Common use of City Representations Clause in Contracts

City Representations. The City represents and warrants to Developer that: 10.1 The City has the full right, power, and authorization to enter into and perform this Agreement and each of the City’s obligations and undertakings under this Agreement, and the City’s execution, delivery and performance of this Agreement have been duly authorized and agreed to in compliance with the requirements of the City Code. 10.2 All consents and approvals necessary to the execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery, and performance. 10.3 The City has, prior to executing this Agreement, made each and every finding required under Arizona law, specifically A.R.S. § 9-500.11 (D), and that such findings have been verified by an independent third party. 10.4 The City will acknowledge and execute when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. 10.5 The City knows of no litigation, proceeding, initiative, referendum, investigation, or threat of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to Developer. 10.6 This Agreement (and each undertaking of the City contained herein), constitutes a valid, binding and enforceable obligation of the City, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors’ rights and by equitable principles, whether considered at law or in equity. Subject to Developer’s obligation to pay for such costs of defense set forth in Section 11.5 of this Agreement, the City will fully and in good faith cooperate with Developer to defend the validity and enforceability of this Agreement (and the City shall take no action or position in conflict with, or otherwise interfere with, such proceeding or litigation) in the event of any proceeding or litigation arising from its terms that names the City as a party or which challenges the authority of the City to enter into or perform any of its obligations hereunder, and will cooperate with Developer in connection with any other action by a Third Party in which Developer is a party and the benefits of this Agreement to Developer are challenged. The City may, in its sole discretion, select its own counsel to defend the City, at its own cost and expense, provided, however, that City shall take no action or position that is in conflict with or otherwise interferes with Developer’s defense of such action. The severability and reformation provisions of Section 14.3 shall apply in the event of any successful challenge to this Agreement or to any provision hereof. 10.7 The execution, delivery and performance of this Agreement by the City is not prohibited by, and does not conflict with, any other agreements, instruments or judgments or decrees to which the City is a party or is otherwise subject. 10.8 The City has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement.

City Representations. The City City, acknowledging that each provision in this Section 2.5 is material and is being relied on by Developer, hereby represents and warrants the following to Developer that:for the purpose of inducing Developer to enter into this Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof and (unless City notifies Developer to the contrary prior to the Close of Escrow for each Phase and the representation or warranty in question did not cease to be true as a result of City’s acts or omissions after the execution of this Agreement) as of the Close of Escrow for each Phase and which shall survive the Close of Escrow for each Phase and delivery of each Deed. 10.1 The 2.5.1 Subject to the satisfaction of the conditions in Section 2.7(ii) and (iii), City has the full right, legal power, right and authorization authority to enter consummate the transactions contemplated hereby, to take any steps or actions contemplated hereby, and to perform its obligations hereunder. 2.5.2 Subject to the satisfaction of the conditions in Section 2.7(ii) and (iii), all requisite action has been taken by City and all requisite consents have been obtained in connection with entering into and perform this Agreement and each of the City’s obligations instruments and undertakings under this Agreementdocuments referenced herein to which City is a party, and the consummation of the transactions contemplated hereby, and the same are authorized by the Redevelopment Plan described in Section 2.5.4 below. There are no writs, injunctions, orders or decrees of any court or governmental body which would be violated by City’s execution, delivery and performance of this Agreement have been duly authorized and agreed to in compliance with the requirements of the City Code. 10.2 All consents and approvals necessary to the execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery, and performance. 10.3 The City has, prior to executing this Agreement, made each and every finding required entering into or performing its obligations under Arizona law, specifically A.R.S. § 9-500.11 (D), and that such findings have been verified by an independent third party. 10.4 The City will acknowledge and execute when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. 10.5 The 2.5.3 This Agreement is duly executed by City, and all agreements, instruments and documents to be executed by City knows of no litigation, proceeding, initiative, referendum, investigation, or threat of the same contesting the powers of the City or its officials with respect pursuant to this Agreement that has not been disclosed in writing shall, at such time as they are required to Developer. 