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