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3.4 Ownership of Hardscape Public Improvements. The City shall retain ownership of the Hardscape Public Improvements for the term of this Agreement, including the Emblem. Upon the expiration of this Agreement, the Hardscape Public Improvements shall become the property of the Owner, other than the Emblem in which the City shall retain ownership. 3.5 Maintenance and Repair of Hardscape Public Improvements. The Commission shall assign to Owner certain warranties received by the Commission with respect to the Hardscape Public Improvements. To the extend any maintenance, repair or replacement to the Hardscape Public Improvements is covered by a warranty assigned to the Owner, the Owner is responsible for invoking such warranty and ensuring that such maintenance, repair or replacement is completed. The Commission shall be responsible for maintenance, repair and replacement of the Hardscape Public Improvements, other than routine maintenance and repairs, not otherwise covered by an existing warranty assigned to the Owner. 3.6 Information. The Commission hereby agrees to provide any and all due diligence items with respect to the Improvements reasonably requested by the Owner. SECTION 4. OWNER'S OBLIGATIONS. 4.1 Generally. The Parties acknowledge and agree that the Commission's agreements to perform and abide by the covenants and obligations set forth in this Agreement are material consideration of Owner's commitment to perform and abide by the covenants and obligations of Owner contained in this Agreement. 4.2 Plaza to Remain Open Space. All areas of the Plaza, other than the area identified as the "outdoor bar seating area" as depicted on Exhibit B shall remain open to the public for the term of this Agreement. If, during the tern of this Agreement, Owner develops, or causes to be developed a project that prevents the Plaza from remaining open to the public, Owner shall pay Commission liquidated damages in the amount of funds expended by Commission to construct the Improvements. The Commission may waive these liquidated damages in writing at its sole discretion. 4.3 Maintenance and Repair of Improvements. Owner shall be responsible for routine maintenance and repair of the Plaza including, but not limited to, trash and litter removal, sweeping, patching, painting, snow removal, landscaping and yard work, tree and plant watering, trimming, removal and replanting, maintenance of irrigation systems and water features, and light bulb replacement. 4.4 Maintenance and Repair of Hardscape Public Improvements. To the extent any maintenance, repair or replacement to the Hardscape Public Improvements is covered by a warranty assigned to the Owner pursuant to Section 3.5, the Owner is responsible for invoking such warranty and ensuring that such maintenance, repair or replacement is completed. 4.5 Right of Entry. Owner grants to the Commission and its agents, a right of entry to access the Plaza for the purpose of fulfilling the Commission's duties pursuant to this Agreement. -3- dm.us.52586909.04