10.6 This Agreement (be executed hereunder, be duly executed by City, and each undertaking of to the City contained herein), constitutes a valid, binding and enforceable obligation actual knowledge of the City, subject to the satisfaction of the conditions in Section 2.7, each such agreement is, or shall be at such time as it is required to be executed hereunder, valid and legally binding upon City and enforceable according to in accordance with its terms, except and the execution and delivery thereof shall not, with due notice or the passage of time, constitute a default under or violate the terms of any indenture, agreement or other instrument to which City is a Party. 2.5.4 The uses of the extent limited Property, as contemplated by bankruptcy, insolvency and other laws of general application affecting creditors’ rights and by equitable principles, whether considered at law or in equity. Subject to Developer’s obligation to pay for such costs of defense set forth in Section 11.5 of this Agreement, are permitted by the City will fully and in good faith cooperate with Developer to defend Redevelopment Plan for the validity and enforceability Redevelopment of this Agreement (and the City shall take no action or position in conflict withFormer Fort Ord, or otherwise interfere with, such proceeding or litigation) in the event of any proceeding or litigation arising from its terms that names the City as a party or which challenges the authority adopted by Ordinance No. 901 of the City to enter into on April 18, 2001, as it may have been amended. 2.5.5 City has no actual knowledge of any pending or perform any threatened litigation which would prevent the Property from being conveyed in the condition of title required hereunder, or which would prevent City from performing its duties and obligations hereunder, and will cooperate with Developer in connection with any other action by a Third Party in which Developer is a party and the benefits of this Agreement . 2.5.6 City has provided to Developer are challengeda copy of the documents related to the Environmental Condition of the Property described more particularly in Attachment No. The City may5, in its sole discretion, select its own counsel to defend hereto. 2.5.7 To the actual knowledge of City, at its own cost and expense, provided, however, that City shall take no action or position that is the documents referenced in conflict with or otherwise interferes with Developer’s defense of such action. The severability and reformation provisions of Section 14.3 shall apply in the event of any successful challenge to this Agreement or to any provision hereof. 10.7 The execution, delivery and performance of this Agreement by the City is not prohibited by, and does not conflict with, any other agreements, instruments or judgments or decrees to which the City is a party or is otherwise subject. 10.8 The City has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement.paragraph

City Representations. 9.1 The City represents to TCN, as of the Effective Date and warrants to Developer as of the Closing date, as those terms are defined herein, that: 10.1 9.1.1 The Property, including the Project Property, is the subject of a lease entered into by the City for farming and leaf storage (the “▇▇▇▇▇▇▇ Lease”). The City will terminate the ▇▇▇▇▇▇▇ Lease such that said termination shall take effect prior to the Closing date. There are no other lease or rental agreements encumbering of the Project Property, or any portion thereof, and the City agrees that it shall not encumber the Project Property, or any part of it, with any lease, lease renewal, or rental agreement that will extend past the Closing. 9.1.2 The City represents that no part of the Project Property is the subject of any ordinance or building code violation action or pending condemnation action by the City. 9.1.3 The City represents to TCN that except as set forth in the Naperville Municipal Code and regulations in effect at the time the Project Property is developed, including but not limited to the City’s Zoning Code and Building Code, and except as provided or referenced herein, the Project Property is not subject to any existing or contemplated covenants or restrictions providing for use restrictions, design controls, or architectural approvals, or assessments or association dues. 9.1.4 The City represents that is has the full right, power, power and authorization authority to enter into and perform this Agreement and each of all documents contemplated hereby, and consummate the City’s obligations and undertakings under transaction contemplated by this Agreement, and the City’s execution, delivery and performance of this Agreement have been duly authorized and agreed to in compliance with the requirements of the City Code. 10.2 All consents and approvals necessary to the execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery, and performance. 10.3 The City has, prior to executing this Agreement, made each and every finding required under Arizona law, specifically A.R.S. § 9-500.11 (D), and that such findings have been verified by an independent third party. 10.4 The City will acknowledge and execute when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. 10.5 The City knows of no litigation, proceeding, initiative, referendum, investigation, or threat of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to Developer. 