Environmental Indemnification Borrower shall protect, indemnify, save, defend, and hold harmless the Indemnified Parties from and against any and all liability, loss, damage, actions, causes of action, costs or expenses whatsoever (including reasonable attorneys’ fees and expenses) and any and all claims, suits and judgments which any Indemnified Party may suffer, as a result of or with respect to: (a) any Environmental Claim relating to or arising from the Property; (b) the violation of any Environmental Law in connection with the Property; (c) any release, spill, or the presence of any Hazardous Materials affecting the Property; and (d) the presence at, in, on or under, or the release, escape, seepage, leakage, discharge or migration at or from, the Property of any Hazardous Materials, whether or not such condition was known or unknown to Borrower; provided that, in each case, Borrower shall be relieved of its obligation under this subsection if any of the matters referred to in clauses (a) through (d) above did not occur (but need not have been discovered) prior to (1) the foreclosure of the Security Instrument, (2) the delivery by Borrower to Lender or its designee of a deed-in-lieu of foreclosure with respect to the Property, or (3) Lender’s or its designee’s taking possession and control of the Property after the occurrence of an Event of Default hereunder. If any such action or other proceeding shall be brought against Lender, upon written notice from Borrower to Lender (given reasonably promptly following Lender’s notice to Borrower of such action or proceeding), Borrower shall be entitled to assume the defense thereof, at Borrower’s expense, with counsel reasonably acceptable to Lender; provided, however, Lender may, at its own expense, retain separate counsel to participate in such defense, but such participation shall not be deemed to give Lender a right to control such defense, which right Borrower expressly retains. Notwithstanding the foregoing, each Indemnified Party shall have the right to employ separate counsel at Borrower’s expense if, in the reasonable opinion of legal counsel, a conflict or potential conflict exists between the Indemnified Party and Borrower that would make such separate representation advisable. Borrower shall have no obligation to indemnify an Indemnified Party for damage or loss resulting from such Indemnified Party’s gross negligence or willful misconduct.
Environmental Indemnity Without limitation of the other provisions of this Article XXVI, the Lessee hereby agrees to indemnify, hold harmless and defend each Indemnitee from and against any and all claims (including without limitation third party claims for personal injury or real or personal property damage), losses (including but not limited to, to the extent the Lease Balance has not been fully paid, any loss of value of the Property), damages, liabilities, fines, penalties, charges, administrative and judicial proceedings (including informal proceedings) and orders, judgments, remedial action, requirements, enforcement actions of any kind, and all reasonable and documented costs and expenses incurred in connection therewith (including but not limited to reasonable and documented attorneys' and/or paralegals' fees and expenses), including, but not limited to, all costs incurred in connection with any investigation or monitoring of site conditions or any clean-up, remedial, removal or restoration work by any federal, state or local government agency, arising in whole or in part, out of
(a) the presence on or under the Property of any Hazardous Substance in violation of Environmental Law, or any releases or discharges of any Hazardous Substance on, under, from or onto the Property in violation of Environmental Law,
(b) any activity, including, without limitation, construction, carried on or undertaken on or off the Property, and whether by the Lessee or any predecessor in title or any employees, agents, contractors or subcontractors of the Lessee or any predecessor in title, or any other Persons (including such Indemnitee), in connection with the handling, treatment, removal, storage, decontamination, clean-up, transport or disposal of any Hazardous Substances in violation of Environmental Law that at any time are located or present on or under or that at any time migrate, flow, percolate, diffuse or in any way move onto or under the Property,
(c) loss of or damage to any property or the environment (including, without limitation, clean-up costs, response costs, remediation and removal costs, cost of corrective action, costs of financial assurance, fines and penalties and natural resource damages), or death or injury to any Person, and all expenses associated with the protection of wildlife, aquatic species, vegetation, flora and fauna, and any mitigative action required by or under Environmental Laws,
(d) any claim concerning lack of compliance with Environmental Laws, or any act or omission causing an environmental condition that requires remediation or would allow any Governmental Authority to record a Lien on the land records, or
(e) any residual contamination on or under the Land, or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, storage, transport or disposal of any such Hazardous Substances, and irrespective of whether any of such activities were or will be undertaken in accordance with applicable laws, regulations, codes and ordinances; provided, however, the Lessee shall not be required to indemnify any Indemnitee under this Section 26.3 for (1) any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnitee (it being understood that, unless the applicable Indemnitee was in possession of the Property and caused the Claim, the Lessee shall be required to indemnify an Indemnitee even if the ordinary (but not gross) negligence of such Indemnitee caused or contributed to such Claim) or (2) any Claim to the extent attributable to acts or events occurring after the expiration of the Term or the return or remarketing of the Property so long as the Lessor is not exercising remedies against the Lessee in respect of the Operative Documents. It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of and shall be separate and independent from any remedy under this Lease or any other Operative Document.
