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Section 4.09. Subject to Funding. The Grant Payments made and any other financial <br />obligation of the City hereunder shall be paid solely from lawfully available funds that have been <br />budgeted and appropriated each applicable fiscal year during the Tenn by the City as provided in <br />this Agreement. Under no circumstances shall the City's obligations hereunder be deemed to <br />create any debt within the meaning of any constitutional or statutory provision. Consequently, <br />notwithstanding any other provision of this Agreement, the City shall have no obligation or <br />liability to pay any Grant Payments or other payments unless the City budgets and appropriates <br />funds to make such payments during the City's fiscal year in which such Grant Payment(s) or <br />other payments are payable under this Agreement. If the City fails to appropriate funds for a <br />Grant Payment, the Owner may, at its option, terminate this Agreement effective upon written <br />notice to the City, subject to any unpaid Grant Payment properly due to the Owner for which a <br />lawful appropriation of funds has occurred. The Owner shall have no recourse against the <br />City for the City's failure to budget and appropriate funds during any fiscal year to meet <br />the purposes and satisfy its obligations under this Agreement, but the City shall be <br />obligated to make any Grant Payment that is included in a budget approved by the City <br />Council of the City. <br />ARTICLE 5. DEFAULT, TERMINATION AND REMEDIES <br />Section 5.01. Default; Termination or Suspension of Payments. Except as otherwise <br />provided herein, at any time during the Term of this Agreement that the Owner is not in <br />compliance with its obligations under this Agreement, the City may send written notice of such <br />non - compliance to the Owner. If such non - compliance is not cured within 90 days after the <br />Owner's receipt of such notice or, if non - compliance is not reasonably susceptible to cure within <br />90 days and a cure is not begun within such 90 -day period and, thereafter, continuously and <br />diligently pursued to completion on a schedule approved by the City (in either event, a "Cure "), <br />then the City may, at its sole discretion and option, terminate this Agreement or withhold Grant <br />Payments otherwise due for the calendar year or years in which the non - compliance occurred and <br />continues. <br />Section 5.02. Non- Termination Election by City. If the City elects to withhold Grant <br />Payments under Section 5.01 rather than to terminate the Agreement, then, upon a Cure by the <br />Owner, the Owner will be eligible to receive Grant Payments in future years (provided it is <br />otherwise in compliance and subject to other limitations of this Agreement) for the remainder of <br />the Term. However, a Grant Payment withheld by the City shall be deemed forfeited by the <br />Owner and the City shall not be liable for retroactive payment of such forfeited Grant Payment. <br />For example, if the Owner is in default and has not effected a Cure in the year 2020, the Owner <br />will not receive a Grant Payment in 2021. The Owner will, however, be eligible to receive a <br />Grant Payment in 2022 if the default is Cured in 2021. Except as to circumstances arising from <br />an event of force majeure, the Term shall not be extended as a result of any Cure period agreed <br />to by the City under this Section. <br />Section 5.03. Termination for Misrepresentation. Notwithstanding any provision for <br />notice of non - compliance and any opportunity to cure, the City may terminate this Agreement <br />immediately by providing written notice to the Owner if the Owner, its officers or signatories to <br />this Agreement misrepresented or misrepresent any material fact or information: (i) upon which <br />