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the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment
<br />of the premises which are the subject of this Agreement, nor shall the grantee or any person
<br />claiming under or through him or her, establish or permit any practice or practices of
<br />discrimination or segregation with reference to the selection, location, number, use or occupancy
<br />of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The
<br />foregoing covenants shall run with the land."
<br />4. Except as otherwise expressly provided herein, the Site Condition upon
<br />Conveyance from the Agency to Developer shall be "as-is," with no warranty expressed or
<br />implied by Agency, including without limitation, the presence of Hazardous Materials or the
<br />condition of the soil, its geology, the presence of known or unknown seismic faults, or the
<br />suitability of the Site for the development purposes intended hereunder.
<br />From and after the date on which Developer completes grading with respect to
<br />any Phase of the Site as evidenced by certification by the City's Building Official, and to the
<br />extent that Developer does not object in writing to the Environmental Condition of such Phase
<br />within ten (10) days following completion of such grading, the Developer shall waive, release
<br />and discharge forever the Agency and the City, and their respective employees, officers, agents
<br />and representatives, from all present and future claims, demands, suits, legal and administrative
<br />proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses,
<br />present and future ("Claim or Liability"), arising out of or in any way connected with the Site
<br />Condition as it relates to such Phase, except (i) arising out of the willful misconduct of the
<br />Agency or its employees, officers, agents or representatives; or (ii) if and to the extent the
<br />Developer can demonstrate to a court of competent jurisdiction that the Agency and/or City were
<br />the direct and proximate cause of the Site Condition which is the subject matter of the Claim or
<br />Liability, including, without limitation, attorneys' fees; or (iii) for Agency's obligations under
<br />Section 206.3 of the Agreement. Upon the effectiveness of the release contemplated by this
<br />Section, the parties acknowledge that the Agency's ownership would not be the direct and/or
<br />proximate cause of any Site Condition if such Site Condition was in existence at the time of the
<br />Agency's acquisition and continued during the Agency's ownership. In the event that Developer
<br />objects to the Environmental Condition as described above, Developer may elect (at the time it
<br />objects to the Environmental Condition) to accept such Environmental Condition, in which event
<br />the Agency shall reimburse Developer for its actually incurred costs of any Remedial Work
<br />undertaken by Developer to remediate the disapproved Environmental Condition; provided,
<br />however, that the maximum amount of such reimbursement shall be equal to the portion of the
<br />Remedial Work Expenditure Cap not previously expended pursuant to Section 206.3 of the
<br />Agreement. In the event of such election, Developer shall submit to Agency a description of the
<br />Remedial Work performed, together with copies of invoices and/or such other evidence as
<br />reasonably necessary to substantiate such costs and expenses, and Agency shall reimburse
<br />Developer within ten (10) days of its receipt of such materials, subject to the cap set forth
<br />hereinabove. If Developer does not elect to accept such Environmental Condition in its notice
<br />objecting to such Environmental Conditions, Agency may, within thirty (30) days of such written
<br />objection, elect in writing to either remediate the Environmental Condition to the extent required
<br />to satisfy Developer's objection or terminate this Agreement as to the applicable portion of the
<br />Site (but not as to any other Phase of the Site which has closed prior to such termination), in
<br />which case Developer shall reconvey the applicable portion of the Site to the Agency and neither
<br />party shall have any rights or obligations with respect to the other in connection with such
<br />ATTACHMENT NO. 3-3
<br />D O C S O G 1400673 v 141200272-0001
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