set forth in our brains but i want to focus on two in particular the press will grounds which are independent grounds and which turn on the construction of one in big u s writings and therefore make this an appeal that subject to step notice requirement thus even if the ground rent payment is one of the ground rent payments was due on may thirtieth two thousand and thirteen a point i'll get to in a moment section sixteen prior appeal interpreted the agreement to explain how the notice was necessary for terminations there's no difference between one hundred thousand of the one point four seven five million well one six are different  of the stuff notices good well your honor the dress that in a moment the way the provision works though is what was a target in the first appeal and the way the provision works is very clear first there has to be a default and then a notice is given and upon the passage of time that becomes an event of default and then notice has to be given of the events of the falls and after that time passes then and only then can you terminate the agreement and that was what was decided on the first appeal now with regard to the actual notices that were given here a couple points first the two notices from twenty twelve were withdrawn by the term sheet but even this record as it was a report of reasoning about the court and so i was action yes your honor that was there was a suggestion that the term sheet acted as an accord that hadn't been satisfied that was are and the court you determine whether a document is in accord or substitute contract based on its plain language that's what the snyder case says for example from the d c circuit and here the term she acted with immediate effect it's different from in a court in a court says in essence if you do a certain act then only and only then will the claim be released here the term sheet acted with immediate effect the defaults were withdrawn there was the time table the new timetable is as follows these are words of immediate effect and so those notices were were in fact withdrawn but even your honor if you didn't treat those as withdrawn the breach here is alleged to be the failure to make a rent payment on may thirtieth two thousand and thirteen a notice given in twenty twelve a year earlier cannot be the first notice the event of little  and twelve with regard to the alleged obligation to pay rent on those states so there is no possibility that they may twenty third teen payment could have been  effectively noticed by those events that occurred a year in advance so on that basis those default notices are effective the construction this court put on section sixteen point two remains binding and therefore terminations is improper that alone is a basis for reversal let me talk some more about the effect of the term sheet again it's a writing it's signed on this appeal the university concedes that it's binding under east bank it is clear enough to be enforced and what it did was it modified certain portions of the lease recall this is all occurring in the context  there's an existing two thousand and ten set of agreements and the term sheet modifies them in modify some of them with immediate effect those are closed terms to use the language of the seventh circuit in the in the venture case and as to others to be sure there was still further negotiation to be done those were open terms in the parties that negotiated over the but as to the withdraw the false as to the date for payment of the second rent payment in this ninety nine year lease that date was changed with immediate effect the new time be able is as follows and as this court noted in the first appeal the provision states that that is not due until ninety days after the entry of the second amendment's and i recognize we also have the issue of the hundred thousand dollars and what happened there is clear the record is clear the developer informed the university was not making that payment and the parties continued on the parties continued to negotiate in the drafts of the second amendment that amount was rolled in payment and so there to the extent there was a breach there was an election of remedies and moreover there was never a notice with regard to the hundred thousand dollars so what happens the hundred thousand now that the hundred thousand is part of the one point four seven five million dollars we all separately consider that i don't believe so your honor university wanted to send a notice in the future for the payment of one hundred thousand dollars they of course could they never have and as a practical matter everyone recognized in the neighborhood and what would happen what would your response be today if they were to send a notice on one hundred thousand dollars i have to think about that your honor they've never actually done it if they did one could could look at it one could decide whether in fact the payment should be made or whether the parties actions over the subsequent year in terms of determining that all that amount would be owed only on a single date whether that would govern but regardless we don't have to face that because no notice was ever given as to that thirty pardon me that the earlier notice could not have served as the first of two noses with regard to me for payment because i'll be happy to drop it and as you noted i'd like to save the rest of my time for a bottle ok thanks les you have other questions at this point good morning morning timothy mccormick for howard university i think first we have to step back and look and see what did this court do nearly nearly three years ago in that first opinion the court's holding we first we were before the court on a very limited record there been no discovery there's been no evidentiary has there been a motion for summary judgment the court's holding was there is a genuine dispute whether the developer was required to pay the university one million foreigners seventy five thousand by me thirty and therefore whether the university was entitled to terminate the ground lease and collect one million four hundred seventy five thousand dollars in damages the court then ring man did to the district