Common use of Indemnification by Developer Clause in Contracts

Indemnification by Developer. (a) Developer shall defend, indemnify and hold harmless the City and each of its officers, agents, employees, contractors, subcontractors, attorneys and consultants (collectively the “Indemnitees” and individually an “Indemnitee”) from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the following: (1) Developer’s development, construction, ownership, possession, use, condition or occupancy of the Project or any part thereof; (2) Developer’s operation or management of the Project or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at the Project or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s employees, agents or servants), or any third person as a result of any action or inaction of Developer; (5) any work or things whatsoever done in, or at the Project or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of Developer; (6) the condition of any building, facilities or improvements at the Project or any non-public street, curb or sidewalk at the Project, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project or any part thereof; (8) any act, omission or negligence of any tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Project; (9) any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the City; (ii) within the five (5) years immediately preceding such selection performed legal work for the City which in its respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (b) Notwithstanding anything to the contrary contained in Section 11.1(a), Developer shall not indemnify and shall have no responsibility to any Indemnitee for any matter to the extent caused by any gross negligence or willful misconduct of such Indemnitee.

Indemnification by Developer. (a) Developer shall defend, indemnify and hold harmless the City City, EDC and each of its their officers, agents, employees, contractors, subcontractors, attorneys agents and consultants employees (collectively the “Indemnitees” and individually an “Indemnitee”) from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants witnesses and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle principal of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the followingfollowing occurring prior to the Termination Date: (1) Developer’s development, construction, ownership, possession, use, condition or occupancy of the Project Casino Complex or any part thereofthereof or any Improvement thereon; (2) Developer’s operation or management of the Project Casino Complex or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at the Project Casino Complex or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s employees, agents or servants), the Casino Complex Operator/Managers (including their employees, agents or servants) or any third person as a result of any action or inaction of Developer; (5) any work or things whatsoever done in, or at the Project Casino Complex or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of Developer; (6) the condition of any building, facilities or improvements at the Project Casino Complex or any non-public street, curb or sidewalk at the ProjectCasino Complex, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project Casino Complex or any part thereof; (8) any act, omission or negligence of any tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Projecttenants; ; and (9) any claim by a third party relating to or arising from any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the CityCity or EDC; (ii) within the five (5) years immediately preceding such selection performed legal work for the City or EDC which in its their respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City or EDC in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing, but Developer and its counsel shall control such defense and shall not be obstructed by the Indemnitee. Developer shall have the sole right to compromise, settle, defend or concede any claim or liability against which it is obligated to indemnify and defend, and the Indemnitees shall enter into such agreements and shall consent to such judgments as Developer may reasonably request, if such agreements and judgments impose only monetary damages upon the Indemnitees and Developer pays such claim, liability or judgment. (b) Notwithstanding anything to the contrary contained in Section 11.1(a)12.l(a) but further subject to Section 12.1(c) below, Developer shall not indemnify and shall have no responsibility to any Indemnitee for Indemnitees for: (i) any matter to involving the extent caused by any gross negligence or willful misconduct of any of the Indemnitees; (ii) any matter giving rise to any liability of any of the Indemnitees prior to the April 9, 1998, except for such Indemniteeliabilities arising from acts or omissions undertaken by or at the request or insistence of Developer; (iii) any liability arising with respect to portions of the Casino Complex owned or under the control of the City, the EDC, or any instrumentality or subdivision thereof prior to April 9, 1998 which arises from any acts or omissions of any Indemnitee occurring prior to the April 9, 1998; (iv) liability, if any, arising from the City’s acquisition of or negotiations for the acquisition of the Riverfront Site, including causes of actions relating to condemnation or inverse condemnation by or against the City and all other matters described in Section 3.15(d); (v) any failure by the City or any subdivision or instrumentality thereof to exercise its police and similar public safety powers with respect to the Casino Complex, but only to the extent Developer is not required to undertake or perform such services pursuant to the terms of this Agreement; or (vi) any breach by City or EDC of its obligations pursuant to this Agreement; or (vii) any liability arising with respect to any off-site infrastructure improvements owned or under the control of the City which arise from acts or omissions of the City; or (viii) any liability arising as a consequence of the City’s ownership of all or any part of the Casino Complex prior to Developer’s acquisition of same. (c) The foregoing exclusions from Developer’s obligation to indemnify Indemnitees set forth in Section 12.1(b) above shall in no event apply to Developer’s environmental indemnity obligations set forth in Section 10.1.

