032-22 - Resolution - Capital Facility Fee Credit AgreementDocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C
RESOLUTION NO. 032-22
A RESOLUTION OF THE CITY OF PORT ORCHARD AUTHORIZING THE MAYOR TO
EXECUTE A CAPITAL FACILITY FEE CREDIT AGREEMENT IN ACCORDANCE WITH
POMC 13.04.030 WITH MCCORMICK COMMUNITIES, L.L.C.
WHEREAS, the City of Port Orchard owns and operates a municipal water system that
services the area where McCormick Communities, LLC is developing a master planned housing
project ("the Project"); and
and
WHEREAS, in order to serve the Project, water infrastructure improvements are needed;
WHEREAS, these improvements consist of the following:
i. CIP No. 9: Well 12 Development, Treatment, and Booster Pump Station
($7,000,000)
ii. CIP No. 13: 390 to 580 Zone Booster Station, 2nd Lift (Glenwood)
($725,000)
iii. CIP No. 14: 390 to 580 Zone Transmission Main (to Glenwood PS)
($515,624)
iv. CIP No. 15: 580 to 660 Zone Booster Station; ($750,000)
v. CIP No. 16: 660 Zone Storage ($2,850,000); and
WHEREAS, the Developer of the Project is willing to install these water facilities which will
serve both the Project and the general public in the McCormick area; and
WHEREAS, the Port Orchard Municipal Code Section 13.04.030 allows the City to provide
a credit for Capital Facility Charges (CFC) for excess capacity provided when a developer builds
water projects; and
WHEREAS, ordinance 058-21 provided that development in McCormick Woods and
McCormick West would be eligible for credit regardless of whether excess capacity was provided
by the improvement; and
WHEREAS, the Developer is eligible to obtain CFC credits as set forth in POMC 13.04.030
for the 5 projects to be constructed as described in the CFC Credit Agreement; and
WHEREAS, the City Council finds it in the public interest to authorize the Mayor to execute
the proposed Capital Facility Charge Credit Agreement with McCormick Communities, L.L.C.
which is attached to this Resolution as Exhibit "1"; now, therefore,
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C
Resolution No. 032-22
Page 2of15
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES HEREBY
RESOLVE AS FOLLOWS:
Section 1. Agreement Authorized. The Mayor is hereby authorized to execute Capital
Facility Charge Credit Agreement with McCormick Communities, L.L.C. in substantially the form
attached hereto as Exhibit "1".
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested
by the City Clerk in authentication of such passage this 22"d day of March 2022.
DocuSigned by:
96U, P4MAA SWu,
E888'SDIIETA'E ...
Robert Putaansuu, Mayor
ATTEST:
DocuSigned by:
?SEALo
Brandy Wallace, MMC, City Clerk ��qr�' M--- "'M
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C
Name and Mailing Address
City of Port Orchard -Clerk's Office
CITY OF PORT ORCHARD 202203300107
Agreement Rec Fee: $217.50
03/30/2022 01:22:22 PM Page 1 of 15
Paul Andrews, Kitsap County Auditor
Grantor(s) person(s) that conveys, sells or grant est in property:
Cityof Port Orchard
Grantee(s) person that buys,
McCormick Commun
of property is made:
Abbreviated Le I Opsc
• Quarter,a r, ectio nship, Range (and Government lot # if applicable); OR
• Plat/Co, to r un`kA16mber, building or block number; OR
• Short Plait L e Lo u er, lot number and auditor file number
4 d1git Tax Parcel Number:
04/25/14
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 2 of 15
CREDIT AGREEMENT FOR CAPITAL FACILITY CHARGES
This CREDIT AGREEMENT FOR CAPITAL FACILITY CHARGES ("Credit
Agreement") is entered into between the City of Port Orchard, a Washington unicipal
corporation ("City" or "Port Orchard") and McCormick Communities, LLC, a Washing n imited
liability company ("McCormick"). City and McCormick are each a "Party" and tog h r the
"Parties" to this Credit Agreement. P 9
RECITALS
A. The City owns and operates a municipal water system that servic t are s nown as
McCormick Woods and McCormick West, which together c iprr h dr of acres of
land owned by McCormick as depicted in Exhibit A (the " Cor 'c Pro ").
