Agenda - City of Santa Monica

11.3.2 Specific Performance. The City and Developer acknowledge that
monetary damages and remedies at law generally are inadequate and that specific
performance is an appropriate remedy for the enforcement of this Agreement. Therefore,
unless otherwise expressly provided herein, the remedy of specific performance shall be
available to the non-defaulting party if the other Party causes an Event of Non-Monetary
Default to occur.
11.3.3 Writ of Mandate. The City and Developer hereby stipulate that
Developer shall be entitled to obtain relief in the form of a writ of mandate in accordance
with Code of Civil Procedure Section 1085 or Section 1094.5, as appropriate, to remedy
any Event of Non-Monetary Default by the City of its obligations and duties under this
Agreement. Nothing in this Section 11.3.3, however, is intended to alter the evidentiary
standard or the standard of review applicable to any action of, or approval by, the City
pursuant to this Agreement or with respect to the Project.
11.3.4 No Damages Relief Against City. It is acknowledged by
Developer that the City would not have entered into this Agreement if the City were to be
liable in damages under or with respect to this Agreement or the application thereof.
Consequently, and except for the payment of attorneys’ fees and court costs, the City
shall not be liable in damages to Developer and Developer covenants on behalf of itself
and its successors in interest not to sue for or claim any damages:
(a)
for any default under this Agreement;
(b) for the regulatory taking, impairment or restriction of any
right or interest conveyed or provided hereunder or pursuant hereto; or
(c) arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
The City and Developer agree that the provisions of this Section
11.3.4 do not apply for damages which:
(a)
do not arise under this Agreement;
(b) are not with respect to any right or interest conveyed or
provided under this Agreement or pursuant to this Agreement; or
(c) do not arise out of or which are not connected to any
dispute, controversy, or issue regarding the application, interpretation, or effect of the
provisions of this Agreement or the application of any City rules, regulations, or official
policies.
11.3.5 Enforcement by the City. The City, at its discretion, shall be
entitled to apply the remedies set forth in Chapters 1.09 and 1.10 of the SMMC as the
same may be amended from time to time and shall follow the notice procedures of
37
F:\RECORDSANDELECTIONSHARE\MEETINGS\WWW\2013\20130514\WORD DOCUMENTS\2013051407-A-2.DOC