035-18 - Winward McCormick, LLC - Contract Amendment 1FIRST AMENDMENT TO CITY OF PORT ORCHARD MCCORMICK WOODS LIFT
STATIONS #1 & #2 UPGRADE AGREEMENT
This FIRST AMENDMENT TO CITY OF PORT ORCHARD MCCORMICK WOODS
LIFT STATIONS #1 & #2 UPGRADE AGREEMENT ("Amendment") is entered into between
the City of Port Orchard, a Washington municipal corporation ("City" or "Port Orchard") and
Winward McCormick, LLC, a Washington limited liability company ("McCormick"). City and
McCormick are each a "Party" and together the "Parties" to this Amendment.
The Parties hereby agree as follows.
RECITALS:
A. McCormick is the current owner of certain undeveloped property which is located within
the City of Port Orchard.
B. On April 17, 2018, the Parties entered into an Agreement entitled "City of Port Orchard
McCormick Woods Lift Stations #1 & #2 Upgrade Agreement' (hereinafter
"Agreement") for the purpose of constructing two sewer lift stations (Lift Station #1 and
#2) to serve the McCormick Property.
C. The Agreement designated McCormick as responsible for constructing Lift Station #1
and the City as responsible from constructing Lift Station #2. The construction of these
two facilities had specific performance timelines. While both parties are making progress
on their respective responsibilities, neither party has met the deadlines in the Agreement.
Both parties agree that these deadlines should be amended to reflect current progress and
adjusted expectations.
FIRST AMENDMENT TO AGREEMENT:
Section 2, subsections (e) and (f) of the Agreement are hereby amended to read as
follows:
e. Substantial Completion of LSl Replacement by June 30,
2020 ("Substantial Completion" or "Substantially Completed"
means functional at full design capacity, including backup
requirements and site security, including but not limited to
appropriate fencing); and
f. City punch list of items for repair or correction to
McCormick by August 15, 2020.
2. Section 3 of the Agreement is hereby amended to read as follows:
The City of Port Orchard agrees to design, permit and construct at
its sole expense the replacement for LS2 (the "LS2 Replacement").
AMENDMENT # I TO CITY OF PORT ORCHARD MCCORMICK
WOODS LIFT STATIONS #1 & #2 UPGRADE AGREEMENT
Page I
The parties agree that the LS2 Replacement shall be designed and
constructed with adequate capacity to serve full build -out of the
McCormick Property. The City agrees to begin construction of
LS2 Replacement by January 15, 2020 and that the LS2
Replacement will be Substantially Completed by November 15,
2020.
Because the City's portion and McCormick's portion of the LS 1
Replacement and the LS2 Replacement, as determined by the
McCormick Woods Wastewater Analysis, dated March 15, 2018,
are generally equal both in cost and firm capacity to be used, and
because the parties have agreed, instead of sharing the costs of
each lift station replacement, for McCormick to construct, at its
sole cost, the Interim Upgrade and the LSl Replacement, and for
the City to construct, at its sole cost, the LS2 Replacement, the
City agrees that it shall not seek any reimbursement from the
McCormick Property for the costs of the LS2 Replacement. The
City further agrees that it shall not increase the Capital Facilities
Charge (CFC) for sewer applicable to the McCormick Property to
pay for the LS2 Replacement.
3. Severability. The provisions of this First Amendment are declared to be severable. If any
provision of this First Amendment 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.
4. Entire Aareement. The written provisions and terms of this First Amendment shall
supersede all prior verbal statements of any officer or other representative of the parties,
and such statements .shall not be effective or be construed as entering into or forming a
part of or altering in any manner whatsoever, this First Amendment. The entire
agreement between the Parties with respect to the subject matter hereunder is contained
in the Agreement and exhibits thereto, and this First Amendment. Should any language
in any of the Exhibits to the Agreement conflict with any language contained in this First
Amendment, then this First Amendment shall prevail. Except as modified by this First
Amendment, all other provisions of the original Agreement not inconsistent with this
First Amendment shall remain in full force and effect.
5. Effective date. This Amendment shall be effective as of CLx-_c"'42- 14 2019.
AMENDMENT # I TO CITY OF PORT ORCHARD MCCORMICK
WOODS LIFT STATIONS #1 & #2 UPGRADE AGREEMENT
Page 2
IN WITNESS WHEREOF, the parties have executed this Amendment on thiso�a day of
WINWARD MCCORMICK, LLC CITY OF PORT ORCHARD
By: By:
Its: Its: Mayor
OVER AS TO FORM: APPROVED AS TO FORM:
J �l
� tic-•vtA
Patrick Schneider
Attorney for Winward McCormick
ATTEST:
Br i earson
Port Orchard City Clerk
Qr%R
v
AMENDMENT # I TO CITY OF PORT ORCHARD MCCORMICK
WOODS LIFT STATIONS #1 & #2 UPGRADE AGREEMENT
Page 3
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the Mayor of llort
Orchard to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: _ Oic�. 201
N
COD
�BIIC Z�
�' •yam
"/ O,c'.',?bet
i Kk
(print or type name)
NOTARY�� ��PUBLIC in and for the
. ;of N ashingtorresiding at:
My Commission expires:�_��
AMENDMENT #1 TO CITY OF PORT ORCHARD MCCORMICK
WOODS LIFT STATIONS #1 & #2 UPGRADE AGREEMENT
Page 4
STATE OF WASHINGTON )
COUNTY OF ,� 1A)6 ) ss.
I certify that I know or have satisfactory evidence that Mr. Qma::1 is the person
who appeared before me, and said person acknowledged that (he/she) signed this instrument, on
oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the
elf Winward McCormick, LLC to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
Dated: _AlAc—e _ _Z S ' _ 201?
Notary Public
P
ate of Washington
REW D. MARSHALLOMMISSION EXPIRES
03-06-2021
(print or type name)
NOTARY PUBLIC in and for the
State of Was ngton, residing at:
My Commission expires:
AMENDMENT #1 TO CITY OF PORT ORCHARD MCCORMICK
WOODS LIFT STATIONS # I & #2 UPGRADE AGREEMENT
Page 5