AgdaPkt 2010-05-24 special, clsd and jnt

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6.1 F Page 25 Section 4.03. Payment Advances; Annual Budget. (a) As more fully set forth below, Saltworks shall pay to City quarterly advances of planning costs (each a "Payment Advance"} in accordance with an "Annual Budget" to be established under subsection (c) below. The first such Payment Advance shall be made by Saltworks on October 1, 2010. Subsequent Payment Advances shall be made on the f rst day of each calendax quarter thereafter. For the period commencing on May 24, 2010 and continuing through September 30, 2010, and for the period commencing on October 1, 2010 and continuing through December 31, 2010, City shall discuss with Saltworks the anticipated costs for processing the Applications and Saltworks shall advance the costs within 30 days of said discussion. (b) Within thirty (30) days after the Effective Date, Saltworks and City shall meet to discuss an annual budget of expected costs {the "Annual Budget"} for the calendar year commencing on January 1, 2010 (an "Agreement Year"). At least sixty (60} days before the end of each successive Agreement Year until the expiration or earlier termination of this Agreement, Saltworks and City shall discuss the Annual Budget for the next Agreement Year to more accurately reflect the reasonably anticipated costs for the next Agreement Year, taking into account both (i) the positive or negative difference between the then current Annual Budget and the actual costs incurred during the same period; and (ii) the anticipated scope of work to be performed during the next Agreement Year. If the Parties have not reached agreement on the applicable Annual Budget prior to the commencement of each Agreement Year, then the Annual Budget for such Agreement Year shall be the greater of (i) the Annual Budget for the immediately prior Agreement Year or {ii) the actual Planning Costs for the immediately prior Agreement Year. The Parties agree that each Annual Budget will be subject to quarterly budget reviews to be conducted by City and Saltworks on the first day of each three (3) month period following the Effective Date in order to accommodate any adjustments to the Annual Budget mutually agreed to in writing by both City and Saltworks. In the event that the Parties cannot agree on the Annual Budget in the first Agreement Year City shall establish a reasonable budget for such year. (c) In the event that the actual costs for any Agreement Year exceed the Annual Budget established for such Agreement Year, as adjusted in accordance with Section 4.03(b} (the "Excess Amount"), then the Annual Budget for the following Agreement Year shall include a line item for such Excess Amount, provided that if any Excess Amount exists at the expiration or earlier termination of this Agreement, then the Saltworks shall pay such Excess Amount to the City within forty-five (45} days after receipt of a written request from City together with supporting documentation in accordance with this Agreement. In the event that the actual costs for any Agreement Year are less than Payment Advances made by developer for such Agreement Year (the "Overpayment"), then the Overpayment shall be credited against the next Payment Advance owed by Saltworks, provided that if any Overpayment exists at the expiration or earlier termination of this Agreement, then City shall refund such Overpayment to Saltworks within forty-five {45) days after the expiration or earlier termination of this Agreement. The obligation to pay the final Excess Amount or the final Overpayment shall survive the expiration or earlier termination of this Agreement. (d) Notwithstanding the above procedures, at any time that the costs for processing exceed, or are expected to exceed the amount of Saltworks funds on deposit with City, City may request additional deposits to assure that there are adequate funds to pay for costs. City shall not be obligated at any time to use City funds to pay for the costs of processing. Saltworks shall ATTY/AGR/2010.044 4 051210