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FINAL 2021 0413 Council Agenda PacketMoses Lake City Council David Curnel, Mayor | Daryl Jackson, Deputy Mayor | Mike Riggs, Council Member | Karen Liebrecht, Council Member Don Myers, Council Member | David Eck, Council Member| Dean Hankins, Council Member REMOTE ACCESS AND LIMITED IN PERSON ATTENDANCE Citizens can join this meeting remotely via phone by calling the numbers listed at the bottom of the agenda, by audio only option https://cityofml.zoom.us/j/95160346024, or by registering before the meeting date using the link for the form for in person attendance. Pre-approvals for in person attendance will be determined in the order received. Masks and social distancing will be required. Study Session Tuesday, April 13, 2021, 6 PM Moses Lake Civic Center – 401 S. Balsam or remote option 6:00 p.m. Joint Comprehensive Plan/Housing Action Plan Workshop with Planning Commission Housing and Land Use Elements - BERK Consulting Presented by Melissa Bethel, Community Development Director Regular Meeting Agenda Call to Order – 7 p.m. Roll Call, Pledge of Allegiance Approval of the Agenda Summary Reports: Mayor’s Report -AWC WellCity Recipient and Annual Conference Online Additional Business City Manager’s Report -Retirement of Building Official Kevin Myre -Larson Rec Center Construction Schedule -Director Interview Committees Citizen’s Communications - Citizens who would like to address the Council can submit written comments to the City Clerk no later than 3 p.m. on the day of the meeting. Comments will be provided to Council electronically and recorded in the meeting minutes. Citizens who would like to speak on matters during the meeting will need to complete the following form no later than 3 p.m. on the day of the meeting. There will be a five-minute limit per speaker. https://lfweb.cityofml.com/Forms/Council- Speaker-Request Moses Lake Council Packet 4-13-21, Page 1 April 13, 2021, City Council Meeting Page 2 Consent Agenda Motion All items listed below are considered to be routine and will be enacted by one motion. There will be no separate discussion of these items unless a Council Member requests specific items to be removed from the Consent Agenda for discussion prior to the time Council votes on the motion to adopt the Consent Agenda. #1 page 4 a.City Council Meeting Minutes Dated March 23, 2021 b.Claims and Payroll c.Accept POW Construction Lakeshore Project d.Award Contract for Wanapum Sewer Project e.Award Annual Citywide Crack Seal Bid f.Authorize EVCO Sound Contract at Surf n Slide Water Park g.Authorize Modern Building Lease Extension h.Ratify Lad Irrigation Well 21 Repair Contract Amendment i.Award Contract for Westshore Main Water Project Old Business #2 Motion pg 91 Larson Rec Center LOCAL Funding Ordinance 2970 Presented by Cindy Jensen, Finance Director Summary: Council to review and consider adoption New Business #3 Motion pg 146 Westshore Drive Road Improvement Covenant Presented by Richard Law, City Engineer Summary: Council to review and consider approval #4 #5 pg 190 2327 Westshore Drive NE Request to Connect to Water and Sewer Motion Presented by Richard Law, City Engineer Summary: Council to review and consider approval of connection with an extra territorial agreement pg 195 Surf n Slide Water Park Fee Resolution 3848 Motion Presented by Susan Schwiesow, Parks, Recreation and Cultural Services Director Summary: Council to review and consider adoption #6 Motion pg 198 Sunshine Grow Covenant Presented by Melissa Bethel, Community Development Director Summary: Council to review and consider approval Moses Lake Council Packet 4-13-21, Page 2 April 13, 2021, City Council Meeting Page 3 Administrative Reports Council Communications and Reports Executive Session – Discuss Performance of an Employee and Litigation pursuant to RCW 42.30.110(1) (g) and (i) for 45 minutes Adjournment Zoom Meeting – Audio Only Please click the link below to join the webinar: https://cityofml.zoom.us/j/95160346024 Or iPhone one-tap: US: +12532158782,,95160346024# or +13462487799,,95160346024# Or Telephone: Dial(for higher quality, dial a number based on your current location):US: +1 253 215 8782 or +1 346 248 7799 or +1 669 900 9128 or +1 646 558 8656 or +1 301 715 8592 or +1 312 626 6799 Webinar ID: 951 603 346 024. International numbers available: https://cityofml.zoom.us/u/aelROcwuzZ Moses Lake Council Packet 4-13-21, Page 3 MOSES LAKE CITY COUNCIL March 23, 2021 CALL TO ORDER The regular meeting of the Moses Lake City Council was called to order at 7 p.m. by Deputy Mayor Jackson via audio only remote and limited in-person access. Special notices for attendance and citizen comment were posted on the meeting agenda. ROLL CALL Present: Deputy Mayor Jackson; Council Members Eck, Riggs, Liebrecht, Myers, and Hankins. Council Member Riggs moved to excuse Mayor Curnel from the meeting, second by Council Member Hankins. The motion carried 6-0. PLEDGE OF ALLEGIANCE Council Member Hankins led the Flag Salute. AGENDA APPROVAL Action taken: Council Member Hankins moved to approve the Agenda, second by Council Member Riggs. The motion carried 6 – 0. SUMMARY REPORTS CITY MANAGER’S REPORT Parks, Recreation and Cultural Services Employees New Hires and Promotions A brief introduction was given of new hire Logan Dunn, Parks Maintenance and promotions Susan Schwiesow to Parks, Recreation and Cultural Services Director; Alberto Chavez to Parks Supervisor; and Clayton Pray to Parks Maintenance Superintendent. Retirement of Wastewater Manager Tony Pfluger Wastewater Manager Tony Pfluger was recognized for his 33 years of service with the City. Lakeshore Project Closeout and Call for Covenant The disputes between the contractor and the City have been settled. Staff will present the project acceptance to Council on April 13 and will send the homeowners the final reimbursement letter for fees due from the covenants. Comprehensive Plan Timeline Update The packet included an update to the Comprehensive Plan timeline. The March date is now April 6, and there are two study sessions in April with the Planning Commission. The draft plan will go to the Planning Commission in May, and to Council for consideration in June. Council Candidate Forum Dates Workshops for potential candidates will be held on April 28 at noon and April 29 at 5 p.m. in the Council Chambers. Moses Lake Council Packet 4-13-21, Page 