Agenda - Council - 11/13/2001 - Laserfiche WebLink

Home

-t80- 19. from and against any and all loss, damage or liability suffered, sustained or incurred by LANDOWNER caused by a breach of any. of the representations or warranties contained heroin and shall be personally liable for any loss, damage, hability, 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 Exchange 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 LANDOWNER'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 Exchange Property, and shall be in addition to any and all other rights of LANDOWNER as set forth herein or provided by law. CITY shall have the fight to assume defense of any claim asserted by a third party against LANDOWNER for which CITY is indemnifying LANDOWNER under this pm'agraph 28 with counsel reasonably acceptable to LANDOWNER so long as CITY is diligently defending such claim; provided that LANDOWNER may participate in such proceeding at LANDOWNER'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 LANDOWNER in which event CITY shall also pay the legal fees and expenses of LANDOWNER in connection with such claim or proceeding. Neither CITY nor LANDOWNER 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 other and no assumption of any obligation or monetary payment for which LANDOWNER has not been fully indemnified. CITY will indemnify LANDOWNER, its successors and assigns, against, and will hold LANDOWNER, its successors and assigns, harmless from, any expenses or damages, including reasonable attorneys' fees, that LANDOWNER 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. Except as herein expressly stated, LANDOWNER is purchasing the City Exchange Property based upon its own investigation and inquiry and is not relying on any representation of CITY or other person and is agreeing to accept and purchase the Landowner Exchange Property "as is, where is" subject to the conditions of examination herein set forth and the express warranties herein contained. Consummation of this Agreement by LANDOWNER with knowledge of any such breach by CITY will not constitute a waiver or release by LANDO'vVNER of any claims due to such breach. DEFAULT. If title is marketable or is corrected as provided herein, and CITY defaults in any of the agreements herein, LANDOWNER may terminate this Agreement and payments made hereunder may be retained by LANDOWNER. This provision shall not deprive either CITY or LANDOWNER of the right to recover damages for a breach of this Agreement lirnited to its out of pocket expenses or of the right of specific performance of this Agreement, provided this Agreement is not terminated, and further provided, as to specific perforrnance, such action is commenced within six months after I I i I ! I" I ! I I I I I