B. Many acres of the McCormick Property have rec 'ved relin n=pproval,andother
acres have received final plat approval, and M C cmick has s�f the resulting lots
to builders. < \
C. One area of the McCormick Property is served"Ciremerton water system, but
the majority of the McCormick Property is servermick Woods water system
which is owned and operated by th of Port Orchard, and is within the area previously
served by the McCormick Water Com n inc. On September 1, 1998 the City purchased
the assets of the McCormick Water Comp c. and undertook by contract the obligation
to serve the McCormick Property PS "
D. On December 30, 20Mc�o`rmicck Cho nunities, LLC purchased the assets of
McCormick Land Comp n d G 1, C and assumed their obligations with certain
exceptions. These purchases r c e nments of rights and interest to all entitlements,
including water and w e • •'bhts ell as all claims. Therefore, McCormick is the only
remaining party (spar f om th 'ty ith an interest in the 1998 PSA.
E. Due to a 0 r so .n uding the Foster v. Department of Ecology decision
regardin w r rr t , the rty has been unable to provide water to the McCormick
Prope as re -to r t 1998 PSA on the schedule desired by McCormick. If the City
could o it el r ide iese water services, then under the 1998 PSA McCormick has
the rigl lect a i erent purveyor to provide water service for future development.
Instead Mc r •ck desires to construct the additional public facilities needed to serve its
fu r ve pm and the City agrees to provide credits for water connection fees as
re 1 bursem n as authorized in POMC 13.04.030.
F. n ty 1 , 07, Port Orchard and the prior owner of the McCormick Property, GEM 1,
L M") entered into a REIMBURSEMENT AGREEMENT FOR UTILITY
S IMPROVEMENTS ("2007 Agreement"), in which the City and GEM agreed
that th City was "unable to fund" the Water Facilities described and depicted in Exhibit
�>to this 2007 Agreement, which were needed to serve the McCormick Property, and the
IT AGREEMENT FOR CAPITAL FACILITY CHARGES
19 - 366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 3 of 15
City and GEM agreed that if GEM constructed these Water Facilities, GEM would receive
reimbursement as described in this 2007 Agreement.
G. GEM chose not to construct these Water Facilities, but the 2007 Agreement remains in
effect and McCormick as owner and developer of the McCormick Property ' EM's
successor -in -interest to the 2007 Agreement. ,�
H. On February 9, 2021 the City Council approved the FIRST AME T 7
REIMBURSEMENT AGREEMENT FOR UTILITY SYSTE O EMEN
("First Amendment") in which the City and McCormick agreed to r e d the lit fproj
in the 2007 Agreement, and McCormick agreed to (1) improve the i 's s 12 water
campus; (2) construct a new 580 zone reservoir up to 1.1 nillro g o in size; (3)
construct a second transmission main between the new 58 one r e oit n the then -
existing water system within McCormick Woods, in order o acilitate ture se aration of
the Port Orchard and Bremerton water system , a (4) r' a ake operational a
pilot well at the proposed location of a new W 1 12.
I. Pursuant to the First Amendment, the Parties Is agreed to negotiate in good faith to enter
into subsequent agreements to (1) determine ap ro •fate re' i ursement for McCormick's
Well 12 project; (2) address construction of a futu 6 e reservoir and booster pump
station; (3) address construction of a rc improvements; (4) extend existing entitlements;
and (5) address full waiver of Mc m' k's claims against the City and the parties'
agreement on satisfaction of performancei • the 1998 PSA.
J. Pursuant to this First Amendme t M 'in' k is constructing these improvements to the
City's water system at/Ja cost a oxu ely $4 million, for which McCormick is
receiving $1,000 reimburs t pe e u' ent residential unit ("ERU") that connects to
the City's water system withi h Service Area depicted in the 2007 Agreement.
