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Section 3.8 Acquisition of Required Right t of Way. (a) Following the approval of the design of the Project Improvements by the City Engineer,the City will specify the Project Right of Way and shall initiate and diligently pursue acquisition of the Project Right of Way. To the extent that the City is unable to acquire any of the Project Right of Way through a voluntary acquisition,the City agrees to make a good faith effort to schedule a hearing for the purpose of considering a resolution of necessity authorizing the use of the City's eminent domain authority,pursuant to the Eminent Domain Law, in order to acquire one or more portions of the Project Right of Way through the exercise of the City's power of eminent domain. Following such public hearing,the City will determine, in its sole and absolute discretion,whether or not to adopt the resolution(s)of necessity and to proceed with eminent domain. If the City adopts a resolution of necessity for any of the Project Right of Way,then the City shall proceed diligently to: (1) file condemnation actions for those portions of the Project Right of Way subject to the resolutions and exercise due diligence and best efforts in its prosecution to final judgment of such condemnation actions, (2)apply for and use its best efforts to obtain orders for possession to take possession of the applicable portions of the Project Right of Way pursuant to the Eminent Domain Law; and(3)following procurement of orders of possession for any portion of the Project Right of Way for which a resolution of necessity was adopted,diligently pursue the eminent domain actions until the final judgment is rendered. (b) Costco acknowledges that the City has absolute discretion in detennining whether or not it should adopt a resolution of necessity with regard to any portion of the Project Right of Way, and, therefore agrees that nothing in this Agreement shall obligate the City to adopt a resolution of necessity with respect to all or any portion of the Project Right of Way or subject the City to liability for the failure of the City to adopt such resolution. (c) The City has adopted a Resolution of intent to adopt a transportation mitigation fee on proposed development in the JDEDZ("JDEDZ Transportation Fee"). If the JDEDZ Transportation Fee is adopted,the City may also acquire portions of the Project Right of Way from other property owners in the JDEDZ in exchange for a fee credit against their obligations to pay the JDEDZ Transportation Fee. In such an event,Costco shall not be obligated to reimburse the City for any portion of the JDEDZ Transportation Fee credit granted by the City. For the avoidance of doubt, Costco shall not be obligated to reimburse the City for any portion of the value of Project Right of Way that is dedicated to the City and for which the City did not make a payment(and fee credits shall not be deemed a"payment" for which the City is to be reimbursed)to the owner for such acquisition. Section 3.9 Payment of Required Right of Way Costs. Within six (6)months following the City's acceptance of the Project Improvements, the City shall submit to Costco a cost certification of all Required Right of Way acquisition costs expended by the City, including any costs incurred in exercising its powers of eminent domain. Costco shall pay the City fifty percent (50%)of the amount expended by the City for Required Right of Way acquisition cost within thirty(30)days following Costco's receipt of the City's cost certification ("Costco Acquisition Costs"). If lire City is required to incur additional City acquisition costs related to 8 1310 OV22188701 217j20I 8