on, under, about or from the Property; or(iv) Developer's discovery of any occurrence or
<br /> condition on any real property adjoining or in the vicinity of the Project classified as
<br /> "Border Zone Property" under the provisions of California Health and Safety Code,
<br /> Sections 25220 et seq., or any regulation adopted in connection therewith, that may in
<br /> any way affect the Property pursuant to any Environmental Laws or cause it or any part
<br /> thereof to be designated as Border Zone Property. The matters set forth in the foregoing
<br /> clauses (i)through (iv) are hereinafter referred to as "Hazardous Materials Claims").
<br /> The City shall have the right to join and participate in, as a party if it so elects, any legal
<br /> proceedings or 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
<br /> which case the City agrees to provide its consent), nor enter into any settlement
<br /> agreement, consent decree, or other compromise in respect to any Hazardous Materials
<br /> Claim. City shall have the right to join and participate in,as a party if it so elects, any
<br /> legal proceedings or actions initiated in connection with any Hazardous Materials Claims
<br /> and to have its reasonable attorneys' fees in connection therewith paid by Developer.
<br /> 7.2 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)
<br /> the presence, release,use, generation, discharge, storage or disposal of any Hazardous Material
<br /> on, under, in or about the Property, or the transportation of any such Hazardous Material to or
<br /> from, the Property, or(ii)the failure of Developer, Developer's employees, agents, contractors,
<br /> subcontractors, or any person acting on behalf of or as the invitee of any of the foregoing to
<br /> comply with Environmental Laws, unless caused by the City's active or passive negligence. The
<br /> foregoing indemnity shall further apply to any residual contamination in, on, under or about the
<br /> Property or affecting any natural resources, and to any contamination of any property or natural
<br /> resources arising in connection with the generation, use, handling, treatment, storage, transport
<br /> or disposal of any such Hazardous Material, and irrespective of whether any of such activities
<br /> were or will be undertaken in accordance with Environmental Laws.
<br /> The provisions of this Section 7.2 shall be in addition to any and all other obligations and
<br /> liabilities that Developer may have under applicable law, and each Indemnitee shall be entitled to
<br /> indemnification under this Section without regard to whether City or that Indemnitee has
<br /> exercised any rights against the Property or any other security, pursued any rights against any
<br /> guarantor or other party, or pursued any other rights available under the City Documents or
<br /> applicable law. Developer's indemnification obligations set forth in this Section shall survive
<br /> the expiration or earlier termination of this Agreement and the recordation of a Certificate of
<br /> Completion, any repayment or discharge of the Loan, any foreclosure proceeding, any
<br /> foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the
<br /> lien of the Deed of Trust. Developer's indemnification obligations pursuant to this Section shall
<br /> not extend to Claims to the extent arising from the gross negligence or willful misconduct of the
<br /> Indemnitees, and are subject to the additional terms set forth in Section 11.2 below.
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