2008/04/30 Council Agenda Packet

17. Floodplain Clarification. The Parties acknowledge and agree that the Rate Map has been clarified to OM's satisfaction, the City has fulfilled its obligations under Section 5.3 and that the contingency described in Section 6.1.3 has been satisfied. Section 5.3 is hereby amended to read as follows, and the figure in Exhibit B-2 is replaced by the current FEMA Rate Map of the Simpson Pad: "The Federal Emergency Management Agency ("FEMA") has corrected its Flood Insurance Rate Map (the "Rate Map") to reflect the determination by the Flood Insurance Study (effective September 16, 2005), and the current designation shown on Exhibit B-2 has been clarified to OM's satisfaction." 18. Development Expenditures. The Parties acknowledge and agree that OM has complied with and fulfilled its obligations under Section 5.4. 19. The Development Plan. The following shall amend and qualify Section Lb. of the Development Plan and Section 1 and 2 of the Conceptual Layout of the Everett Riverfront Development component set forth in Exhibit G of the Agreement: If the Simpson Site or the Mill Site cannot be used for residential development because of the presence of any Hazardous Substances located thereon, then the Conceptual Layout of the Everett Riverfront Development would allow the development of the Simpson Site or Mill Site for a high quality mixed use, high technology business park, educational or office type facilities in a campus setting, consistent with the Everett Shoreline Master Program, provided it is otherwise compatible with the uses and other elements of the Development as described in Exhibit G and all applicable legal restrictions, including but not limited to the Everett Shoreline Master Program. 20. Current LEED-ND Rating System. The fourth sentence of Section 16.5 is hereby amended to read as follows: OM's failure to incorporate the elements necessary to meet the Silver level certification requirements and criteria under the Current LEED Rating System shall be deemed to be a reasonable basis for the City to withhold any consent or approval required by this Agreement or under any Development Permit to the extent the City reasonably believes that the consent, approval or permit as proposed by OM fails to include necessary LEED-ND elements and criteria as contemplated under this Agreement; provided, however, the City agrees not to withhold any such consent or approval solely due to OM's failure to satisfy either the LEED-ND prerequisite for "compact development" or the prerequisite a 100 foot wetland buffer area, or both, as long as (i) OM has and is using reasonable and diligent efforts to have these two LEED-ND prerequisites eliminated or amended to a standard compatible with the site plan for the Development and that will allow the Development to obtain LEED-ND certification and (ii) OM's Development plans, when considered together with the applicable elements of the Current LEED Rating System in the City Work, include elements that would result in at least fifty (50) points under the Current LEED Rating System. 06107-0063/LEGALI4200426.1