Howard Town Center Developer, LLC v. Howard University (278 F. Supp. 3d 333, 2017)

MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

BERYL A. HOWELL, Chief Judge

The plaintiff Howard Town Center Developer, LLC, (the “Developer”) instituted this lawsuit against the defendant, Howard University (the “University”), over four years ago, on July 15, 2013. The parties’ dispute, over which this Court possesses diversity jurisdiction, centers on a parcel of land (the “Property”) located in the Shaw neighborhood of Washington, D.C., that was leased by the University to the Developer in January 2010, based on the Developer’s contractual obligation to construct improvements at a cost of over $140,000,000. Instead, the Property has remained dormant for nearly eight years. Pending before the Court are the Developer’s claim that the University breached its contract with the Developer and the University’s claims that the Developer and the third-party defendant, CastleRock Partners, LLC, are in breach of contract. See Pl.’s Amended Complaint, ECF No. 72; Def.’s Counterclaim and Third-Party Complaint, ECF No. 15. During an eight-daylong bench trial, the Court heard evidence on the parties’ claims and counterclaims. For the reasons set forth below, the Court concludes that the University has sustained its burden of proof on its breach of contract claims, that judgment must be entered for the University, and that forfeiture is an appropriate remedy.

I. PROCEDURAL BACKGROUND

The parties’ allegations, as well as significant issues raised and either resolved or deferred in pre-trial motions, are summarized below.

A. THE PARTIES’CLAIMS

The Developer’s operative complaint in this action, PL’s Amended Complaint, asserts two counts, amounting to a single claim for relief. Count I claims breach of contract because the Developer “has performed its duties and responsibilities under the agreements,” while the University “has breached the terms of the Ground Lease and the Development Agreement by issuing an improper notice of termination and purporting to terminate the Ground Lease” and “has breached the terms of the Term Sheet by refusing to negotiate in good faith over the Second Amendments to the Ground Lease and Development Agreement.” PL’s Amended Complaint ¶¶ 88-91. In Count II, the Developer seeks declaratory relief, declaring that the Developer “was not and is not in default under the Ground Lease and the Development Agreement,” “that no Event of Default occurred,” “that [the University’s] purported termination ... of June 17, 2013, is null and void,” “that delays that result from the historic designation process constitutes an Unavoidable Delay under the Lease,” and “that the construction deadlines contemplated by the parties will be shifted by at least the amount.of time these proceedings are pending.” Id. ¶¶ 95-100. The Developer seeks relief in the form of specific performance of the Term Sheet and “damages, including the lost value of the Lease during the period during which [the University’s] actions interfered with [the Developer’s] rights,” or, alternatively, “damages for the period of the 99-year Ground Lease remaining at the time of breach”; declaratory relief; payment of “all of [the Developer’s] costs and expenses, including attorney’s fees”; and pre- and post-judgment interest. .Id. at 100.

The University’s operative counterclaim and third-party complaint in this action alleges one claim of breach of contract each against Howard Town Center Developer, LLC, and the third-party defendant, CastleRock Partners, LLC. As support, the University asserts that the Developer “breached the Ground Lease by failing to pay rent as and when due” and requests judgment in its favor “in the amount of $1,475,000, together with additional interest, attorneys’ fees and costs recoverable under the applicable contracts.” Def.’s Counterclaim and Third-Party Complaint ¶¶ 44, 47, 51, 54.

B. LITIGATION HISTORY

This case’s extensive litigation history includes two memorandum opinions by this Court, as well as a decision of the D.C. Circuit. Upon instituting this action on July 15, 2013, the Developer filed a motion for a temporary restraining order, which motion was denied. See Pl.’s Mot. Temp. Restraining Order, ECF No. 5; Order, dated July 16, 2013, ECF No. -7. The Developer also requested a preliminary injunction. See Pl.’s Mem. Supp. Mot. TRO and/or Prelim. Inj., ECF No. 6-1. With the consent of the University, the Developer requested an extended briefing schedule on its injunction motion, which request this Court granted. See Min. Order, dated July 30, 2013. The University then filed a counterclaim seeking $1,475,000 for the second rental payment, originally due under the lease agreement by March 15, 2011, and moved for summary judgment on October 15, 2013, which motion this Court granted on December 19, 2013, while denying the Developer’s motion for injunctive relief. See Order, ECF No. 38. Relevant here, the Court’s decision was based in part on (1) the parties’ representations that a Term Sheet executed by the parties was “immaterial,” an “agreement to agree and not enforceable,” Pl.’s & Third-Party Def.’s Mem. P. & A. Opp’n Def.’s Mot. Summ. J. at 7-8 & n.8, ECF No. 31; see Howard Town Ctr. Developer, LLC v. Howard Univ. (HTC I), 7 F.Supp.3d 64, 72-73 (D.D.C. 2013); (2) the conclusion that the parties had agreed that the overdue rental payment was to be made by May 30, 2013, or the parties’ relationship would terminate, see HTC I, 7 F.Supp.3d at 73-74; and (3) a determination that the University properly terminated the parties’ agreements and the Developer’s deposit of $1,475,000 on June 19, 2013, in an account held by its third-party agent, Closeline Settlements, did not cure its default, see id. at 80-83. The Court also concluded that in addition to the $1,475,000 payment due to the University, forfeiture of the Developer’s rights in the lease was an appropriate remedy. See id. at 83-87.

On appeal, the D.C. Circuit vacated the grant of summary judgment to the University, concluding “[t]here is a genuine dispute whether the Developer was required to- pay the University $1,475,000 by May 30, 2013, and, therefore, whether the University wás - entitled to terminate the Ground Lease and to. collect $1,475,000 in damages,” and remanded for the'Court to determine “whether the'Term Sheet is a legally enforceable contract under D.C. law and, if so, how the Term Sheet affects both the Developer’s claim ... and the University's counterclaim.” Howard Town Ctr. Developer, LLC v. Howard Univ. (HTC II), 788 F.3d 321, 329-30 (D.C. Cir. 2015). The Circuit declined to address three other .arguments raised by the Developer: (1) whether “it--was impossible to make the $1,475,000 rental payment in accordance with the terms of the Ground Lease because the parties had terminated the-escrow account designated to receive the payment”; (2) whether “the Developer cured- the alleged breach by depositing $1,475,000 into an escrow account on June 19, 2013”; and (3) whether “the district court erred by allowing the University to terminate the lease in addition to requiring the Developer to pay rent.” Id.

