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219\3064780.4 6 <br />San Jose, CA 95128 <br />10.Entire Agreement; Amendments. This Agreement together with Exhibits A <br />through B attached hereto and incorporated herein by reference, constitutes the entire agreement <br />of the Parties with respect to the subject matter hereof, and supersedes all prior written or oral <br />agreements, understandings, representations or statement with respect thereto. This Agreement <br />may be amended only by a written instrument executed by the Parties hereto. <br />11.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 the rights and obligations of the Parties have been <br />materially altered or abridged thereby. <br />12.Waiver. A waiver by either party of the performance of any covenant or <br />condition herein shall not invalidate this Agreement nor shall the delay or forbearance by either <br />party in exercising any remedy or right be considered a waiver of, or an estoppel against, the <br />later exercise of such remedy or right. <br />13.Captions; Interpretation. The section headings used herein are solely for <br />convenience and shall not be used to interpret this Agreement. The provisions of this Agreement <br />shall be construed as a whole according to their common meaning, and not strictly for or against <br />any party, in order to achieve the objectives and purposes of the Parties. <br />14.Attorney’s Fees. In any action at law or in equity, arbitration or other proceeding <br />arising in connection with this Agreement, the prevailing party shall recover reasonable <br />attorney’s fees and other costs, including but not limited to court costs and expert and <br />consultants’ fees incurred in connection with such action, in addition to any other relief awarded. <br />15.Counterparts. This Agreement may be executed in multiple counterparts, each of <br />which shall be an original and all of which together shall constitute one agreement. <br />16.Governing Law and Venue. This Agreement, and the rights and obligations of the <br />Parties, shall be governed by and interpreted in accordance with the laws of the State of <br />California without regard to principles of conflicts of law. Any action to enforce or interpret this <br />Agreement shall be filed in the Superior Court of Alameda County, California or in the Federal <br />District Court for the Northern District of California. <br />17.Right of First Offer. City hereby grants to Company a right of first offer to <br />negotiate to purchase the Permit Property on the terms set forth in this Section 17. If, during the <br />Term, City intends to offer the Permit Property for sale to a third party or if City receives an <br />offer from a third party to purchase the Permit Property on terms acceptable to City, City will <br />first offer Company the right to submit an offer to purchase the Permit Property by sending to <br />Company a written notice of such right. Company shall have a period of two (2) weeks <br />(“Negotiation Period”) commencing with its receipt of said written notice in which to negotiate <br />in good faith to purchase the Permit Property from City. If no agreement has been entered into <br />within the Negotiation Period, then City shall thereafter be free to sell the Permit Property to any