Agenda - Council Work Session - 02/15/2005

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31. 32. 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 a~-ees that the City will not assess more than $465,290.00 against the Unsold Subject Property for the city Phase II Roadway Improvements. Subject to Section 32, Section 7.13 of the Master Developmem Agreement is hereby deleted in its entirety and replaced with the following: "INTENTIONALLY OMITTED". ' The modifications to Sections 7.8 tln'ough 7.13 of the Master A~eement set'fbl'th 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 A2nendment prior to or at the Assessment hearing or appeals one or more of such special assessments pumuant to Mirmesota Statutes Section 429.081 or challenges such special assessments on any other basis the provisions of Sections 27 through 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 tl~rough 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 Amendment 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 7.13 of' the Master Agreement under the terms of the Escrow Agreements among and between the City, the Developer and D.R. Howl, on, Inc.; the City, the Developer and NAU, Inc.; and the City, the Developer and Amcon H. ousing Developmer, t, LL.C, respectively. The City's donsent 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 tim amounts, if any, the Developer owes to the City under the terms of the Master A~eement, 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 sub.,iect to the Escrow At~reements described in this paragraph shall not be subiect to. special assessments for the Phase [ Roadwav~ Improvements. Phase ti Roadway Improvements. construction and maintenance of th.e Parkin~ Improvements. and construction and maintenance of landscapi~lg for common areas within the Subiect Project (other than landscaping on.prop.er.ty owned by the owner of any of the three parcels or by parties other than the City or Developer). Section 7,14 is hereby added to the Master Development Agreement to read as follows: 1710r~52v2 12