On remand, the parties filed cross-motions for summary judgment, which motions were denied. See Order, dated Jan. 81, 2017, EOF No. 93. Concluding the Term Sheet was a binding preliminary agreement, requiring the parties to fulfill the terms contained in'the Term Sheet and negotiate toward the amendments to the Ground Lease and Development Agreement in good faith, the motions nevertheless were denied because the parties’ good faith in negotiating presented questions of fact as to which there was a genuine dispute. See. Howard Town Ctr. Developer, LLC v. Howard Univ. (HTC III), No. 13-1075 (BAH), 267 F.Supp.3d 229, 241-13, 2017 WL 421909, at *8-9 (D.D.C. Jan. 31, 2017). The Developer’s argument that payment of the $1,475,000 was impossible was also addressed and rejected as a matter of law. See id. at 242-45, 2017 WL 421909 at *9-10. Finally, while dropping its contention that the deposit of funds with its own third-party agent cured any default, the Developer argued on-remand that the University’s notices to the defendant were insufficient, relying upon the D.C. Circuit’s observation that “the Ground Lease provides the University must send two notices to the Developer before it may terminate the lease.” HTC II, 788 F.3d at 328. Noting that “the Developer received multiple notices of default over the course of the parties’ business relationship,” the merits of the Developer’s arguments regarding notice were left to be resolved following trial. HTC III, 267 F.Supp.3d at 245, 2017 WL 421909, at *11.

C. BENCH TRIAL

Oyer the course of the eight-day bench trial, the Developer presented the testimony of eight witnesses: Ronald Cohen, Manager of Howard Town .Center Developer, LLC; Dr. Sidney Ribeau, Ph.D., former President of Howard University; Steven Callcott, Deputy Historic Preservation Office for the District of Columbia; Robert Tarola, former Chief Financial Officer of Howard University; Eric Siegel, Vice Manager of Howard Town Center Developer, LLC; Kurt Schmoke, former General Counsel and Vice President of Governmental Affairs for Howard University; Fabrice Vasques, Managing Director of Phillips Realty Capitál; and Dennis Duffy, Certified General Real Estate Appraiser, testifying as an expert on damages. The University also called eight witnesses, including five of the Developer’s witnesses: Ronald Cohen, Sidney Ribeau, Eric Siegel, Kurt Schmoke, and Fabrice Vasques. In addition, the University called Norman Jenkins, Trustee of Howard University; Bryan Dickson, Vice President at Citi Community Capital; and Alan Brangman, former Associate Vice President of Facilities and Real-Estate and University Architect- of Howard University. During the bench trial, the Court received the following 272 exhibits into evidence: Joint Exhibits 1-72; Plaintiffs Exhibits 6, 8, 10, 12-14,' 16, 21-22, 27, 33-35, 37, 40, 46-48, 50, 52-56, 58-59, 62, 64, 66, 68-69, 71-73, 75, 78, 80-81, 85-90, 93-94, 96-97, 101-06, 108-09, 111-12, 114, 117, 119, 121-26, 128, 134-35, 137-38, 143, 145-46, 148-51, 153-54,160-66,168,170,173,175,177,184,191, 197-98, 202-03, 209, 212, 215-18, 220, 223, 225, 228-30, 232, 234, 236, 256-59, 261, 276-77, and 296-97; and Defendant’s. Exhibits 1-2, 9-rll, 14-15,17-19, 21, 23, 25-26, 29, 31-32, 34, 36, 42, 44, 49-63, 67-68, 70-71, 74, 80, 87/ 93-95, 100, 104; 109-14, 1.16-18, 124-25, 129-33, 135-36, 1.40, 142-45,149-54, and 156. . .

• Following the bench trial, -both parties submitted proposed findings of fact and conclusions of law. See Pl.’s Prop, Findings Fact Concls. Law, ECF No. 108; Def.’s Prop.-Findings Fact Concls. Law, ECF No. 111. The parties’-respective claims became ripe for consideration on June 30, 2017. The parties’ post-trial submissions, along with the testimony and exhibits at trial, have been duly considered.

II. FINDINGS OF FACT

Based upon the testimony presented and exhibits admitted at the trial, the Court makes the findings of fact set forth below and' further states its conclusions of law. See Fed. R. Civ. P. 52(a)(1) (“In an action tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.”).

The findings of fact are based on the ample record in this case, which includes nearly three hundred exhibits and thousands of pages of trial testimony. “Fact-finding is the basic responsibility of district courts, rather than appellate courts ..., ” Pullman-Standard v. Swint, 456 U.S. 273, 291, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (quoting DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974)). “The ultimate test as to the adequacy of findings will always be whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence.” Schilling v. Schwitzer-Cummins Co., 142 F.2d 82, 84 (D.C. Cir. 1944) (footnotes omitted). The findings must be “sufficient to allow [the appellate] court to conduct a meaningful review, which is the main point of the rule.” Caffey v. West, 1998 WL 230269, *2, 1998 U.S. App. LEXIS 4689, *6-7 (D.C. Cir. Feb. 9,1998); see also Lyles v. United States, 759 F.2d 941, 943-45 (D.C. Cir. 1985) (noting that “an appellate court requires some reasonable measure of detail and exactness in the trial court’s findings as a predicate for intelligent review”(internal quotation marks omitted)); Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1058 (2d Cir. 1992) (“All that is required by Rule 52(a) is that the trial court provide findings that are adequate to allow a clear understanding of its ruling.”). Accordingly, the court need not “address every factual contention and argumentative detail raised by the parties,” Mayaguez v. Corporacion Para el Desarrollo del Oeste, 824 F.Supp.2d 289, 295 (D.P.R. 2011), or “discuss all evidence presented at trial,” Wachovia Bank N.A., Nat’l Ass’n v. Tien, 598 Fed.Appx. 613, 617-18 (11th Cir. 2014). See also Schilling, 142 F.2d at 84 (“While counsel may be disappointed that findings do not discuss propositions sincerely contended for, that, alone, .does not make them inadequate or suggest that such propositions were not understood by the court.”). Instead, as the Advisory Committee Notes on Rule 52 explain, a “judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of detail or particularization of facts.” Fed. R. Civ. P. 52(a) advisory committee’s note to 1946 amendment.