10.6 This Agreement (and each undertaking of the City contained herein), constitutes a valid, binding and enforceable obligation of the City, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors’ rights and by equitable principles, whether considered at law or in equity. Subject to Developer’s obligation to pay for such costs of defense set forth in Section 11.5 of this Agreement, the City will fully and in good faith cooperate with Developer to defend the validity and enforceability of this Agreement (and the City shall take no action or position in conflict with, or otherwise interfere with, such proceeding or litigation) in the event of any proceeding or litigation arising from its terms that names the City as a party or which challenges the authority of the City to enter into or perform any of its obligations hereunder, and will cooperate with Developer in connection with any other action by a Third Party in which Developer is a party and the benefits of this Agreement to Developer are challenged. The City may, in its sole discretion, select its own counsel to defend the City, at its own cost and expense, provided, however, that City shall take no action or position that is in conflict with or otherwise interferes with Developer’s defense of such action. The severability and reformation provisions of Section 14.3 shall apply in the event of any successful challenge to this Agreement or to any provision hereof. 10.7 The execution, delivery and performance by the City of this Agreement by and the City is not prohibited by, instruments referenced herein and does the transaction contemplated hereby will not conflict with, or with or without notice or the passage of time or both, result in a breach of, violate any other agreementsterm or provision of, instruments or judgments constitute a default under any governing document, agreement, judicial or decrees administrative order or any law to which the City or any portion of the Project Property is a party or is otherwise subjectbound. This Agreement and all documents required hereby to be executed by the City are and shall be valid, legally binding obligations of and enforceable against the City in accordance with their terms. 10.8 9.1.5 There are no judgments presently outstanding and unsatisfied against the City or the Project Property, nor is there any action, litigation, or investigation proceedings of any kind pending or threatened against the City or the Project Property which could adversely affect the Project Property, any portion thereof or title thereto, or which would have a materially adverse effect on the City’s power or authority to enter into or perform its obligations under this Agreement. The City shall give TCN prompt written notice if any such judgment, action, litigation, condemnation or proceeding is commenced or threatened prior to the Closing date. 9.1.6 To the knowledge of the City Manager and the Director of the Transportation, Engineering and Development Department of the City, there are no underground or above ground storage tanks on the Project Property, in use or abandoned, and no such tanks have been removed during the City’s ownership of the Project Property except in strict compliance with all laws, ordinances, and regulations regarding such removal. 9.1.7 Except as set forth or referenced herein, or as set forth in any agreement with Wheatland Township (Road District and/or Township) that has been assisted provided by counsel of its own choosing in connection the City to TCN (including the 2007 Intergovernmental Agreement with the preparation Wheatland Township Road District, the 2007 Intergovernmental Agreement with Wheatland Township, and execution the First Amendment to the 2007 Intergovernmental Agreement with Wheatland Township), the City has not made, and will not make or permit to be made or imposed, any commitments or representations to any applicable governmental authorities or to adjoining or surrounding property owners, which would be binding upon TCN or the Project Property. A copy of this Agreementsaid agreement(s) shall be delivered to TCN. 9.1.8 Except to the extent set forth or referenced in any Phase 1 or Phase 2 environmental site assessment which the City has undertaken, or any amendment, revision, and/or addendum thereto, to the knowledge of the City Manager and the Director of the Transportation, Engineering and Development Department of the City: (i) no Hazardous Substances (as defined below) have been disposed of, or identified on, under or at the Project Property; (ii) the City has not received written notice from any political or quasi- political authority, subdivision, agency, department, court, commission, board, bureau or instrumentality of any of the foregoing asserting jurisdiction over any of the parties hereto or over the Project Property, that the Project Property is or may be in violation of any applicable federal, state or municipal law, ordinance or regulation regarding Hazardous Substances; (iii) any handling, transportation, storage, treatment or usage of Hazardous Substances by the City that has occurred on the Project Property to date has been in compliance with all Environmental Laws. 9.1.8.1 As used herein, the term “Hazardous Substances” shall mean those substances included within the definitions of any one or more of the terms "hazardous materials," "hazardous wastes," "hazardous substances," "industrial wastes," and "toxic pollutants," as such terms are defined under the Environmental Laws, or any of them. As used herein, the term “Environmental Laws” (and individually, “Environmental Law”) shall mean each and every applicable federal, state, county or municipal statute, ordinance, rule, regulation, order, code, directive or requirement.