4 Flying T, LLC Airport Land Quit Claim Deed The Quit Claim Deed for Flying T, LLC was presented for acceptance. Action taken: Council Member Eck moved to accept the Quit Claim Deed as presented, second by Council Member Hankins. The motion carried 6 – 0. CONSENT AGENDA #1 a. City Council meeting minutes dated March 9, 2021 b. Claim Checks 151349 through 151531 in the amount of $1,189,212.09; Payroll Checks 63666 through 63674 in the amount of $9,950.13; and Electronic Payments dated 3/19/21 in the amount of $455,852.86. c. Authorize Consultant for Parks Comprehensive Plan d. Award Reservoir 4 Painting e. POW Lakeshore Reconstruction Settlement Agreement f. Water Rights Purchase and Sale Agreement Herring #3 g. Northshore Real Property Purchase and Sale Agreement h. Sagecrest Phase 2 Improvements Resolution 3847 Action taken: Council Member Riggs moved to approve the Consent Agenda as written, second by Council Member Liebrecht. The motion carried 6 – 0. NEW BUSINESS #2 Adopt-a-Street Policy Resolution 3826 The Adopt-a-Street program was first started in June of 2003. The program lapsed around mid-2009. Staff have revamped the program and policy so that the community can engage in the opportunity to sign-up and keep Moses Lake beautiful. Action taken: Council Member Hankins moved to adopt Resolution 3826 as presented, second by Council Member Myers. The motion carried 6 – 0. #3 Fee Schedule Update Resolution 3846 The Moses Lake Museum & Art Center membership fees are being updated to boost membership and be more inclusive for the community. The membership will be tiered with different perks and museum discounts at each level. The amended fee schedule also includes a new fee for the Adopt-a-Street Program. Action taken: Council Member Liebrecht moved to adopt Resolution 3846 as presented, second by Council Member Riggs. The motion carried 6 – 0. ADMINISTRATIVE REPORTS Surf ‘n Slide Hours of Operation The water park hours of operation need to be modified by half an hour on the weekends to meet new standards from Labor and Industries. Instead of being open from 11 a.m. -7 p.m., it will be open from 11 a.m. to 6:30 p.m. Moses Lake Council Packet 4-13-21, Page 5 Fire Department Ride Along City Manager Allison Williams went on a Ride Along with Fire Chief Brett Bastian to see the Industrial Operations as there is work being done to create a Hazmat Team with Chelan County. Air Tanker Drop City Manager Allison Williams attended a demonstration today of an Air Tanker drop at the Port of Moses Lake. She discussed the importance of this as the Port is being considered as the location for Firefighting base of operations. COUNCIL COMMUNICATIONS AND REPORTS Council Member Riggs reported that tomorrow at 5pm there is a Downtown Moses Lake Association annual membership meeting. They will be holding elections for Board of Directors. Additionally, at 7 p.m., there is a Town Hall with State Legislators Warnick, Dent, and Ybarra. Council Members Liebrecht, Myers, and Eck thanked City Manager Williams for creating the Council committees. These meetings are enlightening and allow for in-depth discussion of Council Meeting topics and other items going on in the City. Deputy Mayor Jackson requested an update on the Stratford Road Project and its finances, and also the Valley Road Project. Richard Law estimated that it would be roughly two weeks to complete electrical, paving and curbs. There has been approximately $1.2 million paid already and about $500,000 left on the contract for the electrical and curb/paving. He also said that the Valley Road project has patching and paving to be done in addition to the curbs getting finished. There were parts owed from the contractor to the City that will be delivered this week. Deputy Mayor Jackson also thanked staff for the completion of the approximately 15-year-old Lakeshore Project. He also congratulated Mrs. Schwiesow and said that she should be proud to be running such a great Parks Department. ADJOURNMENT The regular meeting was adjourned at 7:32 p.m. ______________________________________ David Curnel, Mayor ATTEST____________________________________ Debbie Burke, City Clerk Moses Lake Council Packet 4-13-21, Page 6 To: Allison Williams, City Manager From: Cindy Jensen, Finance Director Council Meeting Date: April 13, 2021 Proceeding Type: Consent Agenda Subject: Semi-Monthly Disbursement Report The following amounts were budgeted and sufficient funds were available to cover these payments: Claim Checks 151532 - 151751 $1,785,749.09 Payroll Checks 0063675 - 0063676 $776.21 Electronic Payments Payroll ACH –4/02/2021 $462,103.63 Summary RCW 42.24 governs the process for audit and review of claims and payroll payments for the City. RCW 42.24.180 requires the review and approval of all payments at a regularly scheduled public meeting on at least a monthly basis. The State Budgeting, Accounting and Reporting Systems (BARS) Manual outlines the above format for approval by the City Council. RCW 42.24.080 requires that all claims presented against the City by persons furnishing materials, rendering services, or performing labor must be certified by the appropriate official to ensure that the materials have been furnished, the services rendered, or the labor performed as described, and that the claims are just, due and unpaid obligations against the City. RCW 42.24.180 allows expedited processing of the payment of claims when certain conditions have been met. The statute allows the issuance of warrants or checks in payment of claims before the legislative body has acted to approve the claims when: (1) the appropriate officers have furnished official bonds; (2) the legislative body has adopted policies that implement effective internal control; (3) the legislative body has provided for review of the documentation supporting the claims within a month of issuance; and (4) that if claims are disapproved, they shall be recognized as receivables and diligently pursued. The City meets all these conditions. To comply with the requirements, Finance staff schedule payment of claims and payroll for semi-monthly Council approval on the Consent Agenda. The payments listed in the schedule cover all claims and payroll payments during the period prior to the date of the Council meeting. All payments made during this period were found to be valid claims against the City. Details are attached and any questions