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DEVELOPER: Kottinger Gardens Phase 1 Associates, L.P. 303 Vintage Park Drive, Suite 250 Foster City,CA 94404 Attention: Matthew O. Franklin, President With a copy to: Gubb& Barshay, LLP 505 14th Street, Suite 1050 Oakland, CA 94612 Attention: Natalie Gubb, Esq. And with a copy to: MUFG Union Bank,N.A. 200 Pringle Avenue, Suite 355 Walnut Creek, CA 94596 12.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including,without limitation, court costs and reasonable attorneys' fees and disbursements. 12.5 Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties. 12.6 Binding on Successors. Subject to the restrictions on Transfers set forth in Article VIII,this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law. 12.7 Survival. All representations made by Developer hereunder and Developer's obligations pursuant to Sections 5.11, 5.14, 5.15, 6.3, 7.2, 11.1 and 12.1 shall survive the expiration or termination of this Agreement. 12.8 Headings; Interpretation; Statutory References. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement,this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. All references in the City Documents to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Pleasanton shall be OAK#4822-6539-6013 v3 38