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

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("RAP") prepared by Agency's Environmental Consultant ("Agency's Environmental Consultant" , wh ich RAP shall be approved by the public agency asserting j u risd ictio n o er the remedial work to be performed pursuant to the RAP (the "Remedial edial Work "). The Remedial edial Work shall assure the suitability of the Site for the development, occupancy and operation of the Project and shall be performed in accordance with applicable Govemmental. Requirements and Environmental Laws, and shall be conducted in accordance with the requirements of health and Safety Code Section 33459, et se q., in a manner which is intended to qualify for the immunity Which is provided by Health and Safety Code Section 33459.3. Capon making Agency's Election to > emediate and deceiving Developer "s approval of the RAP and the scope of the Remedial Work, Agency shall cause the Remedial Work to be performed and completed continuously and diligently. Agency's compliance with the provisions of this Section, and the issuance a letter, certificate or other official writing by all go em ental agencies which have asserted j over the remediation of the Site, which provides that no ft0her investigation, monitoring, remediation, response or removal is currently necessary considering the development, occupancy and operation of the Project `No Further Action Letter"'), and confirmation of the completion of the Remedial Work by Developer's n iron tal Consultant, shall each be a Developer's Condition Precedent to the Closing for the applicable Phase and the Outside Closing Date for such Please shall be extended until such conditions are satisfied, Upon completion of the Remedial Work, Agency shall deliver to Developer a certificate executed by the Agency's Environmental Consultant that the Remedial Work has been completed in accordance with all applicable laws. Not -- withstanding the foregoing, if Developer, based upon Developer's Environmental Site Assessment, Agency's Environmental Site Assessment and the RAP, reasonably estimates that the Remedial Work cannot be completed within ten I s, then Developer may teri inate the Escrow and this Agreement by written notice to Agency; provided, that such termination shall not apply to any Phase t eat has Closed prior to the date of such termination. Each date for performance under this Agreement and the Schedule of Performance shall be extended on a day -for -clay basis for each day of delay as a result of the Remedial Work. As an alternative to Agency causing the performance of the Remedial Wort p rsti nt to this Section, Developer nay, at its sole and absolute discretion, propose ("Developer's r eniediation Proposal" that Developer perform, or have performed, the Remedial Work by written notice to Agency accompanied by an estimate of the cost of performing the Remedial edial Work "Developer's Remedial Work Estimate"). In the event that Developer's Remedial Work Estimate is less than the Remedial Work Expenditure Cap, Agency shall elect to either i accept Developer's Reniediation Proposal, in which event Developer shall perform the Remedial Work in accordance with this Section and Agency shall reimburse Developer in are amount not to exceed Developer's Remedial Work Estimate within thirty days following receipt by Agency of written request therefor by Developer, together with copies of invoices and/or other such evidence as reasonably Necessary to substantiate such costs and expenses, or (ii) Developer's I e Mediation Proposal, in Which event Agency shall perform the Remedial Work in accordance with this Section. In the evert that I eveloper "s Remedial 'work Estimate is greater than the Remedial Work Expenditure Cap, Agency may elect to teri irate the Escrow and this Agreement, provided such termination shall be ineffective if Developer then elects to 24 D OCSO C11 400673v 13/200272 -0001