McCormick expects t r 've, o er 'rne, approximately $2.4 million in reimbursement
for up to 2,400 lot within h estern Service Area, resulting in a shortfall in
reimbursern tt f at a t $1.6 1 1 lion in addition to the shortfall frorn the time value of
McCormi c' $2 88 itstinent.
K. At le t ve�*dit�onaHilljovements to the City's water system are needed to enable the
City t sir e th Corrnick Property. The City has included these five additional
impI' r n in the rent Capital Improvement Plan that the City Council adopted by
Ordin e -21 on May 11, 2021. These improvements, hereinafter described as
th P jects" are listed below, together with the estimated cost of the
it Zverne t be funded by capital facility charges ("CFCs"):
o. 9: Well 12 Development, Treatment, and Booster Pump Station
7,000,000)
CIP No. 13: 390 to 580 Zone Booster Station, )nd Lift (Glenwood) ($725,000)
c. CIP No. 14: 390 to 580 Zone Transmission Main (to Glenwood PS) ($515,624)
d. CIP No. 15: 580 to 660 Zone Booster Station; ($750,000)
AGREEMENT FOR CAPITAL FACILITY CHARGES
- 366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 4 of 15
e. CIP No. 16: 660 Zone Storage ($2,850,000)
L. The current CIP estimates the total CFC-funded cost of these Five CIP Projects to be
$1 1,840,625.
M. The Five CIP Projects must be constructed in order for the City to sup Rly wat the
McCormick Property as agreed -to in the 1998 PSA between the City an i ick
Water Company.
N. In addition, approval of water rights for Well 12 and the City's W project are nee
in order to provide adequate water supplies for McCormick's develo t a e City at
large. The City is working diligently as part of the Foster ' of t ra t secure these
water rights. However, whether these water rights are ul it ately e re n on what
schedule will be determined by the Department of Ecology
O. These Five CIP Projects will enable the City o erve not o cCormick Property,
but also existing and future development outs d the McCor i k Property. The 660 Zone
Storage (CIP No. 16), together with the 580 Storage th t cConnick is constructing
pursuant to the First Amendment, will increas th City's t I water storage capacity by
50% in all pressure zones. The 660 Zone Stora wt b . ocated at one of the highest
elevations in the City, which wil e ble this storage, together with the transmission
facilities being constructed by McCort 'c , to serve the entire City in the event of shortfalls
in water supply or storage in other areas o h City.
P. Both the 580 and the 660 zone er t •a being constructed by McCormick are sized
to serve areas outside of� Mc o • 'c Pr ty, and to serve all future growth in the 580
pressure zone. Without t � mpr v m , only a limited number of new homes could
be constructed in the McCor is Pt or in any of the other properties in the 580-
pressure zone unless P t har n Bremerton enter into an updated agreement for Port
Orchard to buy additi al wate s pp tes for an extended period.
0
Q. The drilli g nd c 'va ' n 1 12 will provide added supply to the City's current 580
pressur z n th •t rc lard will no longer need to purchase water from the City of
Brem r n. h' wil n le Port Orchard, together with its activation of Well 11, to
separa e ' s at s tern rom Brernerton's, so that Port Orchard can manage its water
quality is e.g., o ide fluoridation) independently.
R. In n . . at' n o ecution of this Credit Agreement, McCormick has commenced work
o he Fiv IP Projects and at the tirne of execution of this Credit Agreement has
e ded a p •oximately $400,000 towards design and construction and has provided
et to o' ct costs to establish these expenditures to the City prior to the effective date
/ ��f is 6eement.
AGREEMENT FOR CAPITAL FACILITY CHARGES
366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 5 of 15
S. In order for the City to fulfill its obligations to provide water to the McCormick Property
under the 1998 PSA, and in order for McCormick to continue to develop its property, the
City and McCormick agree as follows:
AGREEMENT
1. Reaffirmation of Prior Agreements. The City and McCormick affn ha irst
Amendment to 2007 Reimbursement Agreement for Utility System Im ents r s
in effect, as do the un-amended sections of the 2007 Reimbursernen gre e t.
