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for or bound by, any warranties, guaranties, statements, representations or information pertaining
<br /> to the City Property or relating thereto (including specifically, without limitation, any Existing
<br /> Information related to the City Property or any City Property information packages distributed with
<br /> respect to the City Property) made or furnished by City, the manager of the City Property, or any
<br /> real estate broker or agent representing or purporting to represent City, to whomever made or
<br /> given, directly or indirectly, orally or in writing.
<br /> 8.3.3 Except for and subject to City's obligations under Section 8.4 below, BNSF
<br /> assumes the risk that Hazardous Substances or other adverse matters may affect the City
<br /> Property that were not revealed by BNSF's inspection and to the fullest extent allowed by law,
<br /> hereby indemnifies, defends and holds harmless and hereby waives, releases and discharges
<br /> forever City and City's officers, directors, shareholders, employees and agents (collectively, "City
<br /> Indemnitees") from any and all present or future claims or demands, and any and all damages,
<br /> City Losses (defined below), injuries, liabilities, causes of actions (including, without limitation,
<br /> causes of action in tort) costs and expenses (including, without limitation fines, penalties and
<br /> judgments, and attorneys' fees) of any and every kind or character, known or unknown, which
<br /> BNSF might assert or allege against the City Indemnitees arising from or in any way related to the
<br /> City Property Conditions or the alleged presence, use, storage, generation, manufacture,
<br /> transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or
<br /> under the City Property. "City Losses" shall include without limitation (i) the cost of any
<br /> investigation, removal, remedial or other response action that is required by any Environmental
<br /> Law, that is required by judicial order or by order of or agreement with any governmental
<br /> authority, or that is necessary or otherwise is reasonable under the circumstances, (ii) City
<br /> Losses for injury or death of any person, and (iii) City Losses arising under any Environmental
<br /> Law enacted after transfer. The rights of City under this section shall be in addition to and not in
<br /> lieu of any other rights or remedies to which it may be entitled under this document or otherwise.
<br /> This indemnity specifically includes the obligation of BNSF to remove, close, remediate,
<br /> reimburse or take other actions requested or required by any governmental agency concerning
<br /> any Hazardous Substances on the City Property.
<br /> 8.3.4 Except to the extent otherwise required by applicable laws, BNSF shall not
<br /> disclose to any third parties any information BNSF discovers or obtains concerning the City
<br /> Property as a result of any inspections, surveys, tests or other activities conducted with respect to
<br /> the City Property ("City Confidential Information") including, but not limited to, any oral,
<br /> electronic or written information provided by City or on City's behalf. Notwithstanding the
<br /> foregoing, BNSF may disclose City Confidential Information to those of BNSF's employees and
<br /> agents directly involved with BNSF with respect to the acquisition of the City Property, provided
<br /> such individuals and firms have agreed to maintain the confidentiality of City Confidential
<br /> Information pursuant to this Agreement and provided further that BNSF shall be liable hereunder
<br /> for any breach by such parties of such obligation. City Confidential Information shall not include
<br /> information that is or becomes in the public domain other than as a result of a breach by BNSF or
<br /> its agents.
<br /> 8.4 Environmental Obligations of City.
<br /> 8.4.1 The parties acknowledge that portions of the City Property, including without
<br /> limitation Parcels 12 and 14 of the City Property, are located at or near the Everett Landfill/Tire Fire
<br /> Site and are thus subject to certain environmental remediation and other obligations under applicable
<br /> laws and regulations (the "City Environmental Obligations"), which City Environmental Obligations
<br /> include, but are not limited to, the obligations described in: (i) the Consent Decree ("Consent
<br /> Decree") entered into by the State of Washington Department of Ecology and the City of Everett
<br /> pursuant to that certain Order Entering Consent Decree dated April 2, 2001, No. 012036406, in the
<br /> Superior Court of the State of Washington in and for the County of Snohomish and (ii)the Restrictive
<br /> 2:1 Covenant dated January 14, 2002 and recorded under File No. 200202110589. The parties
<br /> further acknowledge that such Restrictive Covenant also requires the City to notify the
<br /> Exchange Agreement -11- DRAFT 10/19/05
<br /> SEA 1713601v1 39546-32
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