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Notice by delivering the Developer's Title Notice Waiver to the City. Failure by the Developer to timely deliver the Developer's Title Notice Waiver, where City's Title Notice Response or the City's failure to serve City's Title Notice Response indicates or results in the City's election not to take any action in reference to the Developer's Title Notice, will be deemed the Developer's continued refusal to accept the title to and conveyance of the Property, in which case either the City or the Developer shall have the right to cancel the Escrow and terminate this Agreement, in their respective sole and absolute discretion, until such time (if ever) as the Developer delivers the Developer's Title Notice Waiver. Any termination of this Agreement and cancellation of the Escrow pursuant to this Section 3.3.4 shall be without liability to the other Party or any other Person, and shall be accomplished by delivery of a written Notice of termination to both the other Party and the Escrow Agent, in which case the Parties and the Escrow Agent shall proceed pursuant to Section 4.11. 3.4 Developer Due Diligence Investigations. 3.4.1 License to Enter. The City licenses and permits the Developer to enter the Property solely for the purpose of undertaking and completing such Due Diligence Investigations as the Developer deems necessary and appropriate. The license provided in this Section 3.4.1 shall expire upon the Close of Escrow or earlier termination of this Agreement. The Developer shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Developer shall abide by any reasonable additional condition(s) of entry onto the Property required by the City, whether or not set forth in this Agreement. Any Due Diligence Investigations of the Property by the Developer shall not unreasonably disrupt any then existing use or occupancy of the Property or the operations of the City. 3.4.2 Limitations. The Developer shall not conduct any intrusive or destructive testing of any portion of the Property, other than low volume soil samples, without the City Manager's prior written consent which shall not be unreasonably withheld. Following the conduct of any Due Diligence Investigations on the Property, the Developer shall restore the Property to substantially its condition prior to the conduct of such Due Diligence Investigations. 3.4.3 Indemnity: Insurance. The activities of the Developer or its agents directly or indirectly related to the Developer's Due Diligence Investigations shall be subject to the Developer's indemnity, defense and hold harmless obligations under this Agreement. Prior to commencing any Due Diligence Investigations on the Property, the Developer shall deliver copies of policies or original certificates of all Liability Insurance required to be delivered pursuant to Section 5.9. 3.4.4 Due Diligence Completion Notice. The Developer shall deliver a Due Diligence Completion Notice to the City and the Escrow Agent prior to the end of the Due Diligence Period. If the Developer does not unconditionally accept the condition of the Property by delivery of its Due Diligence Completion Notice indicating such acceptance, prior to the end of the Due Diligence Period, the Developer shall be deemed to have rejected the condition of the Property and refused to accept conveyance of title to the Property. If the condition of the Property is rejected or deemed rejected by the Developer, then the City or the Developer shall have the right to cancel the Escrow and terminate this Agreement, in their respective sole and absolute discretion, until such time (if ever) as the City receives the Due Diligence Completion Notice stating the 17 553 94,00049\3 3239203.12