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0 R S E Y 54 <br />iii] 1 ,. INFY 11.E <br />MEMORANDUM <br />VIA ELECTRONIC MAIL <br />TO: <br />Michael J. Mornson <br />CC. <br />Jerome P. Gilligan <br />FROM: <br />Audra E. Williams <br />DATE: <br />May 17, 2005 <br />RE: <br />Development Agreement with Amcon St. Anthony, LLC <br />The City of St. Anthony has asked for a memo summarizing material provisions of the <br />Development Agreement it entered with Amcon St. Anthony, LLC, dated November 3, 2003, <br />with particular attention paid to the requirements surrounding the construction and operation of <br />a restaurant. <br />Several sections of the Development Agreement have been performed, and are <br />inapplicable to the present issue. Those sections are not discussed in this memo. <br />Section 2.3 of the Development Agreement requires that Amcon use its best efforts to <br />lease the Restaurant to a third party for use as a restaurant with a liquor license and charitable <br />gambling on or before September 1, 2004. The term "Restaurant' is defined in the <br />Development Agreement as the building designated on the Preliminary Plans and Specifications <br />as the restaurant, and is depicted thereon as a free standing building separate from the strip <br />mall. It should be noted that because the term 'Restaurant' is so defined, the requirements set <br />forth in the Development Agreement apply specifically to the free standing building, and not to <br />any other condominium unit used for restaurant purposes. <br />Clearly, Amcon did not meet its requirement to lease the Restaurant by September 1, <br />2004. The Development Agreement states that in this event, Amcon shall give a written <br />summary of its efforts to obtain such a lease on time, and shall thereafter give written updates to <br />the City describing its efforts to lease the Restaurant. If Amcon has not met its leasing <br />requirements on or before September 1, 2005, the City may purchase the Restaurant <br />condominium unit for $100.00. This option is exercisable at any time prior to the date a lease <br />for the Restaurant commences. <br />It should also be noted that even if the City has not required strict performance by <br />Amcon under Section 2.3 up to this point, Section 6.4 states that no waiver can be implied for a <br />future breach. Therefore, Amcon cannot claim that because the City has not required regular <br />updates describing its efforts to obtain a lease, it is exempt from doing so in the future, or that <br />the City has impliedly waived its purchase option. <br />DORtiIiY f1 VPrII"; "I2Y I.LI' <br />4839-4329-2928V1 5/17/2005 130 I'M <br />