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<br />occurrence of a default under this Agreement, the non-defaulting Party may (a) terminate this
<br />Agreement, or (b) institute legal proceedings at law or in equity (including any action to compel
<br />specific performance) seeking remedies for such default. If the default is cured within thirty (30)
<br />days after the notice described in this Section 7.1, then no default shall exist and the noticing Party
<br />shall take no further action.
<br />7.2 Option or Reimbursement Obligation. In the event that the Developer fails (a) to
<br />complete the Project by the Mandatory Project Completion Date, or (b) to expend the full amount
<br />of the Private Investment by the Mandatory Project Completion Date, then the Commission shall
<br />be entitled to exercise its Option to purchase the Developer Property. In the event the Commission
<br />elects not to exercise its Option to purchase the Developer Property, the Commission may instead
<br />recover, as liquidated damages, One Hundred Fifty Percent (150%) of the portion of the Funding
<br />Amount expended by the Commission in furtherance of its Local Public Improvements
<br />(“Liquidated Damages”). The Parties acknowledge and agree that the actual damages to the
<br />Commission, the City, and its citizens in the event of a default by Developer would be difficult or
<br />impossible to determine, and the Liquidated Damages set forth above represents the best estimate
<br />of the Parties as to the amount of such damages at the time of execution and delivery of this
<br />Agreement. If the Developer fails to perform and complete the work within the timeframe for
<br />completion, the Parties agree that the Liquidated Damages shall be considered not as a penalty,
<br />but as agreed upon monetary damages sustained by the Commission, the City, and citizens of
<br />South Bend for the Commission’s direct investment into the Project, the negative impact on the
<br />Commission’s ability to develop other projects in South Bend, and expenses of City employees
<br />supporting the Project, including redevelopment staff, engineering staff, legal department staff,
<br />and a construction manager on site.
<br />7.3 Force Majeure. Notwithstanding anything to the contrary contained in this
<br />Agreement, none of the Parties shall be deemed to be in default where delays in performance or
<br />failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor
<br />disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of terrorism,
<br />restrictions imposed or mandated by governmental entities, enactment of conflicting state or
<br />federal laws or regulations, new or supplemental environments regulations, contract defaults by
<br />third parties, or similar basis for excused performance which is not within the reasonable control
<br />of the Party to be excused (each, an event of “Force Majeure”). Upon the request of any of the
<br />Parties, a reasonable extension of any date or deadline set forth in this Agreement due to such
<br />cause will be granted in writing for a period necessitated by the event of Force Majeure, or longer
<br />as may be mutually agreed upon by all the Parties.
<br />SECTION 8. NO AGENCY, JOINT VENTURE, OR PARTNERSHIP; CONFLICT OF
<br />INTEREST; INDEMNITY.
<br />8.1 No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that:
<br />(a) The Project is a private development;
<br />(b) None of the Commission, the Board of Works, or the Developer has any
<br />interest or responsibilities for, or due to, third parties concerning any improvements until
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