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

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(i) The City determines that the grounds exist for rescission or termination under the terms of the OTP; and (ii) This Agreement expires or the City has terminated this Agreement pursuant to Section 12(a)(i) hereof prior to the execution of an MDA- If the foregoing conditions are satisfied, the City may deliver to GSA a notice of rescission or termination of the OTP effective upon receipt thereof by GSA. (b) The Developer may require that the City either repay to Developer the amount ofthe earnest money the Developer has paid to the City ( the "Developer Earnest Money") or terminate the OTP pursuant to the terms thereof, including, but not limited to Section 5, under the following terms and conditions: (i) The Developer determines that the grounds exist for reSCISSIon or termination under the terms of the OTP; and (ii) The Developer provides written notice to the City explaining why Developer may not want to proceed with the Development and the grounds that exist for the City's rescission or termination of the OTP (the "Initial Developer Notice"); and (iii) No sooner than sixty (60) days after the date of delivery of the Initial Developer Notice and at least thirty (30) days before the designated date of repayment of Developer Earnest Money or rescission or termination of the OTP, the Developer may, in its sole discretion, provide written notice to the City directing the City to select one of the following options: (I) repay to the Developer the Developer Earnest Money; or (2) rescind or terminate the OTP (the "Second Developer Notice"). Within such 30-day period, the City in its sole discretion shall either (3) pay the Developer Earnest Money to the Developer by wire transfer of funds to such account as designated by the Developer, or (4) forward to GSA and others as required by the OTP, the City's notice of rescission or termination of the OTP for the reasons stated in the Initial Developer Notice and/or Second Developer Notice, and such rescission or termination shall be effective as of the date designated in the Second Developer Notice. (iv) Notwithstanding Section I O(b )(i),(ii) and (iii) to the contrary, if the Covenant Deferral Request has been signed by the Governor of the State of Minnesota and the EP A Administrator either before or after the Developer initiates action under this Section lO(b), then Developer shall only need to provide written notice to the City at least two (2) business days before the designated effective date of repayment of Developer Earnest Money or rescission or termination, which notice explains the grounds for rescission or termination of the OTP (the "CDR Developer Notice"). Within two (2) business days after receipt of the CDR Developer Notice, the City shall either pay the Developer Earnest Money to the Developer by wire transfer of funds to such account designated by Developer or forward to GSA and others as required by the OTP the City's notice of rescission or termination of the OTP for the reasons stated in the CDR Developer Notice, and such rescission or termination shall be effective as of two (2) business days after the City's receipt of the CDR Developer Notice. II