Res 2023-021R Approving a first amendment and reinstated agreement with Franklin Mountain San Marcos

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ARTICLE XVII DEFAULT AND REMEDIES FOR DEFAULT Section 17.01 Preventative Default Measures. City agrees that day to day oversight of the implementation of this Agreement shall at all times during its Term be assigned directly to a member of the City Administration. In the event of a dispute involving an interpretation or any other aspect of this Agreement, upon Owner's request, such City representative shall convene a meeting of the Parties as soon as reasonably practical and use all reasonable efforts to avoid processing delays and to resolve the dispute and carry out the spirit and purpose of this Agreement. Section 17.02 Default. It shall be a default under this Agreement, if one of the Parties shall fail to perform any of its obligations under this Agreement and such failure shall remain uncured following the expiration of thirty (30) days after written notice of such failure. However, in the event the default is of a nature that cannot be reasonably cured within such thirty (30) day period, the defaulting party shall notify the other party within ten (10) days of receipt of the notice of the circumstances and the amount of time needed to cure the default. If the defaulting party provides this notice, the defaulting party shall have a longer period of time as may be reasonably necessary to cure the default in question. Section 17.03 Default Unique to City. In addition, City shall be in default under this Agreement if Primary Owner submits a complete application for a proposed development permit, utility service extension, or other development approval with respect to Cotton Center that complies with the terms of this Agreement and the Applicable Requirements, and, after reasonably adequate time for review and processing, the City staff unreasonably withholds the approval or release of the proposed development permit, utility service extension, or development approval that City staff is authorized to approve administratively. The failure or refusal of the City Council or any board or commission of City to approve a proposed development permit, utility service extension, or other development approval with respect to Cotton Center that complies with the terms of this Agreement and the Applicable Requirements within a reasonable time after submission of a complete application shall constitute a default. The City shall also be in default if it imposes any requirements, standards, moratoria, or interim development controls upon Cotton Center that are in conflict with the express provisions of this Agreement. The City shall not, however, be in default based upon the imposition of requirements, standards, moratoria, interim development controls or temporary moratoria that are required by a State or federal law, rule, regulation or administrative directive outside of City's control and influence, or authorized by state law, or due to an emergency constituting a threat to the public health or safety, provided that any such requirement, standard, or moratorium due to an emergency will continue with respect to Cotton Center only during the duration of the emergency. Section 17.04 Remedies Between City and Primary Owner. Should any default between Primary Owner and City remain uncured after Notice to the non -defaulting party, then the non -defaulting party, whether Primary Owner or City, may pursue any remedy that is available at law or in equity at the time of the breach (with the exception of damages), including code enforcement, mandamus, injunctive relief, and/or specific performance, provided, however, City may not seek to rescind or otherwise terminate this Agreement. City may withhold further processing or acceptance of applications from Primary Owner that are related to the default by Primary Owner until the default is cured or otherwise resolved. Except as provided in Section 17.07 below, neither party may seek monetary damages against the other party. The remedies listed in this paragraph are cumulative. City hereby waives any sovereign immunity from suit for such default specific to this Agreement. Section 17.05 Remedies Between City and Third Parties. Should any default between a third party (that is, any individual or entity other than the Primary Owner) and City remain uncured after Notice to the other as