City Council Agenda and Packet 2007 05 23 SP

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- !Ji~@!%@U of any right of access over lands presently owned by Decker Stahr Properties NQ. Three, LLC. On the contrary, Grantee understands that in order to gain access to Grantee's Prope11y over the Mayhofi~r Properly Access Area as contemplated herein, Grantee needs to also have or obtain a right of access over the property presently owned by Decker-Stahr Properties No. Three, LL.C. 8. Construction. The language in all parts of this Agreement shall in all cases be construed according to its rair meaning and not strictly for or against either Patty. The title of and heudings contained within this Agf(~el11ent are for convenience and reference only. and shall 1101 be lIsed ill 1111: interpretation of this Agreement or any provision hereof. \Vhenever used in this Agreement. unless the context clearly requires otherwise, the singular number shall include the plural and the plural shall include tbe singular, and the use of any gender shall be applicable to the leminine. masculine and neuter genders. 9. No Waiver. No custom or course of practice which may develop between the parties in connection with this Agreement shall be construed 10 \vaive or lessen the right of Grantor to insist upon the perfbrmance by the Grantee and its agents and employees in strict accordance with the terms of this Agreement. Grantor shall not be deemed to have waived any provision hereof unless stich waiver is in writing and signed by Grantor. No waiver by Grantor of any particular breach, default or nonperformance shall be deemed a v.'aiver of any other breach. default or nonperfomml1ce, or of the same or any similar breach. default or nonperformance in the future. 10. Binding Effect. This Agreement shall bind fllld inure to the benefit of the Parties and. subject to the provisions hereof: their respective successors and assigns. 11. Atlornevs' Fees. In the: event of any litigation arising out of or relating to this Agreement. the prevailing Party shall be awarded its expenses, including but not limited to reasonable allorneys' fees. from the non-prevailing Party. 12. CounteI1Jart Siunaturcs. This Agreement may be signed 111 one or more counterparts. each or v,,'hich shall be deemed an ot'iginal and all of which taken together shall l:onstitutc one and the same instrument. notwithstanding that all Parties are not signatories to the same counterpart. IN WITNESS WHEREOF, this Agreement has been executed on the day and year first set forth above. [signatures contained on following pagel ... -~-