2013/05/29 Council Agenda Packet

4 MAY 10,2013 DRAFT 2. Seventh Amendment to the PDA. At the closing of the transfer of the Properties to Polygon,Polygon shall deliver to the City a fully executed seventh amendment to the PDA, in the form attached as Exhibit A (the "Seventh Amendment"). Within ten (10) days after such delivery,the City shall fully execute the Seventh Amendment. 3. Central Gathering Space Easement Area. The Parties acknowledge that the general location of the Central Gathering Space Easement Area as defined in the Public Amenities Agreement is shown on the attached Exhibit B. 4. Development Agreement. In accordance with Section 13.2 of the Development Agreement, the Parties acknowledge that the Development Agreement runs with the land but is subordinate in all respects to the PDA and the Environmental Agreements. Polygon acknowledges that any future amendment of the Development Agreement will be governed by, among other things, RCW 36.70B.170 et seq. and Titles 15 and 19 of the Everett Municipal Code. 5. Subordination Agreements. In connection with the negotiation of this Assignment Agreement,the Parties and Bank of America have agreed to a form of termination of the Subordination Agreement, which will be executed by the parties thereto and recorded at the closing of the transfer of the Properties to Polygon. The City agrees to subordinate certain of its rights under the Riverfront Agreements to the lien of the deed of trust securing certain of Polygon's project financing by execution of a subordination agreement in the form attached as Exhibit C (the "New Subordination Agreement"). Polygon acknowledges that, except for the New Subordination Agreement, the City has given Polygon no agreement or assurance whatsoever that the City will agree in the future to subordinate its rights related to the Properties to the rights of any lender or other person. 6. No Due Diligence Reliance on City. Polygon acknowledges and agrees that the Properties represent complex and multifaceted real property, with opportunities and challenges. Polygon confirms that it has reviewed and agrees with Section 4 of the Original PDA. As Polygon has conducted its due diligence to determine whether to purchase the Properties, the City has endeavored in good faith to answer questions and provide information as requested by Polygon. However, except for those matters specifically provided in the attached Exhibit D,the City makes no representation or warranty whatsoever that all information or materials relevant to the Properties,the Consent Decree or the Riverfront Agreements have been disclosed to Polygon or that any information or materials provided to Polygon by the City are relevant, complete or accurate. Polygon's decision to purchase the Properties and enter into this Assignment Agreement is in reliance on (A) information received from the OM Entities, to the extent such reliance is permitted by the agreements between Polygon and the OM Entities; (B) Polygon's own investigation; and (C) those matters specifically provided in the attached Exhibit D. Polygon hereby releases and forever discharges the City and its officers, employees and agents from any and all claims, demands, or losses, through any and all actions or causes of action of any nature whatsoever, whether known or unknown, foreseen or unforeseen, at law or in equity or by statute, that Polygon now has or that may subsequently accrue to Polygon, arising from or relating to(i)the disclosure or non-disclosure of information or materials by the City to Polygon on or before the date of transfer of the Properties to Polygon or (ii) the relevancy, accuracy or completeness of any information or materials provided by the City to Polygon (except for those -5- 20