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Developer's default of the Agreement. In the event of such default, BART's sole remedy is to terminate the Agreement and retain the Payment as liquidated damages. 8.1 Written Materials. The Parties acknowledge that each of them may themselves or through their consultants or contractors perform certain tests of soils and geologic conditions and may perform surveys and other functions on the Property pursuant to which reports, memoranda and other documents ("Written Materials") may be prepared. To the extent that any Written Materials are made available to the other Party (and by that Party to other third parties), the Parties acknowledge (a) that they do not warrant the accuracy or reliability of such Written Materials (b) that such Written Materials are made available for information purposes only, and (c) that each Party shall have no liability either to the other Party or to other third parties arising out of their reliance on such Written Materials. 9. REAL ESTATE COMMISSION. BART shall not be liable for any real estate commissions or brokerage fees which may arise herefrom. The Developer represents that it has engaged no broker, agent or finder in connection with this transaction and the Developer agrees to indemnify, protect and hold BART harmless from any claim by any broker, agent or finder retained, or claimed to have been retained, by the Developer. 10. LIMITATIONS. The BART Board of Directors shall have the sole and absolute discretion to approve or disapprove a sales or exchange agreement and/or ground lease with Developer and to make appropriate finding under CEQA. Any costs incurred by the Developer, the Developer's members or partners, or other members of the project development team to comply with its obligations under this Agreement or to negotiate documents shall be the sole responsibility of the Developer, and in no event shall BART have any responsibility to pay for or reimburse the Developer for any of said costs, except as otherwise provided in Section 7.5 above. The Developer understands and acknowledges that BART is subject to the Ralph M. Brown Act and the California Public Records Act, and, will therefore make information regarding the portion of the Property owned by BART, the project, the Developer and this Agreement available to the public upon request as required by said laws. 11. CONFLICT OF INTERESTS. No member, official or employee of BART shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. 12. WARRANTY AGAINST PAYMENT OF CONSIDERATION FOR AGREEMENTS. The Developer warrants, except for Payment to BART, that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. The Developer is not precluded, however, from using consultants or legal counsel in connection with negotiating this Agreement or related documents. 13. NO ASSIGNMENT. This Agreement is personal to the Developer and is not assignable to any other person or entity/without the prior written consent of the Parties. Any attempt to assign this Agreement or any part of the Agreement without the prior written consent of the sANF] X382607.1 311718-29 1 Q