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2890662.3 30 <br />12.8 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 />12.9 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 />12.10 Entire Agreement. This Agreement, including Exhibits A through G attached <br />hereto and incorporated herein by this reference, together with the Regulatory Agreement, the <br />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, representations <br />or statements between the Parties with respect to the subject matter hereof. <br />12.11 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 />counterpart of this Amendment may be delivered to the other Parties by facsimile and shall be <br />deemed as binding as if an originally signed counterpart was delivered. <br />12.12 Severability. 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 />12.13 No Third Party Beneficiaries. Nothing contained in this Agreement is intended to <br />or shall be deemed to confer upon any person, other than the Parties and their respective <br />successors and assigns, any rights or remedies hereunder. <br />12.14 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall <br />establish the Parties as partners, co-venturers, or principal and agent with one another. <br />12.15 Non-Liability of Officials, Employees and Agents. No officer, official, employee <br />or agent of City shall be personally liable to Developer or its successors in interest in the event of <br />any default or breach by City or for any amount which may become due to Developer or its <br />successors in interest pursuant to this Agreement. <br />12.16 Time of the Essence; Calculation of Time Periods. Time is of the essence for <br />each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in <br />computing any period of time described in this Agreement, the day of the act or event after <br />52