03-12-07 Item 8A, Preliminary Development Agreement for TCAAP

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escrow agent of Developer's choice, pursuant to an escrow agreement among Developer, City and the escrow agent in a form reasonably acceptable to the City. The escrow agreement shall provide for the right of the City, after three (3) days written notice to Developer, to draw on the amount in escrow to pay City Reimbursable Costs which have not been paid by Developer pursuant to this Agreement Additionally, the escrow agreement shall provide that each time the balance in the escrow drops below $50,000, Developer shall replenish the escrow to $50,000 within ten (10) days after written notice from the City or the escrow agent. City Reimbursable Costs are also payable from any offset of returned earnest money and Developer Reimbursable Costs, as described in Section l2(b )(iii) hereof. (f) Termination. (1) Upon expiration or earlier termination of this Agreement in accordance with its terms, the City will release the escrow to the Developer less any draw needed to pay the City any City Reimbursable Costs accrued through two (2) business days following the date of the City's termination of this Agreement or the City's receipt of the notice of termination from the Developer. For the purposes of this paragraph, City Reimbursable Costs are considered to be accrued if they relate to services performed and are payable under a contract entered into on or before two (2) business days following the City's receipt of the notice of termination. (2) If this Agreement is terminated before its expiration or the term expires with or without an MDA, and the City within two years after the effective date of termination or expiration enters into a definitive development agreement with another developer who is not an Affiliate as defined in Section 6 hereof (the "Successor Developer") regarding all or a portion of the Development Property (the "New Development Property"), then the City will reimburse Developer for the Developer Reimbursable Costs described on the attached Exhibit E (the "Developer Reimbursable Costs"), except as otherwise provided in clause (3) of this Section 5(f). If the New Development Property consists of property less than the entire Development Property, the amount payable under this clause is the product of (a) the Developer Reimbursable Costs, multiplied by (b) a fraction, the numerator of which is the area in square feet of the New Development Property, and the denominator of which is the area in square feet of the Development Property minus the combined area in square feet of the Wildlife Area and the Athletic Field Area. (3) If this Agreement is terminated before its expiration because of rescission of the aTP initiated by Developer under Section I O(b) hereof, the Developer Reimbursable Costs will exclude any costs for Item I (Framework Vision) and Item 8 (Development of the TIF District) on Exhibit E. (4) Notwithstanding the expiration or earlier termination of this Agreement, the terms and conditions of paragraph (f)(1-3) shall survive the expiration or termination of this Agreement Section 6. Exclusive Development Rights. During the term of this Agreement, the City will not negotiate or contract with any other party concerning the sale or development of the Development Property. The Developer shall not without the prior written consent of the City (a) assign or transfer its rights under this Agreement, in full or in part, other than to an Affiliate, or (b) undertake a merger, acquisition, reorganization or similar transaction unless the resnlting entity is an 9