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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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