Indemnification by Developer. (a) On and after the Effective Date of this Agreement, Developer shall defend, indemnify and hold harmless the City City, EDC and each of its their officers, agents, employees, contractors, subcontractors, attorneys agents and consultants employees (collectively the “"Indemnitees” " and individually an “"Indemnitee”") from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including without limitation, reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants witnesses and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle principal of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the followingfollowing occurring prior to the Termination Date: (1) Developer’s development, construction, the ownership, possession, use, condition or occupancy of the Project Development or any part thereofthereof or any Improvement thereon; (2) Developer’s the operation or management of the Project Development or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at on the Project Development or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s 's employees, agents or servants), the Casino Complex Operator/Managers (including their employees, agents or servants) or any third person as a result of any action or inaction of the Developer; (5) any work or things whatsoever done in, or at on the Project Development or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of DeveloperAgreement; (6) the condition of any building, facilities or improvements at Improvements on the Project Premises or the Temporary Casino Site or any non-public street, curb or sidewalk at on the ProjectProject Premises or the Temporary Casino Site, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project Development or any part thereof; (8) any act, omission or negligence of any tenantSpace Tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Projecttenants; and (9) any claim by a third party relating to or arising from any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s 's sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the CityCity or EDC; (ii) within the five (5) years immediately preceding such selection performed legal work for the City or EDC which in its their respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City or EDC in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (b) Notwithstanding anything to the contrary contained in Section 11.1(a)SECTION 18.l(a) but further subject to SECTION 18.1(c) below, Developer shall not indemnify and shall have no responsibility to any Indemnitee for Indemnitees for: (i) any matter to involving the extent caused by any gross negligence or willful misconduct of any of the Indemnitees; (ii) any matter giving rise to any liability of any of the Indemnitees prior to the Effective Date, except for such Indemniteeliabilities arising from acts or omissions undertaken by or at the request or insistence of Developer; (iii) any liability arising with respect to portions of the Development owned or under the control of the City, the EDC, or any instrumentality or subdivision thereof prior to Effective Date which arises from any acts or omissions of any Indemnitee occurring prior to the Effective Date; (iv) any liability arising with respect to any off-site Infrastructure Improvements owned and under the control of the City which arises from acts or omissions of the City; (v) any failure by the City or any subdivision or instrumentality thereof to exercise its police and similar public safety powers with respect to the Development, but only to the extent Developer is not required to undertake or perform such services pursuant to the terms of this Agreement; or (vi) any breach by City or EDC of its obligations pursuant to this Agreement. (c) The foregoing exclusions from Developer's obligation to indemnify Indemnitees set forth in SECTION 18.1(b) above shall in no event apply to Developer's environmental indemnity obligations set forth in SECTION 15.3.

