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INOFFICIAL COPY <br /> • <br /> Subdivider; nor shall the waiver of any default under this Agreement be deemed a waiver of any <br /> subsequent default or defaults of the same type. The Town's failure to exercise any right under this <br /> Agreement shall not constitute the approval of any wrongful act by the Subdivider or the acceptance <br /> of any Improvement. <br /> C. Amendment/Modification. This Agreement may be amended or modified only by <br /> a written amendment approved and executed by the Town and the Subdivider. <br /> D. Default. A default is defined herein as the Subdivider's breach of, or failure to <br /> comply with,the terms of this Agreement. The Town reserves to itself all remedies available at law <br /> or equity as necessary to cure any default. The Town also reserves to itself the right to draw on a <br /> letter of credit or other surety provided hereunder in addition to pursuing any other available <br /> remedies. Remedies shall include,but not be limited to,stopping all construction in the Subdivision <br /> and prohibiting the transfer or sale of lots by recording of notices with the Register of Deeds. The <br /> Town's remedies shall be cumulative, and the exercise of one shall not preclude the exercise of <br /> others. <br /> E. Entire Agreement. This Agreement, and written amendments, and any referenced <br /> attachments thereto, shall constitute the entire agreement between the Subdivider and the Town and <br /> supersedes any previous agreement,understanding,or acknowledgments,whether written or oral. <br /> F. Attorney Fees. If the Town is required to resort to litigation or arbitration to <br /> enforce the terms of this Agreement, and if the Town prevails in the litigation or arbitration, the <br /> Subdivider shall pay all Town costs, including reasonable attorney fees and expert witness fees. If <br /> the court or arbitrator awards relief to both parties, each will bear its own costs in their entirety. <br /> G. Time. For the purpose of computing the commencement and completion periods, <br /> and time periods for Town or Subdivider action, such times in which war, civil disasters, acts of <br /> God, or extreme weather conditions occur or exist shall not be included if such times prevent the <br /> Subdivider or Town from performing their/its obligations under the Agreement. <br /> H. Severability. If any part, term or provision of this Agreement is held by the courts <br /> to be illegal or otherwise unenforceable, such illegality or unenforceability shall not affect the <br /> validity of any other part, term or provision, and the rights of the parties will be construed as if the <br /> part,term or provision was never part of the Agreement. <br /> I. Benefits. The benefits of this Agreement to the Subdivider are personal and shall <br /> not be assigned without the express written approval of the Town. Such approval may not be <br /> unreasonably withheld,but any unapproved assignment is void. Notwithstanding the foregoing, the <br /> burdens of this Agreement are personal obligations of the Subdivider and also shall be binding on <br /> the heirs,successors and assigns of the Subdivider. <br /> J. Notice. Any notice required or permitted by this Agreement shall be deemed <br /> effective when personally delivered in writing or three (3) days after notice is deposited with the <br /> U.S. Postal Service, postage prepaid, certified mail and return receipt requested, and addressed as <br /> follows: <br /> 8 <br />