AgdaPkt 2015-07-27 Joint SA and PFA

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8.A. - Page 73 (x) The construction or installation of the Project does not commence by the time provided for such commencement in the Performance Schedule (Exhibit C) or is delayed or suspended for a period in excess of that permitted under Section 3.5; (xi) The Developer fails to cause any Prohibited Encumbrance to be released within sixty (60) days after notice of such encumbrance, or fails to commence the release of such Prohibited Encumbrance within the sixty (60) -day period and to diligently prosecute the same to completion. (b) Notice and Remedies. Upon the occurrence of any of the above - described events, the City shall first notify the Developer in writing of its purported breach or failure. Except for those Events of Default in which a cure period is specified, in the event the Developer does not then cure the default within thirty (30) days (or, if the default is not susceptible of cure within such thirty -day period, the Developer fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), then the City shall be entitled to any rights afforded it in law or in equity by taking any or all of the following remedies: (i) termination of this Agreement by written notice to the Developer; or (ii) seeking any other remedy available at law or in equity (including mandamus), provided, however, the City shall not be entitled to recover consequential damages or damages for lost profits. If City chooses to terminate this Agreement under paragraph (a) above, and Escrow has not closed on the conveyance of the Public Access Parcels and Sliver Parcel from City to Developer, the Escrow Agent shall return any amounts deposited by Developer in Escrow to Developer and the City shall return the remainder of any Evergreen Deposit (as defined in the Reimbursement Agreement) provided by Developer to City under the Reimbursement Agreement after deducting therefrom any expenses incurred by the City prior to such termination (it being understood and agreed that in no event shall City be required to pay for any costs related to an actual default under this Agreement by Developer), and thereafter there the parties shall have no further obligations to or liabilities against each other. 7.5 Legal Actions. Following the Close of Escrow, either Party may institute legal action to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy available to that Party under this Agreement, at law or in equity regarding any Default. Any such legal action must be instituted in the Superior Court of the State of California in and for the County, in any other appropriate court within the County, or in the United States District Court with jurisdiction in the County. Notwithstanding the foregoing, in no event shall either party be liable for the consequential damages or lost profit of the other. 7.6 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties set forth in this Agreement are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 82483.00019\9644366. 13 ATTY /AGR /2015.146 /HAMILTON - WINSLOW DDA REV: 07 -22 -15 VR Page 32 of 102