RecDoc 2013-166544 Conf - Laserfiche WebLink

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Council determines that a material Default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated thirty (30) days thereafter; provided, however, that if Developer files an action to challenge City's termination of this Agreement within such thirty day period, then this Agreement shall be suspended rather than terminated until a trial court has affirmed City's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). This Section 5.2.3 shall not be interpreted to constitute a waiver of section 65865.1 of the Government Code, but merely to provide the procedure by which the Parties may take the actions set forth in section 65865.1. 5.2.4 Procedure for Default by City. If the City is alleged by Developer to be in Default under this Agreement, then after notice and expiration of the cure period specified in Section 5.2.2 above, Developer may enforce the terms of this Agreement by an action at law or in equity, subject to the limitations of Section 5.2.1. 5.2.5 Annual Review Default Determination. Evidence of Default may also arise in the course of the regularly scheduled annual review of this Agreement pursuant to California Government Code section 65865.1 as described in Section 5.1 above. If any Party alleges that the other Party is in Default following the completion of the normally scheduled annual review, such Party may then give the other a written Notice of Breach, in which case the provisions of this Section 5.2 shall apply. 5.3 Dispute Resolution. As an alternative procedure, in an action by the City against Developer or in an action by Developer against the City hereunder, the Parties each in its own sole and absolute discretion may mutually agree that the action be heard by a referee pursuant to Code of Civil Procedure Section 638 et seq. If the Parties do so agree, they shall use their best efforts to agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before him. If Developer and City are unable to agree upon a referee within ten (10) days of a written request to do so by either Party, the Parties may mutually elect to have a referee appointed pursuant to section 640 of the Code of Civil Procedure. The cost of such proceeding (exclusive of the attorney's fees and costs of the Parties) shall be borne equally by the Parties. Any referee selected pursuant to this Section 5.3 shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the California Constitution. In the event that an alternative method of resolving disputes concerning the application, enfarcement or interpretation of a development agreement is provided by legislative or judicial action after the Effective Date, the Parties may, by mutual agreement, select such alternative method. Notwithstanding the foregoing, alternative dispute resolution, as described in this Section 5.3, is an optional remedy under this Agreement and where a Party asserting an action wishes to do so, that Party may enforce its right in accordance with Section 5.2.1 above without first engaging in alternative dispute resolution. Likewise, the Party against whom the action is asserted shall be under no obligation to have such action heard by a referee or to seek resolution of the action through any other alternative dispute resolution described above. 5.4 Termination of Agreement. This Agreement is terminable: (i) by mutual written consent of the Parties, (ii) unilaterally by any Party following an uncured Default by the other Party 30 ATTY/AGR/2013.134/STANFORD DEVELOPMENT AGREEMENT REV: 08-14-13 PT