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ENVIRONMENTAL INDEMNIFICATION AGREEMENT , -"';::.\T ,f I I ENVIRONMENTAL INDEMNIFICATION AGREEMENT THIS ENVIRONMENT ALINDEMNIFICA TION AGREEMENT (this "Agreement") is made and entered into as of f"(h~ 3 0 ,1992, by CHI CHI RODRIGUEZ YOUTH FOUNDATION, INC., a Florida non-profit corporation (hereinafter referred to as "CHI CHI") and the CITY OF CLEARWATER, FLORIDA, a municipal corporation (the "CITY") (CHI CHI and the CITY being collectively referred to as the "Indemnitor"), jointly and severally, to and for the benefit of NCNB NATIONAL BANK OF FLORIDA ("Lender"). R E C I TAL S: A. Concurrently herewith Lender has made a loan (the "Loan") to CHI CHI, herein sometimes referred to also as "Borrower," in the amount of $2,500,000.00, which Loan is secured by, among other things, that certain Leasehold Mortgage and Security Agreement and other security instruments (the "Mortgage") of even date herewith, in favor of Lender encumbering CHI CHI's leasehold interest in certain improved and unimproved real property located in the County of Pinellas, State of Florida, as more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Real Property"). B. The CITY has guaranteed the repayment of a portion of the Loan. C. Lender has required the execution and delivery of this Agreement as a condition precedent to Lender's making of the Loan and Lender would not be willing to make the Loan in the absence of the execution and delivery by Indemnitor of this Agreement. NOW, THEREFORE, Indemnitor as an inducement to Lender to make the Loan hereby covenants and agrees to and for the benefit of Lender as follows: 1. Recitals. The recitals set forth above are true and correct and are by this reference incorporated herein. 2. Hazardous Substances. As used in this Agreement, the term "Hazardous Substances" means any hazardous or toxic substances, materials or wastes, including, but not limited to those substances, materials, and wastes listed in the United States Department of Transportation Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or such substances, materials and wastes which are or become regulated under any applicable local, state or federal law including, without limitation, any material, waste or substance which is (i) petroleum, (ii) asbestos, (Hi) polychlorinated biphenyls, (iv) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S. C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317), (v) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903) or (vi) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601). 3. Comoliance with Laws and Re~ulations. Indemnitor hereby represents, warrants, covenants and agrees to and with Lender that all operations or activities upon, or any use or occupancy of the Real Property, or any portion thereof, by Borrower, any. tenant or other occupant of the Real Property, or any portion thereof, is presently and shall throughout the term of the Loan be in compliance with all state, federal and local laws and regulations governing or in any way relating to the generation, handling, manufacturing, treatment, storage, use, transportation, spillage, leakage, dumping, discharge or disposal (whether legal or illegal, accidental or intentional) of any Hazardous Substances; and that Borrower has not at any time engaged in or permitted, nor to the best of Indemnitor's knowledge after due inquiry has any tenant or occupant of the Real Property, or any portion thereof, engaged in or permitted any material dumping, discharge, disposal, spillage or leakage (whether legal or illegal, accidental or intentional) of such Hazardous Substances, at, on, in or about the Real Property, or any portion thereof. 4. Indemnification. Indemnitor agrees to indemnify, protect, defend (with counsel reasonably approved by Lender) and hold Lender, and the directors, officers, shareholders, employees and agents of Lender harmless from any claims (including, without limitation, third party claims for personal injury or real or personal property damage), actions, administrative proceedings (including informal proceedings), judgments, damages, punitive damages, penalties, fines, costs, liabilities (including sums paid in settlements of claims), interest or losses including reasonable attorneys' and paralegals' fees and expenses (including any such fees and expenses incurred in enforcing this Agreement or collecting I e~/~ V; 11l~ / C( , (i/J,"" ,I (I , -, "",_t, .. I I any sums due hereunder), consultant fees and expert fees, together with all other costs and expenses of any kind or nature (collectively, the "Costs") that arise directly or indirectly from or in connection with the presence, suspected presence, release or suspected release of any Hazardous Substance in or into the air, soil, surface water, groundwater or soil vapor at, on, about, under or within the Real Property, or any portion thereof. The indemnification provided in this paragraph shall specifically apply to and include claims or actions brought by or on behalf of employees of Indemnitor or Borrower, and Indemnitor hereby expressly waives any immunity to which Indemnitor may otherwise be entitled under any industrial or worker's compensation laws. In the event Lender shall suffer or incur any such Costs, Indemnitor