03-2024 - Authorize Development Agreement with LDC Warren LTD, LLC

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DocuSign Envelope ID: 92860B03-367C-49AA-BA95-OFDE6BFCF177 permanent injunction, specific performance, and other equitable relief that may be granted in any proceeding brought to enforce any provision hereof, without the necessity of proof of actual damage or inadequacy of any legal remedy. H. Interest. Except as otherwise expressly provided herein, amounts that are due and payable under this Agreement will bear interest if not paid when due, until paid, (a) at the prime rate published in the "Money Rates" section of the wall Street Journal from time to time for the first 30 days after due and (b) at the higher of the rate provided for in clause (a) or S% per annum beyond the first 30 days after due. I. Costs of Enforcement. If an action is brought by either party for the enforcement of any provision of this Agreement,, the non -prevailing party, to the extent that such non - prevailing party is found to be in default or breach of this Agreement or another Project Agreement, will pay to the prevailing party all costs and other expenses that become payable as a result thereof, including without limitation, reasonable attorneys' fees and expenses. J. Lender Priority and Cure Rights. The City acknowledges and agrees that the Project may be financed, initially pursuant to a construction loan, and thereafter potentially with term financing. In the event the Developer furnishes the City, in writing, the identity and contact information for the Developer's lender, then the City agrees to fully subordinate its rights and remedies under this Agreement to the rights and remedies of such lender, including, without limitation, executing such subordination agreement(s), inter - creditor agreement(s), and/or similar documents requested by such lender, and will provide copies of any Default Notice to the Developer's lender concurrently with providing such Default Notice to the Developer. The City further agrees that the Developer's lender shall have the right to cause such Developer Default to be cured, with or without formally foreclosing on the Developer's right, title and interest in the Development Site or taking an assignment of this Agreement; provided, however if such lender does exercise rights under its loan documents to forelose or otherwise assume ownership of the Project and/or designate a new owner or contractor, then the same will be Permitted Assignment without the need for consent from the City. The Lender or its nominee (i) shall be considered an Assignee under this section, (ii) shall enter into an assignment and assumption agreement reasonably satisfactory to the City assigning Developer's rights and assuming Developer' obligations under this Agreement, and (iii) shall be bound by the terms and the conditions of this Agreement. If the Developer's Default is of a nature that cure cannot be reasonably effectuated by the lender without taking possession, control or ownership of the Project Site and the lender notifies the City of its intention to exercise its rights to do so, then the City agrees that it will not seek to terminate this Agreement while the lender is proceding in its efforts to enforce its rights under the applicable loan documents. For the avoidance of doubt, the foregoing will not limit the City's right to pursue any claims against the Developer (or its successor pursuant to a Permitted Assignment) for a Developer Default. 15