court with the following direction we leave it to the district court henri man to determine in the first instance whether the term sheet is a legally enforceable contract under d c law and if so how the term sheet effects both the developers claimed the university improperly terminated the ground lease in the university's counter claim that is entitle to collect one million four hundred seventy five thousand the term she was in the record before this court three years ago there with the same sign document and this court concluded that it was a big u s and you couldn't determine on the face of the document we're making the same argument today that they made three years ago but in the interim the district court judge how did exactly what th  court directed her to do she conducted an eight day bench trial she heard the testimony of eleven witnesses she received two hundred seventy two exhibits she made determinations as to credibility the most significant of which is that she read she found not credible the two representatives of the developer and found the remaining witnesses had testified straightforwardly incredibl she made seventy eight pages of factual findings putting putting aside prior history ok so if you just look at times on its face  what about the fact that the payment is due only after execution of the ground we said development agreement amendments and those amendments were never just on its face put aside history what it was the intention of the parties that they would negotiate further in good faith and she found that the developers good faith was lacking not least of which is the nonpayment of the one hundred thousand dollars you say this was an agreement to agree on its face  hold on to judge hols findings which we can only set aside if we find that they're clearly erroneous and no one's directed us to any evidence that indicate that she was clearly erroneous secondly the developer's argument in effect is that we could they could have the university sign this agreement and then simply refused to sign second amendment documents that complied with it and again were we have judge how was finding which is that within the time period provided in the agreement by the third week in april  thousand and twelve the university had provided drafts that work consistent with the agreement and that the developer delayed responding until may and then rejected clear provisions that we clearly provided for even in the term sheet and that could model of clarity which is why this court couldn't decide the case three years ago on the papers which is why i judge how can decide the case as summary judgment on the papers and why we had to have an eight day trial to determine what did the parties intent what do you do with the a judge of how well you know has looked at that on a number of occasions is that it that nothing else that walk away should be the end of the case but i think you know the reality is when we look at the factual findings of the evidence before the district court which really happened here is that by many of two thousand and twelve less than a month after this term she was signed the parties are banded in from that point on all of the negotiations were on very different terms then this term sheet in fact there were and there were no exchange of drafts throughout the summer of two thousand and twelve the parties resumed exchanging drafts again in december two thousand and twelve and they were completely different brands the testimony below was that the developer had at all times as it is it drafted this four settlement term sheet in presented it it had an undisclosed intention to perform only because it thought it had it was close to getting from him for financing when he did not get that commitment the evidence below was it then no longer wanted to go forward on these terms and began proposing new terms which would be expressed the conditioned on the developer painting financing and the record below is clear the university consistently said no to that it did continue to negotiate on other terms beginning in december and throughout two thousand and thirteen the walkway provision is there but it was clearly that was intended and it appears in the first two drafts of the documents that were provided by the university developer first in april two thousand and thirteen and then in may the developer refused to sign those straps or to negotiate on those terms and when the parties resume the negotiation the end of the year he was on other terms what can you read that suggests if none of these things happen or not all of these things happen either side while you very could you very well could read it could be read that way i'd like to dress for just a moment the notice of this am running short of time this there's two issues here first we have judge hols factual finding that the intention was that the notices were going to be withdrawn only upon performance but there's but there's a more important point which is the developer comes this court in a very formulaic sense saying a notice of default must be in some form of those agreements don't require that and what's clear that even if we set aside the september two thousand and eleven to the developer and said unless the rent is paid by me thirty of two thousand and thirteen the university would go no further that they were in the fall the university repeated that form of in the form of that is again an e mail april sixteenth two thousand and thirteen is a letter more importantly there is acknowledgement of these notices going to the developer on february the referring to the payment that had been demanded or that would be due on may thirtieth the developer makes much of the for the fact of whether there's a question as to whether they agreed but at that point at that juncture in the relationship they didn't the university  their green the payment was two years overdue so the university was within its rights because the parties had never amended the documents because of the developer's bad faith to say you must now make the payment by a date certain  at all times that than one million four hundred seventy five thousand represents back rent