2008/04/30 Council Agenda Packet

r. obtain a No Further Action Letter or written confirmation that the Simpson Site is not a MTCA site (an "Environmental Assurance") prior to Closing. 8. Stuchell and Newland Access. After Closing, the City shall remove or relocate the existing driveway encroachment on the Mill Site serving the easterly adjoiner as access to and from Pacific Avenue as referenced in Exhibit E- , Schedule B, Special Exception _ (the "Driveway Encroachment"). Any relocation of the Driveway Encroachment shall be subject to OM's prior review and approval (or the then -owner of the Mill Site), which approval shall not be unreasonably withheld, and shall be in a location that is compatible with the planned development of the Mill Site. City and OM further agree and acknowledge that the removal or relocation of the Driveway Encroachment may occur in conjunction with the City's construction of the main project road through the Mill Site, but in any event not later than May 1, 2011. 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 Relocation. If the encroachment referenced as Exception —in Exhibit E' attached hereto is not removed or cured prior to Closing, then the City agrees to compel the owner of the building causing the encroachment to move the building so as to eliminate the encroachment. 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 easement referenced in Exception _ 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 constructed and improved 41st Street overpass and the Roundabout (as defined in Section 18.1(c) of the Agreement) is located, which property is identified as New Lots 17 and 20 in the BLA Application (collectively, "41st Street Overpass and Roundabout"). The roadway to be constructed within the 41" Street Overpass and Roundabout shall be available, when completed, as a public right of way owned and maintained by the City. 12. Retention of Wetlands on Former Simpson Site. The City's retention of the Simpson Wetlands shall not be construed to limit the City's right to obtain easements for, or to s n otherwise retain rights to, other wetlands pursuant to the Agreement (including, without `' limitation, Section 16.6 therein). 06107-0063/LEGAL14200426.1