09-12-2007 Council Agenda - Laserfiche WebLink

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to indemnify each other and to hold each other hauuless against all claims, damages, costs or expenses of or for any other such fees or commissions resulting from their actions or agreements regarding the execution or perfounance of this Agreement, and will pay all costs of defending any action or lawsuit brought to recover any such fees or commissions incurred by the other party, including reasonable attorney's fees. 13. Mutual Indemnification. (a) Seller and Buyer agree to indemnify each other against, and hold each other harmless from, all liabilities (including reasonable attorneys' fees in defending against claims) arising out of the ownership, operation or maintenance of the Property for their respective periods of ownership. In addition, Seller agrees to indemnify Buyer from all liabilities arising from any petroleum contamination contained in the Tank Area or Buffer Area, whether or not such contamination arises from Seller's ownership, operation, or maintenance of the Property. Such rights of indemnification will not arise to the extent that (i) the party seeking indemnification actually receives insurance proceeds or other cash payments directly attributable to the liability in question (net of the cost of collection, including reasonable attorneys' fees) or (ii) the claim for indemnification arises out of the act or neglect of the party seeking indemnification. If and to the extent that the indemnified party has insurance coverage, or the right to make a claim against any third party for any amount to be indemnified against as set forth above, the indemnified party will, upon full performance by the indemnifying party of its indemnification obligations, assign such rights to the indemnifying party or, if such rights are not assignable, the indemnified party will diligently pursue such rights by appropriate legal action or proceeding and assign the recovery and/or right of recovery to the indemnifying party to the extent of the indemnification payment made by such party. (b) Notwithstanding anything to the contrary in Section 13(a) above or elsewhere in this Agreement, Seller and Buyer agree that Seller's indemnification obligations with respect to Buyer for any Hazardous Substances shall be limited to the costs of (i) remediation for contamination of the Property by Hazardous Substances? which contamination occurred during the ownership or operation of the Property by Seller or (ii) petroleum contamination contained within the Tank Area or Buffer Area (collectively, "Seller Contamination ). If any Seller Contamination is discovered after the Closing Date, then Seller shall, at Seller's sole cost and expense, complete any investigative and /or remediation activities to the extent required by the MPCA fsr commercial /industrial properties, assuming the Property's continued use as a commerciallindustrial property, and shall obtain a letter stating, in effect, that the MPCA will require no further action or remediation with respect to the Seller Contamination (thief "No Action Letter "). Seller shall have no additional liability or responsibility for any Seller Contamination other than as set forth in the preceding sentence. Seller's indemnity shall be net of all reimbursement received by Buyer from the "Petrofund" or any successor program that reimburses all or a portion of the costs of cleaning up any Hazardous Substances contamination. The parties acknowledge that the Environmental Report indicates that asbestos containing materials ( "ACM ") may be present on the Property. Notwithstanding anything to the contrary in this Agreement, the parties agree that Buyer and its successors and assigns shall be solely responsible for identifying and 10 -6-