should be directed to the City Manager or Finance Director. The City’s internal controls include certification of the validity of all payments by the appropriate department prior to submission for payment. The Finance Director has delegated authority for the examination of vouchers and authorization of payments to the Finance, Accounts Payable, and Payroll staff. All payments are reviewed and validated. The Finance Division regularly reviews its processes to ensure appropriate internal controls are in place. Moses Lake Council Packet 4-13-21, Page 7 Moses Lake Council Packet 4-13-21, Page 8 Moses Lake Council Packet 4-13-21, Page 9 Moses Lake Council Packet 4-13-21, Page 10 Moses Lake Council Packet 4-13-21, Page 11 Moses Lake Council Packet 4-13-21, Page 12 Moses Lake Council Packet 4-13-21, Page 13 Moses Lake Council Packet 4-13-21, Page 14 Moses Lake Council Packet 4-13-21, Page 15 Moses Lake Council Packet 4-13-21, Page 16 Moses Lake Council Packet 4-13-21, Page 17 Moses Lake Council Packet 4-13-21, Page 18 Moses Lake Council Packet 4-13-21, Page 19 Moses Lake Council Packet 4-13-21, Page 20 Moses Lake Council Packet 4-13-21, Page 21 Moses Lake Council Packet 4-13-21, Page 22 Moses Lake Council Packet 4-13-21, Page 23 Moses Lake Council Packet 4-13-21, Page 24 Moses Lake Council Packet 4-13-21, Page 25 Moses Lake Council Packet 4-13-21, Page 26 Moses Lake Council Packet 4-13-21, Page 27 Moses Lake Council Packet 4-13-21, Page 28 Moses Lake Council Packet 4-13-21, Page 29 Moses Lake Council Packet 4-13-21, Page 30 Moses Lake Council Packet 4-13-21, Page 31 Moses Lake Council Packet 4-13-21, Page 32 Moses Lake Council Packet 4-13-21, Page 33 Moses Lake Council Packet 4-13-21, Page 34 Moses Lake Council Packet 4-13-21, Page 35 Moses Lake Council Packet 4-13-21, Page 36 Moses Lake Council Packet 4-13-21, Page 37 Moses Lake Council Packet 4-13-21, Page 38 Moses Lake Council Packet 4-13-21, Page 39 Moses Lake Council Packet 4-13-21, Page 40 Moses Lake Council Packet 4-13-21, Page 41 Moses Lake Council Packet 4-13-21, Page 42 Moses Lake Council Packet 4-13-21, Page 43 Moses Lake Council Packet 4-13-21, Page 44 Moses Lake Council Packet 4-13-21, Page 45 Moses Lake Council Packet 4-13-21, Page 46 Moses Lake Council Packet 4-13-21, Page 47 Moses Lake Council Packet 4-13-21, Page 48 Moses Lake Council Packet 4-13-21, Page 49 Moses Lake Council Packet 4-13-21, Page 50 Moses Lake Council Packet 4-13-21, Page 51 Moses Lake Council Packet 4-13-21, Page 52 Moses Lake Council Packet 4-13-21, Page 53 Moses Lake Council Packet 4-13-21, Page 54 STAFF REPORT To: Allison Williams, City Manager From: Richard Law, City Engineer Date: April 9, 2021 Proceeding Type: Consent Agenda Subject: Accept Lakeshore Reconstruction Project – 2019 Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview POW Contracting, Inc. has completed work for the above project. The contract consisted of Reconstruction of 4,100 feet of Lakeshore Drive including construction of new curb, sidewalk, activity trail and replacing the aging AC watermain in that section of the Peninsula. The work completed is in the amount of $1,684,486.93. The original contract price for the contract was $1,598,858.60. The extra cost was to deal with unknown and unlocated power and communications utilities on the project. The work completed by the contractor is physically complete and ready for acceptance. Fiscal and Policy Implications Upon acceptance, the City will enter into the 60-day lien period as required by Washington State Law. Options Option Results •Accept as presented The 60-day lien period will begin. •Provide staff with changes •Take no action.The project won’t be accepted at this time. Action Requested Staff recommends accepting the Lakeshore Reconstruction Project – 2019. Moses Lake Council Packet 4-13-21, Page 55 STAFF REPORT To: Allison Williams, City Manager From: Richard Law, City Engineer Date: April 9, 2021 Proceeding Type: Consent Agenda Subject: Award Wanapum Sewer Repair Project - 2021 Legislative History: • First Presentation: April 13, 2021 • Second Presentation: • Action: Motion Overview Staff opened bids for the Wanapum Sewer Repair Project - 2021 on April 7, 2021. The City received one (1) bid for the work. The bid was $215,119.80 and the Engineer’s Estimate was $180,410.12. The low bidder, Barcott Construction LLC. of Chehalis, WA is currently licensed and is deemed to be a responsible bidder. Fiscal and Policy Implications The project will require budgeted funds to be spent. Council Packet Attachments A. Bid Summary Finance Committee Review N/A Legal Review N/A Moses Lake Council Packet 4-13-21, Page 56 Options Option Results • Adopt, Authorize, etc as presented Staff will move forward with executing a contract with the low bidder to complete the work. • Provide staff with changes • Take no action. Staff will stop working on this project and wait for further direction from City Council. Action Requested Staff recommends ratifying the previously authorized action by the City Manager to award the work on the Wanapum Drive Sewer Repair Project - 2021 in the amount of $215,119.80. Moses Lake Council Packet 4-13-21, Page 57 PROJECT NAME: Wanapum Drive Sewer Repair - 2021 BID RESULTS 1 Mobilization 1-09 1 L.S. 12,000.00 12,000.00 $20,000.00 $20,000.00 2 Traffic Control 1-10 1 L.S.5,000.00 5,000.00 $13,000.00 $13,000.00 3 Sawcut Asphalt or Concrete 2-02 370 L.F.3.00 1,110.00 $6.00 $2,220.00 4 Remove Curb and Gutter Sites 2-02 40 L.F.10.00 400.00 $45.00 $1,800.00 5 Remove Pavement and Concrete Sidewalk 2-02 210 S.Y.20.00 4,200.00 $35.00 $7,350.00 6 Shoring or Extra Excavation Class A 2-09 1 L.S.1,000.00 1,000.00 $6,600.00 $6,600.00 7 Trimming and Cleanup 2-11 1 L.S.7,000.00 7,000.00 $8,000.00 $8,000.00 8 HMA Patch Cl 3/8 Inch PG 64-28 5-06 22 S. Y.110.00 2,420.00 $170.00 $3,740.00 9 Manhole 48 Inch Diameter 7-05 7 EA 5,500.00 38,500.00 $7,500.00 $52,500.00 10 Plug Existing Manhole Connection 7-05 1 EA 500.00 500.00 $500.00 $500.00 11 Adjust Manholes to Grade 7-05 7 EA 600.00 4,200.00 $800.00 $5,600.00 12 PVC Sewer Pipe 8 Inch Diameter 7-17 180 L.F.80.00 14,400.00 $173.00 $31,140.00 13 PVC Sewer Pipe 4 Inch Diameter 7-17 200 L.F.70.00 14,000.00 $12.50 $2,500.00 14 Bypass Pumping 7-17 1 L.S.17,000.00 17,000.00 $17,000.00 $17,000.00 15 Cement Concrete Curb and Gutter 8-04 40 L.F.60.00 2,400.00 $100.00 $4,000.00 16 Cement Concrete Sidewalk and Driveway 8-14 205 