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ARTICLE V DEVELOPER'S OPTION TO TERMINATE AGREEMENT Section 5.1. The Developer's Option to Terminate. This Agreement may be terminated by the Developer, if (a) (i) the Developer is in compliance with all material terms of this Agreement and no Event of Default has occurred; and (ii) the City fails to comply with any material term of this Agreement, and, after written notice by the Developer of such failure, the City has failed to cure such noncompliance within ninety (90) days of receipt of such notice, or, if such noncompliance cannot reasonably be cured by the City within ninety (90) days of receipt of such notice, the City has not provided assurances, reasonably satisfactory to the Developer, that such noncompliance will be cured as soon as reasonably possible, or (b) the Developer notifies the City in writing prior to the acquisition, or commencement of acquisition by service of a "quick- take" notice in condemnation proceedings, of any portion of the Development Property, that the Development Property is not suitable for its intended use or the anticipated cost of acquisition thereof is unacceptable to the Developer. Section 5.2. Action to Terminate. Termination of this Agreement pursuant to Section 5.1(a) must be accomplished by written notification by the Developer to the City within sixty (60) days after the date when such option to terminate may first be exercised. A failure by the Developer to terminate this Agreement within such period constitutes a waiver by the Developer of its rights to terminate this Agreement due to such occurrence or event. A failure by the Developer to give written notice within the time period referred to in Section 5.1(b) constitutes a waiver by the Developer of its right to terminate this Agreement pursuant to said Section 5.1(b). Section 5.3. Effect of Termination. If this Agreement is terminated pursuant to this Article V, this Agreement shall be from such date forward null and void and of no further effect; provided, however, the termination of this Agreement shall not affect the rights of either party to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by the other party, or to recover amounts which had accrued and become due and payable as of the date of such termination, including without limitation all City Costs payable by the Developer to the City. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, the City shall not be liable to the Developer for any damages arising out of the City's failure or inability to obtain title to the Development Property, and all other damages payable by the City are hereby expressly limited to the maximum amount of one thousand dollars. In the event the City is unable to obtain title to the Development 1058683.RED V5 to V4; 7/14/99 20 PAGE 37