Indemnification by Developer. (a) Developer shall defend, indemnify and hold harmless the City City, EDC and each of its their officers, agents, employees, contractors, subcontractors, attorneys agents and consultants employees (collectively the “"Indemnitees” " and individually an “"Indemnitee”") from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants witnesses and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle principal of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the followingfollowing occurring prior to the Termination Date: (1) Developer’s development, construction, 's ownership, possession, use, condition or occupancy of the Project Casino Complex or any part thereofthereof or any improvement thereon; (2) Developer’s 's operation or management of the Project Casino Complex or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at the Project Casino Complex or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s 's employees, agents or servants), the Casino Complex Operator/Managers (including their employees, agents or servants) or any third person as a result of any action or inaction of Developer; (5) any work or things whatsoever done in, or at the Project Casino Complex or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of Developer; (6) the condition of any building, facilities or improvements at the Project Casino Complex or any non-public street, curb or sidewalk at the ProjectCasino Complex, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project Casino Complex or any part thereof; (8) any act, omission or negligence of any tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Projecttenants; and (9) any claim by a third party relating to or arising from any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s 's sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the CityCity or EDC; (ii) within the five (5) years immediately preceding such selection performed legal work for the City or EDC which in its their respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City or EDC in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (b) Notwithstanding anything to the contrary contained in Section 11.1(a)12.l(a) but further subject to Section 12.1(c) below, Developer shall not indemnify and shall have no responsibility to any Indemnitee for Indemnitees for: (i) any matter to involving the extent caused by any gross negligence or willful misconduct of any of the Indemnitees; (ii) any matter giving rise to any liability of any of the Indemnitees prior to the April 9, 1998, except for such Indemniteeliabilities arising from acts or omissions undertaken by or at the request or insistence of Developer; (iii) any liability arising with respect to portions of the Casino Complex owned or under the control of the City, the EDC, or any instrumentality or subdivision thereof prior to April 9, 1998 which arises from any acts or omissions of any Indemnitee occurring prior to the April 9, 1998; (iv) liability, if any, arising from the City's or EDC's acquisition of or negotiations for the acquisition of the Riverfront Site, including causes of actions relating to condemnation or inverse condemnation by or against the City or EDC; (v) any failure by the City or any subdivision or instrumentality thereof to exercise its police and similar public safety powers with respect to the Casino Complex, but only to the extent Developer is not required to undertake or perform such services pursuant to the terms of this Agreement; (vi) any breach by City or EDC of its obligations pursuant to this Agreement; or (vii) any liability arising with respect to any off-site infrastructure improvements owned or under the control of the City which arise from acts or omissions of the City; or (viii) any liability arising as a consequence of the City's ownership of all or any part of the Casino Complex (including the land underneath the Casino Complex) prior to Developer's acquisition of same. (c) The foregoing exclusions from Developer's obligation to indemnify Indemnitees set forth in Section 12.1(b) above shall in no event apply to Developer's environmental indemnity obligations set forth in Section 10.2.

Indemnification by Developer. (a) Developer shall defend, indemnify and hold harmless the City City, EDC and each of its their officers, agents, employees, contractors, subcontractors, attorneys agents and consultants employees (collectively the “"Indemnitees” " and individually an “"Indemnitee”") from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants witnesses and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle principal of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the followingfollowing occurring prior to the Termination Date: (1) Developer’s development, construction, 's ownership, possession, use, condition or occupancy of the Project Casino Complex or any part thereofthereof or any Improvement thereon; (2) Developer’s 's operation or management of the Project Casino Complex or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at the Project Casino Complex or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s 's employees, agents or servants), the Casino Complex Operator/Managers (including their employees, agents or servants) or any third person as a result of any action or inaction of Developer; (5) any work or things whatsoever done in, or at the Project Casino Complex or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of Developer; (6) the condition of any building, facilities or improvements at the Project Casino Complex or any non-public street, curb or sidewalk at the ProjectCasino Complex, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project Casino Complex or any part thereof; (8) any act, omission or negligence of any tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Projecttenants; and (9) any claim by a third party relating to or arising from any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s 's sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the CityCity or EDC; (ii) within the five (5) years immediately preceding such selection performed legal work for the City or EDC which in its their respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City or EDC in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (b) Notwithstanding anything to the contrary contained in Section 11.1(a)12.l(a) but further subject to Section 12.1(c)below, Developer shall not indemnify and shall have no responsibility to any Indemnitee for Indemnitees for: (i) any matter to involving the extent caused by any gross negligence or willful misconduct of any of the Indemnitees; (ii) any matter giving rise to any liability of any of the Indemnitees prior to the April 9, 1998, except for such Indemniteeliabilities arising from acts or omissions undertaken by or at the request or insistence of Developer; (iii) any liability arising with respect to portions of the Casino Complex owned or under the control of the City, the EDC, or any instrumentality or subdivision thereof prior to the date Developer acquired control of such property which arises from any acts or omissions of any Indemnitee occurring prior to such date, provided, however, that this clause (iii) shall not apply to acts or omissions of any Indemnitee made at the request of the Developer prior to the date Developer acquires control of such property; (iv) liability, if any, arising from the City's acquisition of or negotiations for the acquisition of the Riverfront Site or the actions or failures to act of the City and/or EDC related thereto, including causes of actions relating to condemnation or inverse condemnation by or against the City; (v) any failure by the City or any subdivision or instrumentality thereof to exercise its police and similar public safety powers with respect to the Casino Complex, but only to the extent Developer is not required to undertake or perform such services pursuant to the terms of this Agreement; (vi) any breach by City or EDC of its obligations pursuant to this Agreement; or (vii) any liability arising with respect to any off-site infrastructure improvements owned or under the control of the City which arise from acts or omissions of the City; or (viii) any liability arising as a consequence of the City's ownership of all or any part of the Casino Complex prior to Developer's acquisition of same.

