Res 2013-019/LCRA Participation Agreement w/Thomas C. Ferguson

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ri2..A . -00MMUWYVWW tort, including negligence, or otherwise) and shall be to the exclusion of any other remedy that San Marcos may have under law, in equity or otherwise. (c) LCRA's Remedies: (i) In the case of a Default by San Marcos (A) LCRA may recover all amounts due and payable by San Marcos to LCRA under this Agreement; and (B) LCRA may (I) pay the deficient amount and recover such deficiency plus interest thereon; and (I1) set -off against any amounts owing under this Agreement any sums due to LCRA under this Agreement; (ii) If a Payment Default by San Marcos occurs with respect to Participation Expenses related to the development, design and construction (including any commissioning) of the Facility ( "Project Costs "), then (a) LCRA may revoke San Marcos's right to make any further payments in respect of all or part of the deficiency amount, and (b) the Participation Share of San Marcos shall be permanently and irrevocably reduced by an amount equal to PERRED (as calculated below), and the percentage equal to PERRED shall be allocated to LCRA. The amount of the percentage transferred shall be calculated as follows: PERRED = DEF/Project Costs where: PERRED = Percentage of San Marcos' Participation Share to be transferred from San Marcos to LCRA DEF = Deficiency amount (or portion thereof designated by LCRA) (iii) In the event of a Default by San Marcos, LCRA may terminate this Agreement. Upon such termination, San Marcos' interest in the Facility will transfer to LCRA and LCRA will have no further obligations or liability to San Marcos. Except for the remedies contained in Articles 5(e)(iii) and 6(a), the remedies under this subsection (c) are the sole and exclusive remedies of LCRA for all claims resulting from or arising out of this Agreement (whether a claim is based on contract, warranty, tort, including negligence, or otherwise) and shall be to the exclusion of any other remedy that LCRA may have under law, in equity or otherwise. (d) Interest on Overdue Obligations and Post - Judgment Interest. If any sum due hereunder is not paid by the due date thereof, the Defaulting Party shall pay the Non - Defaulting Party interest thereon at the Interest Rate concurrently with the payment of the amount, such interest to begin to accrue as provided in Article 5(e)(ii). Any payment of such interest pursuant to this Agreement without payment of the underlying sum due shall not excuse or cure any Default hereunder. All payments (including payments in respect of a deficiency amount) shall first be applied to the payment of accrued but unpaid interest. The amount of any judgment or arbitration award obtained by the Non - Defaulting Party against the Defaulting Party in any proceeding arising out of a Default shall bear interest thereafter until paid at such rate. Participation Agreement between Lower Colorado River Authority Page 15 of 26 and City of San Marcos