2. McCormick Performance of Five CIP Projects. McCormick wi r ce construct
the Five CIP Projects described in Recital K, as described in t u a of provements
attached to this Credit Agreement. The Parties recogniz d ag e t11 ormick's
scope of work and this Summary of Improvements ma hange a hese •ojects are
engineered, and such changes will be discusse ith he n i approved, will be
reflected in future CIPs.
Water CFC Credit. As partial compensation, cCorrnick w ll eceive credit against water
CFCs for each ERU developed within the M C ick Pr p rty. This credit shall be a
specific dollar amount which will reflect the CF un ed osts of the Five CIP Projects,
divided by the number of ERUs t' t McCormick is expected to develop within the
McCormick Property (2,000). At the n fthis Agreement, the current CIP estimates the
total CFC-funded cost of these Five Cl r 'ects to be $1 1,840,625, so the Water CFC
Credit shall be $5,920:
Maximum Eligible P o• ct P ct Total Costs
$ 11,840,625
Eli ible ERU's McCor Pro
2,000
Water Capital FaciIity Ch Cr er ERU
$ 5,920
This credit per ERU f $5,920 \11 e adjusted each year in accordance with the CPI-U
referenced i MC 1 04.065, nd also if the City amends its water capital facilities
charge an dju e( s a ates for any of the 5 CIP Projects described in recital K
above r f ha u re capital facilities charge amendment.
Estimated �Max3 Water CFC Credit. The maximum amount for the Water CFC
Credit I �be the r of $11,840,625, as adjusted per this Section 2, or the certified
pF
%1�1,625as
a ished in Section 1 1, whichever is lower (hereinafter "Maximum Water
Co case shall the Maximum Water CFC Credits granted by the City
e adjusted per this section.
at - CFC redits per ERU will be applied up to the Maximum Water Credit Value for
e 0-year terms described in Section 6 below, or until the Maximum Water Credit Value
ic xhausted, whichever occurs first. The final credit applicant may receive partial
-edit depending on the Maximum Water Credit Value remaining.
AGREEMENT FOR CAPITAL FACILITY CHARGES
366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 6 of 15
The Maximum Water CFC Credit hereunder is an estimate only based on the CIP project
cost estimates. The Parties will determine the final Maximum Water CFC Credit in
accordance with the certification procedures set forth in Section 11. If the certified costs
are less than $11,840,625, then the fixed credit will still be applied but only to le extent
needed to capture the Maximum Water CFC Credit, i.e., the ERU water credit p ovided
will never exceed the certified project costs. This means that some of the 2 000 estiniated
ERUs may receive partial or no Water CFC Credit so that the total credo eed
either the certified project costs or Maximum CFC Credit, whichever js4 \
3. Value of Projects. McCormick and the City anticipate that McC i k will o struct ] e
Five CIP Projects within the next five years (although drilling of I ma t ke longer
because the City needs to first secure water rights and e o r gram), but
McCormick will receive the anticipated credit per ERU ov r ie ne 0 y s. When the
$11,840,625 invested by McCormick in the Five CiP Proje is is adjust for the ime value
of money over 20 years, the additional financing st to Me r ck ' tween $1,933,991
and $2,544,900, depending on the rate at w i i new ERU veloped. While this
financing cost is not reimbursable under this F Credit Ag ee ent, it presents significant
public benefit to the City and constitutes con i ration both o the City entering into this
Agreement, and for new or amended Develo in it Agre n nts to extend the existing
preliminary plat approvals within the McCormicl •opei y o that sufficient ERUs remain
available to provide the credits ne to defray a meaningful percentage of the costs of
financing and building the Five CiP ts.
