Reso 2020-039 - Laserfiche WebLink

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34 defects in any work done according to the approved Construction Plans, nor for any delays reasonably caused by the review and approval processes established by this Article 2. 2.4. City Discretion. This Agreement does not require that City comply with the implied covenant of good faith and fair dealing in reviewing and approving or disapproving land use and other entitlements, permits, and approvals with respect to the Project. In no event shall City’s disapproval or failure to approve the Development Agreement or any land use and/or other entitlements, permits, and approvals with respect to the Project, or City’s amendment of the general plan, zoning or other land use designations applicable to the Property or the Project, be deemed a breach or Default of this Agreement. In the event that the Project as approved herein is materially different than the Project as described in the Scope of Development, City and Developer shall each approve such changes in writing as a condition precedent to the conveyance of the applicable Element. 2.5. Site Condition. Developer shall have the opportunity to visit and investigate each portion of the Property prior to Developer’s acquisition of such portion of the Property, and to satisfy itself as to the current condition of the Property. City shall grant Developer and its representatives and agents a right of entry during the term of this Agreement to enter upon the portions of the Property owned by the City for purposes of conducting Developer’s due diligence inspection, provided that Developer shall (a) give City twenty-four (24) hours telephone or written notice of any intended access which involves work on the Property or may result in any impairment of the use of the Property by its current occupants; (b) access the Property in a safe manner; (c) conduct no invasive testing or boring without the written consent of the City; (d) comply with all laws and obtain all permits required in connection with such access; and (e) conduct inspections and testing, subject to the rights of existing tenants of the Property, if any (which inspections and testing, if conducted at times other than normal business hours, shall be conducted only after obtaining the City’s written consent, which shall not be unreasonably withheld). The right of entry agreement shall be in writing in a form approved by the City and shall contain an indemnity provision stating that the Developer shall indemnify, protect, defend, and hold harmless the City and its elected officials, officers, employees, representatives, members, and agents (“Indemnitees”) from and against any and all losses, liabilities, damages, claims or costs (including attorneys’ fees), arising out of the Developer’s entry upon the Property. This indemnity obligation shall survive the termination of the right of entry agreement. The Developer’s obligations to indemnify Indemnitees shall not extend to losses to the extent such losses arise out of the negligence or willful misconduct of one or more Indemnitees. 2.6. As Is Conveyance. Developer understands and acknowledges that the rights conveyed to the Developer under this Agreement are for the Property in an “as is” condition, with no warranty, express or implied, by the City as to the physical condition including, but not limited to, the soil, its geology, or the presence of known or unknown faults or Hazardous Materials or hazardous waste (as defined by state and federal law); provided, however, that the foregoing shall not relieve the City from any legal obligation it may have regarding the disclosure of any such conditions of which the City has actual knowledge. City hereby discloses to Developer the actual knowledge City has with respect to the deposit of hazardous materials on the Property, which is described in Exhibit K hereto and incorporated herein. Developer shall be