HomeMy WebLinkAbout069-13 - GEM 1, LLC - Contract Amendment 1MCCORMICK COMMUNITIES 202208100090
Amended Agreement Rec Fee: $217.50
08/10/2022 11:50:40 AM Page 1 of 15
Paul Andrews, Kitsap County Auditor
Name and Mailing Address
r_% -�..riL Cpl 0--W --1I6 5
Grantor(s) person(s) that conveys, sells or gra i erect in property:
Grantee(s) person that buys, receives drto
Abbreviated Legol .eriot or
• Quarter u rt ection, 1 wnship, Range (and Government lot # if applicable); OR
• Plat/COndo Name, lot or u(t number, building or block number; OR
• Short Plat, Large Lot number, lot number and auditor file number
of property is made:
Tax Parcel Number:
04/25/14
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AMENDMENT OF DEVELOPMENT AGREEMENT
McCormick Woods
Phases III, IV, and V Preliminary Plats
This AMENDMENT OF DEVELOPMENT AGREEMENT for
Phases III, IV, and V Preliminary Plats ("Amendment Agreement") is entered into
City of Port Orchard, a Washington municipal corporation ("City" or "Po
McCormick Communities, LLC, a Washington limited liability company ("McCon
and McCormick are each a "Party" and together the "Parties" to this Ameridmen
RECITALS
Woods
-en the
") and
City
A. In 2013 the City and McCormick's predecessor in interes 1 L e ered into the
"DEVELOPMENT AGREEMENT for McCormick nods Ph s s II, V, and V
Preliminary Plat" recorded on September 16, 201("D v me t Agreement"). The
Development Agreement, as stated in its RecitalF, s devel e agreement authorized
by RCW 36.70C.170.
B. McCormick Woods is a portion of the larger M9 rmick r perry that is described in the
CREDIT AGREEMENT FOR CAPITAL FACILI RGES ("Credit Agreement")
that the Parties are executing simultaneously with this Amendment Agreement. The
McCormick Woods portion of the larger McCormick Property is depicted on Exhibit A to
this Amendment Agreement.
C. As set forth in the Credit Agr e rmick is financing and constructing five
projects on the City's cunt Ca ' a thprb ment Plan (hereafter the Five CIP Projects)
that the City is unable to fin and cbns& ct itself. By doing so, McCormick is creating
water infrastructure that e bNIeNt ity to supply water to the McCormick Property
as the City agreed to d e 19 A between the City and McCormick's predecessor,
the McCormicWater
ompan
D. By constru ti g i ects, McCormick also is constructing water infrastructure
that wil e a e e ytoprovide water to areas of the City outside of the McCormick
Propert . k's oi'istruction will increase the City's total water storage capacity
by appro im ely ° o all pressure zones and create infrastructure to serve the entire
City in th e f shortfalls in water supply or storage in other areas of the City.
E.
Five
IP esti es the total cost of the Five CIP Projects to be $11,840,625. McCormick
ceive p ial reimbursement for this investment in the Five CIP Projects by means
C Credit described in the Credit Agreement. As stated in Section 3 of the
Ag ement, McCormick and the City anticipate that McCormick will construct the
Projects within the next five years (although drilling of Well 12 may take longer
se the City needs to first secure water rights under the Foster program), but
irmick will receive the anticipated credit per ERU over the next 20 years, and may
receive full credit, depending on the market for lots within the McCormick Property.
of Development Agreement, McCormick Woods (Phases III, IV, and V)
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F. When the $11,840,625 invested by McCormick in the Five CIP Projects is adjusted for the
time value of money over 20 years, the additional financing cost to McCormick is between
$1,933,991 and $2,544,900, depending on the rate at which new ERUs are developed. This
financing cost is not reimbursable under the CFC Credit Agreement, bu 't presents
significant public benefit to the City and constitutes consideration for the City e��ing into
this Amendment Agreement to extend the term of the Annexation Agre t to c incide
with the term of the Credit Agreement, so that sufficient ERUs are potentia va is le to
provide the credits needed to defray a meaningful portion of the o o mancing and
building the Five CIP Projects.
