Common use of Developer and City Indemnities Clause in Contracts

Developer and City Indemnities. As of the Close of Escrow, Developer agrees, with respect to the Site, to indemnify, defend and hold Indemnitees harmless from and against (“Indemnity” or “Indemnify”) any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) by third parties but expressly excluding the County Dispute, the OCHCA Notice and Order, and the City’s and Developer’s performance with respect to the Successor Agency Component, which performance was completed by the Agency, for bodily injury or property damage, resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials and Landfill Gases including methane on, under, in, about, or from or the transportation of any such Hazardous Materials and Landfill Gases including methane to or from, the Site, and (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials and Landfill Gases including methane on, under, in or about, to or from the Site; and (iii) damage to person or property arising out of or related to the Investigations of the Site pursuant to this Section 208 (collectively “Environmental Liabilities”) except the Environmental Liabilities arising out of (i) the negligence or willful misconduct of the Successor Agency or the City occurring after the Close of Escrow or occurring prior to the Close of Escrow but discovered after the Close of Escrow, (ii) the transportation and/or disposal of any Hazardous Materials from the Site, and (iii) liabilities of the City arising out of the Reimbursement Agreement which liabilities, if any, are covered in the Reimbursement Agreement. The Developer shall establish with substantial evidence the date that the Environmental Liability occurred. This Indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment by any third party other than the County Dispute. At the request of the Developer, the City shall cooperate with and assist the Developer in its defense of any such Environmental Liability; provided that the City shall not be obligated to incur any expense in connection with such cooperation or assistance. City agrees to indemnify, defend and hold Developer harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) resulting from, arising out of, or based upon the County Dispute or the OCHCA Notice and Order. The foregoing Indemnities shall survive the termination, expiration, invalidation, or performance in full or in part of this Agreement, and, without limiting the foregoing, shall survive the Closing. DEVELOPMENT OF THE SITE Development of the Site.

Developer and City Indemnities. As of the Applicable Close of Escrow, Developer agrees, with respect to the Site, to indemnify, defend and hold Indemnitees harmless from and against (“Indemnity” or “Indemnify”) any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) by third parties but expressly excluding the County Dispute, the OCHCA Notice and Order, and the City’s and Developer’s performance with respect to the Successor Agency Component, which performance was completed by the Agency, for bodily injury or property damage, resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials and Landfill Gases including methane on, under, in, about, or from or the transportation of any such Hazardous Materials and Landfill Gases including methane to or from, the Site, and (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials and Landfill Gases including methane on, under, in or about, to or from the Site; and (iii) damage to person or property arising out of or related to the Investigations of the Site pursuant to this Section 208 (collectively “Environmental Liabilities”) except the Environmental Liabilities arising out of (i) the negligence or willful misconduct of the Successor Agency or the City occurring after the Applicable Close of Escrow or occurring prior to the Applicable Close of Escrow but discovered after the Applicable Close of Escrow, and (ii) the transportation and/or disposal of any Hazardous Materials from the Site, and (iii) liabilities of the City arising out of the Reimbursement Agreement which liabilities, if any, are covered in the Reimbursement Agreement. The Developer shall establish with substantial evidence the date that the Environmental Liability occurred. This Indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment by any third party other than the County Dispute. At the request of the Developer, the City shall cooperate with and assist the Developer in its defense of any such Environmental Liability; provided that the City shall not be obligated to incur any expense in connection with such cooperation or assistance. City agrees to indemnify, defend and hold Developer harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) resulting from, arising out of, or based upon the County Dispute or the OCHCA Notice and OrderDispute. The foregoing Indemnities shall survive the termination, expiration, invalidation, or performance in full or in part of this Agreement, and, without limiting the foregoing, shall survive the Applicable Closing. 300. DEVELOPMENT OF THE SITE 301. Development of the Site. 301.1 Developer’s Obligation to Construct the Residential Component and the Retail Component. Following the First Closing and the Second Closing, the Developer shall develop or cause the development of the Residential Component and the Retail Component, respectively, in accordance with the Scope of Development, the Entitlements, the City Municipal Code, and the plans, drawings and documents submitted by the Developer and approved by the City and Responsible Agencies as set forth herein. The Developer acknowledges that the requirements for the construction of the Residential Component and the Retail Component set forth in the Scope of Development are material considerations for the participation by the City in this Agreement, and that but for such requirements, the City would not have entered into this Agreement. City acknowledges that part of the Retail Component may be constructed by ground lessees following the leasing of such pads to the restaurants and other eateries located within the Retail Component; provided that Developer shall be responsible for insuring any such construction is in conformity with the Approved RAP. In no event shall the construction of all or any portion of the Project by parties other than Developer relieve Developer of its obligations under this Agreement; provided, however, in the event that a pad tenant fails to construct the improvements as required under its lease, through no fault of Developer, Developer shall not be in Default hereunder provided that Developer uses diligent efforts to enforce the terms of such tenant’s lease and cause such pad tenant to commence construction of the improvements and diligently prosecute the same to completion, or Developer terminates such pad tenant’s lease and uses diligent efforts to procure a replacement pad tenant and the replacement pad tenant has an obligation to commence construction within a reasonable period following execution of such tenant’s lease.

