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

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(v) Notwithstanding anything to the contrary in this Agreement, at any time after receipt of an Initial Developer Notice under this Section IO(b), the City may in its sole discretion negotiate with: (I) the Developer to avoid the Second Developer Notice being sent; (2) the GSA regarding extensions to the OTP: (3) any other party regarding the acquisition and redevelopment of the Development Property; or (4) any combination thereof. (c) In the event (i) of rescission or termination of the OTP initiated by either the City or Developer under paragraphs (a) or (b) of this Section 10, (ii) of rescission or termination of the OTP by GSA under the terms of the OTP, including but not limited to Section 5(d) thereof; or (iii) the City is otherwise entitled to receive or does receive a refund of all or any portion of the earnest money from the GSA pursuant to the terms of the OTP, then the Developer is entitled to such refund of all or any portion of the earnest money. In the event the City receives a refund of all or any portion of the earnest money from the GSA, regardless of the circumstances, the City agrees to promptly remit such refund after its receipt to Developer without interest. If the City fails to wire transfer the earnest money which it receives from the GSA to the Developer at an account designated by the Developer within five (5) business days following the City's receipt of such earnest money from the GSA, then the City shall reimburse the Developer for all of its out-of- pocket costs incurred in collecting the earnest money, including reasonable attorneys fees. (d) If any of the events described in Scction 10(c) occur, the City shall collect all earnest money due to the City pursuant to the terms of the OTP, subject to the following (i) the Developer shall decide what actions shall be taken to collect the earnest money, (ii) the City shall retain the attorneys and consultants requested by Developer to collect the earnest money, (iii) the Developer shall participate in all aspects of such actions to collect the earnest money, (iv) no resolution of any dispute with regard to the earnest money shall be agreed upon without the written consent of the Developer, (v) upon the City's collection of any earnest money paid under the OTP, such earnest money shall be promptly paid to the Developer as provided in Section lO(c) and (vi) the City shall fully cooperate with the Developer in pursuing the collection of the earnest money. Developer shall pay all of the out-of-pocket expenses incurred by the City in taking actions to collect the earnest money, so long as such actions are pursuant to the written direction of the Developer. (e) The City may, or upon Developer's written request, it shall request that the GSA consent to the assignment by the City to the Developer of all of the City's right, title and interest in and to the earnest money, including the right to collect the earnest money, all pursuant to the tenus and conditions of the OTP. If the GSA consents to such assignment, then from and after the duly executed consent by the GSA to such assignment to the Developer, the City shall no longer have any responsibility to collect the earnest money, other than the City is obligated to cooperate with Developer regarding the Developer's actions to collect the earnest money. (f) The City will not take actions or fail to take actions that constitute revocation or default under the OTP, including, but not limited to Section 7, except and to the extent such actions or omissions are the result of acts or omissions of Developer under Sections 3(d) or 3(e) of this Agreement. In the event the earnest money may be forfeited at the option of GSA pursuant to Section 7 of the OTP, the Developer's rights to have the City pursue the collection of the earnest money are the same as described in Section lO(c), (d) and (e). If the City receives a notice of 12