|
been in violation of any Environmental Law (as defined below); (ii) there are no buried or
<br /> partially buried storage tanks located on the Land; (iii) Trustor has received no notice, warning,
<br /> notice of violation, administrative complaint,judicial complaint, or other formal or informal
<br /> notice alleging that conditions on the Land are or have ever been in violation of any
<br /> Environmental Law or informing Trustor that the Land is subject to investigation or inquiry
<br /> regarding Hazardous Materials on the Land or the potential violation of any Environmental Law;
<br /> (iv) there is no monitoring program required by the Environmental Protection Agency or any
<br /> other governmental agency concerning the Land; (v) no toxic or hazardous chemicals, waste, or
<br /> substances of any kind have ever been spilled, disposed of, or stored on, under or at the Land,
<br /> whether by accident, burying, drainage, or storage in containers, tanks, holding areas, or any
<br /> other means;.(vi) the Land has never been used as a dump or landfill; and (vii) Trustor has
<br /> disclosed to Beneficiary all information, records, and studies in Trustor's possession or
<br /> reasonably available to Trustor relating to the Land concerning Hazardous Materials. Beneficiary
<br /> acknowledges that Beneficiary has received copies of the following environmental reports:
<br /> Phase I Environmental Assessment Report: 1333 Martinez Street, San Leandro, California,
<br /> prepared by Stantec, dated October 21, 2008; Phase II Environmental Site Assessment: San
<br /> Leandro Crossings Western Parcel, San Leandro, California, prepared by IRIS Environmental,
<br /> dated April 9, 2009; Step Out Sampling: San Leandro Crossings Western Parcel, San Leandro,
<br /> California, prepared by Iris Environmental, dated April 9, 2009; and Remedial Investigation
<br /> Report: San Leandro Crossings,prepared by Iris Environmental, dated July 8, 2009.
<br /> Trustor shall not cause or permit any Hazardous Material (as defined below) to be
<br /> brought upon, kept, stored or used in, on,under, or about the Land by Trustor, its agents,
<br /> employees, contractors or invitees except for incidental supplies ordinarily used in connection
<br /> with the construction,rehabilitation, repair, and operation of developments like the Project and in
<br /> compliance with all applicable laws, and shall not cause any release of Hazardous Materials into,
<br /> onto, under or through the Land. If any Hazardous Material is discharged,released, dumped, or
<br /> spilled in, on,under, or about the Land and results in any contamination of the Land or adjacent
<br /> property, or otherwise results in the release or discharge of Hazardous Materials in, on, under or
<br /> from the Land, Trustor shall promptly take all actions at its sole expense as are necessary to
<br /> comply with all Environmental Laws (as defined below).
<br /> Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and
<br /> hold Beneficiary and its elected and appointed officials, officers, agents and employees
<br /> (collectively, "Indemnitees") harmless from and against any and all loss, claim, liability,
<br /> damage, demand,judgment, order, penalty, fine, injunctive or other relief, cost, expense
<br /> (including reasonable fees and expenses of attorneys, expert witnesses, and other professionals
<br /> advising or assisting Beneficiary), action, or cause of action (all of the foregoing, hereafter
<br /> individually "Claim" and collectively "Claims") arising in connection with the breach of
<br /> Trustor's covenants and obligations set forth in this Section 7.11 or otherwise arising in
<br /> connection with the presence or release of Hazardous Materials in, on, under, or from the
<br /> Property, provided that no Indemnitee shall be entitled to indemnification under this Section for
<br /> matters caused by such Indemnitee's gross negligence or willful misconduct. The foregoing
<br /> indemnity includes, without limitation, all costs of investigation, assessment, containment,
<br /> removal, remediation of any kind, and disposal of Hazardous Materials, all costs of determining
<br /> 144\22111596079.2
<br />
|