G. In addition, Section 3 of the Development Agreement vests c o evelopment
Standards as defined in section 1.a(5) of the Developme gr nt er with the
"changes" to these Development Standards identified i ction f the evelopment
Agreement. McCormick is willing to forgo ' ve ed g s to e "changes" to the
Development Standards set forth in subsect' 3.a, 3.b, of the Development
Agreement.
H. On March 14, 2022 the City and McCormic �xth Credit Agreement, and the
Parties are now executing this Amendment ree t while also amending the
Annexation Agreement for McCor4�kNWest. These three agreements are intended to be
construed together as part of a larger a e ent between the Parties, with each agreement
constituting part of the consideration or o er two agreements.
I. In consideration of the promises a d gs described above together with those in
the Credit Agreement, th City o ick agree as follows:
1. Development gree nt affi ed. The Development Agreement, together with the
vested rightcC 'ck o tined pursuant to RCW 58.17.033(1) when it submitted
complete a p is s r liminary plats of McCormick Woods Phases III, IV, and
V, are afi,m4 eceptanipdified by this agreement.
2. Extensio o erm: hterm of the Development Agreement and of the associated vested
rights, are e b xtended to coincide with the term of the Credit Agreement, which shall
be 2 y s om cution of this Amendment Agreement or until McCormick receives
the axim Water CFC Credit as described in Sections 6 and 11 of the Credit
Ag ent. o ever, in no case shall this Agreement extend beyond the twenty-year
3
-n Development Standards. Section 3 of the Development Agreement vests
)rmick to Development Standards as defined in Section 1.a(5) of the Development
;ment together with "changes" to these Development Standards identified in Section
the Development Agreement. McCormick hereby waives its vested rights under
t of Development Agreement, McCormick Woods (Phases III, IV, and V)
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subsections 3.a, 3.b, 3.e, and 3.h, and agrees to modify its vested rights under subsections
3.d and 3.f as set forth below in sections 4 and 5 of this Amendment Agreement (there is
no subsection 3.g in the Development Agreement). McCormick otherwise agrees that
development of residential lots and structures within McCormick Woods will be consistent
with Title 20 of the City Code as it exists of the date of execution of this agree nt, except
as provided in subsection 3.c (landscaping), provided that in the event of confl t etween
specific regulations within Title 20 and the development depicted and ap ,rovedt e face
of the Preliminary Plats for Phases III, IV, and V of McCormick Woods, d1n any
amendments to these Preliminary Plats, the Preliminary Plats s n ol. Pro ' d,
however, if major modifications are made to a plat, then those difica o s wo d be
based on the then -current applicable regulations and that plat w 1 not b ested to an
earlier vesting date under either the Development Agreement s ent. Further,
provided, that future owner(s) of any of the parcels ee which this
Amendment applies may, at their option, waive this or sus quent v s ing.
ri
5.
Section 3.d Minor Modifications. Section 3.4 Ihereby amended -to read as follows:
Final Plat — Minor modifications. The prelims plats of c ormick Woods (Phases III,
IV, and V) were designed and approved based\n itsap ty's system for approval of
minor modifications to the preliminary plat du ' g__t e nal plat review and approval
process. The Parties recognize that City's standards for distinguishing between minor
modification, which may be approvedNbyth staff, and major modifications, which require
re -review by the Hearing Examiner, e mbrstingent than the County's. During the final
plat process for McCormick Woo s a s tHV, and V), the City staff is authorized to
permit minor modifications wi out tie n c ssity of further review by the Hearing
Examiner so long as th)nodifct is c nsistent with the Department of Ecology's
Stormwater Management 'Mua1 in e at the time of the modification and also does
not (1) increase or decre htm of authorized homes by more than 30 dwelling
units, (2) increase the r o 1btby more than 30 lots (however, modifying single-
family dwellin units o attache zero lot line) housing units would qualify for a minor
modificatio , () ' cr s tra c volumes above the volume contemplated by the 2021
Developme t A �eeit ansportation; (4) require modification or alteration of a
critical ffer a was not contemplated by the preliminary plat approval or as
describ d ' e o 7 otthe Amendment; or (5) reduce the amount of open space or
1
by the preliminary plat approval.