Developer and City Indemnities. As of the Close of Escrow, Developer agrees, with respect to the Site, to indemnify, defend and hold Indemnitees harmless from and against (“Indemnity” or “Indemnify”) any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) by third parties but expressly excluding the County Dispute, the OCHCA Notice and Order, Dispute and the City’s and Developer’s performance with respect to of the Successor Agency Component, which performance was completed is governed by the AgencyReimbursement Agreement re Successor Agency Component, for bodily injury or property damage, resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials and Landfill Gases including methane on, under, in, about, or from or the transportation of any such Hazardous Materials and Landfill Gases including methane to or from, the Site, and (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials and Landfill Gases including methane on, under, in or about, to or from the Site; and (iii) damage to person or property arising out of or related to the Investigations of the Site pursuant to this Section 208 (collectively “Environmental Liabilities”) except the Environmental Liabilities arising out of (i) the negligence or willful misconduct of the Successor Agency or the City occurring after the Close of Escrow or occurring prior to the Close of Escrow but discovered after the Close of Escrow, (ii) the transportation and/or disposal of any Hazardous Materials from the Site, and (iii) liabilities of the City and/or Successor Agency arising out of the Reimbursement Agreement re Successor Agency Component which liabilities, if any, are covered in the Reimbursement AgreementAgreement re Successor Agency Component. The Developer shall establish with substantial evidence the date that the Environmental Liability occurred. This Indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment by any third party other than the County Dispute. At the request of the Developer, the City shall cooperate with and assist the Developer in its defense of any such Environmental Liability; provided that the City shall not be obligated to incur any expense in connection with such cooperation or assistance. City agrees to indemnify, defend and hold Developer harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) resulting from, arising out of, or based upon the County Dispute or the OCHCA Notice and OrderDispute. The foregoing Indemnities shall survive the termination, expiration, invalidation, or performance in full or in part of this Agreement, and, without limiting the foregoing, shall survive the Closing. Notwithstanding the foregoing or anything contained herein to the contrary, the Parties acknowledge and agree that the Developer’s Indemnity set forth in this Section 208.2 shall exclude the Developer’s performance of the Successor Agency Improvements (including, without limitation, the Developer’s construction and/or installation of the Successor Agency Improvements), which performance is governed by the Reimbursement Agreement re Successor Agency Component. 300. DEVELOPMENT OF THE SITE 301. Development of the Site.

Developer and City Indemnities. As of the Applicable Close of Escrow, Developer agrees, with respect to the Site, to indemnify, defend and hold Indemnitees harmless from and against (“Indemnity” or “Indemnify”) any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) by third parties but expressly excluding the County Dispute, the OCHCA Notice and Order, and the City’s and Developer’s performance with respect to the Successor Agency Component, which performance was completed by the Agency, for bodily injury or property damage, resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials and Landfill Gases including methane on, under, in, about, or from or the transportation of any such Hazardous Materials and Landfill Gases including methane to or from, the Site, and (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials and Landfill Gases including methane on, under, in or about, to or from the Site; and (iii) damage to person or property arising out of or related to the Investigations of the Site pursuant to this Section 208 (collectively “Environmental Liabilities”) except the Environmental Liabilities arising out of (i) the negligence or willful misconduct of the Successor Agency or the City occurring after the Applicable Close of Escrow or occurring prior to the Applicable Close of Escrow but discovered after the Applicable Close of Escrow, and (ii) the transportation and/or disposal of any Hazardous Materials from the Site, and (iii) liabilities of the City arising out of the Reimbursement Agreement which liabilities, if any, are covered in the Reimbursement Agreement. The Developer shall establish with substantial evidence the date that the Environmental Liability occurred. This Indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment by any third party other than the County Dispute. At the request of the Developer, the City shall cooperate with and assist the Developer in its defense of any such Environmental Liability; provided that the City shall not be obligated to incur any expense in connection with such cooperation or assistance. City agrees to indemnify, defend and hold Developer harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys’ fees) resulting from, arising out of, or based upon the County Dispute or the OCHCA Notice and OrderDispute. The foregoing Indemnities shall survive the termination, expiration, invalidation, or performance in full or in part of this Agreement, and, without limiting the foregoing, shall survive the Applicable Closing. 300. DEVELOPMENT OF THE SITE 301. Development of the Site. 301.1 Developer’s Obligation to Construct the Residential Component and the Retail Component. Following the First Closing, the Developer shall develop or cause the development of the Residential Component and the Retail Component in accordance with the Scope of Development, the Entitlements, the City Municipal Code, and the plans, drawings and documents submitted by the Developer and approved by the City and Responsible Agencies as set forth herein. The Developer acknowledges that the requirements for the construction of the Residential Component and the Retail Component set forth in the Scope of Development are material considerations for the participation by the City in this Agreement, and that but for such requirements, the City would not have entered into this Agreement. City acknowledges that part of the Retail Component may be constructed by ground lessees following the leasing of such pads to the restaurants and other eateries located within the Retail Component; provided that Developer shall be responsible for insuring any such construction is in conformity with the Approved RAP. In no event shall the construction of all or any portion of the Project by parties other than Developer relieve Developer of its obligations under this Agreement; provided, however, in the event that a pad tenant fails to construct the improvements as required under its lease, through no fault of Developer, Developer shall not be in Default hereunder provided that Developer uses diligent efforts to enforce the terms of such tenant’s lease and cause such pad tenant to commence construction of the improvements and diligently prosecute the same to completion, or Developer terminates such pad tenant’s lease and uses diligent efforts to procure a replacement pad tenant and the replacement pad tenant has an obligation to commence construction within a reasonable period following execution of such tenant’s lease.