1 is covered by a pollution liability insurance policy under or the indemnification provisions of Section 330 of the Fiscal Year 1993 National Defense Authorization Act (X.Xxx 102-484), pursuant to which the Agency Authority and/or such other City Party is an insured party, any indemnity party or other provision of any of the Land Acquisition Agreements or any indemnification under applicable lawa potential claimant, then the Agency Authority shall reasonably cooperate with Developer in asserting a claim or claims under such insurance policy, indemnification policy or other provisions indemnity but without waiving any of its rights under this Section 11.2.1 including the right to Indemnification during the assertion of any such claims11.2.1. Developer specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification indemnification provision of this Section 11.2.1, even if allegations are or may be groundless, false or fraudulent. Developer’s obligation to defend under this Section 11.2.1 shall arise at the time such claim is tendered to Developer and shall continue at all times thereafter. Notwithstanding the foregoing, if a City Party is a named insured on a pollution liability insurance policy obtained by the Developer, such City Party will not seek indemnification from Developer under this Section 11.2.1 unless it has asserted and diligently pursued a claim for insurance under such policy and until any limits from the policy are exhausted, on condition that (i) Developer pays any self-insured retention amount required under the policy, and (ii) nothing in this sentence requires any City Party to pursue a claim for insurance through litigation prior to seeking indemnification from Developer. 11.2.2 In addition to the Indemnifications set forth in Section 22, Vertical Developers shall each Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, in response to, or in any manner relating to (i) such Vertical Developer’s violation of any Environmental Law on or relative to the Project Site or (ii) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred during the period of such Vertical Developer’s ownership of such real property thereof or was caused, contributed to, or exacerbated by such Vertical Developer or others for whom such Vertical Developer is responsible; provided that this clause (ii) shall not apply , except, as to the Agency and any other a City Party Party, to the extent that such violation, Release, threatened Release, condition, contamination or nuisance was caused, contributed to or exacerbated by the Agency or such other a City Party, respectively. A Vertical Developer’s obligations under this Section 11.2.2 shall (1) apply regardless of the availability of insurance proceeds and (2) survive the expiration or other termination of this DDA and the AgencyAuthority’s issuance of the Certificate of Completion for all of the Vertical Improvements for such Vertical Developer. If However, if it is reasonable to assert that a claim for Indemnification under this Section 11.2.2 is covered by a pollution liability insurance policy or the indemnification provisions of Section 330 of the Fiscal Year 1993 National Defense Authorization Act (X.Xxx 102-484), under which the Agency Authority and/or such other City Party is an insured party, any indemnity party or other provision of any of the Land Acquisition Agreements or any indemnification under applicable lawa potential claimant, then the Agency Authority shall reasonably cooperate with Vertical Developer in asserting a claim or claims under such insurance policy, indemnification or other provisions policy but without waiving any of its rights under this Section 11.2.2 including the right to Indemnification during the assertion of any such claims11.2.2. Each Vertical Developer shall specifically acknowledges acknowledge and agrees agree that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification indemnification provision of this Section 11.2.2, even if allegations are or may be groundless, false or fraudulent. A Vertical Developer’s obligation to defend shall arise at the time such claim is tendered to such Vertical Developer and shall continue at all times thereafter.. Notwithstanding the foregoing, if a City Party is a named insured on a pollution liability insurance policy, such City Party will not seek indemnification from Vertical Developer under this Section

Hazardous Substance Indemnification. 11.2.1 In addition to the Indemnifications set forth in Section 22, Developer shall Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, or in response to, or in any manner relating to: : (ia) Developer’s breach of any obligation under this DDA with respect to Hazardous Substances; ; (iib) Developer’s violation of any Environmental Law on or relative to the Project Site; ; (iiic) a City Party’s indemnification of the State under the Public Trust Agreement Exchange Agreement or the State Parks Agreement for the environmental condition of certain land conveyed to the State; provided that if this DDA is terminated for any reason, Developer’s Indemnification under this clause (iiic) with respect to any real property for which Developer did not obtain a Sub-Phase Approval shall terminate on the earlier of (Ai) the date that the Agency Authority enters into a new disposition and developer development agreement or similar agreement with a developer that covers the applicable real property, and (Bii) four (4) years following the date of termination of this DDA with respect to such real property; or ; (ivd) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance- Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred commenced or was created during the period of Developer’s ownership of such real property or was caused, contributed to, or exacerbated by Developer or others for whom Developer is responsible; provided provided, that this clause (ivd) shall not apply as to the Agency and any other a City Party to the extent that such