shall pay to Lender the total of all such costs suffered or incurred by Lender upon demand therefor by Lender. Without limiting the generality of the foregoing, the indemnification provided by this paragraph 4 shall specifically cover Costs, including capital, operating and maintenance costs, incurred in connection with any investigation or monitoring of site conditions, any clean-up, containment, remedial, removal or restoration work required or performed by any federal, state or local governmental agency or political subdivision or performed by any nongovernmental entity or person because of the presence, suspected presence, release or suspected release of any Hazardous Substance in or into the air, soil, groundwater, surface water or soil vapor at, on, about, under or within the Real Property (or any portion thereof), and any claims of third parties for loss or damage due to such Hazardous Substance. In addition, the indemnification provided by this paragraph 4 shall include, without limitation, all loss or damage sustained by Lender or any third party due to any Hazardous Substance (i) that is present or suspected to be present in the air, soil, groundwater, surface water or soil vapor at, on, about, under or within the Real Property (or any portion thereof) on or before the date of this Agreement, or (ii) that migrates, flows, percolates, diffuses or in any way moves onto, into or under the air, soil, groundwater, surface water or soil vapor at, on, about, under or within the Real Property (or any portion thereof) after the date of this Agreement, irrespective of whether such Hazardous Substance shall be present or suspected to be present in the air, soil, groundwater, surface water or soil vapor at, on, about, under or within the Real Property (or any portion thereof) as a result of any release, discharge, disposal, dumping, spilling, or leaking (accidental or otherwise) onto the Real Property (or any portion thereof) occurring before, on or after the date of this Agreement or caused by any person or entity. 5. Remedial Work. In the event any investigation or monitoring of site conditions or any clean-up, containment, restoration, removal or other remedial work (collectively, the "Remedial Work") is required under any applicable federal, state or local law or regulation, by any judicial order, or by any governmental entity, or in order to comply with any agreements affecting the Real Property because of, or in connection with, any occurrence or event described in paragraph 4 above, Indemnitor shall perform or cause to be performed the Remedial Work in compliance with such law, regulation, order or agreement; provided, that Indemnitor may withhold such compliance pursuant to a good faith dispute regarding the application, interpretation or validity of the law, regulation, order, or agreement, subject to the requirements of paragraph 6 below. All Remedial Work shall be performed by one or more contractors, selected by Indemnitor and approved in advance in writing by Lender. All costs and expenses of such Remedial Work shall be paid by Indemnitor including, without limitation, the charges of such contractor(s) and/or the consulting engineer, and Lender's reasonable attorneys' and paralegals' fees and costs incurred in connection with monitoring or review of such Remedial Work. In the event Indemnitor shall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, such Remedial Work, Lender may, but shall not be required to, cause such Remedial Work to be performed, and all costs and expenses thereof, or incurred in connection therewith, shall be Costs within the meaning of paragraph 4 above. All such Costs shall be due and payable upon demand therefor by Lender. 6. Permitted Contests. Notwithstanding any provision of this Agreement to the contrary, Indemnitor will be permitted to contest or cause to be contested, subject to compliance with the requirements of this paragraph, by appropriate action any Remedial Work requirement, and Lender shall not perform such requirement on its behalf, so long as no "Event of Default" has occurred and is continuing under the Mortgage or other instruments evidencing and/or securing the Loan (the "Loan Documents") and Indemnitor has given Lender written notice that Indemnitor is contesting or shall contest Or cause to be contested the same and Indemnitor actually contests or causes to be contested the application, interpretation or validity of the Remedial Work by appropriate proceedings conducted in good faith with due diligence; provided, such contest shall not subject Lender or any assignee of its interest (including any person having a beneficial interest) in the Loan or the Loan Documents to civil liability and does not jeopardize any such party's lien upon or interest in the Real Property or affect in any way the payment of any sums to be paid under the Loan. Indemnitor shall give such security or assurances as may be -2- .4e. ! I I reasonably required by Lender to insure compliance with the legal requirements pertaining to the Remedial Work (and payment of all costs, expenses, interest and penalties in connection therewith) and to prevent any sale, forfeiture or loss by reason of such nonpayment or noncompliance. 