While “a district court’s opinion should not simply state conclusions where circumstances require more detail,” courts have “wide leeway ... in determining what facts to include.” Thermo Electron Corp. v. Schiavone Constr. Co., 958 F.2d 1158, 1160-61 (1st Cir. 1992) (Breyer, C.J.) (internal quotation marks omitted). In particular, the trial court is tasked with the “opportunity to judge the witnesses’ credibility,” Fed R. Civ. P. 52(a)(6), and should make that assessment where probative of the legal conclusions. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-02, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“Issues involving credibility are normally considered factual matters.” (citing Fed R. Civ. P. 52)); Noble v. Sombrotto, 525 F.3d 1230, 1237 (D.C. Cir. 2008) (remanding where district court failed to discuss evidence of “bad faith” and advising court to “closely scrutinize self-serving” evidence).

In this case, the evidence shows the parties on a collision course toward litigation at least as early as October 2010, when the Developer lost the opportunity to finance the project with a particular lender with which the Developer had been in discussions since before entering into the agreements with the University. After October 2010, the Developer abandoned any intention it may have had previously to take seriously the agreed-upon deadlines for fulfillment of its monetary and construction-related obligations to the University. While no provision of any agreement ever executed by the parties made the Developer’s performance of those obligations contingent on the Developer securing financing—indeed, the University entered into the agreement for the express purpose of delegating to an experienced real estate development professional the risks and rewards of developing the Property—the Developer simply refused to perform fully absent financing. At the same time, the Developer repeatedly persuaded the University to forbear from terminating the parties’ agreements with tactics that varied from agreeing to new deadlines to threatening litigation.

The Developer’s principals appear to have deeply internalized the view that the Developer was entitled to hold fast to the Property while failing to fulfill its performance obligations, operating in an alternate reality in which the flagrant breaching of binding contracts is “reasonable” if doing so is favorable, from a business perspective, to the Developer. At one point, one principal of the Developer, Ronald Cohen, even expressed his view that for the Developer to honor its contractual commitment to make a long overdue $1,475,000 rental payment to the University, when financing had not yet been secured, would be “STUPID and that we are not,” Def.’s Ex. 118, Email from Ron Cohen to Eric Siegel and Alan Cohen, dated May 29, 2013, at 1, despite ¡the University’s certain termination of the agreements. As the following evidence illustrates, the Developer was dead wrong, at least with respect to its own conduct.

A. THE PARTIES

1. The plaintiff, Howard Town Center Developer, LLC, is a limited liability corporation (“LLC”) created for the purpose of developing the Property. Cohen testified that, as an LLC, Howard Town Center Developer, LLC, is a “standalone entity,” capitalized only for the purpose of the Howard Town Center project through funding provided by Cohen, his son, Alan Cohen, and his son-in-law, Eric Siegel. Trial Tr. Day 1 AM at 64:14-15, 65:11. The three individuals use the “trade name” Cohen Companies. See id. at 99:3-8. Cohen further testified that the LLC form is used to “limit[ ] certain exposures you have” as a result of the risks associated with real estate development. Id. at 63:25-64:1. Sie-gel testified that Howard Town Center Developer, LLC, “has no money in its bank account as of today” and, consequently, in the “narrow” sense that the LLC is unable to pay any judgment rendered against it, the instant litigation is “risk free” for the Developer. Trial Tr. Day 5 PM at 26:14-22,27:1-16.

2. The defendant, Howard University, is a private university located in the District of Columbia, “authorized by a charter of the thirty-ninth Congress of the United States in 1867.” Def.’s Counterclaim and Third-Party Complaint ¶ 1.

3. The third-party defendant, CastleR-ock Partners, LLC, is also an LLC in the business of developing real estate, and is headed by Timothy Kissler. See id, ¶ 3; Trial Tr. Day 1 AM at 61:4-17 (Cohen).

B. 2008-2009: THE 2008 DEVELOPMENT AGREEMENT AND THE DEVELOPER’S INITIÁL EFFORTS

4, The Property. In December 2008, CastleRock and the University agreed that the University would lease to CastleRock a parcel of land, located at 2112 and 2146 Georgia Avenue NW, which CastleRock would develop for mixed residential and commercial use. See generally Def.’s Ex. 1, 2008 Development Agreement. The University had acquired the parcel of land from the District of Columbia in an agreement dated February 19, 2008. See id. at 5. Two buildings were already located on the site: the WRECO (“Washington Railway and Electric Company”) garage, which was “the first purpose- built bus garage for the city’s transit system,” constructed in 1930, and the Bond Bread building, a large industrial bakery building, constructed in 1929. Trial Tr. Day 2 PM at 4:7-17 (Call-cott),

5. Pertinent Terms of the Declaration of Covenants with the District. Pursuant to the University’s land conveyance agreement with the District of Columbia, the parcel was subject to a “Declaration of Covenants .., recorded in the land records of the District of Columbia” in 2008. 2008 Development Agreement at 3; see generally Def.’s Ex. 2, Declaration of Covenants. The Declaration of Covenants required that the parcel be developed, specifying four salient terms for its development, described below. ■

a). The design of the development was to be consistent with the Development Framework for a- Cultural Destination District within Washington, D.C.’s Greater Shaw/U Street adopted by the D.C. Council in 2006. Declaration of Covenants at 2; see Pl.’s Ex. 261, Draft Development Framework for a Cultural'Destination District within Washington, .DC’s Greater Shaw/U Street (the “DUKE Plan”). Notably, the DUKE Plan contemplated the Howard Town Center development project and specified that the project “[pjreserve ... all or some fagade elements” of the WRECO garage. DUKE Plan at 30; see Trial Tr. Day 2 PM at 6:15-7:22 (Callcott).

b) The development was required to include a grocery store of no less than 35,000 square feet, unless the District approved a grocery store comprising fewer square feet. See Declaration of Covenants at 3.

c) Construction was to commence with- ' in twenty-four months of the execution of the Declaration of Covenants and be completed within thirty-six ■ months of said execution. See id. at 4. In other words,- the development was to be completed in 2011.

d) The Developer was to enter into a “CBE Agreement” with the District of Columbia Department of Small and Local Business Development “requiring that 20% of the equity and development participation of the Developer be comprised of CBEs,” which are “local, small, or disadvantaged business enterprise[s]” certified as such under D.C. law. Id. at 5.

