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8.A. - Page 29 of 154
<br />The failure of any of the conditions set forth above shall constitute a failure of a condition
<br />precedent to Closing, and in such event, Developer shall give City written notice of the failure of
<br />such condition. The City shall have thirty (30) days from receipt of said notice to cure such
<br />failure. In the event that the City does not cure such failure with said timeframe, Developer may
<br />elect to (i) waive such condition or (ii) terminate its obligations under this Agreement without
<br />further liability to City. Developer's election to complete the exchange notwithstanding the
<br />failure of one or more conditions shall constitute a waiver of such condition(s) by Developer.
<br />9. Permission to Enter on Exchange Properties. Developer shall have until the Close
<br />of Escrow to enter upon the Maple Vacation Street Area and, at its expense, to perform any and
<br />all studies that Developer desires on the Maple Street Vacation Area, including a Phase 11 toxics
<br />test, soils tests, and any other related investigations Developer elects to perform, provided
<br />Developer notifies City in advance of what tests will be performed, the time of such tests, and the
<br />entity performing such tests. Developer shall enter into a right of entry agreement with City, in
<br />form reasonably acceptable to the City Attorney, indemnifying City from and against any claims,
<br />demands, expenses or liabilities which arise from or relate to Developer's inspections and/or
<br />testing of the Maple Street Vacation Area, except to the extent such claims result from City's sole
<br />or active negligence.
<br />City shall have until the Close of Escrow to enter upon the Public Right -of -Way and
<br />Public Service Easement Area and, at its expense, to perform any and all toxics tests, soils tests,
<br />and any other related investigations City elects to perform to confirm Developer's compliance
<br />with the terms of Section 10.1 below, provided City notifies Developer in advance of what tests
<br />will be performed, the time of such tests, and the entity performing such tests. City shall enter
<br />into a right of entry agreement with Developer, in form reasonably acceptable to Developer,
<br />indemnifying Developer from and against any claims, demands, expenses or liabilities which
<br />arise from or relate to City's inspections and/or testing of the Public Right -of -Way and Public
<br />Service Easement Area, except to the extent such claims result from Developer's sole or active
<br />negligence.
<br />10. Condition of Exchange Properties.
<br />10.1. Public Right -of -Way and Public Service Easement Area. Prior to
<br />dedication and conveyance of the Public Right -of -Way and Public Service Easement to the City,
<br />Developer shall make such investigations of the Public Right -of -Way and Public Service
<br />Easement Area as Developer deems necessary to confirm the absence of Hazardous Materials
<br />(defined in below) on, under or about the Public Right -of -Way and Public Service Easement
<br />Area, including within the soil and ground water. If Developer discovers any Hazardous
<br />Materials on, under or about the Public Right -of -Way and Public Service Easement Area
<br />requiring remediation, then Developer shall notify City of such fact in writing. Developer shall,
<br />at its sole expense, remediate the Hazardous Materials and obtain the issuance of a certificate of
<br />completion from the San Francisco Bay Regional Water Quality Control Board pursuant to
<br />California Health & Safety Code § 25395.97 and provide copies of such certificate of completion
<br />to City. The remedial work shall be performed in accordance with all applicable Environmental
<br />Laws and governmental requirements at Developer's expense. As used in this Agreement, the
<br />term "Hazardous Materials" means any substance, material, or waste which is or becomes, prior
<br />to the close of Escrow, regulated by any local governmental authority, the State of California, or
<br />the United States Government, including, but not limited to, any material or substance which is (i)
<br />defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste"
<br />under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California
<br />REV: 01-21-20201 PR
<br />ATTYIAGR.2021.01111548 Maple LLC (Page 7 of 25) 241
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