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<br />by the Mandatory Project Completion Date, (b) to expend the full amount of the Private Investment by the
<br />Mandatory Project Completion Date, or (c) to comply with the affordability requirements set forth in the
<br />Project Plan for the full timeframe required, then the Commission shall be entitled to recover from
<br />Developer, as liquidated damages, One Hundred Fifty Percent (150%) of the portion of the Funding Amount
<br />expended by the Commission in furtherance of the Local Public Improvements (“Liquidated Damages”).
<br />The Parties acknowledge and agree that the actual damages to the Commission, the City, and its citizens in
<br />the event of a default by Developer would be difficult or impossible to determine, and the Liquidated
<br />Damages set forth above represents the best estimate of the Parties as to the amount of such damages at the
<br />time of execution and delivery of this Agreement. If the Developer fails to perform and complete the work
<br />within the timeframe fixed for completion, 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 South Bend
<br />for the Commission’s direct investment into the Project, the negative impact upon the Commission’s ability
<br />to develop other projects in South Bend, and expenses of City employees supporting the Project, including,
<br />redevelopment staff, engineering staff, legal department staff, 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
<br />such time, and only until such time, that the Commission, the Board of Works, and/or the
<br />Developer expressly accepts the same; and
<br />(c) The Parties hereby renounce the existence of any form of agency
<br />relationship, joint venture or partnership between the Commission, the Board of Works,
<br />and the Developer and agree that nothing contained herein or in any document executed in
<br />connection herewith shall be construed as creating any such relationship between the
<br />Commission, the Board of Works, and the Developer.
<br />8.2 Conflict of Interest; Commission Representatives Not Individually Liable. No
<br />member, official, or employee of the Commission or the City may have any personal interest,
<br />direct or indirect, in this Agreement, nor shall any such member, official, or employee participate
<br />in any decision relating to this Agreement which affects his or her personal interests or the interests
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