80A - JOINT PH - TRANSIT ZONING CODE, FINAL EIR, SPECIFIC PLAN ETC. - ORIGINAL PACKET PROVIDED TO COUNCIL

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governmental agency having jurisdiction over the Site, notifying su h party of, the presence of surface or subsurface zone Hazardous Materials in, on, or tinder the Site, or any portion thereof. The Developer shall reasonably approve or disapprove of the Environmental Condition and the Soils and Geological Condition of the Site (the "Site Condition" ) in its sole discretion within the time set forth in the SchedL11e of Performance. The Developer's approval of the Site Condition shall he a Developer's Condition Precedent to the Closing. Except as set forth in the next sentence of this paragraph, if the Developer disapproves the Environmental Condition of the entire Site, then either party rrra r terminate this Agreement by written notice to the other. If the Developer disapproves the Environmental Condition of a portion of Phase FS, then the Developer may t rr inate this Agreement as to such disapproved portion only by written notice to the Agency, and approve the remaining portion of Phase FS. Pursuant to Section 2063, the Agency may nullify such election on the ternis and conditions set forth therein. Notwithstanding the foregoing, the termination of this Agreement pursuant to this Section 206.1 will not result in the termination of the Agreement with respect to any other portion of the Site already Conveyed to the Developer. 206,2 Studies and Reports. Prior to each Closing, representatives of the Developer shall have the right of access to all portions of the Site for the purpose of obtaining data and making scarves and tests Necessary to carry out this Agreement, ent, in luding the investigation of the Site Condition for each Phase and structural/civil engineering r r . Any preliminary work undertaken on the Site by Developer prior to each Closing shall be done at the sole expense of the eloper, and only after the Developer executes a right of entry agreement (for any portion of the Site that has not yet been subject to a Closing) in a form reasonably acceptable to the Agency Executive Director. Any preliminary work shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. 206.3 I eniediation After Developer Elects To Terminate. Upon receipt of Developer's notice to terminate based upon the Environmental Condition of the Site, Agency may, at Agency's option, agree to cause the remediation of the Site in accordance with the recommendations of I Developer's Envir r meat l Consultant, Developer's Environmental Site Assessment and all Governmental Requirements ("Agency's Election to en ediate" ), provided, Agency hereby agrees to male Agene 's Election to Remediate in the event that Agency reasonabl y estimates that the cost to conduct the Remedial Work for all of the Phases of the Site will not exceed T vo Hundred Fifty Thousand Dollars ($250,000.00) ("Remedial Work Expenditure Cap"). In estimating the total cost of Remedial ial Wor for all of the Phases of the Site, Agency may make reasonable assumptions regarding the projected cost of Remedial Wort for those Phases of the Site which it has not yet Conveyed to the Developer *. Agency may reserve a reasonable portion of the Remedial Work Expenditure Cap as necessary to fund the cost for potential Remedial Work for those other Phases. Agency shall give notice to Developer and Escrow Agent of such election and Developer's Notice to terminate shall be ineffective; provided, however, that Developer has approved of the scope of the Remedial Work and the RAP prior to the commencement of such work. . If Agency makes Agency's Election to Remediate, then within a reasonable period after giving notice to Developer that it intends to proceed with reinedlation of the Site, Agenc y shall deliver to Developer for Developer's approval a proposed remedial action plan 23 DO CSOC/1 400673v 13/200272-0001