Indemnification by Developer. (a) On and after the Effective Date of this Agreement, Developer shall defend, indemnify and hold harmless the City City, EDC and each of its their officers, agents, employees, contractors, subcontractors, attorneys agents and consultants employees (collectively the “"Indemnitees” " and individually an “"Indemnitee”") from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including without limitation, reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants witnesses and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle principal of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the followingfollowing occurring prior to the Termination Date: (1) Developer’s development, construction, the ownership, possession, use, condition or occupancy of the Project Development or any part thereofthereof or any Improvement thereon; (2) Developer’s the operation or management of the Project Development or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at on the Project Development or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s Developer s employees, agents or servants), the Casino Complex Operator/Managers (including their employees, agents or servants) or any third person as a result of any action or inaction of the Developer; (5) any work or things whatsoever done in, or at on the Project Development or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of DeveloperAgreement; (6) the condition of any building, facilities or improvements at Improvements on the Project Premises or the Temporary Casino Site or any non-public street, curb or sidewalk at on the ProjectProject Premises or the Temporary Casino Site, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project Development or any part thereof; (8) any act, omission or negligence of any space tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Projecttenants; and (9) any claim by a third party relating to or arising from any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s Developer s sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the CityCity or EDC; (ii) within the five (5) years immediately preceding such selection performed legal work for the City or EDC which in its their respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City or EDC in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (b) Notwithstanding anything to the contrary contained in Section 11.1(a)18.l(a) but further subject to Section 18.1(c) below, Developer shall not indemnify and shall have no responsibility to any Indemnitee for Indemnitees for: (i) any matter to involving the extent caused by any gross negligence or willful misconduct of any of the Indemnitees; (ii) any matter giving rise to any liability of any of the Indemnitees prior to the Effective Date, except for such Indemniteeliabilities arising from acts or omissions undertaken by or at the request or insistence of Developer; (iii) any liability arising with respect to portions of the Development owned or under the control of the City, the EDC, or any instrumentality or subdivision thereof prior to Effective Date which arises from any acts or omissions of any Indemnitee occurring prior to the Effective Date; (iv) any liability arising with respect to any off-site Infrastructure Improvements owned and under the control of the City which arises from acts or omissions of the City; (v) any failure by the City or any subdivision or instrumentality thereof to exercise its police and similar public safety powers with respect to the Development, but only to the extent Developer is not required to undertake or perform such services pursuant to the terms of this Agreement; or (vi) any breach by City or EDC of its obligations pursuant to this Agreement. (c) The foregoing exclusions from Developer s obligation to indemnify Indemnitees set forth in Section 18.1(b) above shall in no event apply to Developer s environmental indemnity obligations set forth in Section 15.3.