6.While never made clear why Cast-leRock involved the Developer in the development of the Property, shortly after the 2008 Development Agreement was signed, the Developer took steps, at its own expense, toward developing the parcel in anticipation of the transfer of CastleR-ock’s rights and obligations under the 2008 Development Agreement to the Developer. See Trial Tr. Day 3 AM at 106:22-113:7. These steps included:

a) retaining Fabrice Vasques of Phillips Realty Capital to prepare a “pro forma document,” which “sets forth all of the construction costs associated with the project; all of the sources where these funds will be coming from to pay for those construction costs and the uses for those funds.” Id, at 107:6-14. The “initial plan” for financing the project was to obtain funding from the U.S. Department of Housing and Urban Development (“HUD”), through HUD’s “conduit,” Wells Fargo. Id. at 113:8-18. Siegel testified that “starting 2009 through 2010 the economy was in bad shape and conventional financing was very difficult to have, particularly given the size of this project,” so “HUD financing was really one of our only options we could pursue.” Id. at 114:4-14; see Trial Tr. Day 6 PM at 9:23-10:17, 13:15-18 (Vasques) (testifying that in 2009 and 2010, financing sources were “[v]ery limited, the finance world was frozen, ... [s]o, [the Developer] applied to HUD”);

b) retaining an environmental consul- - -tant, which determined that the site needed extensive remediation. See Trial Tr. Day 3 AM at 107:16-24; PL’s Ex. 231, Phase II Environmental Site Assessment, 2112 and 2146 Georgia Avenue, NW, Washington, DC;

c) retaining two retail brokers, beginning in “approximately April'or May of 2009,” “to seek retail tenants for the project,” in accordance with the ■ requirements of the Declaration of Covenants. Trial Tr. Day 3 AM at 110:20-111:21; and

d) retaining GTM Architects to do “concept drawings and feasibility studies of the entire site.” Id. at 112:16-113:2.

C. JANUARY 22, 2010: GROUND LEASE AND DEVELOPMENT AGREEMENT AND FIRST AMENDMENTS ;

7. On January 22, 2010, the University and CastleRock executed a Ground Lease Agreement and a second Development Agreement. See Joint • Ex. 1, Ground Lease; Joint Ex. 2, Development Agreement. Effective that same- day, the University, CastleRock, and-.the Developer executed an agreement assigning CastleR-ock’s rights and obligations- under the Ground Lease and Development Agreement to the Developer. See Joint Ex. 5, Assignment and Assumption of Ground Lease and Development Agreement. Sie-gel testified that CastleRock, not the Developer, was the signatory to the Ground Lease and Development Agreement because CastleRock “was the awardee of the request [for] proposals from Howard University” and, consequently, given the public nature of the request for proposal process, “the parties believed it best, from the optic standpoint, to have Castle[R]ock sign the original document and then assign it to the master developer.” Trial Tr. Day 3 AM at 115:20-24.

8. Pertinent Terms of the Ground Lease. The Ground Lease provided for a lease term of ninety-nine years, see Ground Lease at 5, as well as a right of first offer to purchase the Property in the event of its sale, see id. at 68, in exchange for which rent was to be paid to the University according to a specified schedule,

a)The rent payment schedule required the Developer to pay:

i. $525,000 on January 22, 2010, “which amount shall be deemed earned and is non-refundable notwithstanding any future termination of this Lease for any reason whatsoever,” id. at 5;

ii. $1,475,000 upon “the earlier to occur of (i) the date on which [the Developer] shall make settlement upon a construction loan for the funding of the costs of constructing the Mandatory Project Improvements (as defined in the Development Agreement) to the extent such costs are not funded from [the Developer’s] own resources or other equity sources, or (ii) March 15, 2011,” id. at 2, 5; and

iii. monthly installments of rent thereafter, beginning no later than December 31, 2014, the latest possible “Rent Commencement Date,” at a monthly rate of $95,016.25, subject to (1) a percentage reduction during any period prior tó the Rent Commencement Date in which, pursuant to the Ground Lease, rent is due, if less than 100% of the improvements are occupied by tenants and (2) increases after the fifth year following the Rent Commencement Date based on the Consumer Price Index, id. at 6.

In sum, at the outset of the parties’ relationship, the Developer agreed to pay rent to the University of $525,000 on January 22, 2010; $1,475,000 by March 15, 2011; and monthly installments of about $95,016.25 no later than December 31, 2014. Over the last seven years, the Developer made only the first payment.

b) The Ground Lease provided that, in the event that the Developer should “at any time be in default with respect to any rental payments or other charges ,.. and should such default continue for a period of ten (10) days after written notice from [the University] to [the Developer]; or should [the Developer] be in default in the prompt and full performance of any other of its promises, covenants or agreements” in the Ground Lease or the Development Agreement, subject to defined cure period and notice requirements, including “written notice, ... specifying in BOLD FACE CONSPICUOUS TYPE, that [the University] intends to terminate” the Ground Lease if the default is not cured, the University shall have the option to terminate the agreements or reenter the Property. Id. at 49-50.

c) The Ground Lease further provided that the University could recover from the Developer in damages, inter alia, “the worth at the time of award of any unpaid rent ... that had been earned and is outstanding at the time of such termination” and “the reasonable amount of any costs or expenses incurred by [the University] in enforcing its rights under this [Ground] Lease after such default.” Id. at 51.

9. Pertinent Terms of the Development Agreement. The 2010 Development Agreement “set forth [the parties’] agreements and understandings concerning the planning, development and construction of the Project Improvements.” Development Agreement at 1.

a) In particular, the Development Agreement imposed a number of requirements, in addition to those contained in the Declaration of Covenants, on the Developer, including that:

i. the improvements on the parcel would be constructed at the Developer’s “sole expense,” id. at 1;

ii. because the parcel “is an integral part of the University’s campus, ... the University requires that the Project Improvements be approved by the University” and “[n]o Work on any of the Project Improvements shall be commenced that is not approved in .accordance with [this .Agreement],” id. at 11;

iii. the Developer “shall develop with Contractor, and deliver to the University, a comprehensive, integrated project schedule ... addressing and setting forth specific dates for the timeline and sequencing of each distinct portion, aspect or phase of the activities and tasks to be accomplished by the Developer with respect to the construction and completion” of the development, id. at 15.