sti"aived; Updated Roadway Cross Sections. McCormick waives its
3.f v t'ng to the Road Cross Sections that were attached as Appendix D-1. A new
ix D- with applicable Road Cross Sections is attached to this Amendment
will replace the Appendix D-1 to the Development Agreement. These
oad Cross Sections will apply to future phases of the development. Any phases
under review that have utilized the Road Cross Sections from Appendix D-1 the
>ment Agreement do not need to use the updated Road Cross Sections contained in
of Development Agreement, McCormick Woods (Phases III, IV, and V)
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6. A new section 3A is being added to the Development Agreement to read as follows:
3A. McCormick Woods, Phase V Park Development. The Preliminary Plat approval
for McCormick Woods, Phase V required the development of a park of approximately three
acres in size (Condition 10). McCormick will develop the Park at the locati " n hown on
Exhibit B to this Amendment, and the current Park Master Plan is attached as ibit C.
The current "working name" of the Park is St. Andrew's Park. McCor i ill o plete
the construction of the St. Andrew's Park no later than five (5) years from t o this
Amendment, or upon the recording of the next 150 lots withi o ick ds,
whichever occurs first. St. Andrew's Park will be developed n impr v d wi he
following amenities: playground equipment which has been oved b' the U.S.
Consumer Product Safety Commission (CPSC) in accordan1487, active
recreation facilities, open space, and landscaping with nati eg t' n. he City accepts
and approves the Park Master Plan (Exhibit C). McCormi will ap 1 forand obtain the
City's review and approval for the necessarthe
to n uct . Andrew's Park as
generally described herein and shown onC. T e will be owned and
maintained in perpetuity by McCormick orseq Homeowner's Association
whowill own the Park and be responsible foenan e.
7. Section 4.a Extension. The Term of this Agrees nt i ddressed in Section 2 of this
Amendment, therefore, the option f ive-year extension addressed in Section 4.a of the
Annexation Agreement is no longer ap o 'ate and McCormick waives its right to request
such an extension under this Amend nt.
8. Critical Areas Vesting and d ' . itical areas were established under the
preliminary plat approv�proc , lu i g buffers and other standards. McCormick
remains vested to these ri cal erformance standards. The prior wetland
categorization will also reman ' ce. owever, since wetlands do migrate and change
over time, updated welid eli atic n will be required at the time of submittal of a land
disturbing acts ' perM t so tha'1 t e locations of the buffers and wetland boundaries will
be consisten e then-prsite conditions.
9. Default ai r or a by either Party to perform any term or provision of this
Amend gr nt s 1 constitute a default. In the event of alleged default or breach
of any to con ' io s of this Amendment Agreement, the Party alleging such default
or breach sh 've the other Party not less than thirty (30) days' notice in writing,
spect na • of the alleged default and the manner in which said default may be
cur d. Dunn is thirty (30) day period, the Party charged shall not be considered in
default�for pu ses of termination or institution of legal proceedings.
nr i c
ce and expiration of the thirty (30) day period, if such default has not been cured
ieing diligently cured in the manner set forth in the notice, the other Party to this
;nt Agreement may, at its option, institute legal proceedings pursuant to this
;nt Agreement.
of Development Agreement, McCormick Woods (Phases III, IV, and V)
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10. Non -Waiver of Breach. The failure of a Party to insist upon strict performance of any of
the covenants and agreements contained herein, or to exercise any option herein conferred
in one or more instances shall not be construed to be a waiver or relinquishment of said
covenants, agreements, or options, and the same shall be and remain in full force and effect.
