2011/06/15 Council Agenda Packet

FIFTH AMENDMENT TO PROPERTY DISPOSITION AGREEMENT This Fifth Amendment to Property Disposition Agreement ("Fifth Amendment") is dated as of 2011, and is made and entered into by and among the CITY OF EVERETT, a municipal corporation of the State of Washington (the "City"); OLIVERMCMILLAN, LLC, a California limited liability company ("OH'), and two Affiliated Entities of OM: (i) OM EVERETT, INC., a Washington corporation ("OM INC"); and (ii) OMH TRANSFER AGENT, LLC, a Delaware limited liability company ("OMIT ). A. OM INC and OMH (collectively "Developer") acquired the properties (collectively "Properties") described in that certain Property Disposition Agreement entered into on or about February 21, 2007 ("Original PDA"), between the City and Developer's predecessor -in -interest, OM, as amended by a First Amendment to Property Disposition Agreement dated September 28, 2007, a Second Amendment to Property Disposition Agreement dated February 20, 2008, Third Amendment to Property Disposition Agreement dated April 30, 2008 (the "Third Amendment"), and a Fourth Amendment to Property Disposition Agreement dated October 28, 2009 (the "Fourth Amendment") (the Property Disposition Agreement as amended by all such amendments, the "PDA"). B. Pursuant to the terms and conditions of the PDA, the City and Developer agreed to certain sequencing and time frames for their respective completion of certain tasks collectively described herein as the "Work". C. The City and Developer have agreed that it is appropriate to modify certain provisions of the PDA and to extend time frames for completion of certain of the Work items as presently required by the PDA. D. Accordingly, the parties have prepared this Fifth Amendment to acknowledge and evidence their agreement to affirm, modify. and extend time frames for completion of certain of the Work items as set forth herein. NOW THEREFORE, for and in consideration of the mutual promises as stated herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Fifth Amendment agree as follows: 1. Roundabout and 41" Street Extension. a. Developer Comment. Developer received the City's proposed design of the Roundabout and the 41St Street Extension on or about March 7, 2011. Developer reviewed and commented on the City's April 5, 2011 construction drawings for the Roundabout and the 41" Street Extension on or about April 22, 2011 (the "Developer Comments"). The City put construction of the Roundabout and 41" Street Extension to bid as the "41st Street Extension and Roundabout Project" with bid opening scheduled for May 3, 2011. City shall ensure that the final design and construction drawings for the Roundabout and 41" Street Extension (the "2011 Construction Drawings") incorporate the Developer Comments. Developer and City 2 -1-