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7.A. - Page 146 the Developer's Title Notice, the City shall be deemed to elect not to take any action in reference to the Developer's Title Notice. If the City elects in City's Title Notice Response to take any action in reference to the Developer's Title Notice, the City shall take such action, prior to the Escrow Closing Date. 2.3.4 Developer's Title Notice Waiver. If the City elects or is deemed to have elected not to take any action in reference to the Developer's Title Notice, then within seven (7) days following the earlier of (1) the Developer's receipt of City's Title Notice Response or (2) the expiration of the time period provided in Section 2.3 for delivery of City's Title Notice Response, the Developer shall either. (i) refuse to accept the title to and conveyance of the City Property, or (ii) waive its disapproval or conditional approval of any matters set forth in the Developer's Title Notice by delivering the Developer's Title Notice Waiver to the City. Failure by the Developer to timely deliver the Developer's Title Notice Waiver, where City's Title Notice Response or the City's failure to serve City's Title Notice Response indicates or results in the City's election not to take any action in reference to the Developer's Title Notice, will be deemed the Developer's continued refusal to accept the title to and conveyance of the City Property, in which case either the City or the Developer shall have the right to cancel the Escrow and terminate this Agreement, in their respective sole and absolute discretion, until such time (if ever) as the Developer delivers the Developer's Title Notice Waiver. Any termination of this Agreement and cancellation of the Escrow pursuant to this Section 2.3.4 shall be without liability to the other Party or any other Person, and shall be accomplished by delivery of a written Notice of termination to both the other Party and the Escrow Agent, in which case the Parties and the Escrow Agent shall proceed pursuant to Section 3.10. 2.4 Developer Due Diligence Investigations. 2.4.1 Ri�ht of Entry. The Developer and City entered into a Right of Entry agreement, dated as of September 3, 2012 ("Right of Entry"), granting to Developer a non- exclusive license to enter on the City Property to conduct studies of the real property as Developer deems necessary or desirable. Developer shall continue to have the right to enter the City Property in accordance with the terms and conditions set forth in the Right of Entry for the purpose of undertaking and completing such Due Diligence Investigations as the Developer deems necessary and appropriate. The Developer shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Developer shall abide by any reasonable additional condition(s) of entry onto the City Property required by the City, whether or not set forth in this Agreement or the Right of Entry. Any Due Diligence Investigations of the City Property by the Developer shall not unreasonably disrupt any then existing use or occupancy of the City Property or the operations of the City. 2.4.2 Indemnity; Insurance. The activities of the Developer or its agents directly or indirectly related to the Developer's Due Diligence Investigations shall be subject to the Developer's indemnity, defense and hold harmless obligations under this Agreement. Prior to commencing any Due Diligence Investigations on the City Property, the Developer shall deliver copies of policies or original certificates of all Liability Insurance required to be delivered pursuant to Section 4.10. 82483.00009\7571312.11 18 ATTY/AGR/2013.118/BLOCK 2 HUNTER STORM REV: 07-19-13 PT