Common use of Operator Liability Clause in Contracts

Operator Liability. (1) Except with respect to the releases set forth in Section 8.4(b)(3), in no event shall Owner be responsible for present or future Environmental Claims finally determined by a court of competent jurisdiction to have directly or indirectly related to or arisen out of bad faith, gross negligence, willful misconduct, or knowing and material non-compliance with Law (unless such non-compliance was engaged in at the express direction of the Owner), with respect to the existence, generation, use, collection, treatment, storage, transportation, recovery, removal, discharge or disposal of Hazardous Material at the Project or adjacent areas by Operator in the performance or non-performance of the Services, and Operator shall defend, indemnify and hold Owner harmless against, and shall reimburse Owner for such Environmental Claims; provided, however, that nothing contained herein shall be construed as requiring Operator to take any corrective action with respect to any Hazardous Material in existence prior to the date hereof unless directed to do so by a Competent Authority, in which case the corrective actions so undertaken shall be deemed an Environmental Claim pursuant to Section 8.4(a) unless Devon Power is responsible therefor in its capacity as Landlord under the Site Lease or in its capacity as Lessor under the Shared Facilities Agreement. (2) Operator shall, in compliance with all Laws, take reasonable steps to mitigate a release of Hazardous Materials upon discovery; take no action to exacerbate a pre-existing release or cause a further release; provide full cooperation, assistance and access to Persons authorized to undertake corrective action; comply with all land use controls and Laws; and take no action to impede the performance of any institutional controls adopted to manage a pre-existing release except that Operator’s actions shall not unreasonably interfere with Owner’s business activities and/or the Ancillary Easement Areas as permitted by the Site Lease. (3) Operator shall, at its own cost, promptly remove and otherwise fully remediate in compliance with and to the extent required by applicable Laws all releases of Hazardous Materials at the Project or adjacent areas (expressly including exacerbation of Hazardous Materials present at the Project or adjacent areas if and only to the extent the nature and exact location of such Hazardous Materials are known by the Operator) arising out of bad faith, gross negligence, willful misconduct, or knowing and material non-compliance with Laws (unless such non-compliance was engaged in at the express direction of the Owner) by Operator. (4) Nothing in this Agreement shall be deemed to limit in any way Devon Power’s obligations as Landlord under the Site Lease or as Lessor under the Shared Facilities Agreement.

Operator Liability. (1) Except with respect to the releases set forth in Section 8.4(b)(3), in no event shall Owner be responsible for present or future Environmental Claims finally determined by a court of competent jurisdiction to have directly or indirectly related to or arisen out of bad faith, gross negligence, willful misconduct, or knowing and material non-compliance with Law (unless such non-compliance was engaged in at the express direction of the Owner), with respect to the existence, generation, use, collection, treatment, storage, transportation, recovery, removal, discharge or disposal of Hazardous Material at the Project or adjacent areas by Operator in the performance or non-performance of the Services, and Operator shall defend, indemnify and hold Owner harmless against, and shall reimburse Owner for such Environmental Claims; provided, however, that nothing contained herein shall be construed as requiring Operator to take any corrective action with respect to any Hazardous Material in existence prior to the date hereof unless directed to do so by a Competent Authority, in which case the corrective actions so undertaken shall be deemed an Environmental Claim pursuant to Section 8.4(a) unless Devon Middletown Power is responsible therefor in its capacity as Landlord under the Site Lease or in its capacity as Lessor under the Shared Facilities Agreement. (2) Operator shall, in compliance with all Laws, take reasonable steps to mitigate a release of Hazardous Materials upon discovery; take no action to exacerbate a pre-existing release or cause a further release; provide full cooperation, assistance and access to Persons authorized to undertake corrective action; comply with all land use controls and Laws; and take no action to impede the performance of any institutional controls adopted to manage a pre-existing release except that Operator’s actions shall not unreasonably interfere with Owner’s business activities and/or the Ancillary Easement Areas as permitted by the Site Lease. (3) Operator shall, at its own cost, promptly remove and otherwise fully remediate in compliance with and to the extent required by applicable Laws all releases of Hazardous Materials at the Project or adjacent areas (expressly including exacerbation of Hazardous Materials present at the Project or adjacent areas if and only to the extent the nature and exact location of such Hazardous Materials are known by the Operator) arising out of bad faith, gross negligence, willful misconduct, or knowing and material non-compliance noncompliance with Laws (unless such non-compliance was engaged in at the express direction of the Owner) by Operator. (4) Nothing in this Agreement shall be deemed to limit in any way Devon Middletown Power’s obligations as Landlord under the Site Lease or as Lessor under the Shared Facilities Agreement.