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

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· -248- PERSON OR AUTHORITY AS TO A BREACH OF THE COVENANTS. ANY NOTICES RECEIVED BY TILLER WILL BE PROVIDED TO CITY IMMEDIATELY. 26. RISK OF LOSS. If there is any loss or damage to the Tiller Property between the date hereof and the date of possession, for any reason including fire, vandalism, flood, earthquake or act of God, the risk of loss shall be on TILLER. TILLER shall maintain public liability insurance on the property until TILLER vacates the Tiller Property. 27. UNDERGROUND TANKS. TILLER represents to CITY that there are no underground tanks on the Tiller Property. 28. ENVIRONMENTAL. To the best of TILLER'S actual knowledge, the Tiller 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 Tiller Property except for any storage or use in accordance with applicable laws; and no owner of the Tiller 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 Tiller 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 def'med as a hazardous or toxic substance by any federal, state or local environmental law, ordinance, rule or regulation. To the best of TILLER'S actual knowledge, there are no asbestos containing materials and no urea-fermeldyde in, on or upon the Tiller Property. TILLER hereby covenants and agrees to indemnify and hold CITY harmless fi.om and against any and all toss, damage or liability suffered, sustained or incurred by CITY 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 Tiller 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~CITY'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 Tiller Property, and shall be in addition to any and all other rights of CITY as set forth herein or provided by law. TILLER shall have the right to assume defense of any claim asserted by a third party against CITY for which TILLER is indemnifying CITY under this paragraph 28 with counsel reasonably acceptable to CITY so long as TILLER is diligently defending such claim; provided that CITY may participate in such proceeding at CITY'S expense unless there is an actual or potential material conflict of inter~st (which is not waived by the parties) of the counsel for TILLER representing both TILLER and CITY in which event TILLER shall also pay the legal fees and expenses of CITY in connection with such claim or proceeding. Neither TILLER nor CITY 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 liability on the part of the 7 i ! I I I I I I I I I I ! I i I I