LEGAL INDEMNIFICATION 34.1 Subject to the other provisions of this Article, a member charged and finally acquitted of a criminal or statutory offence, because of acts done while on duty in the attempted performance in good faith of his/her duties as a Civilian member shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such charges, provided that such necessary and reasonable legal costs shall not exceed $260.00 per hour in respect of a lawyer performing the work, or $90.00 per hour in the event that a para-legal is performing the work.
34.2 Notwithstanding clause 34.1, the Board may refuse payment otherwise authorized under clause 34.1 where the actions of the Civilian member from which the charges arose mounted to a dereliction of duty or abuse of his/her powers as a Civilian member of the Service.
34.3 Where a member is a defendant in a civil action for damages because of acts done in the attempted performance in good faith of his/her duties as a member of the Service, and the action is not defended by the insurance carrier of the Regional Municipality of Niagara or otherwise, he/she shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such an action in the following circumstances only:
34.3.1 Where the Chief of Police is not joined in the action as a party pursuant to Section 50 of The Police Services Act, or the Chief of Police does not defend the action on behalf of himself/herself and of the member as joint tort-feasors at the Board's sole expense;
34.3.2 Where the Chief of Police is joined as a party and the Board elects to defend the action, but the solicitor retained on behalf of the Board is of the view that it would be improper for him/her to act for both the Chief of Police and the member in that action. The Board shall decide if additional counsel shall be retained with respect to the indemnification provisions of this Article.
34.3.3 A member who is a suspect in a criminal investigation shall be granted legal indemnification on the terms set out in this article beginning at the point in the criminal investigation where a caution is to be given to the member.
34.4 A member of the Service who is requested or subpoenaed to appear before an inquiry initiated under Section 25 or Section 26 of The Police Services Act, or whose conduct is called into question as a result of a citizen's complaint or in the course of an inquiry under the Coroner's Act, the Public Inquiries Act or a Royal Commission, because of acts done in the attempted performance in good faith of a member's duties as a Civilian member of the Service, shall be indemnified by the Niagara Police Board for the necessary and reasonable legal costs incurred in representing his/her interests in such an inquiry on the following conditions:
34.4.1 Where one or more than one member of the Service is subpoenaed to appear, other than the Chief of Police, in such a case there shall be only one counsel representing the members of the Service, excluding the Chief of Police, and;
34.4.2 Where the counsel representing the members of the Service, excluding the Chief of Police, is of the opinion that it would be improper for him/her to act for both the member and the other members of the Service, he/she shall notify the Board forthwith of such concerns. The Board shall decide if additional counsel shall be retained with respect to the indemnifications provisions of this Article, and;
34.4.3 If the Board has retained counsel in such proceedings, the Board’s solicitor will provide advice to, and represent, any member or members who are requested to appear, or who are subpoenaed, or whose conduct is called into question for the reasons set out in 34.4 unless the Board’s solicitor determines that a conflict of interest exists. If such conflict exists, then the provisions of 34.5.1 and 34.5.2 apply. The Board shall decide, based on the advice of its solicitor, if additional counsel shall be retained with respect to the indemnification provisions of this article.
34.4.4 A member or members of the Service shall not be indemnified unless they are found not guilty of misconduct in the proceeding for which legal indemnification is sought.
34.4.5 A member or members of the Service shall not be indemnified for such legal costs if such indemnification, in the opinion of the Board, would reduce respect for law enforcement in the Regional Municipality of Niagara.
