Resolution 5871 - Laserfiche WebLink

Confirmation under the Current LEED Rating System. THE PARTIES ACKNOWLEDGE THAT THE ACTUAL DAMAGE TO THE CITY FOR THE ABOVE DESCRIBED FAILURE WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. FURTHERMORE, OM ACKNOWLEDGES THAT THE CITY HAD OTHER OPPORTUNITIES TO SELL THE PROPERTY AND RELIED UPON THE REPRESENTATIONS OF OM THAT IT WOULD PERFORM AS DESCRIBED IN SECTION 16.5 ABOVE. OM DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH OM MIGHT BE LIABLE SHOULD OM BREACH OR DEFAULT UNDER SECTION 16.5 ABOVE. OM AND THE CITY WISH TO AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD RESULT IF THE CITY FILED A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF OR DEFAULT UNDER SECTION 16.5. THEREFORE, THE AMOUNTS SET FORTH ABOVE SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF THE CITY'S DAMAGES FOR OM'S FAILURE TO SATISFY SECTION 16.5 ABOVE AND SHALL STAND FOR LIQUIDATED DAMAGES FOR OM'S FAILURE TO SATISFY SECTION 16.5 ABOVE AND THE CITY'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF OM'S FAILURE TO SATISFY SECTION 16.5 ABOVE. OM HAS REVIEWED THE EFFECT OF THIS PROVISION WITH LEGAL COUNSEL AND HAS AGREED THAT SUCH DAMAGES ARE A REASONABLE AND FAIR ESTIMATE OF THE DAMAGES THE CITY WILL SUSTAIN. BY INITIALING THIS PROVISION IN THE SPACES BELOW, THE CITY AND OM EACH SPECIFICALLY AFFIRM THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS SECTION 17.2. 1700/ OMINITIALS THE CITY'S INITIALS 18. CITY WORK 18.1 City Work The City and OM anticipate that, in conjunction with development of the City Property, the City will concurrently undertake certain public works (the "City Work") in order to provide roadways, conduct certain grading and surcharging, wetland restoration, and various public amenities on and around the City Property, aid in collecting and recovering leachate and methane from the Landfill Site and comply with the City's obligations under the Consent Decree, CAP and Restrictive Covenant. The scope of the City Work and the time frames for substantial completion of each task are as follows: (a) The City will use its best efforts to cause BNSF to relocate its track pursuant to the BNSF Agreement so as to allow for construction of a bridge to the Simpson Site or to otherwise provide OM with a crossing to allow access to the Simpson Site across the BNSF tracks by December 31, 2007. (b) The City will use its best efforts to cause BNSF to complete the all remaining relocation of the BNSF tracks from the City Property pursuant to the BNSF Agreement by December 31, 2008. (c) The City will construct a two (2) lane roundabout (including curb, gutter, sidewalk, streetlights and storm drainage improvements) on 41st Street east of the 41st -42- 06 107-0063.LEGA L 13023969.I