Reso 23-08 PC Reso 0030 Reso Recommending Approval of Amend. No. 3 to the 1548 Maple DA05.02.2023

Browse Search

certain circumstances but require City Council approval by ordinance for material amendments, including any amendment modifying the Term of the Development Agreement. The First Amendment and Second Amendment were each considered Insubstantial Amendments. This Third Amendment is a Major Amendment to the Development Agreement. D. On August 2, 2018, Case No. 18CIV03991 was filed that challenged a Project Approval (the “Litigation”). That litigation was dismissed October 15, 2018 and constituted a seventy-four (74) day period of Force Majeure Delay under the Development Agreement (the “Litigation Period”). E.Subsection 4.2.B of the Development Agreement defines the “Initial Term” of the Development Agreement as five (5) years commencing on the “Effective Date,” as defined in the Development Agreement and Subsection 4.2A of the Development Agreement defines the “Term” of the Development Agreement as the Initial Term plus the duration of any Force Majeure Delay and any specified City extensions. For avoidance of doubt, the Parties acknowledge that the Effective Date is June 20, 2018, and the current expiration of the Term is September 3, 2023. F.Due to unforeseen delays in implementation of the “Project” as defined in the Development Agreement, the Parties now desire to amend the Development Agreement to extend the Initial Term by three (3) years to a total of eight (8) years to preserve Developer’s rights under the Development Agreement and to preserve the public benefits associated with the Development Agreement, and to make certain other amendments, all as provided below. NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: A G R E E M E N T S 1.Capitalized Terms. All capitalized terms used herein shall have the meanings given in the Development Agreement, except as expressly otherwise defined in this Third Amendment. 2.Amendment of Subsection 4.2.B. Subsection 4.2.B. of the Development Agreement (Initial Term) is amended as follows (deletions shown in strike out; additions shown as double underlined): “B. Initial Term. The “Initial Term” of this Agreement shall be five (5) eight (8)years, commencing on the Effective Date and expiring on the 5th 8th anniversary thereof, unless this Agreement is terminated or extended in accordance with the provisions of this Agreement.” For the avoidance of doubt, Developer shall retain its right to extend the Initial Term in accordance with Subsection 4.2.C. of the Development Agreement, subject to the terms and conditions of Subsection 4.2.C. 3.Waiver of Right to Extension for Force Majeure Delays. In consideration of City’s agreement to extend the Initial Term of the Development Agreement as provided in Section 2 above, Developer agrees to waive any right it may have to claim extensions of times for ATTY/RESO.0030/PC RESO RECOMMENDING APPROVAL OF AMEND.NO.3 TO THE 1548 MAPLE DA REV: 04-17-2023 VR Page 9 of 13