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either (i) accept Developer's Remediation Proposal, in which event Developer shall perform the <br />Remedial Work in accordance with this Section and Agency shall reimburse Developer in an <br />amount not to exceed Developer's Remedial Work Estimate within thirty (30) days following <br />receipt by Agency of written request therefor by Developer, together with copies of invoices <br />and/or other such evidence as reasonably necessary to substantiate such costs and expenses, or <br />(ii) reject Developer's Remediation Proposal, in which event Agency shall perform the Remedial <br />Work in accordance with this Section. In the event that Developer's Remedial Work Estimate is <br />greater than the Remedial Work Expenditure Cap, Agency may elect to terminate the Escrow <br />and this Agreement, provided such termination shall be ineffective if Developer then elects to <br />perform the Remedial Work in accordance with this Section and bear any costs and expenses in <br />excess of the Remedial Work Expenditure Cap. <br />206.4 No Warranties As To Site; Release of Agency. Except as otherwise <br />expressly provided herein, the Site Condition upon delivery from the Agency to Developer shall <br />be "as-is," with no warranty expressed or implied by Agency, including without limitation, <br />presence of Hazardous Materials or the condition of the soil, its geology, the presence of known <br />or unknown seismic faults, or the suitability of the Site for the development purposes intended <br />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 205.3. Upon the effectiveness of the release contemplated by this Section, the parties <br />acknowledge that the Agency's ownership would not be the direct and/or proximate cause of any <br />Site Condition if such Site Condition was in existence at the time of the Agency's acquisition <br />and continued during the Agency's ownership. In the event that Developer objects to the <br />Environmental Condition as described above, Developer may elect (at the time it objects to the <br />Environmental Condition) to accept such Environmental Condition, in which event the Agency <br />shall reimburse Developer for its actually incurred costs of any Remedial Work undertaken by <br />Developer to remediate the disapproved Environmental Condition; provided, however, that the <br />maximum amount of such reimbursement shall be equal to the portion of the Remedial Work <br />Expenditure Cap not previously expended pursuant to Section 206.3 above. In the event of such <br />election, Developer shall submit to Agency a description of the Remedial Work performed, <br />together with copies of invoices and/or such other evidence as reasonably necessary to <br />substantiate such costs and expenses, and Agency shall reimburse Developer within ten (10) days <br />of its receipt of such materials, subject to the cap set forth hereinabove. If Developer does not <br />elect to accept such Environmental Condition in its notice objecting to such Environmental <br />25 <br />DOCSOCl1400673v 141200272-0001