RDA Agmt 2004 1040 Davis Partnership LLC

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During the development of the Improvements, and prior to the issuance of a Certificate of Completion for such Improvements hereof, the following shall govern the Parties' remedies for breach of the Agreement. 5.02 No Fault of Parties. The following events constitute a basis for a Party, otherwise allowed by this Agreement, to terminate this Agreement, without the fault of the other: (a) Developer, despite good faith efforts, is unable to obtain permits or approvals from the City of San Leandro which are satisfactory for Developer to construct the Improvements and operate its business on the Property; (b) Developer, despite good faith efforts on the part of both the Agency and Developer, is unable to obtain approval of the Construction Plans, in the time provided in Article Three of this Part; or (c) Conditions imposed subsequent to execution of this Agreement by the City's discretionary approvals makes development of Property in the manner contemplated by this Agreement infeasible for Developer. Upon the happening of any of the above-described events, and at the election of either Party, this Agreement may be terminated by written notice to the other Party. Thereafter, neither Party shall have any rights against nor liability to the other, except as set forth in Article Five and Part Two. 5.03 Fault of Agency. Except as to events constituting a basis for termination under Section 5.02, the following events each constitute a basis for Developer to take action against the Agency: (a) Agency without good cause fails to convey Property within the manner and form herein called for and the Developer is otherwise entitled by this Agreement to such action or conveyance; (b) Agency breaches any other material provisions of this Agreement. Upon the happening of any of the above-described events, the Developer shall first notify the Agency in writing of its purported breach or failure, giving the Agency ten (10) days from receipt of such notice to cure such breach or failure or if the nature of the breach or failure is such that it cannot reasonably be cured in ten (10) days, then giving the Agency such longer period as reasonably may be required for such cure provided that Agency commences action to cure the breach or default within said ten (10) day period and thereafter diligently pursues the cure to completion. In the event Agency does not then so cure or commence to cure within said ten (10) days, then the Developer thereafter shall have the right to terminate this Agreement, and any other rights afforded it by law or in equity. 5.04 Fault of Developer . Disposition and Development Page 9 Agreement - 1040 Davis Street May 14, 2004 FINAL