|
ATTY/AGR/SETTLEMENTS/2023/SETTLEMENT AGREEMENT - 557 E. BAYSHORE ROAD
<br />REV: 05-17-23 JB
<br />#216638140_v1 10
<br />provisions of this Agreement shall control. This Agreement may only be amended or modified by
<br />a written instrument signed by all Parties. Oral modifications are unenforceable.
<br />(c) Severability. If any term, covenant or condition of this Agreement or its
<br />application to any parties or circumstances shall be held to be illegal, invalid or unenforceable, the
<br />remainder of this Agreement or the application of such term or provisions to other parties or
<br />circumstances shall not be affected, and each term hereof shall be legal, valid and enforceable to
<br />the fullest extent permitted by law. In the event of such partial invalidity, the Parties shall seek in
<br />good faith to agree on replacing any such legally invalid provisions with valid provisions which,
<br />in effect, will, from an economic and practical viewpoint, most nearly and fairly approach the
<br />effect of the invalid provision and the intent of the Parties in entering into this Agreement.
<br />Notwithstanding the foregoing or any other provision herein to the contrary, in the event that a
<br />lawsuit or action is brought by any person or entity, other than the Developer, and it is finally
<br />adjudged or otherwise finally determined by a court of competent jurisdiction (and any and all
<br />appeals thereof have been finally exhausted or resolved) that this Agreement is illegal, invalid or
<br />unenforceable due in whole or part to any legal defect in the procedure followed, or not followed,
<br />by City in approving this Agreement (“Defect Judgment”), City shall immediately reimburse to
<br />Developer the Compromise Amount or any portion thereof paid by Developer and Developer
<br />hereby reserves and shall retain and may pursue (and City shall not be discharged, released, or
<br />relieved from) all rights and remedies against City with respect to the PRA Request, the Protest,
<br />and the Dispute, as such rights and remedies existed and were available to Developer as of the
<br />Effective Date in the absence of this Agreement, including but not limited to the right to bring
<br />additional administrative and judicial challenges against City with respect to the Fees and
<br />Contributions (collectively, “Reserved Rights”). Without limiting the preceding sentence, and in
<br />order to effectuate its provisions, any applicable limitations period for bringing any suit or action
<br />to assert or enforce any Reserved Rights shall be tolled during the period between March 9, 2023
<br />(the date of submittal to the City of the Protest) and the date of the Defect Judgment.
<br />(d) No Waiver. No consent or waiver by either Party to or of any breach or
<br />non-performance of any representation, condition, covenant or warranty shall be enforceable
<br />unless in a writing signed by the Party entitled to enforce performance, and such signed consent
<br />or waiver shall not be construed as a consent to or waiver of any other breach or non-performance
<br />of the same or any other representation, condition, covenant, or warranty.
<br />(e) Attorneys’ Fees and Costs. Each Party shall bear its own attorneys’ fees
<br />(including any in-house fees) and costs incurred in connection with the PRA Request (preparation
<br />and responses thereto), the Protest, the Dispute, and the negotiation, preparation, processing,
<br />approval, and execution of this Agreement (collectively, “Dispute Costs”). Without limiting the
<br />preceding sentence, and notwithstanding any provision to the contrary in that certain
<br />Reimbursement Agreement between City and Developer for Processing a Development
<br />Application, dated March 7, 2016, or in any other agreement or instrument by or between the
<br />Parties (each, a “Reimbursement Agreement”), City shall not charge Developer, and Developer
<br />shall not be obligated to reimburse or pay to City, any Dispute Costs incurred after December 13,
<br />2022 by City and City shall promptly reimburse to Developer any Dispute Costs that may at any
<br />time have been paid by Developer to City. City hereby acknowledges that Developer has, prior to
<br />the Effective Date, paid in full to City any and all amounts owed by Developer to City under any
<br />Reimbursement Agreement for the period up to and including December 13, 2022. The prevailing
|