b) The 2010 Development Agreement further dictated the timetable for the development of the Property, specifying as follows:

i. the Developer shall commence construction as provided in the Declaration of Covenants, i.e., by December 17, 2010, and achieve completion by December 17, 2011, or, failing either, shall “pay to the University, upon demand, all penalties, damages and demands that the University may become obli- ■ gated to pay to the District of Columbia,” except that the University authorizes the Developer to communicate with the District regarding extension of those two dates, as long as the Developer “keep[s] the University fully informed” of its discussions with the District, the University “ha[s] the right to participate directly” in those discussions, and the Developer has no “right to commit the University as to any matter,” and the University “shall not object” to any extension “consistent with the schedule for performance of Developer’s obligations,” id. at 17-18;

ii. if construction is not commenced by March 15, 2011, the University may “give written notice specifying IN BOLD FACE CONSPICUOUS TYPE” that the Development Agreement and Ground Lease will be terminated if construction does not begin within thirty days of receipt of notice, id. at 17; and

iii. “the Developer shall achieve Substantial Completion of all of the Mandatory Project Improvements no later than March 15, 2013 ..., subject to extensions for additional periods of time equal to time actually lost on account of Unavoidable Delays,” id. at 18, which category includes delays due to, inter alia, “unanticipated, unusual and extreme weather” and “other-'■ unanticipated -events or circumstances beyond the affectéd Party’s control,” id. at 7. Significantly for the parties’ future. relationship, the Unavoidable. Delays provisions expressly excluded delays due to “changes in market conditions” affecting costs, “governmental delays” unless not attributable to the Developer’s actions, or “unavailability to Developer of any debt or equity financing to provide construction or permanent funding for the Project.” Id. In other words, if the Developer was unable to obtain financing or to do so on the timetable the University expected, as set out in the Development Agreement, the University had the clear contractual right to terminate the agreements and find a developer up to the job.

10. First Amendments. The same day as the execution of the Ground Lease and Development Agreement, the parties executed amendments to both agreements, effective January 22, 2010, addressing various matters, including environmental remediation of the site. See generally Joint Ex.- 3, Ground Lease Amendment; Joint Ex. 4, Development Agreement Amendment. The Developer’s consultant had “de-términed in 2009 [the remediation cost] to be approximately $4 million,” and the University agreed through the Development Agreement Amendment to shift a substantial portion of those costs from the Developer to itself. Trial. Tr. Day 3 AM at 116:7-15 (Siegel). Specifically, the amendments provided that:

a)the University would, at its own , cost, hire a consultant to prepare a remediation report and plan, in -. coordination with. the Developer; and “endeavor to cause the Consultant to complete a- draft [remediation plan] by approximately mid-March, 2010,” Development Amendment Agreement at 2;

b) the Developer would be responsible for implementation of the remediation plan, see id. at 2-3;

c) the Developer would be responsible for remediation costs up to $750,000, and the University would cover the costs in excess , of that amount, see id. at 4-6; and

d) as a means of facilitating the Developer’s reimbursement by the University for the environmental remediation expenses in excess of $750,000, “the University and the Developer shall establish an escrow account .., with an escrow agent ... reasonably acceptable to the ■ University and Developer,” into which the Developed would deposit the first two rental payments “when due and payable under the Lease.” ■Id. at 4. The account was to bear interest, which interest would “be ' added to” and “included as a part of’ the funds in the account. Id. at 5. The funds in the escrow account would be disbursed by the escrow agent, upon receipt of specified documentation, to cover incurred remediation costs. Id. The parties entered, into an escrow agreement, effective January .25, 2010, to form the required escrow account. See Joint Ex. 6, Escrow Agreement. ,

D. SPRING 2010-FEBRUARY 2011: THE DEVELOPER SEEKS MODIFICATION OF THE AGREEMENTS

11. Following the signing of the agreements and amendments thereto, the Developer continued to pursue financing for the project. Siegel testified that “[a]round March or April of 2010, HUD representatives had a site tour” and, after a subsequent meeting, the Developer was given a “green light to file an application” to obtain HUD financing for the project. Trial Tr. Day 3-AM at 114:17-21.

12. At the same time, the Developer sought to extend the deadlines for commencement and completion of construction contained in the Declaration of Covenants. Siegel testified that in his view those deadlines were “unrealistic” and “candidly ridiculous” at the time they were ¿ntered into two years earlier, in 2008, by the University and the District. Id. at 105:9-19. Based on this view, “beginning in the spring of 2010, Ron Cohen and [Siegel] met with various council members”'seeking revision of the schedule, and those council members “seemed very supportive of the approach” outlined by the Developer. Id. at 130:9-19 (Siegel). Siegel further testified that he would learn later, in October 2010, almost ten months after éxfecut-ing the Ground Lease and Development Agreement with- the University, that changing the schedule “required an administrative change from [the deputy mayor’s] office, hot from the council members.” Id. at 131:5-11.

13⅛ Meanwhile, the parties undertook to fulfill their obligations under the Development Agreement Amendment and applicable law regarding the environmental remediation of the' Property site. Those efforts culminated in the filing with the District, of a remediation plan, known as the “Corrective Action Plan,” dated November 17, 2010, which was approved by the District’s Department of the Environment (“DDoE”) on December 4, 2010. PL’s Ex. 234, Corrective Action Plan; Siegel testified that no construction could be done on the site prior to the District’s approval of a Corrective Action Plan. See Trial Tr. Day 3 AM at 121:24-122:3.

14. The Developer First Accuses the University of Delay. Just prior to' the District’s approval of the Corrective Action Plan, in a letter dated December 2, 2010, the Developer expressed to the University its belief that the University had delayed the environmental remediation process. See PL’s Ex. 72, Letter from Ronald Cohen to Diane Branch, Assoc. Vice President of Real Estate Development and Asset Mgmt,, Howard Univ,, dated Dec. 2, 2010,. at 2. First, citing a provision of yet another agreement between the: parties “that the Developer is not to release the environmental reports to any governmental agency without the prior approval of Howard,” the Developer objected to .the University’s forwarding of an environmental report to the DDoE. Id. (emphasis added). The Developer’s letter ignored the plain language of the cited agreement, which imposes the nondisclosure obligation only on the Developer, not the University. In any event, according to the Developer, the 'University’s action resulted in the DDoE issuing directives requiring remediation of the site before any excavation permits could be' granted, a result characterized by the Developer as “unnecessary bureaucratic delay[],” without acknowledging any other potential reasons for this requirement, such as the safety of the community or environment. Id. Second, the Developer expressed its view that the University had failed to comply with the Development Agreement Amendment’s provisions regarding the timing of the production of the remediation report and plan, asserting that the report was produced “a full six (6) months after it was required” under that amendment. Id.. In fact, the University was merely required to “endeavor to cause the Consultant to complete a draft' [remediation plan] by approximately mid-March, 2010,” Development Agreement Amendment at 2, and, according to the Developer, produced the report in August of that year, see Pl.’s Ex. 72, Letter from Ronald Cohen to Diane Branch, dated Dec. 2, 2010, at 2.

