02-26-07 Item 7A, Preliminary Development Agreement

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undertake a merger, acquisition, reorganization or similar transaction unless the resulting entity is an Affiliate. For the purposes of this Section, the term '"Affiliate" means any corporation, partnership, limited liability company or other business entity or person controlling, controlled by or under common control with Ryan or Ryan and Rehbein. For the purpose hereof the words "controlling", "controlled by" and "under common control with" shall mean, with respect to any corporation, partnership, limited liability company or other business entity, the ownership, directly or indirectly, of fifty percent or more of the (i) the voting interests in such entity, or (ii) the power to direct or cause the direction of management policies of such entity, whether by way of ownership of voting securities or by contract or otherwise. Section 7. Negotiation ofMDA. Upon execution of this Agreement, the City and the Developer shall proceed with the negotiation of an MDA regarding the Development consistent with the terms set forth in this Agreement and use their best efforts to execute an MDA. The execution of the MDA shall be subject to all of the following: (a) All terms of the MDA are acceptable to the City and the Developer. (b) The City's financial consultant provides to the City a report indicating that: (i) Any public financial assistance is necessary and appropriate, and is financially feasible for the City in light of its other redevelopment and economic development goals; and (ii) Based on a review of the market study and pro forma provided by the Developer, the proposed redevelopment and its financial feasibility are supportable by projected market conditions. (c) All the conditions stated in Section 2 hereof are either satisfied or are set forth as conditions that must be satisfied by the Developer under the MDA before the Developer can proceed with redevelopment of the Development Property. J .~./. Section 8. Effect of Approvals. No approval given by the City hereunder or in connection herewith shall be deemed to constitute an approval of the Development for any purpose other than as stated herein and the process outlined in this Agreement shall not be deemed to supersede any concept review, conditional use permit, vacation, subdivision, rezoning or other zoning or planning approval process or public financing process of the City relative to the development of real estate or condition of receiving any grant funds. Section 9. Modifications. This Agreement may be modified and the term thereof may be extended only through written amendments hereto signed by the parties to this Agreement and approved by the City Council. Section 10. Rights Regarding OTP. (a) The City may only rescind or terminate the OTP pursuant to the terms thereof, including, but not limited to Section 5 thereof under the following terms and conditions: 10