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of the City Property and the Developer's willingness to develop the City Property pursuant to
<br />this Agreement. The Developer's investigation may include, without limitation, the preparation
<br />by a duly licensed soils engineer of a Phase One environmental assessment for the City Property.
<br />Within the time set forth in the Schedule of Performance, the Developer shall provide written
<br />notice to the City of the Developer's determinations concerning the suitability of the physical
<br />condition of the City Property. If, in the Developer's reasonable judgment, the physical
<br />condition of the City Property is unsuitable for the use or uses to which the City Property will be
<br />put, then the Developer in Developer's sole and absolute judgment shall have the option either:
<br />(a) to take any action necessary to place the City Property in a condition suitable for
<br />development, at no cost to the City; or (b) to terminate this Agreement by delivering written
<br />notice thereof to the City. If the Developer has not notified the City of its determinations
<br />concerning the suitability of the physical condition of the City Property within the time set forth
<br />in the Schedule of Performance (or any extension of such time mutually agreed to by the parties),
<br />the City shall have the right to terminate this Agreement pursuant to Section 5.6 hereof.
<br />3.12.2 "As -Is ". In addition to the environmental assessments referenced above, the City
<br />shall deliver to the Developer all other information of which it has actual knowledge concerning
<br />the physical condition of the City Property, including, without limitation, information about any
<br />Hazardous Materials. The Developer acknowledges that the City Property is being acquired "as
<br />is ", in its current physical condition, with no warranties, express or implied, as to the physical
<br />condition thereof, the presence or absence of any latent or patent condition thereon or therein,
<br />including, without limitation, any Hazardous Materials thereon or therein, and other matters
<br />affecting the City Property.
<br />3.12.3 Indemnity. The Developer agrees, from and after the date of recording of the
<br />Grant Deed conveying fee interest in the Project Site to the Developer under this Agreement, to
<br />defend, indemnify, protect and hold harmless the City and its officers, beneficiaries, employees,
<br />agents, attorneys, representatives, legal successors and assigns ( "Indemnitees ") from, regarding
<br />and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands,
<br />actions, claims, losses, damages, fines, penalties, expenses, or costs of any kind of nature
<br />whatsoever, together with fees (including, without limitation, reasonable attorneys' fees and
<br />experts' and consultants' fees) ( "Damages ") whenever arising, not caused in whole or in part by
<br />the City resulting from or in connection with the actual or claimed generation, storage, handling,
<br />transportation, use, presence, placement, migration, and /or release of Hazardous Materials (as
<br />defined herein), at, on, in, beneath, or from the City Property, except if such Damages (a)
<br />resulted from fraud, negligence, misrepresentation, or failure to disclose by the Indemnitees, or
<br />(b) were caused in whole or in part by the Indemnitees. The Developer's defense,
<br />indemnification, protection and hold harmless obligations herein shall include, without
<br />limitation, the duty to respond to any governmental inquiry, investigation, claim or demand
<br />regarding the any Hazardous Materials condition, at the Developer's sole cost.
<br />3.12.4 Release and Waiver. The Developer hereby releases and waives all rights, causes
<br />of action and claims the Developer has or may have in the future against the Indemnitees arising
<br />out of or in connection with any Hazardous Materials (as defined herein), at, on, in, beneath or
<br />from the City Property, except if such cause of action arises from the negligent or fraudulent
<br />misrepresentation or failure to disclose by the City relating to a representation or warranty of
<br />City which is false or misleading.
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