3B Public Hearing 2012 0521 - Laserfiche WebLink

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The rights established in this Section 9.8 are to be interpreted in light of the fact that the City will convey the Property to the Developer for completion of the Project as specified herein and not for speculation. The rights of City under this Section 9.8 shall automatically terminate and have no further force or effect upon completion of the Project. 9.9 Option to Purchase, Enter and Possess The City shall have the additional right at its option to purchase, enter and take possession of the Property with all improvements thereon (the "Repurchase Option "), if after conveyance of the Property, Developer (i) fails to begin construction of the Project within the time specified in Section 4.6 as such date may be extended pursuant to the terms of this Agreement, (ii) subject to force maj eure, abandons or suspends construction of the Project for a period of ninety (90) days after written notice from City, (iii) fails to complete construction of the Project by the time specified in Section 4.6 as such date may be extended pursuant to the terms of this Agreement, or (iv) directly or indirectly, voluntarily or involuntarily Transfers the Property or this Agreement in violation of Article VII Notwithstanding the foregoing, the City may not exercise its rights under this Section 9.9 unless City first delivers a written notice to Developer of City's intention to exercise such rights. Following receipt of such notice, if Developer fails to remedy the condition giving rise to the option to purchase within thirty (30) days, the City may re -enter and take possession of the Property pursuant to this Section 9.9 To exercise the Repurchase Option, the City shall pay to the Developer cash in an amount equal to: (i) The purchase price paid to the City by the Developer for the Property; plus (ii) The appraised fair market value of the improvements Developer has placed on the Property or applicable portion thereof (as determined by an appraiser with not less than 10 years' experience in appraising retail developments in Alameda County and who is mutually acceptable to City and Developer); less (iii) Any gains or income withdrawn or made by the Developer from the applicable portion of the Property or the improvements thereon; less (iv) The value of any liens or encumbrances on the applicable portion of the Property which the City assumes or takes subject to and the amount of any unpaid current or past -due installments of taxes or assessments against the Property that City agrees to pay; less (v) Any damages to which the City is entitled under this Agreement by reason of Developer's default. in order to exercise the Repurchase Option, City shall give Developer notice of such exercise, and Developer shall, within thirty (30) days after receipt of such notice, provide City with a summary of all of Developer's costs incurred as described in this Section. Within thirty (30) days of City's receipt of such summary, City shall pay into an escrow established for such purpose cash in the amount of all sums owing pursuant to this Section 9.9 and Developer shall execute and deposit into such escrow a grant deed transferring to City all of Developer's interest in the Property, or portion thereof, as applicable and the improvements located thereon. The 1875524.3 31