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4 <br /> I of entry of this Final Judgment. The Stayed Penalty shall become due and payable in the event <br /> 2 KMART violates Health and Safety Code Section 25189, subdivision(c) (the"Stayed Penalty <br /> 3 Provision"). If KMART fails to comply as set forth above during the five-year period, then KMART <br /> 4 shall, subject to the provisions of section 5.1 herein,pay the Stayed Penalty amount to the <br /> 5 prosecuting agencies as follows: <br /> 6 (1) Upon the first instance of any violation of the Stayed Penalty Provision at or by any one <br /> 7 of the Covered Facilities or Future Facility,KIVIART shall pay between TWENTY-FIVE <br /> 8 THOUSAND DOLLARS ($25,000.00)and ONE HUNDRED THOUSAND DOLLARS <br /> 9 ($100,000.00)depending on the facts and circumstances of each such violation; <br /> 10 (2) Upon the second instance of any violation(s)of the Stayed Penalty Provision at a <br /> 11 Covered or Future Facility which has previously paid a Stayed Penalty for a violation of the <br /> 12 Stayed Penalty Provision,KMART shall pay between FORTY THOUSAND DOLLARS <br /> 13 ($40,000.00)and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) depending on <br /> 14 the facts and circumstances of each such violation; <br /> 15 (3) Upon a third instance or any subsequent instance of any violation of the Stayed Penalty <br /> 16 Provision at a Covered Facility or Future Facility that has paid a Stayed Penalty for at least <br /> 17 two prior violations of the Stayed Penalty Provision, KMART shall pay between SIXTY <br /> 18 THOUSAND DOLLARS ($60,000.00) and TWO HUNDRED AND FIFTY THOUSAND <br /> 19 DOLLARS ($250,000.00) depending on the facts and circumstances of each such subsequent <br /> 20 violation. <br /> 21 3.2 Cy Pres Restitution and Supplemental Environmental Projects <br /> 22 3.2.a On or before the date of approval by the Court of this Final Judgment„ <br /> 23 KMART shall pay EIGHT HUNDRED AND FIFTY THOUSAND DOLLARS ($850,000.00) as Cy <br /> 24 pres restitution to the prosecuting agencies pursuant to section 17203 of the Business and <br /> 25 Professions Code,which shall be allocated to special environmental projects identified in, and in <br /> 26 accordance with the terms of,Exhibit C, attached hereto and incorporated by reference. <br /> 27 <br /> 28 <br /> 4 <br /> SF-2679421 <br /> STIPULATION FOR ENTRY OF FINAL JUDGMENT AND FINAL JUDGMENT <br />