2008/04/30 Council Agenda Packet

r- the Main Road extension through to Pacific Avenue shall be constructed at the 100 year floodplain elevation. The covenant of the City as set forth herein shall survive Closing and shall inure to the benefit of OM and its successor and assigns in interest. 24. OMHs use of Net Sale Proceeds. OMH shall contribute to OM INC any net sales proceeds from the sale of the Simpson Site and Mill Site to an unaffiliated third party to fund certain infrastructure and improvements to the Landfill Site ("Landfill Improvements") by OM INC, all of which Landfill Improvements shall become the property of the City upon their completion, acceptance by the City and dedication (in the same manner as the Main Road). "Net Sales Proceeds" as used herein shall mean net sales proceeds realized from the resale after deduction for all sales and closing costs in connection with such resale including but not limited to title and escrow premiums, real estate excise and other transfer taxes, prorated closing costs, real estate commissions or brokerage fees and any other closing costs payable by OMH, and further minus all carrying costs, predevelopment and acquisition costs relating to the Simpson Site and Mill Site plus the costs of the Main Road and Wet and Gas Utilities required under the Agreement. The Landfill Improvements may include the new, expanded methane gas management system, roads and sidewalks, utilities (other than those dedicated to service providers), parking lots within the Landfill Site, including (non-residential) subterranean garage areas, and identified landscape/open space areas. OME INC shall grant any necessary easements to the City for the location/maintenance of the Landfill Improvements. The parking lots and (non-residential) subterranean garage areas on the Landfill Site would be owned by the City following their completion and acceptance by the City and open to the public for parking; 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 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 Site or Mill Site 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, r� 06107-0063/LEGAL14200426.1