Agenda - Council Work Session - 02/01/2005

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25. 26. 27. 28. allocation if the Developer's: or, if applicable, a Secondary Developer's proposed allocation, is done on a per square foot basis. The City may accept or reject other proposed allocations in its sole and absolute discretion. The City agrees that the' City will not assess more 'than $876,035.00 against the Unsold Subject Property for the citY Phase I Roadway Improvements. Subject to Section 26, Section 7.7 of the Master Agreement is hereby deleted in its entirety and replaced with the follOwing: "INTENTIONALLY OMITTED". The modifications to Sections 7.! through 7.7 Of the Master 'Agreement set forth in Sections 21, 22, 23, 24 and 25 of this First Amendment are subject to a condition subsequent as follows: If the Developer or any other Interest Parties objects to one or more of the special assessments described in SectiOn 24, Section 30, Section 35 or Section 37 of this First Amendment prior to or at the Assessment hearing or appeals one or more of such special assessments pursuant to Minnesota Statutes Section 429.081 or challenges such special assessments on any other basis, the provisions of Sections 21 through 25 of this First Amendment are, at the option of the City, of no further force and effect and the original provisions of Sections 7.1 through 7.7 of the Master Agreement shall be ,reinstated in their entirety. If neither the Developer nor any Interested Party objects to or appeals the assessments described in Section 24, Section 30, Section 35 or Section 37 of this First Amendment within the appeal periods provided under Minnesota Statutes Chapter 429, the condition subsequent described above shall be deemed satisfied, and the City will execute documentation consenting to the release of the escrowed funds currently, held Pursuant to Section 7.7 of the Master Agreement under the terms of the Escrow Agreements among and between the City, the Developer and D.R. Horton, Inc.; the City, the Developer and NAU, Inc. and the City, the Developer and_.._. Amcon Housing Developrnent, LLC, respectively. The City's consent to the release of tkie escrowed funds, shall be expressly conditioned upon the Escrow Agent's disbursement of escrowed funds first to the City to reimburse the City for the amounts, if any, :the Developer owes to the City under the terms of the Master Agreement, including, but not limited to amounts owed to the City- pursuant to Section 12.3 of the Master Agreement, as of the date of the escrowed disbursement. Subject to Section 32, Section 7.8 of the Master Agreement is hereby deleted in its entirety and replaced with the following: "INTENTIONALLY OMITTED". Subject to Section 32, Section 7.9 of the Master Agreement is hereby amended to read as follows: 7.9 COMMENCEMENT AND COMPLETION OF THE CITY PItASE II ROADWAY IMPROVEMENTS. Subject to Force Majeure, the City will commence the portion of the City Phase II Roadway } 71{~652v2