2008/04/30 Council Agenda Packet

Section 6.1.4 of the Agreement. The Parties agree that the closing condition set forth in Section 6.2.2 has been satisfied. 7. Simpson Site Environmental Assurance. The Department of Ecology has or agreed to issue in "NFA" letter for the Simpson Pad acceptable to OM. Accordingly, OM hereby waives the "Simpson Site NFA Contingency" described in Section 6.1.8 of the Agreement. No party to this Amendment shall seek or have any right of reimbursement against any other party with respect to any costs or expenses incurred in connection with their respective efforts to obtain a No Further Action Letter or written confirmation that the Simpson Pad is not a MTCA site (an "Environmental Assurance") prior to Closing. 8. Stuchell and Newland Access. After Closing, the City shall construct driveways linking the Main Road to be constructed through the Mill Property with the western property line of the Stuchell property and the Newland Property as identified in Exhibit A provided the owner of the property located between the Main Road and the western boundary lines of the Stuchell and Newland Properties grants an driveway easement to the owner's of the Stuchell and Newland Properties or dedicates such property to the City. The location of the driveway easement or dedication of the driveway areas shall be reasonably acceptable to OM or the then owner of the Mill Property and the City shall complete the driveway improvement work described herein by May 1, 2011 provided sufficient time is provided to the City after the conveyance of the interests necessary to connect the Stuchell and Newland Properties with the completed and dedicated Main Road across the Mill Property. The obligation described in this Section 8 shall survive Closing and shall inure to the benefit of OM and its successors and assigns in interest. 9. Building and Fence Relocation. If the o eaeb entbuilding and fence encroachments referenced as Exception —24c in Exhibit E--2 attached hereto isare not removed or cured prior to Closing, then the City agrees to take reasonable steps to compel the owner of the bui1diagjM2WXgM= causing the encroachment to move the im rovements so as to eliminate the ener-e ehmei *encroachments. The obligation described in this Section 9 shall survive Closing and shall inure to the benefit of OM and its successors and assigns in interest. 10. BNSF Wetland Mitigation Easement. If, after Closing, the easementr-efefefleea in Exeeptien —in Exhibit E and located in the general location east of Lots 35 through 38 (the "BNSF Wetland Mitigation Easement") creates an impediment to the completion of the Development as required by the Agreement, the City agrees to use its best efforts to have BNSF agree to relocate the BNSF Wetland Mitigation Easement to another location on the Simpson Wetlands; provided, however, the City's obligations pursuant to this Section 10 shall not require the City to take any action that would impair the City's ability to comply with its planned wetland enhancements, public amenities or other obligations under the Agreement, and the City shall have no obligation to convey any property or interest to OM or any of its Affiliated Entities in violation of any other agreement or applicable law. The obligation described in this Section 10 shall survive Closing until the Final Completion Date and shall inure to the benefit of OM and its successors and assigns in interest 11. 41st Street Overpass and Roundabout. The City and OM acknowledge and agree that the City will retain, at Closing, ownership of the property on which the newly 06107-0063/LEGAL4 42nn 404,1 214221353.1 06107 0063 it nn n r i 422087o 1