Indemnification by Developer. (a) Developer shall defend, indemnify and hold harmless the City and each of its officers, whether appointed or elected, agents, employees, contractors, subcontractors, attorneys and attorneys, consultants (collectively the “Indemnitees” and individually an “Indemnitee”) from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which to the extent they arise out of or relate in any manner to any of the following: (1) Developer’s development, construction, ownership, maintenance, possession, use, condition condition, occupancy or occupancy Abandonment of the Project Project, of the Development Property, or any part thereof; (2) Developer’s operation or management of the Project Project, the Development Property or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at the Project or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer Xxxxxxxxx (including Developer’s employees, agents or servants), or any third person as a result of any action or inaction of Developer; (5) any work Work or things whatsoever done in, or at the Project or any portion thereof, or off-site pursuant to the terms of this Agreement by or on behalf of Developer; (6) the condition of any building, facilities or improvements at on the Project Development Property or any non-public street, curb or sidewalk at the Project, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project or any part thereof; (8) any act, omission or negligence of any tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Project[Reserved]; (9) any failure of Developer to comply with all Governmental RequirementsRequirements of Law or any Development Approval; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement Agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (1211) the environmental condition of any property the Development Property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is locatedlocated except for those existing on the City-Owned Parcel prior to the Effective Date of this Agreement; (1312) the release of any hazardous or regulated substance to the environment arising or resulting from any work Work or things whatsoever done in or at the Project or any portion thereof, or off- in or at off-site improvements or facilities used or constructed in connection with the Project pursuant to the terms of this agreement Agreement by or on behalf of Developer; (1413) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (1514) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. ; and (15) any legal challenge brought by any Person relating in any way to the effectiveness of this Agreement, the process by which this Agreement was entered into or approved, the request for proposals for the proposed casino development in the City, the Certification process, the Development Approval, the authority of the City to enter into this Agreement, the compliance of this Agreement with the provisions of the Act or the Sports Wagering Act, or the implementation of any provision of this Agreement, in each case, brought after the Effective Date of this Agreement. (b) In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer Xxxxxxxxx has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the City; (ii) within the five (5) years immediately preceding such selection performed legal work for the City which in its respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (bc) Notwithstanding anything to the contrary contained in Section 11.1(a)15.1.a.1., Developer shall not indemnify and shall have no responsibility to any Indemnitee Indemnity for any matter to the extent directly caused by any the gross negligence or willful misconduct of such Indemnitee.

Indemnification by Developer. (a) On and after the Effective Date of this Agreement, Developer shall defend, indemnify and hold harmless the City City, EDC and each of its their officers, agents, employees, contractors, subcontractors, attorneys agents and consultants employees (collectively the “"Indemnitees” " and individually an “"Indemnitee”") from and against any and all liabilities, losses, damages, costs, expenses, claims, obligations, penalties and causes of action (including without limitation, reasonable fees and expenses for attorneys, paralegals, expert witnesses, environmental consultants witnesses and other consultants at the prevailing market rate for such services) whether based upon negligence, strict liability, statutory liability, absolute liability, product liability, common law, misrepresentation, contract, implied or express warranty or any other principle principal of law, and whether or not arising from third party claims, that are imposed upon, incurred by or asserted against Indemnitees or which Indemnitees may suffer or be required to pay and which arise out of or relate in any manner to any of the followingfollowing occurring prior to the Termination Date: (1) Developer’s development, construction, the ownership, possession, use, condition or occupancy of the Project Development or any part thereofthereof or any Improvement thereon; (2) Developer’s the operation or management of the Project Development or any part thereof; (3) the performance of any labor or services or the furnishing of any material for or at on the Project Development or any part thereof by or on behalf of Developer or enforcement of any liens with respect thereto; (4) any personal injury, death or property damage suffered or