Agenda - Council Work Session - 02/01/2005

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31. 32. 33. 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 $465,290.00 against the Unsold Subject Property for the city Phase II Roadway hnprovements. Subject to Section 32, Section 7.13 of the Master Development Agreement is hereby deleted in its entirety and replaced with the following: "INTENTIONALLY OMITTED". The modifications to Sections 7.8 tlwough 7.13 of the Master Agreement set forth in Sections 27, 28, 29, 30 and 31 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 ~ection 37 of this First ganendment 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 27 ttzrough 31 of this First Amendment are, at the option of the City, of no further force and effect and the provisions of Sections 7.8 through 7.13 of the original 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 ganendment above within the appeal periods provided under Minnesota Statutes Chapter 429, the condition subsequent described above shall be deemed satisfiedl and the City will execute documentation consenting to the release of the escrowed funds cm'rently held pursuant to Section 7./.3 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 Development, LLC, respectively. The City's consent to the release of the 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 ten-ns 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. The tlzree parcels subject.to the Escrow Agreements described in this para.mLa3~h shall not be subject to special assessments for the Phase I Roadwax Improvements. Phase If Roadway Improveme. nts, construction and maintenance of the Parking Improvements, aid construction and maintenance of landscaping fbr common areas within the Subject Proj,e. ct (other than landscaping on property owned by the owner of any of the three parcels or by parties other than tile City o~: DeveloperL. Section 7.14 is hereby added to tile Master Development Agreement to read as follows: -18- 1710652v2 12