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560
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<br />employ outside consultants to evaluate engineering plans and to inspect
<br />construction. Developer agrees to negotiate with the County/Tourism Authority
<br />in good faith to establish the appropriate allocation of the costs, if any,
<br />of such consultants with details to be provided in *Associated Agreement ~
<br />
<br /> J. Easements and Right-of-Way. To the e~tent reasonably necessary and
<br />subject to applicable law, City may, in its discretion, exercise its power of
<br />eminent domain to acquire such rights-of-way and easements aa may he required
<br />for completion of ~he Project.
<br />
<br /> K. Associated A~reement s. In addition to the BA, the parties
<br />contemplate the negctiatio~, approval, execution and operation of ~hoee
<br />associated agreements identified in Schedule II.K attached hereto and made a
<br />par= hereof (#~he Associated Agreements").
<br />
<br /> III. MISCELLANEOUS PROVISIONS
<br /> A. Governinq Law. This M0U and =he legal relationship between the city,
<br /> County, Tourism Authority, and Developer pursuant to this MOU shall be
<br /> governed by and construed and enforced in accordance with the laws of the
<br /> State of North Carolina.
<br />
<br /> B. Expenses. Whether or not the transactions contemplated hy this M0U
<br />shall he consummated, all fees and e~enses incurred by any party hereto in
<br />connection with entering into this M0U and the negotiations of the EA shall
<br />he borne by such party, unl_ees otherwise agreed to pursuant to the SA.
<br />
<br /> O. Counterparts. This MOD may be executed in counterparts, each of
<br />which when so executed Bha11 be deemed an original, and all of which,
<br />together, shall constitute one and the same instrument.
<br />
<br /> D. Asei~ment. Developer shall not have the right, power or authority
<br />to assign this M0U or any portion of this M0U or to delegate any duties or
<br />obligations arising under this MOD, voluntarily, involuntarily, by operation
<br />of law or otherwise, without the City~s, County,s and Tourism Authority~s
<br />consent. Notwithstanding the foregoing, Developer shall hay9 the ability to
<br />assign this MOU and the benefits under this M0U to any Affiliate able to
<br />perform the MOU, or to any lender providing financing, for the development of
<br />the Project, with the City~s, Connty*s and Tourism Authorl~y's consent, which
<br />consent shall not be u~reasonably withheld, conditioned or delayed.
<br />
<br /> E. Confidentially. The parties hereto a~ree that during the
<br />negotiation of the SA, the parties shall endeavor in good faith and use their
<br />best efforts not to disclose (without the consent of the other parties
<br />hereto) any material aspect of the terms and conditions of the M0U and of the
<br />PA being negotiated to any unrelated party unless required by law.
<br />
<br /> P. Authority. The parties hereto have the full legal power and
<br />authority to enter into and perform =his MOU in accordance with its terms,
<br />and this M0U constitutes the valid and binding obligation of the parties,
<br />enforceable in accordance with its terms, with respect to Paragraph I.E. of
<br />the MOD.
<br />
<br />IV. ~FPECT OF THIS MEMOPJ~ND~ OF UNDERSTAlqDING
<br /> Notwithstanding any other provisions of this MOU, the City, County,
<br />Tourism Authority and Developer e~ressly acknowledge and agree as follows:
<br />
<br /> A. This is a memorandum of understanding only, and is not a
<br />definitive agreement relating to any of the maC,ers described herein, except
<br />for the obligations of the City, County, Tourism Authority and Developer to
<br />negotiate in good faith the terms of the ~A. Notwithstanding any provision of
<br />this MOU to the contrary, City, County, Tourism Authority and Developer
<br />acknowledge and agree tile=: 1. This MOD does not obligate the City, the
<br />County, ToUriSm Authority or Developer in any way =o approve, in whole or in
<br />part, any of the matters described in this MOU; ~. All such matters shall be
<br />considered and ~rocessed by the city, the County, Tourism Authority and
<br />Developer as applicable, in accordance wi~h all otherwise applicable
<br />requirements and procedures and 3. The City, County, Tourism Authority and
<br />Developer reserve all rights to approve, disapprove or approve with
<br />conditions all such matters in the reasonable discretion of each, subject to
<br />the City's, County's, Tourism Authority's and Developer's obligations as set
<br />forth in this MOU to consider such matters and to ne~otiate the BA in good
<br />faith using their beet efforts.
<br />
<br /> B. This MOU shall he null and void and of no effect in the event
<br />this M0U is term/hated i~ accordance with Section I.D. of =his MOU.
<br />
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