Agenda - Council - 02/08/2005 - Laserfiche WebLink

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that temq 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 Property except for any storage or use in accordance with applicable laws; and no owner of the Property or occupant (collectively, "Occupant") has received any notice or advice from 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, polyehlorinated biphenyls or related or si~lar materials, asbestos or any other substance or material as ~nay 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 hold RIVER'S BEND harmless from and against any and all loss, damage or liability suffered, sustained or incurred by RIVER'S BEND 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 RIVER'S BEND'S reasonable attorneys' fees and consultants' fees and cour~ 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 RIVER'S BEbtD set forth herein or provided by law. CITY shall have the right to assume defense of any claim asserted by a third party against RIVER'S BEND for which CITY is indemnifying RIVER'S BEND under this paragraph 13 with counsel reasonably acceptable to RIYER'S BEND so long as CITY is diligently defending such claim; provided that RIVER'S BEND may participate in such proceeding at RIVER'S BEND'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 RIVER'S BEND in which event CITY shall also pay the legal fees and~expenses of RIVER'S BEND in connection with such claim or proceeding. Neither CITY nor RIVER'S BEND 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 RIVER's BEND has not been fully indemnified. CITY will indemnify RIVER'S BEND,~ its sUccessors and assigns, against, and will hold RIVER'S BEND, its successors and assigns, harmless from, any expenses or damages, including reasonable attorneys' fees, that RIVER'S BEND 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, RIVER'S BEND is purchasing the City 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 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 RIVER'S BEND with knowledge of any such ~ 5