up through the march fifteenth two thousand and eleven date which which is why the courts determination as to remedies was appropriate because that one million four seventy five was for the actual use in occupancy the terminations the least was appropriate because to this date there's been no clear no tender of  argument that those notices even if they hadn't been withdrawn could not serve as notice of the may thirtieth two thirds you just heard your friend say that this is all related to a point remind us that it's not clear what time period those related to there were over the course of this ninety nine year lease going to be a stream of rent payments and the way it was set up was there was an initial payment of five hundred twenty five thousand and then an ex payment of up one point four seven five million and then there were going to be in the future further payments so whether this is one of my pet if the two million had been paid one point four that would be wrapped up through what date it would be up through  it's a date that turned on when the construction began so this is a ground lease so basically once the building is off and generating income that impacts when he would have the further obligation so that they actually do in two thousand no your honor it was not and again and critically under the terms sheet the parties modified all this and i want to address something and the record here is very clear with regard to the term shit mr mccormick counsel to the other side it reviewed the term sheet he says there was an accountant on the other side there is a stipulation before the trial court that that had gone to university scoundrel so this is not while it's not the clearest possible  what is clear about it it's clear that the default notices are hereby withdrawn immediately and it's also clear that there is in the new timetable is as follows so if there had been rent due earlier and under the original agreements there would have been that was forfeiture of leases that it's harsh in disfavor gravity and when it comes to rats there's an alternative remedy which is the payment of rent and in fact here not only was that alternative remedy available it was in fact  cases to take those cases and so it would be it would have been or at least one type affair if the went payments covered some any period overlapping before for sure but in fact they're all retrospective whereas the forfeiture we were on it i don't think those cases say that number one number two those cases make clear that once that rent payment is made forfeiture is no longer available as a remedy and so that's what those cases stand  for and here we have you that there's no discretion here in the district and i think to the extent the district has had discretion she abused it and the circumstances recall the only breach allege the only breach that is the basis for the forfeiture is the failure to make a single rent payment her her decision has remedied that to the extent you believe that rent payment was due because she ordered it paid with interest and that those cases say is the alternative remedy that's available and what makes this a harsh  forfeiture rather than shackling to people to parties who where there's been bad faith into a continuing relationship we are the first we believe the bad faith finding was our and we've we've explained that but let me just assume for the moment that  you don't reverse on those grounds you're still left with the only obligation that wasn't matt that is the obligation that is the basis for the forfeiture is the failure to make a single right pane that's all you have the other stuff is not part of the basis for the finding of a breach of that payment and therefore forfeiture is inappropriate under the d c cases let me say another thing though about the notices because there were some questions about that and  counsel tried to suggest here for the first time that for example the february first two thousand and thirteen e mail was a notice under the lease the lease is very specific section twenty two of the lease sets forth the requirements for a notice in must be in writing it must be in bold type it must be sent to developers counsel accent or on and off the cuff e mail is not a formal notice under the ground lease and i know further it's interesting how this email is more because the last time we were here before this court the university argued that there would have been an agreement in a phone call on february first that the may that payment would be a by may thirtieth we saw a trial was that didn't happen mr schmoke said that he had no recollection of such an agreement being made and in fact in his deposition he said no no no no no that conversation was not about rats could have been more emphatic so it's more if there was not an agreement and it's not a notice the only things they argue were notices are the two ones that we've talked about already at length in two thousand and twelve and earlier notice from tw eleven in which the notice doesn't state that any reds do because it's not yet due and then there is a letter from december of twenty twelve that they reference that again is not a notice notice is of the fault or formal documents they were purportedly given in february march of two thousand and twelve but they were withdrawn that's the effect of the term should the parties change the manner in which they were going to deal they modified their agreements they did so with an immediate effect that's not in a court that's a substituted contract certainly the university could have sued on the term sheet had they decided to do so what was the what was the  consideration given if it was a new contract well among other things the developer agreed that five hundred twenty five thousand dollars which was being held in escrow to handle the university's environmental cleanup obligations would be immediately made available to the university and that was done was it and was yes that was done that was immediately performed in may of two thousand and twelve and then there are obviously other considerations the developer continued to put money into the project the developer continued to do