S.Y.200.00 41,000.00 $100.00 $20,500.00 17 Detectable Warning Surface 8-14 10 S.F.110.00 1,100.00 $100.00 $1,000.00 18 Permanent Signing 8-21 1 LS 200.00 200.00 $1,000.00 $1,000.00 166,430.00$ $198,450.00 8.4%13,980.12$ $16,669.80 180,410.12$ $215,119.80 UNIT UNIT PRICE AMOUNT UNIT PRICE AMOUNT PROJECT NUMBER: GC2021-029 SUBTOTAL SCHEDULE A SALES TAX Total Schedule A ITEM ITEM DESCRIPTION SECTION APPROX. QUANTITY Engineers Estimate Barcott Construction LLC Chehalis, WASchedule A: Water Improvements Moses Lake Council Packet 4-13-21, Page 58 STAFF REPORT To: Allison Williams, City Manager From: Richard Law, City Engineer Date: April 8, 2021 Proceeding Type: Consent Agenda Subject: Award Crack Seal Project 2021 Legislative History: • First Presentation: April 13, 2021 • Second Presentation: • Action: Motion Overview Staff opened bids for the Crack Seal Project 2021 on April 7, 2021. The City received two (2) bids for the work. The low bid was $156,680.20 and the Engineer’s Estimate was $184,065. The low bidder, BCV, Inc. of Wenatchee, WA has previously worked for the City of Moses Lake on several of the annual crack seal projects. Fiscal and Policy Implications The project will require budgeted funds to be spent. Council Packet Attachments A. Bid Summary Finance Committee Review N/A Legal Review N/A Moses Lake Council Packet 4-13-21, Page 59 Options Option Results • Award as presented Staff will move forward with executing a contract with the low bidder to complete the work. • Provide staff with changes • Take no action. Staff will stop working on this project and wait for further direction from City Council. Action Requested Staff recommends awarding the Crack Seal Project 2021 in the amount of $156,680.20. Moses Lake Council Packet 4-13-21, Page 60 Moses Lake Council Packet 4-13-21, Page 61 STAFF REPORT To: Allison Williams, City Manager From: Susan Schwiesow, Parks, Recreation & Cultural Services Director Date: April 8, 2021 Proceeding Type: Consent Agenda Subject: Surf ‘n Slide Public Address System Legislative History: • First Presentation: April 13, 2021 • Second Presentation: • Action: Motion Overview The Moses Lake Surf ‘n Slide Water Park sound system that was initially installed in 1994 is still being used. This system has served us well but is at the end of its usability. After 26 years of exposure to extreme heat, annual installation and removal and significant daily use during the pool season, the system is not consider safe for further use. While this system allows us to enhance the water park environment with music, it’s most important task is providing a conduit for safety announcements, etc. from the pool office. We cannot operate this complex safely without a public address system. Fiscal and Policy Implications N/A Council Packet Attachments A. Surf ‘n Slide Public Address System Contract Finance Committee Review N/A Legal Review N/A Moses Lake Council Packet 4-13-21, Page 62 Options Option Results • Approve as presented Staff will move forward with the contract. • Provide staff with changes Staff will make requested corrections and bring a revised contract for Council consideration. • Take no action. System will not be upgraded. Action Requested Staff recommends Council to approve the contract for the Surf ‘n Slide public address system. Moses Lake Council Packet 4-13-21, Page 63 @-?W(110,d"'l.J[[l!)l"Nli'!l3141'F9ff le'Aal!W?1kSSSllffi'4"k-nN1r.a.....Jl(!w?'1WfCITY OF MOSES LAKE401 S. Balsam St.Moses Lake, WA 98837(509) 764-370lCity of Moses LakeSurf an Slide Water ParkSound System Update2021 Surf "n Slide Sound SystemPagel/18Moses Lake Council Packet 4-13-21, Page 64 The following forms are to be executed contemporaneously:1. Contract2. Proof of Insurance Coverage - Provide one copy certifying insurance coverage in the amount specified,and with the following endorsement: "The City of Moses Lake is an Additional Insured as pertainsto this project." This will include Form B, Additional Insured - Owners, Lessees, or Contractors.3. Indemnification Acknowledgment.4. Power of Attorney for the person signing on behalf of your Bonding Company.s. Contractor's Declaration of Intent.6. Contractor and sub-contractors must have a current City of Moses Lake Business License.In addition, the Contractor shall:1. Submit constmction schedule, prior to starting work, which will show completion of the project withinthe time specified.2. Arrange for a pre-construction conference between the prime contractor, subcontractors, utilities, andthe City of Moses Lake to be held prior to the start of constmction.f f i2021 Surf 'n Slide Sound SystemPage2/18Moses Lake Council Packet 4-13-21, Page 65 INDEMNIFICATIONAND WAIVERACKNOWLEDGMENTINDEMNIFICATION ACKNOWLEDGMENTThe undersigned, by signing this acknowledgement, hereby declare under penalty of perjury under the lawsof the State of Washington, that s/he have read Exhibit A and hereby declare and agree to be bound by theindemnification contained therein including the industrial insurance immunity waiver.The undersigned also agrees these provisions were mutually negotiated between the parties in the quotesolicitation process in connection with the pro3ect for which the Contractor' s proposal was submitted.I am deemed to have below agreed to the provisions of this declaration.Dated this 5'h day of April, 2021.CONTRACTOR:EVCO Integrated SolutionsBy:,/A)< d v i vijs)6au=ry" '{/r/>o:zl2021 Surf 'n Slide Sound SystemPage3/18Moses Lake Council Packet 4-13-21, Page 66 CITY OF MOSES LAKECONTRACT(under $65,000)Project: 2021 Surf 'n Slide Water Park Sound System1.Parties and Date: This contract is entered into at Moses Lake, Washington on April 2, 2021, by andbetween the City of Moses Lake a municipal corporation, and EVCO Integrated Solutions aWashington corporation registered to do business in the State of Washington, herein the Contractor:2. Agreement: In consideration of the ternns and conditions contained herein and those conditions,specifications, and terms attached and made a part of this agreement, the parties covenant and agree asfollows:2.1 TheContractorshallobtainallrequiredperrnitsandshalldoallworkandfurnishallmaterials,tools, and equipment for the 2021 Surf an Slide Water Park Sound System in accordance withand as described in the plans and specifications furnished by the City of Moses Lake. TheContractor shall perform any alterations in or additions to the work provided