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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 extent 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 as may be required
<br />for completion of the Project.
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<br /> K. Associated Agreements. In addition to the BA, the parties
<br />contemplate the negotiation, approval, execution and operation of those
<br />associated agreements identified in Schedule II.K attached hereto and made a
<br />part hereof ("the Associated Agreements").
<br />
<br />III. MISCELLANEOUS PROVISIONS
<br /> A. Governing Law. This MOU and the 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 by this MOU
<br />shall be consummated, all fees and expenses incurred by any party hereto in
<br />connection with entering into this MOU and the negotiations of the BA shall
<br />be borne by such party, unless otherwise agreed to pursuant to the BA.
<br />
<br /> C. Counterparts. This MOU may be executed in counterparts,
<br />which when so executed shall be deemed an original, and all of
<br />together, shall constitute one and the same instrument.
<br />
<br />each of
<br /> which,
<br />
<br /> D. Assignment. Developer shall not have the right, power or authority
<br />to assign this MOU or any portion of this MOU or to delegate any duties or
<br />obligations arising under this MOU, 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 have the ability to
<br />assign this MOU and the benefits under this MOU 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, County's and Tourism Authority's consent, which
<br />consent shall not be unreasonably withheld, conditioned or delayed.
<br />
<br /> E. Confidentially. The parties hereto agree that during the
<br />negotiation of the BA, 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 MOU and of the
<br />BA being negotiated to any unrelated party unless required by law.
<br />
<br /> F. Authority. The parties hereto have the full legal power and
<br />authority to enter into and perform this MOU in accordance with its terms,
<br />and this MOU 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 MOU.
<br />
<br />IV. EFFECT OF THIS MEMORA/qDUM OF UNDERSTANDING
<br />
<br /> Notwithstanding any other provisions of this MOU, the City, County,
<br />Tourism Authority and Developer expressly 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 matters 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 BA. Notwithstanding any provision of
<br />this MOU to the contrary, City, County, Tourism Authority and Developer
<br />acknowledge and agree that: 1. This MOU does not obligate the City, the
<br />County, Tourism Authority or Developer in any way to approve, in whole or in
<br />part, any of the matters described in this MOU; 2. All such matters shall be
<br />considered and processed by the City, the County, Tourism Authority and
<br />Developer as applicable, in accordance with 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 negotiate the BA in good
<br />faith using their best efforts.
<br />
<br /> B. This MOU shall be null and void and of no effect in the event
<br />this MOU is terminated in accordance with Section I.D. of this MOU.
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