7. Subro~ation of Indemnitv Ri~hts. If Indemnitor fails to perform its obligations under paragraph 4 above, Lender shall be subrogated to any rights Indemnitor may have under any indemnifications from any present, future or former owner's, tenants or other occupants or users of the Real Property (or any portion thereof), relating to the matters covered by this Agreement. 8. Assi~nment bv Lender. Except as otherwise restricted by that certain Continuing and Unconditional Guaranty of even date herewith, no consent by Indemnitor shall be required for any assignment or reassignment of the rights of Lender hereunder to one or more purchasers of the Loan, the Loan Documents or the Real Property, or any portion thereof. 9. Mer~er. Consolidation or Sale of Assets. In the event of a disposition involving Indemnitor of all or substantially all the assets of Indemnitor to one or more persons or other entities or the merger or consolidation of Indemnitor with another entity, the surviving entity or transferee of assets, as the case may be, shall (i) be formed and existing under the laws of a state, district or commonwealth of the United States of America, and (ii) deliver to Lender an acknowledged instrument in recordable form assuming all obligations, covenants and responsibilities of Indemnitor under this Agreement. 10. Indeoendent Obli2:ations: Survival. Notwithstanding anything to the contrary contained in any of the Loan Documents, including, without limitation, the note evidenCing the Loan or the Mortgage, the obligations of Indemnitor under this Agreement shall survive the consummation of the Loan transaction described above, the repayment of the Loan and any assumption of the Loan by a successor to Indemnitor (whether or not the assumption has been approved or disapproved or whether or not Indemnitor was released from liability on the loan) and reconveyance or foreclosure of the Mortgage. The obligations of Indemnitor under this Agreement are separate and distinct from the obligations of Indemnitor under the Loan Documents. This Agreement may be enforced by Lender without regard to any other rights and remedies Lender may have against Indemnitor under the Loan Documents and without regard to any limitations on Lender's recourse as may be provided in the Loan Documents. Enforcement of this Agreement shall not be deemed to constitute an action for recovery of the Loan indebtedness nor for recovery of a defiCiency judgment against Indemnitor following foreclosure of the Mortgage. Indemnitor expressly and specifically agrees that a separate action or actions may be brought and prosecuted against Indemnitor hereunder whether or not action is brought against Indemnitor under the Loan Documents. 11. Default Interest. Any Costs and other payments required to be paid by Indemnitor to Lender under this Agreement which are not paid on demand therefor shall accrue interest at a rate equal to the greater of eighteen percent (18%) per annum or three percent (3%) per annum above the interest rate payable under the Loan, but not in any event greater than the maximum rate of interest permitted to be contracted for by law. 12. Miscellaneous. If any term of this Agreement or any application thereof shall be invalid, illegal or unenforceable, the remainder of this Agreement and any other application of such term shall not be affected thereby. No delay or omission in exercising any right hereunder shall operate as a waiver of such right or any other right. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Indemnitor and Lender, and their respective successors and assigns, including (without limitation) any assignee or purchaser of all or any portion of the Lender's interest in the Loan, the Loan Documents or the Real . Property. This Agreement shall be governed and construed in accordance with the laws of Florida. 13. Bond Disclaimer. Notwithstanding paragraphs 4 and 5 above, the obligations of the City hereunder shall not constitute a general. obligation or a pledge of the full faith and credit or thetaxing power of the City of Clearwater, Or a lien upon any property owned by the City. Any obligation of the City hereunder shall be a limited special obligation payable solely from funds of the City, excluding ad valorem tax revenues, available for such payment under the annual operating budget of the City in the fiscal year in which payment is to be made. No person shall have the right to require or compel the levy by the City of ad valorem taxes on any property to pay any obligation of the City hereunder. Nothing herein shall be deemed a covenant or agreement of any officer, agent, or employee of the City in his or her individual capacity. -3- .f' .. ... .;.:l r ',: . t ~>. I I 14. Public Health. By and through its execution oft his Agreement, the City hereby finds that the underlying purpose for which this Agreement is given and the underlying purpose of both the Chi Chi Rodriguez Youth Foundation, Inc., and the project giving rise to this Agreement, constitute and serve a public health and safety purpose. IN WITNESS WHEREOF, Indemnitor has executed and delivered this Agreement on the date first stated above. INDEMNITOR: CHI CHI RODRIGUEZ YOUTH FOUNDA TIO IN ~ By: Wi Ham Hayes Its: Presid~ d~ Attest: . Its: Sfflrela'l . CIT By: MORTGAGEE: NCNB NATIONAL BANK OF FLORIDA BY:~ Its: Vice resident #10408 -4-