2005/06/29 Council Agenda Packet

not materially or substantially change the uses or development permitted within the Site, or the purpose of this Agreement; such interpretations, waivers, and/or amendments may include extensions of time to perform. All material and/or substantive interpretations, waivers or amendments shall require the consideration, action and written consent of the Everett City Council. Section 18. Time fir Acceptance of Agreement by City. This Agreement, when executed by OM and delivered to the City's Mayor, must be authorized, executed and delivered by the City on or before fifteen (15) days after signing and delivery of this Agreement by OM or this Agreement shall be void, except to the extent that the OM shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. Section 19. Entry Onto the Site by OM. During the ENA Period, OM shall have the right to enter the Site to conduct any and all tests and studies which OM may reasonably deem necessary for the performance of its obligations set forth in this Agreement, provided that: (i) OM executes and delivers to the City an access agreement in form and substance reasonably satisfactory to the City which provides, among other things, that OM shall indemnify and hold harmless the City from any damages arising as the result of the activities of OM or its employees or agents on the Site; (ii) that in the event OM or its agents should cause any damage to the Site, OM shall be responsible for promptly returning the Site to its preexisting condition; (iii) OM obtains insurance in form and substance reasonably satisfactory to the City to support OM's obligations under such access agreement; and (iv) OM shall deliver to the City copies of any reports or studies conducted on the site within ten (10) days after completion OM will also seek its own right of access agreement with Burlington Northern Santa Fe Railroad. Sectiin 20. Public Communications. OM and the City will discuss any press statement, press release or public announcement concerning the development or any proposed transaction between OM and the City prior to making any such press statement, press release or public announcement. No press statement, press release or public announcement shall be made with regard to the development of the Site or any proposed transaction between OM and the City without the prior written agreement of the City's Chief Administrative Assistant, provided that any party hereto may make such disclosure if advised in writing by counsel that it is legally required to do so. Section 21. .•eceipt cif Non-Refundable Deposit. By its execution of this Agreement, the City acknowledges receipt of OM's payment of the Fifty Thousand Dollar ($50,000.00) nonrefundable deposit required by the RFQ. Section 22. Allocation if Pri jest Expenses and Capital Costs. The City and OM agree that, during the ENA period, except as otherwise provided in this Agreement, each party shall be responsible for its own out-of-pocket costs and expenses, included but not limited to costs related to Outside Consultants, travel, entertainment, and marketing. The parties further acknowledge that the City may, but is not required to, make off-site or on-site capital investments directly benefiting the site during the ENA period; the ultimate responsibility and fair 5