under this contractand every part thereof.2.2Work shall start on or after Permits Are Approved and shall be completed by May 26, 2021.2.3The City of Moses Lake shall pay the Contractor for the performance of this contract subjectto any additions or deductions provided for herein, in a sum not to exceed Sixty Thousand, FiveHiu'idred Thirty-Six Dollars and 3 8/ 100 ($60,536.3 8), which includes all expenses for material,manpower, equipment, taxes and fees, etc.2.4 The City of Moses Lake and Contractor recognize that time is of the essence of this contractand the city will suffer significant loss if the contract is not completed and the facilities are notfully usable for their intended purpose within the time specified in paragraph 2.2 above.Therefore, if the work is not completed within the time specified, the Contractor acknowledgesthat failure to complete the work within that time shall constitute a material breach under thecontract entitling the City to terminate and reserving to City all rights to make any claim foractual damages as a result of such failure and termination. City and Contractor furtheracknowledge that even a minimal delay in the project completion can result in significantliability to City and hence any unapproved delay shall constitute a material breach entitlingCity to its available remedies at law. Upon termination for delay, the Contractor is not entitled2021 Surf 'n Slide Sound SystemPage 4/ 18Moses Lake Council Packet 4-13-21, Page 67 to further payment until the work is finished. If the costs to the City in completing the workexceed the unpaid balance, the Contractor shall pay the difference to the City.2.5The City of Moses Lake and Contractor recognize that time is of the essence of this contractand the city will suffer financial loss if the work is not completed within the time specified inparagraph 2.3 above. They also recognize the inconvenience, expense and difficulties involvedin a legal proceeding to prove the actual loss suffered by the City if the work is not completedwithin the time allowed in the Contract. Accordingly, the City and the Contractor agree that asliquidated damages for delay, and not as a penalty, the Contractor shall pay the City the sum of$250 per day for each working day this work remains uncompleted and after expiration of thespecified time, as liquidated damages.2.6The City of Moses Lake promises and agrees with the Contractor to employ and does employthe Contractor to provide the materials and to do and cause to be done, work described aboveand to complete and finish the same according to the plans and specifications attached heretoas Exhibit 1 and the terms and conditions contained herein and contracts to pay for the sameaccording to the specifications and the proposal attached hereto, at the time and in the mannerand upon the conditions provided for in this contract.2.7The Contractor for itself, and for its heirs, executors, administrators, successors, and assigns,does agree to the full performance of all the covenants contained herein upon the part of theContractor.2.8It is further agreed that no liability shall attach to the City of Moses Lake by reason of enteringinto this contract, except as expressly provided herein.2.9The Contractor understands that this Project is subject to Washington state laws governingpublic works contracts and payment of prevailing wages and shall comply with any and all lawsgoverning public works contracts and projects and payment of prevailing wages. It shall beContractor's sole responsibility to determine the prevailing wage amount for each employeeand to insure payment thereof.3. Contractor'sRepresentations:InordertoinducetheCityofMosesLaketoenterintothisContract,Contractor makes the following representations:3.1Contractor has familiarized himself with the nature and extent of the Contract Documents,Work, locality, and with all local conditions and federal, state, and local laws, ordinances, rules,and regulations that in any manner may affect cost, progress, or performance of the Work.3.2Contractor has obtained and carefully studied (or assumes responsibility for obtaining andcarefully studying) all such examinations, investigations, explorations, tests, reports and studieswhich pertain to the subsurface or physical conditions at or contiguous to the site or otherwisew2021 Surf "n Slide Sound SystemPage 5/ 18Moses Lake Council Packet 4-13-21, Page 68 may affect the cost, progress, performance or furnishing of the Work as Contractor considersnecessary for the performance or furnishing of the Work at the Contract Price, within theContract Time and in accordance with the other terms and conditions of the ContractDocurnents; and no additional examinations, investigations, exploration, tests, reports, studiesor similar information or data are or will be required by Contractor for such purposes.3.3 Contractor has reviewed and checked all information and data shown or indicated on theContract Documents with respect to existing Underground Facilities at or contiguous to the siteand assumes responsibility for the accurate location of said Underground Facilities. Noadditional examinations, investigations, explorations, tests, reports, studies or similarinformation or data in respect of said Underground Facilities are or will be required byContractor in order to perform and furnish the Work at the Contract Price, within the ContractTime and in accordance with the other terms and conditions of the Contract Docurnents.3.4Contractor has correlated the results of all such observations, examinations, investigations,tests, reports, and data with the terms and conditions of the Contract Documents.4. Miscellaneous provisions:4.1Contractor shall comply with all requirements contained in the attached Exhibits A-B regardinginsurance, indermiification, and payment of prevailing wages. The provisions of Exhibits A-Bare incorporated herein as though fully set forth, and are by this reference made a part hereof.4.2 No assignment by a party hereto of any rights under or interests in the Contract Documents willbe binding on another party hereto without the written consent of the party sought to be bound;and specifically but without limitation, moneys that may become due and moneys that are duemay not be assigned without such consent (except to the extent that the effect of this restrictionmay be limited by law), and unless specifically stated to the