03-12-07 Item 8A, Preliminary Development Agreement for TCAAP

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(b) Upon the termination of this Agreement pursuant to Section 12(a) above: (i) If either party tenninates this Agreement, then (I) the City shall give prompt notice to its consultants and its staff, and to any other parties performing work or services the cost of which quality as City Reimbursable Costs, to promptly cease providing any further work or services on or related to the Development, unless City agrees to be responsible for such costs; and (2) notwithstanding the provisions of Section 5, City Reimbursable Costs will not include any such costs or expenses accrued from and after two (2) business days following the City's receipt of the Developer's written notice tenninating this Agreement or date of the City's written notice to Developer tenninating this Agreement. (ii) If the Developer terminates this Agreement, the Developer's remedies are limited to tenninating this Agreement, enforcing its rights under Section 10 hereof and under the Guaranty, recovering from the City the Developer Reimbursable Costs, collecting any earnest money as provided in Sections IO(c), (d), (e) and (f), and collecting all out-of-pocket costs accrued by the Developer, including reasonable attorneys fees, for collecting the payment to Developer of the earnest money which has been received by the City; provided that if Developer terminates the Agreement because of rescission of the OTP initiated by Developer under Section lO(b) hereof, Developer's rights to receive Developer Reimbursable Costs are qualified by the provisions of Section 5(f)(3) hereof (iii) If the City terminates this Agreement, then the City's sole remedies shall be to terminate this Agreement and to recover any unpaid City Reimbursable Costs, and all of the out-of-pocket costs accrued by the City in collecting the City Reimbursable Costs, including reasonable attorneys fees. The City shall remain obligated to pay the Developer the Developer Reimbursable Costs pursuant to Section 5, to terminate the OTP pursuant to Section 10, to recover the earnest money and pay the sarne to the Developer pursuant to Sections I O( c), (d), (e) and (f) and as otherwise provided in this Agreement. The Developer Reimbursable Costs and earnest money due Developer are subject to a right of offset for amounts due by the Developer to the City for unpaid City Reimbursable Costs. (c) Notwithstanding any other provision of this Agreement to the contrary, the tenns and conditions of Section 4(c)(iv), Section 5, and Sections lO(c), (d), (e) and (f) and Section 12(b) survive the expiration or earlier termination of this Agreement. Section 13. Severability. If any portion of this Agreement is held invalid by a court of competent jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement. 14