Resolution 5871 - Laserfiche WebLink

The City, or the holder of the Reverter Right at the time of its exercise, shall pay to OM in cash an amount equal to: (1) the fair market value of the Designated Option to Repurchase Property, as determined by an MAI Appraiser selected by the City in accordance with professional appraisal standards, specifically including the Code of Professional Ethics of the Appraisal Institute and the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, excluding any value attributable to any City Work and any property or interests dedicated or conveyed, or required to be dedicated or conveyed, to the City, including, without limitation, the Main Road; less (2) any amounts paid by the City, or any assignee of the Option to Repurchase, to remove any liens or other encumbrances placed on the City Property by or as a result of the actions or omissions of OM; less (3) any income withdrawn or made by OM from the portion of the City Property subject to the Reverter Right or the improvements thereon; and less (4) any costs incurred by the City in enforcing the Reverter Right and causing the reconveyance of the City Property by OM to the City. The Deed shall contain appropriate reference and provision to give effect to the Reverter Right.. 17.2 Liquidated Damages for Failure to Satisfy LEED The City shall have the right to receive, and OM shall pay to the City, One Million Dollars ($1,000,000) as liquidated damages if (i) OM fails, by the Final Completion Date, to obtain the Leadership in Energy and Environmental Design for Neighborhood Development Certification from the U.S. Green Building Council at a Rating of at least Silver based on the Current LEED Rating System or (ii), if the LEED-ND requirements for a Silver certification as finally adopted are amended so as to be materially more burdensome than the Current LEED Rating System a "Material LEED Rating Change"), OM fails to use its best efforts to either (A) obtain at least a Silver rating under the amended LEED-ND requirements (the "Amended LEED Rating System") or (B) to comply with the Current LEED Rating System criteria. For purposes of clause (ii) in the preceding sentence, "best efforts": shall mean and obligate OM to include all of the elements and features that OM would have included in the Development to obtain a Silver rating under the Current LEED Rating System had a Material LEED Rating Change not occurred and either prosecute a request to the U.S. Green Building Council for a written confirmation (a "LEED Council Confirmation") that the Development would have received at least a Silver rating had the Current LEED Rating System criteria been adopted or file and prosecute an application for a rating of Silver under the Amended LEED Rating Change. Notwithstanding the foregoing, the liquidated damages described herein shall not be owed if OM fails to obtain the required LEED certification because the City has failed to incorporate the applicable elements of the Current LEED Rating System in the City Work or, if there is a Material LEED Rating Change, and OM is unable, despite the use of all best efforts to obtain a rating of at least Silver under the Amended LEED Rating System or a LEED Council -41- 06107-0063 LEGAL13023969 1