|
b. The date that Union Station, its successors or assigns, remains in non-
<br />compliance with its obligation under the Development Agreement dated
<br />(the "Development Agreement "), beyond the Cure Period (as defined
<br />herein); provided, however, that for purposes of (ii) hereof, the following subparagraphs
<br />shall apply and control in determining whether Union Station, its successors or assigns is
<br />in non - compliance:
<br />i. For every One Dollar ($1.00) expended by Union Station, its
<br />successors or assigns, in accordance with Section 2 of the Development
<br />Agreement, Union Station, its successors or assigns, shall receive a "dollar for
<br />dollar" credit for each One Dollar ($1.00) expended by the City for environmental
<br />and related remediation costs to address contaminants and /or chemicals of
<br />concern existing on the Property as of the date this Agreement is executed. To the
<br />extent the City spends more in environmental and related remediation costs than
<br />Union Station spends in accordance with the provisions of the Development
<br />Agreement, the difference, if any, shall constitute liquidated damages. For
<br />example, and by way of illustration only, and subject to subparagraph 6(b)(ii)
<br />below, if the City spends $8,000,000 for environmental and related remediation
<br />costs, and Union Station spends $8,000,000 in accordance with the provisions of
<br />the Development Agreement, then Union Station will have met its obligations
<br />under this Agreement and the City's obligation under Paragraph 3 above shall not
<br />be subject to termination, except as provided by paragraph 6(a) herein. By way of
<br />a second example, and subject to subparagraph 6(b)(ii) below, if the City spends
<br />$8,000,000 for environmental and related remediation costs, and Union Station
<br />spends only $5,000,000 in accordance with the provisions of the Development
<br />Agreement, then the difference of $3,000,000 would constitute liquidated
<br />damages.
<br />ii. Upon notice by the City, Union Station, its successors or assigns,
<br />including, without limitation, any lender to any of them, shall have the right to
<br />either expend the remaining obligation of the original obligation in accordance
<br />with the Development Agreement, or, in the alternative, pay the liquidated
<br />damages to the City. In either event, once the committed obligation of
<br />$10,000,000 is spent for improvements in the Renaissance District, whether
<br />within or without the 10 year time period set forth in the Development
<br />Agreement, or the liquidated damages is paid, the Indemnity shall not be subject
<br />to termination, except as provided for by paragraph 6(a) herein.
<br />Notwithstanding anything to the contrary herein, the City's
<br />obligation under Paragraph 3 above shall not be abrogated or otherwise limited
<br />once the obligation of Union Station set forth in subparagraphs 6(b)(i) or
<br />6(b)(ii) hereof are met.
<br />4
<br />
|