4. Other Agreements. The consi r ti fo t ' Agreement includes the subsequent
execution by the City and Mc o mi me dments to the following agreements to
extend for twenty years* peri d o reli ' ary plat approval of two of the subdivisions
within the McCormick Pro ty th t cre t the lots whose development will create the
ERUs for which the City wi h . e F .
a. Annexation A r ent 085-11, McCormick West, recording number
20111219013 ;and
b. Deve oo ent eemen f r McCormick Woods Phases Iii, iV, and V Preliminary
Pl4fs�rec r�r ng u 1309160217;
5.
6.
Proje t er or nce a ards. McCormick will finance, design, and construct the Five
CIP •o' t to ly w'th City and other applicable standards, including obtaining all
necessa its. >> includes, as applicable, review and approval by the Washington
State De ar e of Health, Office of Drinking Water. The City will approve the plans
I •uct' begins.
f tive da ; term; concurrency. This Credit Agreement is effective immediately upon
e t and shall continue for the 20-year terms of the Annexation Agreement and
ie evveopment Agreement being amended pursuant to Section 4 above. The Water CFC
r it hall be applied to connections within the McCormick Property and such credits
call continue to be available up to the cumulative amount certified in the initial or annual
:port(s) plus the value of any posted bond, provided that McCormick continues to make
AGREEMENT FOR CAPITAL FACILITY CHARGES
366922-OD29FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 7 of 15
7.
8
timely progress on the Five CIP Projects, including providing the City with the annual
reports as set forth in Section 7 below. The development of 2,000 ERUs within the
McCormick Property is expected to be concurrent with the City's water system so long as
the Five CiP Projects are developed as set forth in this Agreement, including e City's
obtaining additional adequate water supply along with the related water rights un e Foster
from Well 11, Well 12 and/or Well 13 to serve these ERUs. Assuming these c6p4tions
are met, the City will reserve water capacity for these 2,000 ERUs. ro his
Agreement by the City Council is equivalent to issuance of a c re tr n
certificate (CRC) under POMC Chapter 20.180. The capacity rese io 11 expir i
this Agreement is not subsequently executed by the Mayor, and on ecuted, th cap a i
reservation will expire with this Agreement.
Annual Reporting; Bonding. McCormick shall by Dec er o e ch'ygaa"rovide a
report, signed, and stamped by a licensed engineer an ccompa i d by -supporting
documentation, to the City dernonstrating the ap oxi ate b 'ng t 1 of its investment
in the Five CIP Projects, together with the ap r imate total o is per ERU received
within the McCormick Property. in additio , t any time f the year, McCormick may
submit project -specific reports, signed, a d starnped b a licensed engineer and
accompanied by supporting documentation, t t City at i conclusion of each of the
Five CIP Projects in order to cornmence the com tro pr ess outlined in Section 9. As
each of the Five Projects is comrne c , cCormick's shall post a bond for completion of
that project in order to secure its con
let
and transfer to the City. This shall be required
in order to have Water CFC Credits apply ' a cordance with this Agreement. For purposes
of this section, "commenced" me s co me e ent of construction. However, the costs
of such bond(s) may be included r the u Water CFC Credit calculation, provided
however, that the Maxim Wa e • C Cr in no case may exceed $1 1,840,625. Bonds
may be released for eacif he Fi Pr j cts in accordance with the requirements for
project completion containe 'n O C .04.030. At no time shall the total CFC credits
being issued exceed tile the ba n of the certified project costs plus the value of any
bond that is then in pl e.
McCormi r, r t e ty Rights to the City. All intellectual data, including but
not limi e r e ' g r , surveys, plan sets, and designs initiated by McCormick
and it e gi er nd/o • c sultants for the Five CiP Projects shall be provided to the City
upon r q s an orrn'ck will provide the City with ownership rights in the intellectual
data so i t ' Mc •m'ck fails to complete any of the Projects, the City will have all of
the ri hts n e ry to utilize the intellectual data in order to complete the work. In
ad . i Co► i k agrees that for any real property where any portion of any of the Five
C P Projec is located that is not in currently the City's ownership at the time this
A r ement i xecuted, that McCormick will provide property rights to the City, in the
orr o e ement or dedication, that will provide the City all of the rights necessary to
n an utilize that property in perpetuity for the purposes of owning, operating,
ma' ta' ing, improving, expanding, or constructing water facilities. These property rights
;hall b provided to the City no later than the time period described in Section I I below,
U�wever, if McCormick fails to complete the Project(s) in accordance with this Agreement,
r AGREEMENT FOR CAPITAL FACILITY CHARGES
366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 8 of 15
McCormick will be required to promptly transfer the property rights to the City upon its
default or abandonment of work on the Project(s).