contrary in any written consent toan assignment, no assignment will release or discharge the assignor from any duty orresponsibility under the Contract Documents.4.3City and Contractor each binds himself, his partners, successors, assigns, and legalrepresentatives to the other party hereto, its partners, successors, assigns, and legalrepresentatives in respect to all covenants, contracts, and obligations contained in the ContractDocuments.4.4The Contractor warrants that the Work furnished shall be free from defects resulting from faultyworlananship, and further warrants that the Work complies with all specified performancecriteria. The Contractor agrees to remedy all defects appearing in the Work or developing inthe materials supplied and the workmanship performed under this Contract during the warrantyperiod, which shall be two years after date of final acceptance of the Work by the City, andContractor further agrees to indemnify and save the City harmless from any costs encountered2021 Surf 'n Slide Sound SystemPage6/18Moses Lake Council Packet 4-13-21, Page 69 in remedying such defects.A new warranty period equal to that stated in the above paragraph shall apply to parts suppliedin replacement of defective parts or to parts renewed in pursuance of this warranty. Thewarranty period of the remaining parts shall be extended by a period equal to the period duringwhich the Work is unfit for service as a result of a defect covered by this warranty.If Contractor refuses to fulfill Contractor's obligation under this warranty, or fails to proceedwith due diligence after being required to do so, the City may proceed to do the necessary workat the Contractor's risk and expense.4.5 It is further provided that no liability shall attach to the City by reason of entering into thiscontract except as expressly provided herein.4.6 Before any work at the site is started, Contractor shall deliver to City and each additionalinsured identified, certificates of insurance which Contractor is required to purchase andmaintain in accordance with the Contract Documents.4.7 The Contractor shall furnish payment and performance bond in an amount equal to the contractprice as security for the faithful performance and payment of all Contractor' s obligations underthe Contract Documents. The bond shall remain in effect at least until one year after the date offinal payment, except as otherwise provided by law. The bond shall be in the fornn prescribedherein and be executed such sureties as are licensed to conduct business in the State ofWashington, and are named in the current list of "companies Holding Certificates of authorityas Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring companies" aspublished in circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. TreasuryDepartment. All bonds signed by an agent must be accompanied by a certified copy of authorityto act. The surety company executing bonds shall have a Best's Guide rating A-VII or better.Date on the bond must not be prior to the date of the Contract. If Contractor is Partnership, allpartners shall execute the bond. If Contractor is a Limited Liability Company, all membersshall execute the bond. ENCLOSED BOND FOR?M MUST BE USED.4.7AOn projects less than sixty-five thousand dollars ($65,000.00), the City will accept theContractor's request to withhold 10 percent retainage in lieu of bonds. For projects less than$1 o,ooo.oo, the City waives the requirement of bonds, retainage, and liquidated damages.4.8 The Contract is made with reference to and shall be constmed in accordance with the laws ofthe State of Washington. If a dispute arises under this Contract, resort shall be to litigation andjurisdiction and venue shall be in the Superior Court of Grant County, State of Washington.2021 Surf 'n Slide Sound SystemPage7/18Moses Lake Council Packet 4-13-21, Page 70 s.Claims Procedure5.1If the parties fail to reach agreement on the ternns of any Change Order for City-directed Work,or on the resolution of any request for an equitable adjustment in the Contract Sum or theContract Time, Contractor's only remedy shall be to file a Claim with City as provided in thisSection.5.2 ContractorshallfileitsC1aimwithintheearlierof30daysfromCity'sfinalofferorthedateofCompletion. Aa"iy Claim shall be personally delivered to the City and shall be deemed filed onthe date it is personally delivered to the Owner at the following address:City of Moses LakeParks, Recreation & Cultural Services Office411 S. Balsam St.Moses Lake, WA 988375.3 The Claim shall be deemed to cover all changes in cost (including direct, indirect, impact, andconsequential) and time to which Contractor may be entitled. It shall be fully substanriatedand documented. At a minimum, the Claim shall contain the following information:a.A detailed factual statement of the Claim for additional compensation and time, if any,providing all necessary dates, locations, and items of Work affected by the Claim;b. The date on which facts arose that gave rise to the Claim;c.The name of each employee of City and Contractor knowledgeable about the Claim;d. The specific provisions of the Contract Documents which support the Claim;e.The identification of any documents and the substance of any oral communications thatsupport the Claim;f.Copies of any identified documents, other than the Contract Documents, that supportthe Claim;g. If an adjustment in the Contract Time is sought: the specific days and dates for which itis sought; the specific reasons Contractor believes an extension in the Contract Timeshould be granted;h. If an adjustment in the Contract Sum is sought, the exact amount sought and abreakdown of that amount into the categories set forth in, and in the required detail; andA statement certifying, under penalty of perjury, that the Claim is made in good faith,that the supporting cost and pricing data are true and accurate to the best of Contractor'sknowledge and belief, that the Claim is fully supported by the accompanying data, andthat the amount requested accurately reflects the adjustment in the Contract Sum or2021 Surf 'n Slide Sound System1.Page8/18Moses Lake Council Packet 4-13-21, Page 71 Contract Time for which Contractor believes the City is liable.5.4After Contractor has submitted a fully documented Claim that complies with all applicableprovisions of this Contract, the City shall respond in writing to Contractor.5.5To assist in the review of Contractor's Claim, the City may visit the Project site, or requestadditional information, in order to fully evaluate the issues raised by the Claim. Contractor shallproceed with performance of the Work pending final resolution of any Claim. The City's writtendecision as set forth above shall be final and conclusive as to all matters set forth in the Claim.5.6Any Claim of the Contractor against the City for damages, additional compensation, oradditional time, shall be conclusively deemed to have been waived by the Contractor unlesstimely made in accordance with the requirements of this Section.6.Execution: Executed the day and year written above.CITY OF MOSES LAKE, WASHINGTONMunicipalityAllison Williams, City ManagerFvco T.,, 7rc, ro rJ sq/z r>vn sContractoryl&?