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<br /> 8.3 Inspection of City Property by BNSF.
<br /> 8.3.1 BNSF acknowledges and agrees that it has been given the opportunity to
<br /> fully and thoroughly inspect the City Property in accordance with this Section 8,
<br /> including without limitation: (i) a Phase I Environmental Site Assessment dated February
<br /> 11, 2002 by GeoEngineers, Inc. and (ii) the 41st Street Overcrossing ESA. Except for and
<br /> subject to City's obligations under Section 8.4 below, BNSF IS PURCHASING THE
<br /> CITY PROPERTY ON AN "AS-IS, WHERE-IS" AND "WITH ALL FAULTS"
<br /> BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING
<br /> THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE CITY
<br /> PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR
<br /> WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER
<br /> FROM CITY AS TO ANY MATTERS CONCERNING THE CITY PROPERTY,
<br /> including, but not limited to, the physical condition of the City Property; zoning status;
<br /> tax consequences of this transaction; utilities; operating history or projections or
<br /> valuation; compliance by the City Property with Environmental Laws or other laws,
<br /> statutes, ordinances, decrees, regulations and other requirements applicable to the City
<br /> Property; the presence of any Hazardous Substances, wetlands, asbestos, lead, lead-based
<br /> paint or other lead containing structures, urea formaldehyde, or other environmentally
<br /> sensitive building materials in, on, under, or in proximity to the City Property; the
<br /> condition or existence of any above ground or underground structures or improvements,
<br /> including tanks and transformers in, on or under the City Property; the condition of title
<br /> to the City Property, and the existence of any leases, easements, permits, orders, licenses,
<br /> or other agreements, affecting the City Property (collectively, the "City Property
<br /> Conditions").
<br /> 8.3.2 Except for and subject to City's obligations under Section 8.4 below,
<br /> BNSF represents and warrants to City that BNSF has not relied and will not rely on, and
<br /> City is not liable for or bound by, any warranties, guaranties, statements, representations
<br /> or information pertaining to the City Property or relating thereto (including specifically,
<br /> without limitation, any Information related to the City Property or any City Property
<br /> information packages distributed with respect to the City Property) made or furnished by
<br /> City, the manager of the City Property, or any real estate broker or agent representing or
<br /> purporting to represent City, to whomever made or given, directly or indirectly, orally or
<br /> in writing.
<br /> 8.3.3 Except for and subject to City's obligations under Section 8.4 below,
<br /> BNSF assumes the risk that Hazardous Substances or other adverse matters may affect
<br /> the City Property that were not revealed by BNSF's inspection and to the fullest extent
<br /> allowed by law, hereby indemnifies, defends and holds harmless and hereby waives,
<br /> releases and discharges forever City and City's officers, directors, shareholders,
<br /> employees and agents (collectively, "City Indemnitees") from any and all present or
<br /> future claims or demands, and any and all damages, City Losses (defined below),
<br /> injuries, liabilities, causes of actions (including, without limitation, causes of action in
<br /> tort) costs and expenses (including, without limitation fines, penalties and judgments, and
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<br /> Exchange Agreement -13- DRAFT 5/23/06
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