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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 />12.6 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 waiving party. This Agreement may be amended or modified only by a written <br />instrument executed by the Parties. <br />12.7 Binding on Successors. Subject to the restrictions on Transfers set forth in <br />Article VII, 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 />12.8 Survival. All representations made by Developer hereunder and Developer’s <br />obligations pursuant to Sections 3.14, 3.17, 9.1, 9.2, 11.1 and 12.2, and the City’s and obligations <br />pursuant to Section 12.2, shall survive the expiration or termination of this Agreement and the <br />issuance and recordation of a Certificate of Completion. <br />12.9 Construction. The section headings and captions used herein are solely for <br />convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this <br />Agreement is the product of negotiation and compromise on the part of both Parties, and the <br />Parties agree, that since all of the Parties have participated in the negotiation and drafting of this <br />Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather <br />according to its fair meaning as a whole, as if all Parties had prepared it. <br />12.10 Action or Approval. Whenever action and/or approval by City is required under <br />this Agreement, the 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 />12.11 Entire Agreement. This Agreement, including Exhibits A through H attached <br />hereto and incorporated herein by this reference, together with the Regulatory Agreement, and <br />the City Documents contains the entire agreement between the Parties with respect to the subject <br />matter hereof, and supersedes all prior written or oral agreements, understandings, <br />representations or statements between the Parties with respect to the subject matter hereof. <br />12.12 Counterparts. This Agreement may be executed in one or more counterparts, each <br />of which shall be an original and all of which taken together shall constitute one instrument. The <br />signature page of any counterpart may be detached therefrom without impairing the legal effect <br />of the signature(s) thereon provided such signature page is attached to any other counterpart <br />identical thereto having additional signature pages executed by the other Parties. Any executed <br />144\259\1892880.4 <br />35