- / b-s --i-, rSignature and TitleDate[(3 7 ; H aba[le(Typed Name and TitleAPPROVED AS TO FORM:Katherine Kenison, City Attorney2021 Surf 'n Slide Sound SystemPage9/18ffiMoses Lake Council Packet 4-13-21, Page 72 CERTIFICATION OF COMPLIANCE WITH WAGEPAYMENT STATUESThe quoter hereby certifies that, within the three-year period immediately preceding the quotesolicitation date April 1, 2021, the quoter is not a "willful" violator, as defined in RCW 49.48.082, ofany provision of chapters 49.46, 49.48, or 49.52 RCW, as determined by a final and binding citationand notice of assessment issued by the Department of Labor and Industries or through a civil judgmententered by a court of limited or general jurisdiction.I certify under penalty of perjury under the laws of the State of Washington that the foregoing is trueand correct.Ov<::g I',1 t-eqva7"!Quoie?r' Business N7me7Signature of Authorized Official*'l V 1 V1Q M-ry'Printed NameY e C, h6 < ,,iTitle''1/r/ 2-011Date5,/, 7;o{c4 /i(B4SSy:io)<-=t?1,1/ J%StateCheck One:Sole Proprietorship € Partnership € Joint Venture € Corporation 'glState of Incorporation, or if not a corporation, State where business entity was formed:l'V0 .5 h ')Vl(. Tc'i v'lyIf a co-partnership, give firm name under which business is transacted:* Ifa corporation, proposal must be executed in the corporate name by the president or vice-president (or anyother corporate officer accompanied by evidence of authority to sign). Ifa co-partnership, proposal must beexecuted by a partner.ffi2021 Surf 'n Slide Sound SystemPagelO/18Moses Lake Council Packet 4-13-21, Page 73 CONTRACTOR'S DECLARATION OF INTENTCITY OF MOSES LAKE2021 Surf 'n Slide Water Park Sound SystemContractor:FSUCO XviTeol ra "7';cl S'Jct TtovtSyPursuant to RCW 60.28.Ol0, all Contractors are required to exercise their option in writing prior to the firstpayment, to have retainage monies:(l ) Retained in a fund by the public body.zI hereby REQUEST that retainage on the above contract be placed in a non-interest-bearing accountand have signed that agreement below.(2) Deposited by the public body in an interest bearing account.I hereby REQUEST that retainage on the above contract be placed in an interest bearing account andhave signed that agreement below.(3) Placed in escrow with a bank or trust company by the public body.I hereby REQUEST that retainage on the above contract be placed in escrovv and have signed thatagreement.(4) Paid to them and submit a bond for all or any portion of the amount of funds retained by thepublic body in a form acceptable to the City.I hereby REQUEST a bond in lieu of retainage on the above contract and have signed that agreement.In the event that it is desired to place retained monies in escrow, it will be necessary that the Contractor enterinto an escrow agreement with the city-named bank. That agreement shall be executed on forms furnishedby the City. The escrow agreement must be completed and approved prior to any monies being placed inescrow.Signature and Title>==< A? lfytc,, :c4s r Date '7'/ " / 20)-J-j2021 Surf 'n Slide Sound SystemPagell/18Moses Lake Council Packet 4-13-21, Page 74 INSURANCE REQUIREMENTSEXHIBIT AIndemnification / Hold HarmlessThe Contractor shall defend, indemnify and hold the Owner and its officers, officials, employees andvolunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees,arising out of or in connection with the performance of this Agreement, except for injuries and damagescaused by the sole negligence of the Owner.Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24. 115, then, inthe event of liability for damages arising out of bodily injury to persons or damages to property caused by orresulting from the concurrent negligence of the Contractor and the Owner, its officers, officials, employees,and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence.It is further specifically and expressly understood that the indemnification provided herein constitutes theContractor's waiver of irmnunity under Industrial Insurance, Title 51 RCW, solely for the purposes of thisindemnification. This waiver has been mutually negotiated by the parties. The provisions of this sectionshall survive the expiration or termination of this Agreement.A. Insurance TermThe Contractor shall procure and maintain insurance, as required in this Section, without interruptionfrom commencement of the Contractor' s work through the term of the contract and for thirty (30)days after the Physical Completion date, unless otherwise indicated herein.B. No LimitationContractor's maintenance of insurance, its scope of coverage and limits as required herein shall notbe constmed to limit the liability of the Contractor to the coverage provided by such insurance, orotherwise limit the Owner's recourse to any remedy available at law or in equity.C. Minimum Scope of InsuranceContractors required insurance shall be of the types and coverage as stated below:1.Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles.Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01.2. