2009/09/16 Council Agenda Packet

and make reasonable efforts to discuss the scope and extent of its opposition,prior to making ny.fain&in_gp. ation tQ_FERC or the court, 4.8 Responsibility for Implementation • The Licensee shall implement its obligations under this Settlement Agreement and the Project License. The Licensee shall not be excused from this obligation due to a failure by any other Party,entity or person to provide funding or carry out a duty,obligation,or responsibility it may have with respect to the Licensee's Project pursuant to other laws or agreements. Notwithstanding,the Licensee shall have no obligation to reimburse or otherwise pay any other Party for its assistance,participation,or cooperation in any activities pursuant to this Settlement Agreement or the Project License unless expressly agreed to by the Licensee or as required by law. In the event of administrative rehearing or judicial review,Parties shall bear their own costs and attorneys' fees,unless otherwise provided by applicable law. 4.9 Availability of Funds Implementation of this Settlement Agreement by any Party other than the Licensee is subject to the availability of funds. Nothing in this Settlement Agreement shall be interpreted as,or constitute a commitment or requirement that the Federal agencies obligate or pay funds in violation of the Anti-Deficiency Act, 31 U.S.C. §§ 1341 and other applicable law. Nothing in this Settlement Agreement is intended or shall be construed to commit a federal official to expend federal funds not appropriated by Congress. 4.10 Permits The Licensee shall apply for and use active and diligent efforts to obtain in a timely manner and in final form all applicable federal,state,regional,and local permits,licenses,authorizations,certifications,determinations,and other governmental approvals for purposes of implementing the Project License (Permits). Active and diligent efforts include,but are not limited to,seeking appropriate administrative review of permitting decisions and reapplying as necessary. Permit applications shall.be.consistent with this Settlement Agreement. The Licensee shall pay all fees required by law related to such Permits. The Licensee shall not be held in breach of this Settlement Agreement if it cannot legally implement an action because all applicable Permits required for that action have been applied for but are not yet obtained,or because a necessary. Permit has been denied or includes a Material Modification of the Settlement Agreement. If a proceeding challenging any Permit required for the action has been commenced,the Licensee shall.be under no obligation under this Settlement Agreement to implement the action or any related action until any such DRAFT—CONFIDENTIAL SETTLEMENT DOCUMENT- 16 54