15. In the same letter, the Developer represented-that “[u]ntil the [remediation plan] is approved, the Developer is unable to complete its excavation permit application ' because DDoE comments, qualifications and conditions to the [plan] will determine certain basic questions as to whether excavation beyond the garage levels will be necessary.” Id. at 3. According to the Developer, in light of the status of the remediation plan, “the March 15, 2011 deadline to commence construction is not realistic, and has not been for some time, beyond the control of the Developer.” Id. At the same time the Developer was shifting fault for delay on the University, the Developer had been unsuccessful in obtaining any financing for the project.

16. The University responded to the Developer, stating the University’s view that the University “has proceeded appropriately and with diligence” with the work required for environmental remediation, and that. “[although that process has not proceeded strictly in accordance with the schedule outlined in the Amendment, the deviations from that schedule were caused by a number of factors beyond Howard’s control.” PL’s Ex. 46, Letter from Troy Stovall to Ronald Cohen, dated Dec. 9, 2010, at 1. Contrary to the Developer’s proffer of the remediation plan as a justification for delay, the University further stated it did “not believe that any delays in the implementation of the process outlined in the Amendment have materially impaired the Developer’s ability to proceed with any of the numerous other steps necessary to commence and complete the Project as and when contemplated in the Development Agreement.” Id. at 1. Countering the Developer’s contention that disclosure of an environmental report to the DDoE was improper, the University expressed its belief that disclosure was permissible and, moreover, was “required under applicable law.” Id. at 2.

17.The December 15, 2010 Meeting. On December 15, 2010, the Developer submitted to the University plans the Developer describes as “reflect[ing] conceptual design, building specifications and ¡schematic design for the project.” PL’s Ex. 109, Letter from Developer to Diane Branch, dated Dec. 15, 2010; see also PL’s Ex. 236, Howard Town Center Feasibility Study by GTM Architects, dated Dec. 15, 2010. That same day, representatives for the Developer and the University met to discuss the project. See Trial Tr. Day 3 AM at 127:18-128:4 (Siegel). At that meeting, the Developer presented those plans to the University and also informed the University' that the Developer had “lost the opportunity to finance the project with HUD” in October 2010. Id. at 128:11-14, 115:3-4. The Developer raised the “difficulty in getting conventional financing for an entire city block project and the need to potentially phase the project if [the Developer] could not secure financing for an entire city block.” Id. at 128-.14-17. Stovall responded by “suggesting] that the University might be open to the idea of master-leasing one of the [two planned] residential towers as a way to finance the entire project at once.” Id. at 129:1-3. In such an arrangement, the University would have rented an entire tower from the Developer and handled the unit-by-unit rental agreements itself. See id. at 129:4-15.

18. Under the Development Agreement, the Developer was required to submit a conceptual design for the University’s approval before submitting building specifications or a schematic design, presumably to give the University ample time to review these designs separately and avoid the inefficiencies of moving forward on a conceptual design not approved by the University, but the Developer failed to follow this procedure. See Development Agreement at 12-13. The University did not respond to the Developer’s proposed plans within twenty days, the amount of time specified in the Development Agreement. See Trial Tr. Day 3 AM at 129:19-130:3; Development Agreement at 12.

19. In a letter dated January 20, 2011, Stovall wrote to the Developer indicating that the University was “continuing to review [the submitted] documents in greater detail” but was “writing this preliminary response to identify certain discrepancies between” the Developer’s documents and “the program for development contemplated in the Ground Lease and Development Agreement.” Joint Ex. 7, Letter from Troy Stovall to Ronald J. Cohen, dated Jan. 20, 2011, at 1. Specifically, Stovall noted that “it appears from [the documents] that the commencement of construction will occur approximately at the end of January, 2012, rather than by March 15, 2011, as required under the Development Agreement” and that “the area of the proposed grocery store ... is significantly less than the minimum required by both the Development Agreement and the Covenant.” Id. at 1-2. Stovall reminded the Developer that the District’s approval was needed for modifications to the schedule and grocery store requirements and, with respect to the former, the University’s approval as well. See id. The letter further included a “reminder that the Ground Lease requires that the Developer tender $1,475,000 to the University, by March 15, 2010 [sic], in payment,” id. at 2, which rental payment due date was only two months away. Finally, Stovall requested that the Developer “contact [him] at [the Developer’s] earliest opportunity to schedule a time for a detailed discussion of the concerns identified in this letter.” Id.

20. The Developer responded to the University, expressing the view that the concerns outlined in the University’s letter reflected “a direct departure from the results of [their] meeting on December 15, 2010,” where a “detailed discussion of the revised project schedule” had occurred. Joint Ex. 8, Letter from Developer to Troy Stovall, dated Feb. 1, 2011, at 1. Notwithstanding the Developer’s execution of the Development Agreement along with a first amendment to that agreement that incorporated construction deadlines, the Developer now complained “that neither the District nor the University set forth realis-' tic deadlines three years earlier.” Id. With respect to the items for which the Developer needed District approval, the Developer represented that it had been “informed in December by ... staff [at the deputy may- or’s office] that a representative of Howard University intervened in [the Developer’s! process and insisted that [the deputy mayor’s office] not communicate with the Developer on this matter at this time and that it should be taken up with the administration of Howard University,” and, thus, the Developer had “been-stymied in [its] efforts to meet with the District to address” the issues requiring District approval. Id. at 2. The Developer made this accusation without acknowledging that the Developer was required, by the Development Agreement to “keep the University fully informed” of all communications with the District regarding the deadlines. Development Agreement at 18. The Developer again for a second time raised, the issue of building the project in two phases and the University “potentially master leasing a residential tower for student housing,” conveying that this potentiality “has a real impact on the progress of the designs.” Joint Ex. 8, Letter from Developer to Troy Stovall, dated Feb. 1, 2011, at 3.

21. Toward the letter’s conclusion, the Developer alluded for the first time to litigation with the University, stating it “can only assume through reading between the lines ... that the University is setting up the Developer to assert termination of the Ground Lease and that this venture is heading toward litigation” but that the Developer was “prepared to vigorously defend [its] actions and efforts to date.” Id. The Developer also noted that it “feels that the Closing Date ... needs to be renegotiated.” Id. The Developer understood that the “Closing Date” was the date upon which the $1,475,000 payment was to be made. See Trial Tr. Day 3 AM at 140:12-15 (Siegel). Despite the aggressive tone of this letter, the Developer still had not.secured financing for the project, and, according to the Developer, would not have .been prepared to make the rental payment or move forward without that financing in place. See, e.g., Trial Tr. Day 1 PM at 100:5—12 (Cohen) (explaining “because we ... did not secure our financing, ... we just weren’t in a position to break ground” by December 17, 2010, as required by the agreements).

