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Regular City Council Meeting AND Board of Adjustments and Appeals Monday,July 23,2012 Page 37 Easement Vacations Mr. Trudgeon noted that part of the Final Plat approval process would include finalizing the easement vacations. Development Agreement Mr. Trudgeon briefly reviewed language included in the Development Agree- ment that were represented in materials presented to-date at various meetings, incorporating a Response Action Plan regulated by the Minnesota Pollution Control Agency (MPCA), applicable fees, right-of-way acquisition for internal parking, and other items as detailed in the DRAFT Agreement as presented. Mr. Trudgeon advised that staff was recommending additional language be inserted in the Development Agreement to outline the Security Plan for the Wal-Mart Store, detailed in Condition L, as previously noted. Mr. Trudgeon advised that, while a Security Plan was desirable, language would default back to the 300 call threshold triggering charges for calls above and beyond that. City Attorney Gaughan addressed recommendations regarding Condition J, and pending EAW Appeal, rationalizing his recommendation that this condition be omitted from the Final Plat specifically as it could have unintended consequenc- es for current litigation that could serve to prolong litigation by litigants even if deemed unnecessary. City Attorney Gaughan opined that it was in the best in- terest of the City to avoid any climate of litigation, and to not create any artifi- cial or perceived incentives to carry on litigation with any provisions; and strongly recommended removing this condition. At the request of Councilmember Pust, City Attorney provided his analysis if pending litigation against the City is decided against the City indicating further EAW litigation is required. Councilmember Pust questioned the ramifications for the City if this condition was eliminated, the Final Plat approved, and then further environmental ligation found in favor of additional environmental re- view, via an EAW. Councilmember Pust expressed concern that this would leave the City open to a claim from Wal-Mart as a result of removing this condi- tion. City Attorney Gaughan advised that, if the ruling by the Appellate Court ruled against the City, their order would mean additional environmental study was necessary. However, City Attorney Gaughan noted that such an order would preclude any actions against the City, and if the court order directed further en- vironmental review must occur, environmental statutes require that this must occur before any other action; and the project would therefore essentially stop at that point.