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11.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this <br /> Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation <br /> of any provision hereof, then the prevailing Party in any proceeding in connection with such <br /> dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or <br /> establishing its rights hereunder, including, without limitation, court costs and reasonable <br /> attorneys' fees and disbursements. <br /> 11.5 Waivers: Modification. No waiver of any breach of any covenant or provision of <br /> this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no <br /> waiver shall be valid unless in writing and executed by the waiving Party. An extension of time <br /> for performance of any obligation or act shall not be deemed an extension of the time for <br /> performance of any other obligation or act, and no extension shall be valid unless in writing and <br /> executed by the Party granting the extension. This Agreement may be amended or modified only <br /> by a written instrument executed by the Parties. <br /> 11.6 Binding on Successors. Subject to the restrictions on Transfers set forth in <br /> Article VI. this Agreement shall bind and inure to the benefit of the Parties and their respective <br /> permitted successors and assigns. Any reference in this Agreement to a specifically named Party <br /> shall be deemed to apply to any permitted successor and assign of such Party who has acquired <br /> an interest in compliance with this Agreement or under law. <br /> 11.7 Survival. All representations made by Borrower hereunder and Borrower's <br /> obligations pursuant to Sections 3.13, 3.15. 3.16, 5.3, 8.2. 10.1, and 11.1 shall survive the <br /> expiration or termination of this Agreement. <br /> 11.8 Construction. The headings and captions used herein are solely for convenience <br /> and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement <br /> is the product of negotiation and compromise on the part of both Parties, and the Parties agree, <br /> that since both Parties have participated in the negotiation and drafting of this Agreement, this <br /> Agreement shall not be construed as if prepared by one of the Parties, but rather according to its <br /> fair meaning as a whole, as if both Parties had prepared it. <br /> 1 1.9 Action or Approval. Whenever action and /or approval by City is required under <br /> this Agreement, City Manager or his or her designee may act on and /or approve such matter <br /> unless specifically provided otherwise, or unless the City Manager determines in his or her <br /> discretion that such action or approval requires referral to the City Council for consideration. <br /> 11.10 Entire Agreement. This Agreement, including Exhibits A through F attached <br /> hereto and incorporated herein by this reference, together with the other City Documents contains <br /> the entire agreement between the Parties with respect to the subject matter hereof, and supersedes <br /> all prior written or oral agreements, understandings, representations or statements between the <br /> Parties with respect to the subject matter hereof. <br /> 1 1.1 1 Severabilitv. If any term, provision, or condition of this Agreement is held by a <br /> court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement <br /> . shall continue in full force and effect unless an essential purpose of this Agreement is defeated <br /> by such invalidity or unenforceability. <br /> 1755895.3 30 <br />