RecDoc 2022-044651 CONF - Laserfiche WebLink

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the City receives a fully executed assignment and assumption agreement from the approved assignee, assuming all of Owner's obligations hereunder. Notwithstanding the foregoing, IQHQ has the absolute right to assign its rights, duties, and obligations under this Agreement for all and any portion of the Property, without City consent, to (a) any entity in which an affiliate controlled by IQHQ is responsible for the development of the Property, or (b) any transfer granting a security interest in the Property to a lender to secure the funds necessary for construction and/or permanent financing of the Development. Similarly, Kopf shall have the right to assign its rights, duties, and obligations under this Agreement to an affiliate controlled by Kopf without City consent. As used in this Agreement, the term "affiliate" means an entity controlling, controlled by or under common control with the entity to which the term applies, whether by ownership, contract or voting control. As used in this Agreement, the term "control", "controlling" or "common control" shall mean ownership of at least 20% of the interest in the entity, and the power to direct the day-to-day affairs or management of the entity. The party assigning its rights and the entity to whom the rights are assigned must sign an assignment and assumption agreement and must provide the City with a signed copy of the assignment and assumption agreement. 6.6 Enforcement by the City. If the Owner fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the City has notified the Owner in writing of the default or, if the default cannot be cured within thirty (30) days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such cure, the City may bring an action at law or in equity to compel the Owner's performance of its obligations under this Agreement, and/or for damages. 6.7 Attorney's Fees and Costs. In any action brought to enforce this Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute. 6.8 Recording and Filing. The City and the Owner shall cause this Agreement, and all amendments and supplements to it, to be recorded against the Project in the Official Records of the County of San Mateo prior to any liens, deeds of trust or other instruments securing any monetary obligation of the Owner or recorded against the Project. This Agreement shall not be subordinated to any liens, deeds of trust or other instruments recorded against the Project and shall survive and remain effective as against any transferee acquiring the Project as a result of any foreclosure or deed in lieu of foreclosure. 6.9 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Venue shall be the County of San Mateo. 6.10 Amendments. This Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title, and duly recorded in the real property records of the County of San Mateo, California. 6.11 Notice. Formal notices, demands, and communications between the City and the Owner shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express REV: 04-07-2022 SK ATTY/AGR.2022.067/IQHQ Elco Yards, LP and Kopf & Kopf LLC (Page 12 of 19)