|
and Recovery Act, 42 U.S.C. §§ 6901 et sem. (42 U.S.C. §6903) or (xi) defined as a "hazardous substances"
<br />pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by
<br />Liability Act, 42. U.S.C. §9601 et seg. (42 U.S.C. §9601).
<br />18. Disclosure of Hazardous Materials On, At, Under and Near Real Property. Pursuant to, inter alia,
<br />California Health & Safety Code Section 25359.7, Seller hereby advises Buyer that (a) a release of Hazardous
<br />Materials is located on or beneath the Real Property, (b) there is ongoing assessment, remediation and
<br />monitoring of Hazardous Materials on, at, under and near the Real Property, and (c) additional information
<br />regarding (a) and (b) may be found in Geotracker (File 5147).
<br />19. Buyer's Covenant Regarding Soil Containing or Impacted with Soil. This Section 19 only applies
<br />if escrow closes. If Buyer or its contractors or consultants encounter or discover any soil containing or impacted
<br />with Hazardous Materials on, at, under or adjacent to the Real Property as part of any activities by Buyer or its
<br />contractors or consultants on, at, under or adjacent to the Real Property, Buyer, at its sole cost and expense,
<br />shall properly sample, excavate and dispose of the same in accordance with all applicable laws and regulations.
<br />Seller shall not be identified as a generator on any manifests for any soil disposed of by the Buyer. Except for
<br />what is expressly set forth in the preceding sentence, nothing in this Section 19 imposes upon Buyer any other
<br />duties to assess, remediate and/or monitor any Hazardous Materials on, at, under or adjacent to the Real
<br />Property.
<br />20. Seller's Covenant to Remediate & Indemnify. Should escrow close, then Seller, subject to Buyer's
<br />duties and obligations under Section 19, agrees to continue to assess, remediate and monitor any and all
<br />Hazardous Substances that existed on, at or under the Real Property as of the Effective Date to levels mutually
<br />agreed upon by and between Seller and any governmental agency with primary jurisdiction over the same, and
<br />obtain a No Further Action letter, or its functional equivalent, from the governmental agency with primary
<br />responsibility for issuing the same, to the extent a No Further Action letter has not been obtained by the close
<br />of escrow. Furthermore, should escrow close, then Seller also agrees to indemnify, defend and hold the City
<br />harmless from and against any claim, action, suit or proceeding by any governmental agency against the City,
<br />and any resulting loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including,
<br />without limitation, attorneys' fees) incurred by the City as a result of (and after the filing of) any such claim,
<br />action, suit or proceeding, that is based upon Seller's failure, after the Effective Date, to comply with any order
<br />or directive to Seller by a governmental agency concerning the assessment, remediation and/or monitoring of
<br />any Hazardous Materials that existed on, at or under the Real Property as of the Effective Date, excepting only
<br />Buyer's obligation, as set forth in Section 19 hereof, to sample, excavate and dispose of any soil containing or
<br />impacted with Hazardous Materials on, at or under the Property. For the avoidance of doubt, it is agreed and
<br />understood that all of Seller's duties and obligations under this Section 20 are subject and subordinate to
<br />Buyer's duties and obligations under Section 19, and in the event of any conflict between Section 19 and
<br />Section 20, then Section 19 shall control.
<br />21. Access Agreement. Upon full execution of this PSA, both Parties shall execute the Access Agreement
<br />in the form attached hereto as Exhibit "D" and deliver an executed original of the same to the Escrow Agent.
<br />Closing of escrow shall not occur unless the Escrow Agent has a fully -executed copy of the Access Agreement
<br />(in the form attached as Exhibit "D") in its possession. Upon closing occurring, the Escrow Agent shall provide
<br />each Party with a fully -executed copy of the Access Agreement.
<br />22. Modification and Amendment. This PSA may not be modified or amended except in writing signed
<br />by the Seller and City that clearly evidences an intent to modify or amend this PSA.
<br />23. Partial Invalidity. Any provision of this PSA that is adjudicated to be unenforceable or invalid shall
<br />have no effect, but all the remaining provisions of this PSA shall remain in full force.
<br />24. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only
<br />and are not to be considered in construing this PSA.
<br />Page 5 of 18
<br />
|