2017/12/20 Council Agenda Packet

t 17.15 Attorneys' Fees. In the event any proceeding is instituted to interpret or enforce any provision or resolve any dispute under this Covenant, including, without limitation,any action in which a declaration of rights is sought or an action for rescission, the prevailing party shall be entitled to recover from the losing party its reasonable attorneys,' paralegals, accountants,' and other experts' fees and all other fees, costs, and expenses, as determined by the judge or arbitrator at trial or arbitration, as the case may be, or on any appeal or review, in addition to all other amounts provided by law. This provision shall cover costs and attorneys' fees related to or with respect to proceedings in federal bankruptcy courts, including those related to issues unique to bankruptcy law. 17.16 Nonwaiver of Government Rights. The parties understand that the City, by making and entering into this Covenant,is not obligating the City to give governmental approvals,to take particular action,or to be fmancially responsible for any obligations of Developer, except as otherwise expressly set forth in this Covenant. 17.17 Captions; Exhibits. The headings and captions of this Covenant and the Table of Contents preceding the body of this Covenant are for convenience of reference only and shall be disregarded in constructing or interpreting any part of the Covenant. • All exhibits and appendices annexed hereto at the time of execution of this Covenant or in the future as contemplated herein,are hereby incorporated by reference as though fully set forth herein. 17.18 Force Majeure. In addition to specific provisions of this Covenant, Developer shall not be deemed to be in default with regard to commencement of construction by the Project Commencement Date or substantial completion of construction by the Project Completion Date where delays to performance due to war, acts of terrorism, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes,lack of transportation,governmental restrictions or priority, litigation (including suits filed by third parties concerning or arising out of this Covenant), unforeseen and extreme weather or soils conditions which necessitate delays, inability to secure necessary labor,materials or tools,acts of the other party to this Covenant,acts or failure to act of any public or governmental entity or any other causes beyond the control and without the fault of the party claiming an extension of time to perform;provided that the lack of funds or financing of Developer is not a cause beyond the control or without the fault of Developer("Force Majeure"). For any Force Majeure delay that will cause substantial completion of the Project to be delayed more than fifteen(15)days,Developer will keep City informed about the cause and nature of such delay and the progress in achieving such substantial completion. Times of performance under this Covenant may also be extended in writing by Mayor of the City and Developer. Notwithstanding the foregoing in this Section 16.18,Developer will be deemed in default if the Force Majeure 24 54