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WGURVAL <br />fNI=V • WATER <br />•oauMnanr wrvrn <br />recover all amounts due and payable by LCRA to San Marcos under Article 5(c); <br />and <br />(ii) In the case of any other Default by LCRA, including without limitation LCRA's <br />material failure to comply with its obligations under Article 12, San Marcos may <br />terminate this Agreement upon written notice to LCRA, and LCRA will pay San <br />Marcos for the fair market value of San Marcos' interest in the Facility <br />( "Participation Share FMV "), using the following procedures: <br />(A) If LCRA and San Marcos are unable to agree on the Participation Share <br />FMV within (15) days of the commencement of negotiations to determine <br />the value, LCRA and San Marcos each shall designate a qualified <br />appraiser within fifteen (15) days from the expiration of the <br />aforementioned fifteen (15) day period. A qualified appraiser shall be an <br />appraiser with at least five (5) years experience in the appraisal of <br />properties similar to the Facility. Each appraiser shall be directed to <br />determine the Participation Share FMV within thirty (30) days of his <br />appointment and to notify each Party of his determination. If the lower of <br />the two determinations is not less than ninety -five percent (95 %) of the <br />higher of the two determinations, then the Participation Share FMV shall <br />be the average of the two determinations. If the lower of the two <br />determinations is less than ninety -five percent (95 %) of the higher of the <br />two determinations, then the two appraisers shall, within fifteen (15) days <br />thereafter, appoint a third appraiser with similar qualifications (who shall <br />not have performed any work for either Party within the five (5) year <br />period prior to his appointment) and shall each furnish to such appraiser a <br />written report of his respective determination. Within thirty (30) days of <br />his appointment, the third appraiser shall select the Participation Share <br />FMV of one or the other of the appraisers appointed by the Parties and <br />shall notify each Party of his determination, which shall be binding upon <br />the Parties. The third appraiser must select one of the two appraisals and <br />shall not have the right to establish a different Participation Share FMV <br />determination. LCRA and San Marcos shall bear the cost of the appraiser <br />appointed by it, and they shall share equally the cost of the third appraiser. <br />(B) Within thirty (30) days of receiving the final determination of the <br />Participation Share FMV value as provided in subsection (A) above, <br />LCRA shall pay to San Marcos such sum, along with any unused reserve <br />payments as of the termination date due to San Marcos under Article 5(b), <br />by wire transfer of immediately available funds. After payment by LCRA <br />of the Participation Share FMV and such reserve amounts, San Marcos' <br />interest in the Facility will transfer to LCRA and LCRA will have no <br />further obligations or liability to San Marcos. <br />Except for the remedies contained in Articles 5(e)(iii) and 6(a), the remedies under this <br />subsection (b) are the sole and exclusive remedies of San Marcos for all claims resulting <br />from or arising out of this Agreement (whether a claim is based on contract, warranty, <br />Participation Agreement between <br />Lower Colorado River Authority Page 14 of 26 <br />and City of San Marcos <br />