9. Completion of Five CIP Projects. With the exception of the Well 12 Project
be delayed due to water rights issues, McCormick agrees that it will complete t
Projects within five (5) years of the execution date of this Agreement.. he
diligently pursue water rights for Well 12, and McCormick shall completes
this five-year performance period, or within twenty-four (24) months a
required water rights, whichever period is longer. Upon completion f ach t
Projects as outlined hereunder, the City may accept responsibi or the
accordance with POMC 13.04.030 provided construction is comp to th
been accepted, any transfer of property documents are cor
and a two-year warranty and maintenance bond is in pl
unreasonably conditioned, withheld or denied. In accord;
the Project will be deemed completed when all t llc
it substantially complete; 2. All punch list its are finish
final inspection; 4. McCormick has put a -year ware
ich may
've CIP
shall
i lin
Five
-oject has
recorded,
not to be
with P C ] 3:04.030(6),
s l .The City deems
,. improvement passes
and maintenance bond in
place; 5. The City releases the performanc and (if ap li able); 6. McCormick has
completed all property dedications; 7. McCorm' Ic s prov' the City with a Bill of Sale
for the improvements containing the certified c truct' costs (stamped by licensed
engineer) to the City for determi a ' n of the maximum credits available under this
Agreement; and 8. The City Council c is the project as public. The City will confirm
completeness of the CIP Project by issuin F at Notice of Completeness to McCormick.
Force Majeure. Notwithstand'nb a y i to the contrary in this Agreement, any
prevention, delay or sto ge d e o s Iice , ckouts, labor disputes, acts of God, acts of
war, terrorist acts, inabili btai s rv' s, labor, or materials or reasonable substitutes
therefor, governmental acti s, o ental laws, regulations or restrictions, civil
commotions, Casualty a 1 or r tened public health emergency (including, without
limitation, epidemic, ndemic m' e, disease, plague, quarantine, and other significant
public healtl0-isk), vernme t I edicts, actions, declarations or quarantines by a
governme t ervqitycr a anization (including, without limitation, any shelter -in -
place or •s, a h e or ers or any restrictions on travel related thereto, breaches in
cyber e ri a otlses beyond the reasonable control of the party obligated to
perfo i, rd s whether such other causes are (i) foreseeable or unforeseeable or (ii)
related o t sped c ly enumerated events in this paragraph (collectively, a "Force
Majeure"), a excuse the performance of such party for a period equal to any such
pr ' , eta stoppage. To the extent this Agreement specifies a time period for
p r ormanc f an obligation of either party, that time period shall be extended by the
p ri d of a delay in such parry's performance caused by a Force Majeure. Provided
o v the current COVID-19 pandemic shall not be considered a Force Majeure
n s constraints on a Party's performance that result from the pandemic become
su ta ially more onerous after the effective date of this Agreement.
r AGREEMENT FOR CAPITAL FACILITY CHARGES
- 366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 9 of 15
11. Certification of Project Costs. Upon completion of each of the Five CiP Projects as
described in Section 1 1 above, McCormick shall submit certified project costs to the City
for review and acceptance by the City Engineer. Once these costs and the executed Bill of
Sale are reviewed and accepted by the City Engineer, not to be unreasonabl ithheld,
conditioned, or delayed, the Maximum Water CFC Credit due to McCormi c ill be
established and will equal the Maximum Water CFC Credit as so certifte in acc r ance
with this Section 11. If the Maximum Water CFC Credit due is less t tie ti ied
project costs of the Five CiP Projects, then the City will continue to ap $5,9 it
(as adjusted by CPi-U) until the Maximum Water CFC Credit is react e , or is greem n
expires, whichever occurs first. McCormick acknowledges that th's ay resu i som f
the 2,000 ERUs receiving no (or a partial) CFC credit as the full reim u me ' reached.
