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either i accept; Developer's T ermed iation Proposal, in which event; Developer s h all perform the Remedial work in accordance with this Section and Agency shall reimburse Developer in an amount not to exceed Devel per' Remedial work Estimate within thirty days fol low i n g receipt by Agency of written request therefor by Developer, together with copies of invoice and/or other such evidence as reasonably necessary to substantiate such costs and expenses, or (h) reject Developer's Remedi ation Proposal, in which evert Agency shaJI perform the Remedial Work in accordance with this Section. In the event that Developer" s Remedial work Estimate i greater than the Remedial work Expenditure Cap, Agency may elect to terminate the Escrow and this Agreement, provided such termination shall be ineffective if Developer then elects to perform the Remedial work in accordance with this Section and bear any coats and expenses in excess f the Remedial work Expenditure ap. 206.4 No warranties his To Site- Release of Agency. Except as otherwise expressly provided herein, the Site Condition upon delivery from the Agency to Developer shall be "'as-is," with no warranty expressed or implied by Agency, including without limitation} presence of Hazardous Materi al or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Site for the development purposes intended hereunder. From and after the date on which Developer completes grading with respect to any Phase of the Site as evidenced by certification by the City's Building Official, and to the extent that Developer does not object in writincr to the Environmental Condition of such Phase within ten 10 days following completion of such grading, the Developer shall waive, release and discharge forever the Agency and the City, and their respective employees* officers, agents and representatives, from all present and future cl aims, demands, suits, legal and administrative proceedi nos and from all liability for darnacres, losses, costs, liabilities, fees and expenses, present and future ` {Claim or Liability"), arising out of or in any way connected with the Site Condition as it relates to such Phase* except i arising out of the willful misconduct of the Agency or its employees, officers, agents or representatives; or (ii) if and to the extent the Developer can demonstrate to a court of competent jurisdiction that the Agency an or City were the direct and proximate cause of the Site Condition which is the subject matter of the Maim or Liability, including* without limitation, attorneys' fees; or (iii) for Agency's obligations under Section 206.3. Upon the effectiveness of the release contemplated by this tion * the parties acknowledge that the Agency's ownership would not be the direct and/or proximate cause of any i to Conditi on i f su ch S i to Cond ition was in exis tense a t the time of the Agency, s ac qu i si tion and continued during the Agency's ownership. In the event that Developer objects to the Environmental Condition as described above, Developer may l tat the time it objects to the Environmental Condition) to accept such Environmental Condition, in which event the Agency shall reimburse bevel op er for its ac to ally incurred costs of any Remedial work undertaken by Developer to reme di a to the disapproved Environmental Condition; provided, however, that the maximum amount of such reimbursement shall be equal to the portion of the Remedial work Expenditure Cap not previously expended pursuant to Section 206.3 above. In the event of such election, Developer s h all submit t Agency a description of the Remedial work performed, together with copies of invoices and/or such other evidence as reasonably necessary to substantiate such costs and expenses, and Agency shall reimburse Developer within ten 10 days of its receipt of such materials, subject to the cap set forth her i n ab ogre. If Developer does not elect to accept such Environm nta1 Condition in its notice objecting to such Environmental D O sO 1400673 v i 4/2 27 2 -OGO i