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03
City of Pleasanton
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2016
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030116
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2/25/2016 4:13:47 PM
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CITY CLERK
CITY CLERK - TYPE
AGENDA REPORT
DOCUMENT DATE
3/1/2016
DESTRUCT DATE
15Y
DOCUMENT NO
03
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7.3 Disclosure. Developer represents and warrants that except as disclosed to City in <br /> writing, as of the date hereof to the current actual knowledge of Developer's principals: (i)the <br /> Property is free and has always been free of Hazardous Materials and is not and has never been <br /> in violation of any Hazardous Materials Law; (ii)there are no buried or partially buried storage <br /> tanks located on the Property; (iii)Developer has received no notice,warning, notice of <br /> violation, administrative complaint,judicial complaint, or other formal or informal notice <br /> alleging that conditions on the Property are or have ever been in violation of any Hazardous <br /> Materials Law or informing Developer that the Property is subject to investigation or inquiry <br /> regarding Hazardous Materials on the Property or the potential violation of any Hazardous <br /> Materials Law; (iv)there is no monitoring program required by the Environmental Protection <br /> Agency or any other governmental agency concerning the Property; (v)no toxic or hazardous <br /> chemicals, waste, or substances of any kind have ever been spilled, disposed of, or stored on, <br /> under or at the Property, whether by accident, burying, drainage,or storage in containers, tanks, <br /> holding areas,or any other means; (vi)the Property has never been used as a dump or landfill; <br /> and(vii) Developer has disclosed to City all information, records, and studies in Developer's <br /> possession or reasonably available to Developer relating to the Property concerning Hazardous <br /> Materials. <br /> Developer hereby acknowledges and agrees that(i)this Section is intended as the City's <br /> written request for information(and the Developer's response) concerning the environmental <br /> condition of the Property as required by California Code of Civil Procedure Section 726.5(d)(2), <br /> and(ii)each representation and warranty in this Agreement or any of the other City Documents <br /> (together with any indemnity applicable to a breach of any such representation and warranty) <br /> with respect to the environmental condition of the property is intended by the City and the <br /> Developer to be an "environmental provision" for purposes of California Code of Civil <br /> Procedure Section 736. <br /> 7.4 City's Rights. In the event that any portion of the Property is determined to be <br /> "environmentally impaired" (as that term is defined in California Code of Civil Procedure <br /> Section 726.5(e)(3))or to be an"affected parcel"(as that term is defined in California Code of <br /> Civil Procedure Section 726.5(e)(1)), then,without otherwise limiting or in any way affecting the <br /> City's or the Trustee's rights and remedies under the Deed of Trust, the City may elect to <br /> exercise its rights under California Code of Civil Procedure Section 726.5(a)to (1)waive its lien <br /> on such environmentally impaired or affected portion of the Property and (2) exercise (a)the <br /> rights and remedies of an unsecured creditor, including reduction of its claim against the <br /> Developer to judgment, and(b)any other rights and remedies permitted by law. For purposes of <br /> determining the City's right to proceed as an unsecured creditor under California Code of Civil <br /> Procedure Section 726.5(a), the Developer shall be deemed to have willfully permitted or <br /> acquiesced in a release or threatened release of hazardous materials, within the meaning of <br /> California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of <br /> hazardous materials was knowingly or negligently caused or contributed to by any lessee, <br /> occupant, or user of any portion of the Property and the Developer knew or should have known <br /> of the activity by such lessee, occupant, or user which caused or contributed to the release or <br /> threatened release. All costs and expenses, including(but not limited to) reasonable attorneys' <br /> fees, incurred by the City in connection with any action commenced under this paragraph, <br /> including any action required by California Code of Civil Procedure Section 726.5(b)to <br /> OAK#4822-6539-6013 v3 24 <br />
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