violation, Release, threatened Release, condition, contamination or nuisance commenced or was created by or caused, contributed to or exacerbated by the Agency or such other a City Party, respectively. In addition, notwithstanding the termination language in clause (iiic) of the foregoing sentence, Developer’s Indemnification under this Section 11.2.1 shall not terminate (x) with respect to the real property for which Developer obtained a Sub-Phase Approval or (y) to the extent the Indemnification indemnification obligation is covered under clauses (ia), (iib), or (ivd) of this Section Section 11.2.1. Subject to the foregoing, Developer’s obligations under this Section 11.2.1 shall: (1) apply regardless of the availability of insurance proceeds; and (2) survive the expiration or other termination of this DDA and the AgencyAuthority’s issuance of the Certificate of Completion for all of the Infrastructure and Stormwater Management Controls related to such Lot. If However, if it is reasonable to assert that a claim for Indemnification under this Section 11.2.1 is covered by a pollution liability insurance policy under or the indemnification provisions of Section 330 of the Fiscal Year 1993 National Defense Authorization Act (X.Xxx 102-484), pursuant to which the Agency Authority and/or such other City Party is an insured party, any indemnity party or other provision of any of the Land Acquisition Agreements or any indemnification under applicable lawa potential claimant, then the Agency Authority shall reasonably cooperate with Developer in asserting a claim or claims under such insurance policy, indemnification policy or other provisions indemnity but without waiving any of its rights under this Section 11.2.1 including the right to Indemnification during the assertion of any such claims11.2.1. Developer specifically acknowledges and agrees that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification indemnification provision of this Section 11.2.1, even if the allegations are or may be groundless, false or fraudulent. Developer’s obligation to defend under this Section 11.2.1 shall arise at the time such claim is tendered to Developer and shall continue at all times thereafter. Notwithstanding the foregoing, if a City Party is a named insured on a pollution liability insurance policy obtained by the Developer, such City Party will not seek indemnification from Developer under this Section 11.2.1 unless it has asserted and diligently pursued a claim for insurance under such policy and until any limits from the policy are exhausted, on condition that (i) Developer pays any self-insured retention amount required under the policy, and (ii) nothing in this sentence requires any City Party to pursue a claim for insurance through litigation prior to seeking indemnification from Developer. 11.2.2 In addition to the Indemnifications set forth in Section 22, Vertical Developers shall each Indemnify the City Parties from and against any and all Losses incurred by or asserted against any City Party in connection with, arising out of, in response to, or in any manner relating to (i) such Vertical Developer’s violation of any Environmental Law on or relative to the Project Site or (ii) any Release or threatened Release of a Hazardous Substance, or any condition of pollution, contamination or Hazardous Substance-related nuisance on, under or from real property at the Project Site (including any Public Property) to the extent the Release, threatened Release, condition, contamination or nuisance occurred during the period of such Vertical Developer’s ownership of such real property thereof or was caused, contributed to, or exacerbated by such Vertical Developer or others for whom such Vertical Developer is responsible; provided that this clause (ii) shall not apply , except, as to the Agency and any other a City Party Party, to the extent that such violation, Release, threatened Release, condition, contamination or nuisance was caused, contributed to or exacerbated by the Agency or such other a City Party, respectively. A Vertical Developer’s obligations under this Section 11.2.2 shall (1) apply regardless of the availability of insurance proceeds and (2) survive the expiration or other termination of this DDA and the AgencyAuthority’s issuance of the Certificate of Completion for all of the Vertical Improvements for such Vertical Developer. If However, if it is reasonable to assert that a claim for Indemnification under this Section 11.2.2 is covered by a pollution liability insurance policy or the indemnification provisions of Section 330 of the Fiscal Year 1993 National Defense Authorization Act (X.Xxx 102-484), under which the Agency Authority and/or such other City Party is an insured party, any indemnity party or other provision of any of the Land Acquisition Agreements or any indemnification under applicable lawa potential claimant, then the Agency Authority shall reasonably cooperate with Vertical Developer in asserting a claim or claims under such insurance policy, indemnification or other provisions policy but without waiving any of its rights under this Section 11.2.2 including the right to Indemnification during the assertion of any such claims11.2.2. Each Vertical Developer shall specifically acknowledges acknowledge and agrees agree that it has an immediate and independent obligation to defend the City Parties from any claim that may reasonably fall or is otherwise determined to fall within the Indemnification indemnification provision of this Section 11.2.2, even if allegations are or may be groundless, false or fraudulent. A Vertical Developer’s obligation to defend shall arise at the time such claim is tendered to such Vertical Developer and shall continue at all times thereafter.. Notwithstanding the foregoing, if a City Party is a named insured on a pollution liability insurance policy, such City Party will not seek indemnification from Vertical Developer under this Section