22. The Histone Faetones Blog Post. Later that month, on February 22, 2011, Branch,' the Associate Vice President of Real Estate Development and Asset Management at the University, forwarded Cohen an email containing the text of a blog post entitled “Bread for the City: Shaw’s Historic Bakeries” discussing the historic nature of the Bond Bread building on the Property. Defi’s Ex. 14, Emails Between Ronald Cohen, Diane Branch, Maybelle Bennett, and Scott Roberts, dated Feb. 22, 2011. She asked Cohen, “Are we concerned that there will be an application to deem this property historic? What are your recommendations?” Id. at 1. Cohen forwarded the email to Siegel and wrote, “? ? ? FYI-we need to monitor this .... ” Id. Siegel testified that upon receiving this email, he “went back to the Duke Plan” and verified its requirement that “some portion of the corner of V and Georgia Avenue,” i.e., the WRECO garage, but not the Bond Bread building, be preserved. Trial Tr. Day 3 PM at 93:15-94:4.

23. Siegel testified that between February 1, 2011, and the end of the month, Stovall “was essentially requesting information from [the Developer] so that he could evaluate th[e] master lease concept” and two-phase plan newly proposed by the Developer but conceded that the University did not agree -to either alternative plan. Trial Tr. Day 3 AM at 143:7-144:10. With the March 15, 2011, deadline for payment of the $1,475,000 rent installment looming, on February 28, 2011, the Developer submitted to the University a memorandum setting out a schedule for the development, based on a two-phase project, and moving the Closing Date to “the earlier of settlement on a construction loan or February 15, 2012,” with “excavation to begin December 8, 2011.” See Defi’s Ex.-15, Memorandum from Ronald J. Cohen to Troy Stovall, dated Feb. 28,2011, at 1-3.

E. MARCH-AUGUST 2011;; THE UNIVERSITY AGREES TO CERTAIN OF THE DEVELOPER’S PROPOSED MODIFICATIONS, BUT THE DEVELOPER SEEKS FURTHER MODIFICATION

24. A month later, on March 31, 2011, Stovall represented that the- University had undertaken “a considered - review of the entire history of the Developer’s interaction with the University since the Project’s inception” and was “prepared to approve the revised schedule for the Project” provided by the Developer on February 28, 2011, which included a scheduled construction commencement date of December 8, 2011. Joint Ex. 9, Letter from Troy Stovall to Developer dated Mar. .31, 2011, at 1. ...

25. At the same1 time, however, after consideration of the Developer’s proposals to change the .development plan to, inter alia, “divide its development into two phases,” the University did “not-believe [the Developer’s explanations for the proposals] warrant changes” to the development plan set out in the agreements. Id. at 2.

26. .Notably, Stovall also highlighted the fact that the Developer “failed to pay the $1,475,000 rental payment that became due under the Ground Lease on March 15, 2011,” and explained that the University did “not concur” with the Developer’s position that the failure was justified. Id. at 2 (emphasis in'original). Nevertheless, 'having agreed to.push back the date for eom-•mencement of construction, the University also- agreed to “postpone the due date for that payment until December-8, 2011,” as requested by the Developer. Id. (emphasis in original). Having rejected a-two-phase project, however, the University did not grant the Developer’s request that “only half of the next .ground lease payment” be paid at that time. Def.’s Ex. 15, Memorandum from Ronald J. 'Cohen to Troy Sto-vall, dated Feb. 28,2011, at 2.

27. Siegel testified that at the end of April 2011, the Developer met with the deputy mayor to brief him on the project. See Trial Tr. Day 3 PM at 9:7-13 (Siegel). According to Siegel, the Developer did not request revision of the covenant deadlines in that meeting, however, because, notwithstanding the University’s clear rejection of the Developer’s proposed change to the development plan to permit two phases, it “couldn’t ask for deadlines ... unless [the Developer] knew whether [it] w[as] building all at one time or in two phases.” Id. at 9:14-20. Notably, the Developer still had not secured financing at this point.

28. Siegel further testified that during the months of May, June, and July, the Developer and the University discussed how they would proceed with the project, with the University explaining ■ that master-leasing could be considered if the rental rate reflected a twenty percent discount off the market rate, which the Developer believed “wasn’t economically feasible.” Id. at 3:24-25.

29. By the summer of 2011, the Developer had still been unable to secure financing after the possibility of the HUD funding had evaporated. In good news on the financing front, however, in a “letter of intent” dated July 7, 2011, J.P. Morgan Investment Management, Inc., “set forth the general terms and conditions under which [it] would be prepared to enter into a [redacted] joint venture agreement” with the Developer regarding the development, “based upon the information [the Developer has] supplied ... to date.” Pl.’s Ex. 212, Letter of Intent from J.P. Morgan Investment Management, Inc., to Ron Cohen, dated July 7, 2011, at 1. The letter of intent was “non-binding” and required the Developer to sign and return a copy of the letter to J.P. Morgan “no later than July 15th, 2011” if the developer agree[d] to the terms and conditions described.” Id. at 4.

30. Siegel testified that he .provided the letter of intent from J.P. Morgan to the University and continued discussions regarding the plan for the project, sending a further proposal for terms of the project to the University on July 28, 2011. See Trial Tr. Day 3 PM at 5:4-11, 7:6-14. In that proposal, the Developer “approaeh[ed] the [two-phase] idea from the expense side,” suggesting the University agree to “de-ferí ]” the Developer’s rental payment obligations for the improvements made to the Property, i.e., accept late payments with interest, in exchange for the Developer building the project in a single phase, as provided in the Development Agreement, and as the University had consistently required. Trial Tr. Day 6 AM at 70:18-71:11.

31. The District Expresses Concerns to the University. In a letter dated August 19, 2011, Stovall provided to the Developer a copy of a letter dated August 15, 2011, from the District regarding the Declaration of Covenants and requested that the Developer respond by August 26, 2011, so that the University could, in turn, respond to the District. See Def.’s Ex. 19, Letter from Troy Stovall to Ronald J. Cohen, dated Aug. 19, 2011, at 1. The letter from the District stated that the University “was required to cause its selected developer to achieve Commencement of Construction ... by December 17, 2010” and noted that “Howard ha[d] yet to achieve” that milestone. Id. at 3. The District represented that it was “willing to consider extending the deadline for Commencement of Construction to October 1, 2012 if Howard” delivered, by September 16, 2011, (1) an updated schedule of performance; (2) additional security in the amount of $100,000; and (3) the “CBE Agreement executed by the Developer, as required under the Covenants.” Id.

