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<br />of any occurrence or condition on any real property adjoining or in the vicinity of the Project
<br />classified as "Border Zone Property" under the provisions of California Health and Safety
<br />Code, Sections 25220 et seq., or any regulation adopted in connection therewith, that may in
<br />any way affect the Property pursuant to any Hazardous Materials 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"). The
<br />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, and to have
<br />its reasonable attorney's fees in connection therewith paid by the Developer.
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<br />d. Without the Agency's prior written consent, which shall not be
<br />unreasonably withheld or delayed, Developer shall not take any remedial action in response to
<br />the presence of any Hazardous Materials in, on, under, or about the Project (other than in
<br />emergency situations or as required by governmental agencies having jurisdiction in which case
<br />the Agency agrees to provide its consent), nor enter into any settlement agreement, consent
<br />decree, or other compromise in respect to any Hazardous Materials Claim.
<br />
<br />4.4.2 Environmental Indemnity. Developer shall indemnify, defend (with counsel
<br />approved by Agency) and hold Indemnitees harmless from and against all Claims resulting,
<br />arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use,
<br />generation, discharge, storage or disposal after the commencement of the term of the Ground
<br />Lease or otherwise arising as a result of actions taken by Developer or Developer's agents,
<br />employees or contractors, of any Hazardous Materials on, under, in or about, or the
<br />transportation of any such Hazardous Materials to or from, the Property, or (ii) the failure of
<br />Developer, Developer's employees, agents, contractors, subcontractors, or any person acting on
<br />behalf of any of the foregoing to comply with Hazardous Materials Laws. The foregoing
<br />indemnity shall further apply to any residual contamination in, on, under or about the Property
<br />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 Materials, and irrespective of whether any of such activities
<br />were or will be undertaken in accordance with Hazardous Materials Laws.
<br />
<br />4.4.3 No Limitation. Developer hereby acknowledges and agrees that Developer's
<br />duties, obligations and liabilities under this Agreement, including, without limitation, under
<br />Section 4.4.2 above, are in no way limited or otherwise affected by any information the Agency
<br />or the City may have concerning the Property and/or the presence in, on, under or about the
<br />Property of any Hazardous Materials, whether the Agency or the City obtained such
<br />information from the Developer or from its own investigations, unless such information was
<br />known to the Agency or the City at the time of execution ofthis Agreement and/or the time of
<br />the close of escrow for the conveyance of the Property to the Developer but not disclosed to
<br />Developer.
<br />
<br />4.4.4 Definitions.
<br />
<br />4.4.4.1 Hazardous Materials. As used herein, "Hazardous Materials" means
<br />any substance, material, or waste which is or becomes regulated by any local, state or federal
<br />authority, agency or governmental body, including any material or substance which is: (i)
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