|
8. Shell agrees to indemnify and hold Owner harmless from both the requirement
<br /> of performing and/or the cost of performing the cleanup of contamination, if any,
<br /> arising from Shell's past acts and/or omissions (which shall include the acts and/or
<br /> omissions of any tenant or agent of Shell) and which cleanup is required or ordered
<br /> by any federal, state or local court, governmental entity, unit, department or agency
<br /> (individually a "Governmental Order" and collectively the "Governmental Orders" and
<br /> each of which bodies issuing such order shall be referred to herein as a "Governmental
<br /> Unit"). Shell agrees to further indemnify and defend Owner and hold Owner harmless
<br /> from any regulatory requirements (federal, state, or local) and any expense related to
<br /> such regulatory requirements, imposed on Owner arising out of or attributable to the
<br /> presence of or discovery of the presence of gasoline or other liquids, solids, and/or
<br /> vapors on or under Owner's property or Shell's property attributable to Shell. The
<br /> term "cleanup" shall include, but not be limited to, the removal of contaminants and
<br /> pollutants and restoring all areas damaged or affected by the contamination and/or its
<br /> removal and all response costs or their equivalents. This obligation to indemnify and
<br /> hold Owner harmless is limited to those Governmental Orders to cleanup free-flowing
<br /> or free-phase gasoline, soil contamination and soluble contaminants in groundwater
<br /> whether on the Property, or off premises if such pollution or contamination emanated
<br /> from the subject Property.
<br /> Furthermore, Shell shall not be responsible for the costs (and will seek reimbursement
<br /> for the costs thereof if paid by Shell) of any portion of the cleanup which are
<br /> attributable to (1 ) the removal of free-phase gasoline resulting from activities
<br /> undertaken on the Property and not caused by Shell, its agents, tenants and
<br /> contractors and its and their employees, (2) soil or groundwater contamination
<br /> resulting from activities undertaken on the Property and not caused by Shell, its
<br /> agents, tenants and contractors and its and their employees, (3) activities (other than
<br /> those conducted by Shell, its agents, tenants and contractors and its and their
<br /> employees) conducted off the Property which have resulted in contamination upon the
<br /> Property, and (4) the costs of any cleanup undertaken directly by Owner and without
<br /> the involvement of Shell, other that for any cleanup which Shell, pursuant to this
<br /> Agreement, failed to do within the time limits required by, or set forth in, the
<br /> Governmental Order.
<br /> Shell further agrees to indemnify and hold Owner harmless from and against any and
<br /> all fines, loss, damage, claim, suit, liability, judgment and expense (including, without
<br /> limitation, attorney's fees), arising out of injury, disease or death of persons or
<br /> damage to or loss of any property or the environment resulting from or arising out of
<br /> Shell's acts and/or omissions, including, without limitation, all actions and proceedings
<br /> instituted or brought by a Governmental Unit and actions and proceedings for
<br /> injunctive relief and/or criminal liability, to the extent or proportion that any such loss,
<br /> damage, claim, suit, liability, judgment or expense is adjudicated to have been caused
<br /> or occasioned by, or to have arisen or resulted from, the acts and/or omissions of
<br /> Shell, its tenants, agents and contractors and its or their employees. In case any
<br /> action shall be brought against or commenced against Owner in respect of which Shell
<br /> may be adjudicated as solely or partially responsible or culpable, and in which Shell
<br /> may be required to indemnify Owner in whole or in part pursuant to this paragraph,
<br /> SMELLACE -3-
<br />
|