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about or from the Property; or (iv) Developer's discovery of any occurrence or condition
<br /> on any real property adjoining or in the vicinity of the Project classified as "Border Zone
<br /> Property" under the provisions of California Health and Safety Code, Sections 25220 et
<br /> seq., or any regulation adopted in connection therewith, that may in any way affect the
<br /> Property pursuant to any Environmental Laws or cause it or any part thereof to be
<br /> designated as Border Zone Property. The matters set forth in the foregoing clauses (i)
<br /> through (iv) are hereinafter referred to as "Hazardous Materials Claims"). The City shall
<br /> have the right to join and participate in, as a party if it so elects, any legal proceedings or
<br /> actions initiated in connection with any Hazardous Materials Claim.
<br /> (4) Without the City's prior written consent, which shall not be unreasonably
<br /> withheld or delayed, Developer shall not take any remedial action in response to the
<br /> presence of any Hazardous Material in, on, under, or about the Property (other than in
<br /> emergency situations or as required by governmental agencies having jurisdiction in which
<br /> case the City agrees to provide its consent), nor enter into any settlement agreement,
<br /> consent decree, or other compromise in respect to any Hazardous Materials Claim. City
<br /> shall have the right to join and participate in, as a party if it so elects, any legal proceedings
<br /> or actions initiated in connection with any Hazardous Materials Claims and to have its
<br /> reasonable attorneys' fees in connection therewith paid by Developer.
<br /> (5) If Developer discovers the presence of Hazardous Materials or
<br /> contamination at the Property after the date Developer acquires the Property, and
<br /> Developer determines that the remediation costs shall cause development of the Project to
<br /> be infeasible, then the Parties agree to meet and confer within 30 days to determine overall
<br /> Project feasibility and a future course of action.
<br /> 6.7 Environmental Indemnity. To the greatest extent allowed by law, Developer shall
<br /> indemnify, defend (with counsel approved by City) and hold Indemnitees harmless from and
<br /> against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon (i) the
<br /> presence, release, use, generation, discharge, storage or disposal of any Hazardous Material on,
<br /> under, in or about the Property to the extent arising out of the acts of Developer or its employees,
<br /> agents, contractors, or subcontractors, or the transportation of any such Hazardous Material to or
<br /> from, the Property by Developer or its employees, agents, contractors, or subcontractors, or (ii) the
<br /> failure of Developer, or Developer's employees, agents, contractors, or subcontractors, or any
<br /> person acting on behalf of or as the invitee of any of the foregoing to comply with Environmental
<br /> Laws, except to the extent caused by an Indemnitee's gross negligence or willful misconduct. The
<br /> foregoing indemnity shall further apply to any residual contamination in, on, under or about the
<br /> Property to the extent arising out of the acts of Developer or its employees, agents, contractors, or
<br /> subcontractors, or affecting any natural resources, and to any contamination of any property or
<br /> natural resources arising in connection with the generation, use, handling, treatment, storage,
<br /> transport or disposal of any such Hazardous Material by Developer or its employees, agents,
<br /> contractors, or subcontractors, and irrespective of whether any of such activities were or will be
<br /> undertaken in accordance with Environmental Laws. Notwithstanding any contrary provision of
<br /> this Agreement, Developer's obligations to indemnify the Indemnitees shall not apply to (i)
<br /> Hazardous Materials released in, on, under, or from the Property as a result of City's actions
<br /> during City's ownership of the Property, (ii) conditions known to City that City failed to disclose
<br /> ATY/AGR/2017.218/RWC — BRADFORD — DDA
<br /> REV: 09-18-17 VR
<br /> Page 26 of 94
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