32.The Developer responded in a letter, dated August 22, 2011, repeating many of its previous assertions regarding the project, including that “neither the District nor the University set forth realistic deadlines three years earlier when the Declaration of Covenants was executed,” even though these were the terms to which the Developer had agreed in the Ground Lease and Development Agreement, and that “a representative of Howard University intervened in [the Developer’s] process” with the District, causing delays, even though the University was merely enforcing the term of the Development Agreement requiring that it be informed of the Developer’s communications and negotiations with the District. Joint Ex. 10, Letter from Developer to Troy Stovall, dated Aug. 22, 2011, at 1, 2. The Developer also informed the University of its position with respect to the three items requested by the District, asserting that the Developer would (1) not agree to a revised schedule with the District until “Howard and the Developer agree on terms to pursue the entire project or, alternatively, to develop it in phases”; (2) “not provide any additional money until Howard and [the Developer] reach an agreement on how to proceed; and (3) not sign the CBE Agreement until the University and the Developer “have an amended Ground Lease (and corresponding amended Development Agreement) in place.” Id. at 2. With respect to the requested $100,000, in particular, Siegel testified that “the position we had in response was we’re not interested in posting security.” Trial Tr. Day 3 PM at 10:3-6. Again, the Developer was not open to investing additional money in the project when it had not obtained a funding commitment and did not know if the project was going to move forward.

33. Also on August 22, 2011, Stovall responded to the Developer’s July 28, 2011, proposal, which reflected an expense-side version of the two-phase approach previously rejected by the University, stating that the “proposal is not acceptable to Howard University.” Pl.’s Ex. 90, Emails Between Eric Siegel and Troy Stovall, dated Aug. 20, 21, 22, 2011, at 1.

F. AUGUST-SEPTEMBER 2011: WITH THE DISTRICT POSING QUESTIONS, THE UNIVERSITY DEMANDS ASSURANCE OF PERFORMANCE FROM THE DEVELOPER, WHICH INSTEAD OF PROVIDING SUCH ASSURANCE, ALLUDES TO LITIGATION

34. In a letter dated August 30, 2011, Stovall responded to the Developer’s August 22, 2011, letter “to make clear” that “[t]he Developer’s proposed modifications to the Project are not acceptable; and the terms the Developer has proposed to us for the alteration of its obligations are likewise unacceptable.” Joint Ex. 11, Letter from Troy Stovall to Developer, dated Aug. 30, 2011, at 1. Referring to prior discussions and correspondence between the parties, Stovall noted that he had “made it abundantly clear ... that (i) although the University was willing to listen to and consider [the Developer’s] proposed changes, and although the parties may engage in further discussions about them, [the Developer] should not assume that they are or will be approved; and (ii) our continuing discussions should not be construed to delay ... efforts to carry out the Project as previously agreed.”- Id. at 1-2.

35. Stovall also informed the Developer of the University’s position that under the governing agreements, the Developer alone is responsible for securing financing and that any delay in doing so does not warrant delay in execution of obligations under those agreements; and that the Developer’s “accusations concerning the University’s purported interference with [the Developer’s] communications with District representatives” were “responded to ... many months ago” and “any misunderstanding on the part of the District as to [the Developer’s] authority to deal directly with the District was dispelled late last year.” Id. After enumerating the Developer’s lapsed obligations under the agreements; Stovall expressed concern that the Developer had stated repeatedly that it was “unable or unwilling to proceed with the construction and completion of the Project according to the single-phase program” specified in the agreements, unless “the University agree[d] to significant financial concessions.” Id. at .3-4.

36. Finally, Stovall’s letter demanded that the Developer provide assurances to the University by September 8, 2011, including, inter alia, (1) “unqualified ratification' of [the Developer’s] obligations under the existing Project Documents and an unqualified statement that the Developer is ready, willing and able to timely comply with and perform” those obligations; (2) “Reasonable evidence” of the Developer’s ability to obtain tenants, -financing, and permits consistent with its obligations; and (3) “written affirmation of [the Developer’s] intent and ability ... to timely pay to the University the rent payment in the amount of $1,476,000.00 due on December 8, 2011” and comply with the other milestone dates set out in the Developer’s February 28, 2011, -memorandum and approved by. the University on March- 31, 2011. Id. at 5-6.

37. Having received no assurances from the Developer by September 8, 2011, in a letter dated September 9, 2011, the University wrote to the District, copying the Developer, among others, “to update [the District] on the -status” of the Project, informing the District that while the University “requested substantiated assurances from the Developer 'of its ability and intent to fulfill its contractual obligations to the University and the Distoict[,] ... [unfortunately, as of this date [the University] ha[s] not received those assurances.” Def.’s Ex. 23, Letter from Troy Stovall to Senthil Sankaran, Director' of Development, Office of the Deputy Mayor for Planning and Economic Development, dated Sept. 9, 2011, atl.

38.As noted, despite the District’s demand to the University setting a strict deadline, the Developer did not timely respond on September 8, 2011. Siegel explained that the Developer did not timely respond because Siegel “was busy working on a chronology of events to make sure that the recitation of facts was precise and accurate.” Trial Tr. Day 3 PM at 13:9-16. The Developer responded to the University’s letters of August 30 and September 9, 2011, in a letter dated September 15, 2011, setting out the’Developer’s perspective on the chronology of events, followed by a warning to the University: “Conduct yourselves accordingly.” See Joint Ex. 12, Letter from Developer to Troy Stovall, dated Sept. 15, 2011, at 1-7. Yet, rather than “conduct” itself in accordance with extant agreements or provide any of the assurances requested by the University and the District, the Developer continued to press its desired modifications to the agreements, expressing its “hope that we'can put these issues behind us and continue” negotiating terms that “can realistically form the basis for a modified ground lease.” Id. at 7. Reading between the lines, as the Developer was wont to do, see Joint Ex. 8, Letter from Developer to Troy Sto-vall, dated Feb. 1, 2011, at 3, the Developer appears to have been seizing an opportunity, leveraging the pressure exerted on the University by the District’s demand for assurances to, in turn, pressure the University to concede to terms more favorable to the Developer, which terms the University had resisted. Indeed, acknowledging th