12. Satisfaction of 1998 PSA. The Parties recognize an gree h tlii'Agreement
substantially satisfies the City's obligations under the Sep e ber 1, 9 8 Agr ement for
Purchase and Sale of Assets of McCormick Wat m any, n T1 rties further agree
that at such time as the work described in Rec' a `K" is corn 1 . accordance with the
Agreement, whether Well 12 is completed or , that the Ci obligation under the 1998
will be fully satisfied, provided that the i continues o provide the CFC credits
consistent with this Agreement. Furthermore, h vi assum d le position ofMLC/GEM1
under the 1998 PSA, McCormick has the sole righ a er me that the City's obligations
have been satisfied. When the%nr
Recital K, excluding Well 12, is complete,
McCormick agrees that it will haaining claim(s) against the City for failure to
perform under the 1998 PSA. t t any such claim(s) remain, McCormick
intentionally and irrevocably wai" ht"rsue such claim(s).
13. Default. Subject to extq! ions 119
either Party to perform any . or
In the event of alleged defau r
Party alleging such de r bi
days' notice in writin pecifyi g
said default nta be c it . Durii J
be consideae4 to ee Ul o vTs
14.
.tuual consent in writing, failure, or delay by
of this Agreement shall constitute a default.
ehch-Dfany terms or conditions of this Agreement, the
c shall give the other Party not less than thirty (30)
he ature of the alleged default and the manner in which
this thirty (30) day period, the Party charged shall not
es of termination or institution of legal proceedings.
After o ice piraf the thirty (30) day period, if such default has not been cured
or is n t i g tly cured in the manner set forth in the notice, the other Party to this
Agree i� , at i tion, institute legal proceedings pursuant to this Agreement.
.e' e enlo- Agreement Expenses of the City. McCormick agrees to reimburse
City fo a tual expenses incurred over and above fees paid by McCormick as an
I' ant in u red by City directly relating to this Agreement, including recording fees,
ib ' h s, attorneys' fees, and reasonable staff and consultant costs not otherwise
�c�te within application fees. Such payment shall be made in full prior the Mayor
ceg the Agreement on behalf of the City. Upon payment of all expenses, the
eveloper may request written acknowledgement of all fees. Such payment of all fees shall
AGREEMENT FOR CAPITAL FACILITY CHARGES
366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 10 of 15
be paid, at the latest, within thirty (30) days from the City's presentation of a written
statement of charges to McCormick.
15. Non -Waiver of Breach. The failure of a Party to insist upon strict performan f any of
the covenants and agreements contained herein, or to exercise any option herein o fened
in one or more instances shall not be construed to be a waiver or relinqu' hmen o said
covenants, agreements, or options, and the same shall be and remain in ful e a ct.
16. Conflict. In the event of any conflict between this Agreement anA�M
4.030, t �i
Agreement shall control �
17. Resolution of Disputes and Governing Law. If any disput arise a ee a City and
McCormick under any of the provisions of this Credit eeme 'uris 'c ' n of any
resulting litigation shall be filed in Kitsap County Su for Co I , Kitsap County,
Washington. This Agreement shall be governe an co t d i cordance with the
laws of the State of Washington. The non-prev i ing party in n 'on brought to enforce
this Agreement shall pay the other parties' ex a ses and rea o► able attorney's fees.
