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for those Phases of the Site which it has not yet Conveyed to the Developer. Agency may <br />reserve a reasonable portion of the Remedial Work Expenditure Cap as necessary to fund the <br />cost for potential Remedial Work for those other Phases. Agency shall give notice to Developer <br />and Escrow Agent of such election and Developer's notice to terminate shall be ineffective; <br />provided, however, that Developer has approved of the scope of the Remedial Work and the <br />RAP prior to the commencement of such work. <br />If Agency makes Agency's Election to Remediate, then within a reasonable <br />period after giving notice to Developer that it intends to proceed with remediation of the Site, <br />Agency shall deliver to Developer for Developer's approval a proposed remedial action plan <br />("RAP") prepared by Agency's Environmental Consultant ("Agency's Environmental <br />Consultant"), which RAP shall be approved by the public agency asserting jurisdiction over the <br />remedial work to be performed pursuant to the RAP (the "Remedial Work"). The Remedial <br />Work shall assure the suitability of the Site for the development, occupancy and operation of the <br />Project and shall be performed in accordance with applicable Governmental Requirements and <br />Environmental Laws, and shall be conducted in accordance with the requirements of Health and <br />Safety Code Section 33459, et seq., in a manner which is intended to qualify for the immunity <br />which is provided by Health and Safety Code Section 33459.3. <br />Upon making Agency's Election to Remediate and receiving Developer's <br />approval of the RAP and the scope of the Remedial Work, Agency shall cause the Remedial <br />Work to be performed and completed continuously and diligently. Agency's compliance with <br />the provisions of this Section, and the issuance of a letter, certificate or other official writing by <br />all governmental agencies which have asserted jurisdiction over the remediation of the Site, <br />which provides that no further investigation, monitoring, remediation, response or removal is <br />currently necessary considering the development, occupancy and operation of the Project ("No <br />Further Action Letter"), and confirmation of the completion of the Remedial Work by <br />Developer's Environmental Consultant, shall each be a Developer's Condition Precedent to the <br />Closing for the applicable Phase and the Outside Closing Date for such Phase shall be extended <br />until such conditions are satisfied. Upon completion of the Remedial Work, Agency shall <br />deliver to Developer a certificate executed by the Agency's Environmental Consultant that the <br />Remedial Work has been completed in accordance with all applicable laws. <br />Notwithstanding the foregoing, if Developer, based upon Developer's <br />Environmental Site Assessment, Agency's Environmental Site Assessment and the RAP, <br />reasonably estimates that the Remedial Work cannot be completed within ten (10) weeks, then <br />Developer may terminate the Escrow and this Agreement by written notice to Agency; provided, <br />that such termination shall not apply to any Phase that has Closed prior to the date of such <br />termination. Each date for performance under this Agreement and the Schedule of Performance <br />shall be extended on a day-for-day basis for each day of delay as a result of the Remedial Work. <br />As an alternative to Agency causing the performance of the Remedial Work <br />pursuant to this Section, Developer may, at its sole and absolute discretion, propose <br />("Developer's Remediation Proposal") that Developer perform, or have performed, the Remedial <br />Work by written notice to Agency accompanied by an estimate of the cost of performing the <br />Remedial Work ("Developer's Remedial Work Estimate"). In the event that Developer's <br />Remedial Work Estimate is less than the Remedial Work Expenditure Cap, Agency shall elect to <br />DQCS00I 400673v 141240272-0001 <br />24