Agmt22 City County Land Swap Leaseback Agrmt

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Developer promptly following the Expiration Date. Therefore, Tenant agrees to pay Landlord liquidated damages in the amount of FIVE MILLION FIVE HUNDRED THOUSAND DOLLARS ($5,500,000) if Tenant fails to vacate and surrender to Landlord the Premises by the Expiration Date as required by this Lease. 18.9.4 Execution of this Lease by Tenant constitutes Tenant's acknowledgement and agreement that Tenant understands, has ascertained and agrees that Landlord will sustain substantial damages if Tenant fails to surrender and vacate the Premises as required by this Lease by the Expiration Date. The parties agree that the liquidated damages amount in Section 18.9.3 above shall be presumed to be the damages sustained by Landlord, and that because of the nature of this Lease and the difficulty of projecting the actual cost of the Blomquist Street Segments, it would be impracticable or extremely difficult to fix the amount of actual damages. The liquidated damages shall be considered not as a penalty but as agreed monetary damage sustained by Landlord because Tenant failed to surrender and vacate the Premises as required by this Lease by the Expiration Date. LANDLORD AND TENANT ACKNOWLEDGE AND AGREE THAT THEY HAVE READ AND UNDERSTAND THE TERMS OF THIS SECTION 18.9 AND BY THEIR INITIALS AGREE TO BE BOUND BY ITS TERMS. ��_WO LANDLORD'S INITIALS TENANT'S INITIALS 18.9.5 Liquidated damages shall not be deemed to include within their scope additional damages arising from any other Tenant breach of this Lease, including without limitation failure to comply with any indemnification obligations, nor shall any liquidated damages apply to any breach of this Lease other than as set forth in Section 18.9.3 above. 18.9.6 If Tenant holds over beyond the Lease Expiration Date and therefore pays the liquidated damages amount specified above to Landlord, Landlord shall use the proceeds of such liquidated damages solely to pay the costs of constructing or causing construction of the Blomquist Street Segments at such time as Landlord determines in its sole discretion. Landlord shall keep copies of invoices and other appropriate records of all hard and soft costs incurred by Landlord in connection with the construction of the Blomquist Street Segments, and Landlord, promptly following Tenant's request, shall provide a copy of such invoices and cost records to Tenant. If, following completion of the Blomquist Street Segments, the total hard and soft costs incurred by Landlord are less than the sum of: (a) the liquidated damages amount paid by Tenant to Landlord as provided above, plus (b) the In -Lieu Payment made by Developer to City, then City shall pay the excess funds remaining, if any, to Tenant. 18.10 Covenants and Conditions. Each provision to be performed by Tenant hereunder shall be deemed to be both a covenant and a condition. This Lease shall be construed as though the covenants between Landlord and Tenant are independent and not dependent. Tenant expressly waives the benefit of any statute to the contrary and agrees that even if Landlord fails to perform its obligations under this Lease, Tenant shall not be entitled to make repairs or REV: 01-21-2022 SK 18 ATTY/AGR.2022.010.2/City- County Land Swap (Page 24 of 34)