Agenda - Council - 01/24/2006 - Laserfiche WebLink

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28. ENVIRONMENTAL. To the best of GM'S knowledge, the GM Property has never been used to store, produce, process or in any manner deal with Hazardous Materials (as that term is hereinaRer 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 GM Property except for any storage or use in accordance with applicable laws; and no owner of the GM 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 GM 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 GM'S actual knowledge, there are no asbestos containing materials and no urea-fermeldyde in, on or upon the GM Property. GM hereby covenants and agrees to indemnify and hold CITY harmless from and against any and all loss, damage or liability suffered, sustained or incurred by CITY caused by a breach of any of the representations or warranties conta'med in this paragraph 28. 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 GM 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 GM Property, and shall be in addition to any and all other rights of CITY as set forth herein or provided by law. GM shall have the right to assume defense of any claim asserted by a third party against CITY for which GM is indemnifying CITY under this paragraph 28 with counsel reasonably acceptable to CITY so long as GM 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 interest (which is not waived by the parties) of the counsel for GM representing both GM and CITY in which event GM shall also pay the legal fees and expenses of CITY in connection with such claim or proceeding. Neither GM 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 other and no assumption of any obligation or monetary payment for which CITY has not been fully inderrmified. GM will indemnify CITY, its successors and assigns, against, and will hold CITY, its successors and assigns, harmless from, any expenses or damages, including reasonable attorneys' fees, that CITY incurs because of the breach of any of the above representations and warranties contained in this paragraph 28, whether such breach is discovered before or after closing. Each of the representations and warranties contained in this paragraph 28. shall survive the Closing. Wherever herein a representation is made "to the best knowledge of GM", such representations is limited to the actual knowledge of GM. Except as herein expressly stated, CITY is purchasing the GM Property based upon its own investigation and inquiry and is not relying on any representation of GM or other person and is agreeing to accept and purchase the GM Property "as is, where is" subject to the conditions of examination herein set forth and the express warranties herein -250- 9