11. Conflict. In the event of any conflict between this Amendment Agreement a the Port
Orchard Municipal Code, this Agreement shall control.
12. Resolution of Disputes and Governing Law. If any dispute arise e the Ci d
McCormick under any of the provisions of this Amendment Agre nt, jur' ction pny
resulting litigation shall be filed in Kitsap County Superior C rt, Ks p County,
Washington. This Amendment Agreement shall be goveined onstrued in
accordance with the laws of the State of Washington. Th no vai ' arty in any
action brought to enforce this Amendment Agreement sha 1 ay the ter pa ' s' expenses
and reasonable attorney's fees.
13. Written Notice. All written communication r garding en o cement or alleged breach of
this Amendment Agreement shall be sent to t e arties at the a dresses listed below, unless
notified to the contrary. Unless otherwise sp ci ed, any itten notice hereunder shall
become effective upon the date of both emailing a mai i by registered or certified mail,
and shall be deemed sufficiently gi e f sent to the addressee at the address stated below:
McCORMICK: Y:
Eric Campbell Putaansuu, Mayor
12332 NE 115`h Place( 1 of Port Orchard
Kirkland, WA 98033 16 Prospect Street
eric ms rou llc.con. Port Orchard WA 98366
iputaansuu@cityofportorchard.us
Nick Tosti
805 Kirk1iAyenu ite A copy shall also be transmitted to the City
Kirkland WA9803. 3, Clerk at the above address.
14. Assignment. n the v t that McCormick assigns the Credit Agreement in accordance
with Section the redit Agreement, this Amendment Agreement shall be deemed to
be sirnul ann ouslysigned to the same assignee.
15. Mo i cation) No waiver, alteration, or modification of any of the provisions of this
eh4hent Agreement shall be binding unless in writing and signed by a duly authorized
7repe native of the City and McCormick.
.bility. The provisions of this Amendment Agreement are declared to be severable.
provision of this Amendment Agreement is for any reasons held to be invalid or
of Development Agreement, McCormick Woods (Phases III, IV, and V)
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unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality
shall not affect the validity or constitutionality of any other provision.
17. Good Faith and Due Diligence. The Parties agree to perform all obligations under this
Amendment Agreement in good faith and with due diligence.
18. Binding on Successors. The rights, obligations, conditions, and intere4eto this
Amendment Agreement shall run with the land and shall inure to thed be
binding upon McCormick, and its heirs, personal representatives, se . ns.
IN WITNESS WHEREOF, the parties have executed this Agreement o 1 dayf _
_, 2022. /N N/
MCCORMICK COMMUNITIES, LLC CITY OF
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STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu ' e person
who appeared before me, and said person acknowledged that he signed this instmme t, on oath
stated that he was authorized to execute the instrument and acknowledged it as aybrof Port
Orchard to be the free and voluntary act of such party for the uses and purposes me a the
instrument. 1
EIIDated: Uy 1 (/ 1 20
'ARY
of W
or type ame
IC in and for the
phi g on, residing at:
• 'on expires: 1T
of Development Agreement, McCormick Woods (Phases III, IV, and V)
1526807.13 - 366922 -0037 FG:74422323.6
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STATE OF WASHINGTON
ss.
COUNTY OF ) ^^66
I certify that I know or have satisfactory evidence that Mr.�'f\c. � e-vA 'ul i he person
who appeared before me, and said person acknowledged that (he/she) signed this ins ent, on
oath stated that (he/she) was authorized to execute the instrument and acknowl it e
:)^ of McCormick Communities, LLC to be the free and voluntary act of su r the
uses and purposes mentioned in the instrument.
Dated: 2-1 20 Zt-
U
or
NOTARY PUBLIC
STATE OF WASHINGTON
ANDREW D MARSHALL
MY COMMISSION EXPIRES
FEBRUARY 28, 2025
COMMISSION NO,164916
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ARY PLE3TIC in and for the
of Washi ton, residing at:
My Commission expires:
ment, McCormick Woods (Phases III, IV, and V)
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