Agmt 2005 1040 Davis Street Partnership LLC

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1040 Davis Street DDA Amendment No. 2 Page 2 of 4 Improvements (including landscaping, parking, and common and public areas) and shall include, but not necessarily be limited to, final architectural drawings, landscaping plans and specifications, final elevations, building plans and specifications (also known as "working drawings") and a time schedule for construction. Building permit submittal for demolition shall not constitute Constructions Plans nor shall satisfy the provisions of this Section. The Construction Plans shall be based upon the approved Development Plan and will not materially deviate therefrom without the express written consent of the Agency. It is understood that Developer shall fill in gaps of existing Davis Street median to make the project's driveway right- turn in and out only, and shall install new sidewalks and street trees as required by the City of San Leandro, and that this constitutes part of the Improvements. For the purposes of this Agreement, a material change or deviation in the Construction Plans shall mean any increase or decrease of five percent (5%) or greater in the number of square feet of the Improvements, or a change in the location of the building from that shown in the Development Plan. At the time Developer submits its Construction Plans to the Agency, it shall apply to the City of San Leandro for, diligently pursue and obtain all further permits necessary for the construction of the Improvements, including a Lot Line Adjustment to combine all four parcels into one. Developer acknowledges that execution of this Agreement by the Agency does not constitute approval by the City of San Leandro, does not limit in any manner the discretion of the City of San Leandro in the approval process, and does not relieve Developer from the obligation to obtain all necessary permits, including building permits. Developer shall promptly pay when due all customary and reasonable fees and charges ofthe City of San Leandro in connection with the processing and consideration ofthe City permits and approvals contemplated by this section. With regard to City of San Leandro Development Fee for Street Impact (DFSI) and Utility Undergrounding Conversion (UUC) fees for the Improvements, Developer shall be assessed these fees as required by the Municipal Code, and the DFSI calculation shall take into account credit for the existing building based on 300 SF of office and 4700 SF of warehouse in its previous use. The Agency will advance the amount of the assessment up to $40,000 on behalf of the Developer in consideration of the benefit of the project. Developer will repay the Agency advance for the DFSI and DUC fees in equal monthly installments for 48 months beginning the month after building permit issuance. Monthly payments shall include a financing charge (approximately $12 per month in 2004), subject to change by Agency's servicing agent." 4. Part One, Section 3.09 is hereby amended to read as follows: "No later than sixty (60) days after completion of construction of Improvements in accordance with those provisions of this Part as indicated by issuance of a certificate of occupancy by the City for the office building in addition to the completion of site landscaping and the other Improvements, the Agency will provide an instrument so certifying provided that, at the time such certification is issued, the Improvements have been completed (hereafter "Certificate of Completion"). Such Certificate of Completion shall be conclusive determination that the covenants in this Agreement with respect to the obligations of Developer, its successors and assigns, to construct the Improvements and the dates for the beginning and completion