alleged to have been suffered by Developer (including Developer’s 's employees, agents or servants), the Casino Complex Operator/Managers (including their employees, agents or servants) or any third person as a result of any action or inaction of the Developer; (5) any work or things whatsoever done in, or at on the Project Development or any portion thereof, or off-off- site pursuant to the terms of this Agreement by or on behalf of DeveloperAgreement; (6) the condition of any building, facilities or improvements at Improvements on the Project Premises or the Temporary Casino Site or any non-public street, curb or sidewalk at on the ProjectProject Premises or the Temporary Casino Site, or any vaults, tunnels, malls, passageways or space therein; (7) any breach or default on the part of Developer for the payment, performance or observance of any of its obligations under all agreements entered into by Developer or any of its Affiliates relating to the performance of services or supplying of materials to the Project Development or any part thereof; (8) any act, omission or negligence of any tenantSpace Tenant, or any of their respective agents, contractors, servants, employees, licensees or other tenants at the Projecttenants; and (9) any claim by a third party relating to or arising from any failure of Developer to comply with all Governmental Requirements; (10) Developer’s acts or omissions with respect to the RFQ/P and/or the casino selection process conducted by the City; (11) any breach of any warranty or the inaccuracy of any representation made by Developer contained or referred to in this agreement or in any certificate or other writing delivered by or on behalf of Developer pursuant to the terms of this Agreement; and (12) the environmental condition of any property (including the presence of any hazardous or regulated substance in, on, under or adjacent to such property) on which the Project is located; (13) the release of any hazardous or regulated substance to the environment arising or resulting from any work or things whatsoever done in or at the Project or any portion thereof, or off- site pursuant to the terms of this agreement by or on behalf of Developer; (14) the operation or use of the Project, whether or not intended, in violation of any law addressing the protection of the environment or the projection of public health; and (15) any breach or failure by Developer to perform any of its covenants or obligations under this Agreement. In case any action or proceeding shall be brought against any Indemnitee based upon any claim in respect of which Developer has agreed to indemnify any Indemnitee, Developer will upon notice from Indemnitee defend such action or proceeding on behalf of any Indemnitee at Developer’s 's sole cost and expense and will keep Indemnitee fully informed of all developments and proceedings in connection therewith and will furnish Indemnitee with copies of all papers served or filed therein, irrespective of by whom served or filed. Developer shall defend such action with legal counsel it selects provided that such legal counsel is reasonably satisfactory to Indemnitee. Such legal counsel shall not be deemed reasonably satisfactory to Indemnitee if legal counsel has: (i) a legally cognizable conflict of interest with respect to the CityCity or EDC; (ii) within the five (5) years immediately preceding such selection performed legal work for the City or EDC which in its their respective reasonable judgment was inadequate; or (iii) frequently represented parties opposing the City or EDC in prior litigation. Each Indemnitee shall have the right, but not the obligation, at its own cost, to be represented in any such action by legal counsel of its own choosing. (b) Notwithstanding anything to the contrary contained in Section 11.1(a)------- 18.l(a) but further subject to Section 18.1(c) below, Developer shall not ------- --------------- indemnify and shall have no responsibility to any Indemnitee for Indemnitees for: (i) any matter to involving the extent caused by any gross negligence or willful misconduct of any of the Indemnitees; (ii) any matter giving rise to any liability of any of the Indemnitees prior to the Effective Date, except for such Indemniteeliabilities arising from acts or omissions undertaken by or at the request or insistence of Developer; (iii) any liability arising with respect to portions of the Development owned or under the control of the City, the EDC, or any instrumentality or subdivision thereof prior to Effective Date which arises from any acts or omissions of any Indemnitee occurring prior to the Effective Date; (iv) any liability arising with respect to any off-site Infrastructure Improvements owned and under the control of the City which arises from acts or omissions of the City; (v) any failure by the City or any subdivision or instrumentality thereof to exercise its police and similar public safety powers with respect to the Development, but only to the extent Developer is not required to undertake or perform such services pursuant to the terms of this Agreement; or (vi) any breach by City or EDC of its obligations pursuant to this Agreement. (c) The foregoing exclusions from Developer's obligation to indemnify Indemnitees set forth in Section 18.1(b) above shall in no event apply to --------------- Developer's environmental indemnity obligations set forth in Section 15.3. ------------