Agenda - Council - 04/24/2001 - Laserfiche WebLink

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I I I I I I I I I I I I I I I I I I 15. UNDERGROUND TANKS. CITY represents to TILLER that there are no underground tanks on the City Property. 16. ENVIRONMENTAL. To the best of CITY'S actual knowledge, the City Property has never been used to store, produce, process or in any manner deal with Hazardous Materials (as that term is hereinafter defined) except for any storage or use in accordance with applicable laws; no Hazardous Materials have ever been installed or in any manner dealt with on the City Property except for any storage or use in accordance with applicable laws; and no owner of the City Property or occupant (collectively, "Occupant") has received any notice or advice fi:om any governmental agency or any Occupant with regard to Hazardous Materials affecting the City Property. The term "Hazardous Materials" as used herein includes, without limitation, gasoline, petroleum products, explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or related or similar materials, asbestos or any other substance or material as may be defined as a hazardous or toxic substance by any federal, state or local environmental law, ordinance, rule or regulation. To the best of CITY'S actual knowledge, there are no asbestos containing materials and no urea-fermeldyde in, on or upon the City Property. CITY hereby covenants and agrees to indemnify and h01d TILLER harmless fi:om and against any and all loss, damage or liability suffered, sustained or incurred by TILLER caused by a breach of any of the representations or warranties contained herein and shall be personally liable for any loss, damage, liability, injury, cost, expense, action or cause of action arising in connection with the presence or release of any such Hazardous Materials at, on or under the City Property prior to the Closing Date which presence or release is in violation of any applicable law or regulation as of the Closing Date, including TILLER'S reasonable attorneys' fees and consultants' fees and court costs. The provisions of this paragraph shall survive the Closing and transfer of title to the City Property, and shall be.in addition to any and all other rights of TILLER as set forth herein or provided by law. CITY shall have the right to assume defense of any claim asserted by a third party against TILLER for which CITY is indemnifying TILLER under this paragraph 16 with counsel reasonably acceptable to TILLER so long as CITY is diligently defending such claim; provided that TILLER may participate in such proceeding at TILLER'S expense unless there is an actual or potential material conflict of interest (which is not waived by the parties) of the counsel for CITY representing both CITY and TILLER in which event CITY shall also pay the legal fees and expenses of TILLER in connection with such claim or proceeding. Neither CfTY nor TILLER shall settle any such claim without the consent of the other (which consent shall not be unreasonably withheld, conditioned or delayed), unless such settlement requires no admission Of hability on the part of the other and no assumption of any obligation or monetary payment for which TILLER has not been fully indemnified. CITY will indemnify TILLER, its successors and assigns, against, and will hold TILLER, its successors and assigns, harmless fi:om, any expenses or damages, including reasonable attorneys' fees, that TILLER incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after closing. Each of the representations and warranties herein contained shall survive the Closing. Wherever herein a representation is made "to the best knowledge of CITY", such representations is limited to the actual knowledge of CITY. -245-