2008/04/30 Council Agenda Packet

provided, however, that such parking areas would be subject to a covenant, with terms and conditions acceptable to the City, providing for their continued use at no cost by tenants, visitors, tenant employees, agents, and other invitees of the retail center. Notwithstanding their ownership by the City, OM INC (or a substitute owner's entity acceptable to the City) would be required to maintain and repair all public parking (provided however, such repair obligations shall not include obligations, if any, otherwise addressed in the Landfill Environmental and Indemnity Agreement), (non-residential) subterranean garage space and identified landscape/open space areas dedicated to the City as contemplated herein. The City acknowledges that OMH presently intends to convey either or both of the Simpson Pad or Mill Property to a third party residential developer pursuant to the Post Closing Sales and Transfer provisions of Section 19.15.1 of the Agreement in order to fund the Landfill Improvements. 25. Memorandum of Understanding with Department of Ecology. The City agrees to work with the Washington Department of Ecology with regard to wetland mitigation work within the Simpson Wetlands. 26. Lender and Developer Cooperation. The City agrees to act in good faith with regard to any reasonable information requests made by any future developer or lender with whom OM has a contractual relationship and who may be involved in the Development. In addition, upon the written request of either party, the party to whom the request is made shall deliver to the requesting party, within a reasonable period of time, a certificate stating whether, without having undertaken any investigation: (a) it knows if any material default under the Agreement has been alleged; (b) to its knowledge, the Agreement has been assigned, modified, or amended in any way (or if it has, then stating the nature thereof), and (c) to its knowledge, whether any party has notified the other of any attempted termination of the Agreement. 27. Correction of Typographical Error. The parties acknowledge that the two references in Section 19.15 of the Agreement to Section 19.16 are typographical errors and were intended to reference Section 19.15 of the Agreement. 28. Deletion of OM Rescission Right. Section 16.7.2 is hereby deleted in its entirety. Accordingly, the first sentence of Section 16.7.3 is revised to read as follows: If the Key Development Permits have not been issued and all applicable appeal periods expired or waived by the third anniversary of the Effective Date then, for a period of six (6) months thereafter (the "City Option Election Period"), the City shall have the right to re -purchase the City Property from OM. Likewise the initial clause of Section 16.7.4 is revised to read as follows: If the Key Development Permits have not been issued and all applicable appeal periods expired or waived by the third anniversary of the Effective Date without OM having breached its obligations under this Agreement, and the City thereafter does not elect to exercise the City Option described in Section 16.7.3 above, ... 06107-0063/LEGAL l 4200426. z � 14221353 1 06107 0063 n EG A r t 422087o i