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3.11 BNSF Agreement
<br /> OM has received a copy of the BSNF Agreement with BNSF and acknowledges that the
<br /> City has certain contractual obligations to BNSF under the BSNF Agreement. The City is not
<br /> aware of any defaults under the BNSF Agreement as of the Effective Date. Neither OM nor the
<br /> City is aware of anything in the BNSF Agreement that would be inconsistent with the
<br /> Development as contemplated herein as long as both the City and BNSF perform their respective
<br /> obligations under the BNSF Agreement on the terms and conditions and by the deadlines set
<br /> forth therein. Under no circumstance shall OM have the right to require the City to obtain any
<br /> amendment to or modification of the BNSF Agreement or condition any consent or approval on
<br /> any such amendment to or modification of the Exchange Agreement, nor shall OM exercise any
<br /> right to terminate this Agreement because of any term, condition or provision in the BNSF
<br /> Agreement. Nothing in this Agreement is intended to make OM a party to or a successor to the
<br /> City under the BNSF Agreement or to otherwise require OM's assumption of any City
<br /> obligations thereunder.
<br /> 4. TERMS OF SALE
<br /> EXCEPT AS SET FORTH IN THE REPRESENTATIONS OF THE CITY SET FORTH
<br /> BELOW OR IN ANY DOCUMENTS TO BE EXECUTED AND DELIVERED BY THE CITY
<br /> AT CLOSING, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, THE DEED AND
<br /> THE ENVIRONMENTAL INDEMNIFICATION AND LANDFILL AGREEMENT, OM
<br /> ACKNOWLEDGES,REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT, AS
<br /> A MATERIAL INDUCEMENT TO THE CITY TO EXECUTE AND ACCEPT THIS
<br /> AGREEMENT AND IN CONSIDERATION OF THE PERFORMANCE BY THE CITY OF
<br /> ITS DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT, NEITHER THE CITY
<br /> NOR ANY EMPLOYEE, ELECTED OFFICIAL, CONSULTANT, AGENT OR
<br /> REPRESENTATIVE OF THE CITY (COLLECTIVELY, THE "CITY RELATED
<br /> PERSONS") HAS MADE, AND THAT THE CITY AND THE CITY RELATED PERSONS
<br /> DO NOT MAKE AND SPECIFICALLY NEGATE AND DISCLAIM, ANY STATEMENT,
<br /> REPRESENTATION, PROMISE OR GUARANTY (WHETHER ORAL OR IN WRITING) OF
<br /> ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
<br /> PAST, PRESENT, FUTURE OR OTHERWISE, OF, AS TO, CONCERNING OR WITH
<br /> RESPECT TO THE CITY PROPERTY, INCLUDING, WITHOUT LIMITATION:
<br /> (1)GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE,
<br /> SUBSURFACE CONDITIONS,WATER TABLE,UNDERGROUND WATER RESERVOIRS,
<br /> LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND FAULTING;
<br /> (2) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE PROPERTY OR ANY
<br /> PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR
<br /> UNDERGROUND), BODY OF WATER, FLOOD-PRONE AREA, FLOOD PLAIN,
<br /> FLOODWAY, SPECIAL FLOOD HAZARD OR NATURAL HAZARD AREA;
<br /> (3)DRAINAGE; (4) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF
<br /> INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL
<br /> FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY
<br /> UNDERSHORING; (5) USAGES OF ADJOINING PROPERTIES; (6) THE VALUE,
<br /> COMPLIANCE WITH THE PLANS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY,
<br /> DESCRIPTION, DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR
<br /> -9-
<br /> 061 07-0063;LEGAL 13023969.1
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