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DRAFT FORM ASSIGNMENT AND ASS UMPTION AGREEMENT 3. Assignment. Assignor hereby assigns and transfers to Assignee, the title, interest, rights, and obligations under the Development Agreement with respect to the Assigned Parcel(s). Assignor retains all obligations under the Development Agreement with respect to all other portions of the Project Site that do not include the Assigned Parcel(s). Assignor warrants and represents that Assignor has full right and authority to make this Assignment and vest in Assignee the rights, interests, powers and benefits hereby assigned. 4. Assumption. Assignee herby assumes all of the title, interest, rights, and obligations under the Development Agreement with respect to the Assigned Parcel(s), and agrees to observe and fully perform all of the duties and obligations of Assignor under the Development Agreement, and to be subject to the terms and conditions thereof, with respect to the Assigned Parcel(s), it being the express intention of both Assignor and Assignee that, upon execution of this Assignment and Assumption Agreement and conveyance of the Assigned Parcels to the Assignee, Assignee shall become substituted for Assignor as "Developer" and "Party" under the Development Agreement with respect to the Assigned Parcel(s) and the Assignor shall be unconditionally and irrevocably released therefrom from and after the date hereof. 5. Closing of Purchase Agreement. This Assignment and Assumption Agreement is expressly conditioned upon the closing of the transaction contemplated in the Purchase Agreement. 6. Term of Development Agreement Not Affected. The provisions of the Development Agreement shall remain in full force and effect and shall not be modified by this Assignment. 7. Entire A~?xeement; Modifications. This Assignment is the entire agreement between Assignor and Assignee concerning assignment of the Assigned Parcel(s). This Assignment may be amended, terminated or otherwise modified in any respect only by a writing duly executed on behalf of Assignor and Assignee, and approved by the City. 8. Attorneys' Fees. In the event of any controversy, claim, dispute, or litigation between the parties hereto to enforce or interpret any of the provisions of this Assignment or any right of either party hereto, the non-prevailing parry to such litigation agrees to pay to the prevailing party all costs and expenses, including, without limitation, reasonable attorneys' fees, incurred therein by the prevailing party, including, without limitation, fees incurred during a trial of any action and any fees incurred as a result of an appeal from a judgment entered in such litigation. To so recover, it shall not be necessary that the prevailing party prevail in each and every one of its claims. Rather, the amount of the award of attorneys' fees shall, in the court's discretion, reflect the degree to which the prevailing party or parties have prevailed in some of their claims. The City of San Leandro is not a party to this Assignment. 9. Consent of City. By the signature of the City Manager of the City below, the City approves the assignment, assumption and release set forth in this Assignment. Page 2 of 3 1427183.1 Kaiser Medical Center and Retail Project Form Assignemnt and Assumption Ageement