34.5 In the event that a member intends to apply to the Board for indemnification pursuant to the provisions of this Article, the following shall apply:
34.5.1 The member shall, within thirty (30) days of being charged or of receiving notice of other legal proceedings provided for in this article, apply in writing to the Chief of Police or his designee for approval to retain counsel or a paralegal and for the approval of the counsel or paralegal to be so retained.
34.5.2 In the event of any dispute concerning the counsel or paralegal to be retained, the matter shall be resolved by an officer designated by the Chief of Police and a member of the Association Executive designated for that purpose.
34.5.3 The application of the member for indemnification shall include:
i. a fee schedule provided by the lawyer or paralegal setting out his or her hourly rate, and confirming that the fees will be charged at the lesser of the lawyer or paralegal’s normal hourly rate, or $260.00 for a lawyer or $90.00 for a paralegal;
ii. an estimate, where practicable, of the total charges that will be incurred in the matter, and
iii. the lawyer or paralegal's undertaking to submit monthly statements to the Board showing the time spent and the charges incurred on the file during the month. If the application is approved, the Board reserves the right to refuse payment of the lawyer or paralegal’s account if the counsel or paralegal fails to submit monthly statements in accordance with subparagraph (iii) above, provided that it has given 30 days written notice of its intention to do so to the lawyer or paralegal, with a copy to the Association, and the lawyer or paralegal has not remedied the situation prior to the expiry of the 30 days.
34.5.4 The Board has the right to negotiate fees with the lawyer or paralegal to be retained, and the affected member has the right to be present during the fee negotiations.
34.5.5 There shall be a cap on the legal fees of $260.00 per hour. In addition, a lawyer may charge for travel time at the rate of $130.00 per hour to a maximum of four (4) hours per day.
34.6 For greater certainty, members shall not be indemnified for legal costs arising from:
34.6.1 Grievances or complaints under the Collective Agreement between the Board and the Association or under The Police Services Act;
34.6.2 The actions or omissions of members acting in their capacity as private citizens;
34.7 For the purpose of this provision, a member shall not be deemed to be "finally acquitted" if, as a result of charges laid, he/she is subsequently found guilty of, or pleads guilty to other charges arising out of the same incident or incidents.
34.8 For the purpose of this provision, "necessary and reasonable legal costs" shall be based on the account rendered by the solicitor or paralegal performing the work, subject to taxation by an assessment officer of the Supreme Court of Ontario. If the General Counsel for the Association attends at a S.I.U. call outside normal business hours in circumstances where outside counsel is unavailable or there is a conflict that requires more than one counsel, the Association will be reimbursed at the rate of $150.00 per hour.
34.9 In the case of aggravated assault, assault causing bodily harm or the included offence of ordinary assault, the indemnification referred to in clause 34.1 shall be limited to only those fees that would have reasonably been incurred if the matter was tried in Provincial Court unless the member first obtains permission to elect to be tried by any other court. To obtain the said approval of the Board, the member shall make an application in writing to the Chief of Police and the decision shall be at the discretion of the Niagara Regional Police Services Board.
34.10 Subject to other provisions of this Article, a member who is the Subject Officer in a Special Investigations Unit (S.I.U.) investigation may make application for legal indemnification subject to and upon the receipt of a final determination or recommendation by S.I.U. that criminal charges or other punitive actions will not be initiated or pursued.
34.11 A member who is required as a witness by the Special Investigations Unit (S.I.U.) in the course of an investigation into the conduct of another member shall be indemnified for the necessary legal costs incurred by the member as a witness.
34.12 A member or members of the Service will be indemnified for the necessary and reasonable associated costs, including but not limited to, hotel, meals and airfare, which result from any criminal, statutory or civil matters arising out of the member's deployment outside of the Region and/or to another Police Service or agency if the member is entitled to legal indemnification under this Agreement in relation to the same matters.
Mutual Indemnification Each Party will indemnify, defend, and hold the other Party harmless from any claim, demands, liabilities, suits, or expenses of any kind for personal injury or damage to tangible property to the extent arising from its negligence or willful misconduct on either Party’s premises.