to exceed sixty (60) days after commencement of the cure). If Developer is not able to
cure the material default during the applicable cure period, then City will be entitled to
terminate this Agreement and receive all of Developer's non-confidential work product
regarding the Project, including the Project Design Drawings, and Development Plan
(collectively, the "Liquidated Damages"). The Parties hereby agree that the Liquidated
Damages are intended to be and will be the full liquidated damages for the Developer’s
failure to perform its duties, liabilities and obligations under this Agreement. The parties
agree that City's damages would be very difficult to ascertain and the Liquidated
Damages provided in this Section 3.1 constitutes a reasonable estimate of City's damages
and is not intended as a penalty but as fully liquidated damages.
If Developer defaults on the performance of its obligations to City after the Closing Date,
then Developer will have thirty (30) days after the delivery of written notice by City of
the default to cure the default; however, if the default requires more than thirty (30) days
to cure, Developer shall have an additional thirty (30) days to cure the default, provided
Developer commences the cure within the initial thirty (30) day cure period and
thereafter diligently prosecutes the cure to completion. If Developer is not able to cure
the default during the applicable cure period, then City may, at its sole discretion, (i)
terminate this Agreement and receive the Liquidated Damages; (ii) pursue an action
under the Payment and Performance Bonds as set forth in Section 4.4 below; or (iii)
pursue the right to specific performance against Developer that would require Developer
to fully perform all of its obligations under this Agreement on a timely basis.
3.2 Notice to Financiers and Ability to Cure. Notwithstanding anything in this
Agreement to the contrary, City shall copy Developer's lender or equity partner in writing
(at any address provided for that purpose by Developer or its lender or equity partner) on
any default notice that City sends to Developer, and Developer's lender or equity partner
shall have the same rights to cure Developer's default as Developer has under this
Agreement.
3.3 Defaults by City and Remedies of Developer. If City defaults materially
on the performance of its obligations to Developer under this Agreement, then City will
have thirty (30) days after the delivery of written notice by Developer of the default to
cure the default; however, if the default requires more than thirty (30) days to cure, City
shall have such additional time as may be reasonably required to cure the default,
provided City commences the cure within the initial thirty (30) day cure period and then
diligently prosecutes the cure to completion. If City is not able to cure the default during
the applicable cure period, then Developer will be entitled to pursue any remedy available
at law or equity, including the termination of this Agreement and claims for damages
resulting from the breach and termination(s).
3.4 Other Defaults. A Party will be in default of its obligations under this
Agreement in the event that it is adjudicated bankrupt or insolvent, makes an assignment
for the benefit of creditors or enters into a composition for creditors, or will file a
voluntary bankruptcy petition or an answer admitting the material allegations of an
involuntary bankruptcy petition; or if an order is entered appointing a receiver or trustee