18. Written Notice. All written communications ing en r ement or alleged breach of
this Credit Agreement shall be sent to the parti t t e dresses listed below, unless
notified to the contrary. Unless o e • ise specified, any written notice hereunder shall
become effective upon the date of both In
and mailing by registered or certified mail,
and shall be deemed sufficiently given if t the addressee at the address stated below:
McCORMICK:
Eric Campbell O U C
12332 NE 115t" Place
Kirkland, WA 9803
eric ms rou ilc. Vie
0
Nick To t'
805 r la�*803
Kir d,
Ikob Putaansuu, Mayor
City of Port Orchard
216 Prospect Street
Port Orchard WA 98366
rputaansuu a cityofportorchard.us
A copy shall also be transmitted to the City
Clerk at the above address.
19. Assignment. re completion of the Five CIP Projects, any assignment of this Credit
Areicompi
t orinick without the written consent of the City, which shall not
unab e withheld, shall be void. McCormick may assign this Credit Agreement
a i n of the Five CIP Projects by giving written notice of assignment to the
Moation. No waiver, alteration, or modification of any of the provisions of this Credit
Agreement shall be binding unless in writing and signed by a duly authorized
representative of the City and McCormick.
IT AGREEMENT FOR CAPITAL FACILITY CHARGES
19 - 366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 11 of 15
21. Severability. The provisions of this Credit Agreement are declared to be severable. If any
provision of this Credit Agreement is for any reasons held to be invalid or unconstitutional
by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect
the validity or constitutionality of any other provision.
22. Good Faith and Due Diligence. The Parties agree to perform all obli��r this
Credit Agreement in good faith and with due diligence.
1454988.19 - 366922-00296G:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 12 of 15
STATE OF WASHINGTON )
COUNTY OF I'`1' ) ss.
I certify that I know or have satisfactory evidence that Mr. , G'-q1
who appeared before me, and said person acknowledged that he/she) signed this i
oath stated that he/she) was authorized to execute the instrument and acknowledge
Vv-t-�-�of McCormick Communities. LLC to be the free and voluntary act of -sill
uses and purposes mentioned in the instrument. /-I---
Dated: L I W 2027-
NOTARY PUBLIC
STATE OF WASHINGTON
ANDREW D MARSHALL
MY COMMISSION EXPIRES
FEBRUARY 26, 2025
COMMISSION NO.164918
or
ARY P IC in and for the
of Washi on, residing at:
My Commission expires:
0
0
AGREEMENT FOR CAPITAL FACILITY CHARGES
person
ent. on
the
1454988.19 - 366922-0029FG:74353236.15
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C
202203300107 03/30/2022 01:22:22 PM Page 13 of 15
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu is lh
who appeared before me, and said person acknowledged that lie signed this inst. ment,
stated that lie was authorized to execute the instrument and acknowledged it as to o
Orchard to be the free and voluntary act of such party for the uses and purpo ntion
instrument.
Dated: 20,20
--sion 0 .�
•�a�y1 15 20 • Q
NOTgRy"' m'
�'.�cv �BLIC w
<0mbet
IWA S IH; NG�\���
O
(print or I
ARY PU.
of Washi
'ITAL FACILITY CHARGES
in and for the
. residina at:
expires:
oath
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 14 of 15
STATE OF WASHINGTON )
I/ ) ss.
COUNTY OF 1 )
I certify that I know or have satisfactory evidence that Mr.E"T(� U,-
who appeared before me, and said person acknowledged that (he/she) signed
oath stated that (he/she) was authorized to execute the instrument and acknow
�wLA/`of McCormick Communities LLC to be the free and voluntary act
uses and purposes mentioned in the instrument.
Dated: ),xuL j� 202-Z
NOTARY PUBLIC
STATE OF WASHINGTON
ANDREW D MARSHALL
MY COMMISSION EXPIRES
FEBRUARY 26, 2025
COMMISSION NO.164918
My Commission expires:
AGREEMENT FOR CAPITAL FACILITY CHARGES
person
ent, on
ZS
the
DocuSign Envelope ID: 87930FB3-B4BE-4145-87E9-C2864EA9535C 202203300107 03/30/2022 01:22:22 PM Page 15 of 15
EXHIBITA