|
7
<br />
<br />rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by
<br />the terms of this Section 6.1, which shall survive such invalidation, nullification, or setting aside.
<br />SECTION 7. DEFAULT.
<br />7.1 Default. Any failure by either Party to perform any term or provision of this
<br />Agreement, which failure continues uncured for a period of thirty (30) days following written
<br />notice of such failure from the other Party, shall constitute a default under this Agreement. Any
<br />notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and,
<br />where appropriate, the manner in which said failure satisfactorily may be cured. Upon the
<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 Reimbursement Obligation. In the event that the Developer fails (a) to complete
<br />the Project by the Mandatory Project Completion Date, or (b) to expend the full amount of the
<br />Private Investment by the Mandatory Project Completion Date, then the Commission shall be
<br />entitled to recover from Developer, as liquidated damages, One Hundred Fifty Percent (150%) of
<br />the portion of the Funding Amount expended by the Commission in furtherance of the Local Public
<br />Improvements (“Liquidated Damages”). The Parties acknowledge and agree that the actual
<br />damages to the Commission, the City, and its citizens in the event of a default by Developer would
<br />be difficult or impossible to determine, and the Liquidated Damages set forth above represents the
<br />best estimate of the Parties as to the amount of such damages at the time of execution and delivery
<br />of this Agreement. If the Developer fails to perform and complete the work within the timeframe
<br />fixed for completion, the Liquidated Damages shall be considered not as a penalty, but as agreed
<br />upon monetary damages sustained by the Commission, the City, and citizens of South Bend for
<br />the Commission’s direct investment into the Project, the negative impact upon the Commission’s
<br />ability to develop other projects in South Bend, and expenses of City employees supporting the
<br />Project, including, redevelopment staff, engineering staff, legal department staff, and a
<br />construction manager on site. The remedies set forth in this Section 7.2 are cumulative and are in
<br />addition to, and not in lieu of, any other rights or remedies available to the Commission under the
<br />Purchase Agreement or this Agreement, or at law or in equity, except to the extent expressly
<br />limited herein.
<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.
|