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monitoring, response, removal, treatment, abatement or remediation of Hazardous Materials and
<br />administrative, enforcement or judicial proceedings resulting, arising, or based directly or
<br />indirectly in whole or in part, upon (i) the presence, release, use, generation, discharge, storage
<br />or disposal or the alleged presence, release, discharge, storage or disposal of any Hazardous
<br />Materials on, under, in or about, or the transportation of any such Hazardous Materials 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 any of the foregoing to comply with Hazardous
<br />Materials Laws or the covenants set forth in Section 9.1. The foregoing indemnity shall further
<br />apply to any residual contamination in, on, under or about the Property or affecting any natural
<br />resources, and to any contamination of any property or natural resources arising in connection
<br />with the generation, use, handling, treatment, storage, transport or disposal of any such
<br />Hazardous Materials, and irrespective of whether any of such activities were or will be
<br />undertaken in accordance with Hazardous Materials Laws. The provisions of this Section 9.2
<br />shall survive the issuance of a Certificate of Completion for the Project and the expiration or
<br />earlier termination of this Agreement. Developer's indemnification obligation under this
<br />Section 9.2 shall not apply to acts described in clause (i) above caused by the gross negligence or
<br />willful misconduct of an Indemnitee.
<br />9.2.1 No Limitation. Developer hereby acknowledges and agrees that
<br />Developer's duties, obligations and liabilities under this Agreement, including, without
<br />limitation, under Section 9.2 above, are in no way limited or otherwise affected by any
<br />information the City may have concerning the Property and/or the presence in, on, under or
<br />about the Property of any Hazardous Materials, whether the City obtained such information from
<br />the Developer or from its own investigations. It is further agreed that City do not and shall not
<br />waive any rights against Developer that they may have by reason of this indemnity and hold
<br />harmless agreement because of the acceptance by City, or the deposit with City by Developer, of
<br />any of the insurance policies described in this Agreement.
<br />9.3 Hazardous Materials. As used herein, the term "Hazardous Materials" means
<br />any substance, material or waste which is or becomes regulated by any federal, state or local
<br />governmental authority, and includes without limitation (i) petroleum or oil or gas or any direct
<br />or indirect product or by-product thereof, (ii) asbestos and any material containing asbestos; (iii)
<br />any substance, material or waste regulated by or listed (directly or by reference) as a "hazardous
<br />substance", "hazardous material", "hazardous waste", "toxic waste", "toxic pollutant", "toxic
<br />substance", "solid waste" or "pollutant or contaminant" in or pursuant to, or similarly identified
<br />as hazardous to human health or the environment in or pursuant to, the Toxic Substances Control
<br />Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and
<br />Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation
<br />Authorization Act [49 U.S.C. Section 5 10 1, et seq.], the Resource Conservation and Recovery
<br />Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251],
<br />the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of
<br />Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the
<br />California Hazardous Substances Account Act [California Health and Safety Code Section
<br />5055770.1 20
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