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Section 8. Failure to Close Tax-Exempt Bond Financing and Alternative Affordable Units. In the event that, solely as a result of the acts or omissions of Developer, the Developer fails to close on the financing of low-income housing tax-exempt bonds of approximately $40,000,000 before the expiration of the allocation of such bonds. Developer and City shall execute and record on the Property prior to issuance of a final certificate of occupancy for the Project an Affordable Housing Agreement in generally the form as showr in Attachment 3 that provides for alternative unit mix and number of affordable units as detailed below: Summary of Alternative Affordable Unit Mix Unit Type 50% AMI 80% AMI 100% AMI TOTAL I-Bedroom Units 5 3 5 I3 2-Bedroom Units 0 3 6 9 3-Bedroom Units 0 2 2 4 Total Units 5 8 13 26 Section 9. Severability. In case any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been contained herein. Section 10. Time. Time is hereby expressly declared to be of the essence of this Agreement and of each and every term,covenant,agreement,condition and provi;ion hereof. Section 11. Headings. Article, section and subsection headings in this Agreement are for convenience only and are not to be construed as a part of this Agreement or in any way limiting or amplifying the provisions hereof. Section 12. Agreement Construed as a Whole. The language in ..Il parts of this Agreement shall in all cases be construed as a whole according to its fair meaning and not strictly for or against any party hereto. The parties acknowledge that each party and its counsel have reviewed this Agreement and participated in its drafting and therefore that the rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed nor applied in the interpretation of this Agreement. Section 13. Meaning of Terms. Whenever the context so requires, the neuter gender shall include the masculine and the feminine, and the singular shall include the Aural, and vice versa. Section 14. California Law. The laws of the State of California, ether than those laws denominated choice of law rules which would require the application of the laws of another forum,shall govern the validity,construction and effect of this Agreement. 5