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<br /> Section 8 Inspections; Condition of Exchange Properties.
<br /> 8.1 Entry Agreement and License for Environmental Access. The parties acknowledge that
<br /> City and BNSF have previously entered into an entry license dated April 22, 2004, which is attached
<br /> hereto as Exhibit L and incorporated herein (the "Entry Agreement"). During the Review Period, subject
<br /> to and in accordance with the terms and provisions of the Entry Agreement, City or its agents, employees,
<br /> representatives or contractors may enter upon the BNSF Property for the purpose of conducting such
<br /> inspections and tests as City may deem advisable to fully evaluate and analyze the BNSF Property and
<br /> all BNSF Property Conditions (defined below); provided, however, prior to the conduct of any intrusive
<br /> "Phase II Level" environmental or other intrusive testing or any borings or sampling of any material or
<br /> media, including soil, surface water, or ground water, that BNSF in its sole discretion considers to be
<br /> outside of the scope of work permitted under the Entry Agreement, City further agrees to enter into
<br /> BNSF's standard License for Environmental Access. The terms and provisions of the Entry Agreement
<br /> (and the Environmental Access License, if entered into by the parties) are incorporated herein, shall
<br /> survive the Closing, shall not be merged into the BNSF Property Deed or any document delivered at the
<br /> Closing and shall survive any termination of this Agreement. Any breach by City of its obligations under
<br /> the Entry Agreement shall be deemed a breach by City under this Agreement.
<br /> 8.2 Inspection of BNSF Property by City.
<br /> 8.2.1 City acknowledges and agrees that it has been given the opportunity to fully and
<br /> thoroughly inspect the BNSF Property in accordance with this Section 8, and City will conduct
<br /> such inspections and tests as City may deem advisable in City's discretion to fully evaluate and
<br /> analyze the BNSF Property and all BNSF Property Conditions (defined below). CITY IS
<br /> PURCHASING THE BNSF PROPERTY ON AN "AS-IS, WHERE-IS" AND "WITH ALL
<br /> FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING
<br /> THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE BNSF PROPERTY,
<br /> AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR
<br /> IMPLIED, OF ANY KIND WHATSOEVER FROM BNSF AS TO ANY MATTERS CONCERNING
<br /> THE BNSF PROPERTY, including, but not limited to, the physical condition of the BNSF
<br /> Property; zoning status; tax consequences of this transaction; utilities; operating history or
<br /> projections or valuation; compliance by the BNSF Property with Environmental Laws (defined
<br /> below) or other laws, statutes, ordinances, decrees, regulations and other requirements
<br /> applicable to the BNSF Property; the presence of any Hazardous Substances (defined below),
<br /> wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea
<br /> formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity
<br /> to the BNSF Property; the condition or existence of any above ground or underground structures
<br /> or improvements, including tanks and transformers in, on or under the BNSF Property; the
<br /> condition of title to the BNSF Property, and the existence of any leases, easements, permits,
<br /> orders, licenses, or other agreements, affecting the BNSF Property (collectively, the "BNSF
<br /> Property Conditions").
<br /> 8.2.2 City represents and warrants to BNSF that City has not relied and will not rely on,
<br /> and BNSF is not liable for or bound by, any warranties, guaranties, statements, representations
<br /> or information pertaining to the BNSF Property or relating thereto (including specifically, without
<br /> limitation, any Existing Information related to the BNSF Property or any BNSF Property
<br /> information packages distributed with respect to the BNSF Property) made or furnished by BNSF,
<br /> the manager of the BNSF Property, or any real estate broker or agent representing or purporting
<br /> to represent BNSF, to whomever made or given, directly or indirectly, orally or in writing.
<br /> 8.2.3 City assumes the risk that Hazardous Substances or other adverse matters may
<br /> affect the BNSF Property that were not revealed by City's inspection and to the fullest extent
<br /> allowed by law, hereby indemnifies, defends and holds harmless and hereby waives, releases
<br /> and discharges forever BNSF and BNSF's officers, directors, shareholders, employees and
<br /> agents (collectively, "BNSF Indemnitees") from any and all present or future claims or demands,
<br /> 21 and any and all damages, BNSF Losses (defined below), injuries, liabilities, causes of actions
<br /> Exchange Agreement -9- DRAFT 10/19/05
<br /> SEA 1713601v1 39546-32
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