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 0001 and shall cover liability arising from premises, operations, stop gap liability, independentcontractors, products-completed operations, personal injury and advertising injury, and liabilityassumed under an insured contract. The Commercial General Liability insurance shall beendorsed to provide a per project general aggregate limit, using ISO form CG 25 03 05 09 or anequivalent endorsement. There shall be no exclusion for liability arising from explosion, collapseor underground properly damage. The Owner shall be named as additional insureds under theContractor's Commercial General Liability insurance policy with respect to the work performedfor the Owner using ISO Additional Insured endorsement CG 201010 01 and Additionalr2021 Surf 'n Slide Sound SystemPage 12/18Moses Lake Council Packet 4-13-21, Page 75 Insured-Completed Operations endorsement CG 20 3 710 01 or substitute endorsementsproviding at least as broad coverage.3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State ofWashington.4. Excess or Umbrella Liability insurance shall be excess over and at least as broad in coverage asthe Contractor's Commercial General Liability and Automobile Liability insurance. The Ownershall be named as additional insureds on the Contractor's Excess or Umbrella Liability insurancepolicy. The Excess or Umbrella insurance coverage will drop down when underlying policyaggregate limits are exhausted.D. Minimum Amounts of InsuranceContractor shall maintain the following insurance limits:1. Automobile Liability insurance with a minimum combined single limit for bodily injury andproperty damage of $1,000,000 per accident.2. Commercial General Liability insurance shall be written with limits no less than $2,000,000 eachoccurrence, $2,000,000 general aggregate and a $2,000,000 products- completed operationsaggregate limit.3. Excess or Umbrella Liability insurance shall be written with limits of not less than $2,000,000 orother per occurrence and amiual aggregate. The Excess or Umbrella Liability requirement andlimits may be satisfied instead through the Contractor's Commercial General Liability andAutomobile Liability insurance, or any combination thereof that achieves the overall requiredlimits.E. Owner Full Availability of Contractor LimitsIf the Contractor maintains higher insurance limits than the minimums shown above, the Owner shallbe insured for the full available limits of Commercial General and Excess or Umbrella liabilitymaintained by the Contractor, irrespective of whether such limits maintained by the Contractor aregreater than those required by this contract or whether any certificate of insurance furnished to theOwner evidences limits of liability lower than those maintained by the Contractor.F.Other Insurance ProvisionThe Contractor's Automobile Liability, Cornmercial General Liability and Builders Risk insurancepolicies are to contain, or be endorsed to contain that they shall be primary insurance as respect theOwner. Any Insurance, self-insurance, or self-insured pool coverage maintained by the Owner shallbe excess of the Contractor's insurance and shall not contribute with it.G. Contractor's Insurance for Other LossesThe Contractor shall assume full responsibility for all loss or damage from any cause whatsoever toany tools, Contractor's employee owned tools, machinery, equipment, or motor vehicles owned orrented by the Contractor, or the Contractor's agents, suppliers, contractors or subcontractors as wellas to any temporary stmctures, scaffolding and protective fences.2021 Surf 'n Slide Sound SystemPage 13/18Moses Lake Council Packet 4-13-21, Page 76 H.Waiver of SubrogationThe Contractor and the Owner waive all rights against each other, any of their Subcontractors, Sub-subcontractors, agents and employees, each of the other, for damages caused by fire or other perils tothe extent covered by Builders Risk insurance or other property insurance obtained pursuant to theInsurance Requirements Section of this Contract or other properly insurance applicable to the work.The policies shall provide such waivers by endorsement or otherwise.I.Acceptability of InsurersInsurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII andlicensed to do business in the state of Washington.J.Verification of CoverageContractor shall furnish the Owner with original certificates and a copy of the amendatoryendorsements, including but not necessarily limited to the additional insured endorsements,evidencing the Automobile Liability and Comrnercial General Liability insurance of the Contractorbefore cormnencement of the work. Before any exposure to loss may occur, the Contractor shall filewith the Owner a copy of the Builders Risk insurance policy that includes all applicable conditions,exclusions, definitions, terms and endorsements related to this project. Upon request by the Owner,the Contractor shall furnish certified copies of all required insurance policies, includingendorsements, required in this contract and evidence of all subcontractors' coverage.K. SubcontractorsThe Contractor shall cause each and every Subcontractor to provide insurance coverage that complieswith all applicable requirements of the Contractor-provided insurance as set forth herein, except theContractor shall have sole responsibility for determining the limits of coverage required to beobtained by Subcontractors. The Contractor shall ensure that the Owner is an additional insured oneach and every Subcontractor's Commercial General liability insurance policy using an endorsementat least as broad as ISO Additional Insured endorsement CG 20 38 0413.L.Notice of CancellationThe Contractor shall provide the Owner and all Additional Insureds for this work with written noticeof any policy cancellation within two business days of their receipt of such notice.M. Failure to Maintain InsuranceFailure on the part of the Contractor to maintain the insurance as required shall constitute a materialbreach of contract, upon which the Owner may, after giving five business days' notice to theContractor to correct the breach, immediately terminate the contract or, at its discretion, procure orrenew such insurance and pay any and all premiums in connection therewith, with any sums soexpended to be repaid to the Owner on demand, or at the sole discretion of the Owner, offset againstfunds due the Contractor from the Owner.The Contractor shall indicate any existing claims activity that would affect the aggregate limits. Thisshall include paid claims, reserve claims, and potential claims.2021 Surf 'n Slide Sound SystemPagel4/18Moses Lake Council Packet 4-13-21, Page 77 N.DeductibleAny insurance deductible shall be paid by the Contractor and shall not be greater than 1 0% of thetotal "Amount of Quote."0. Property InsuranceOwner shall not be responsible for purchasing and maintaining any property insurance to protect theinterests of Contractor, subcontractors or others in the Work.2021 Surf 'n Slide Sound SystemPage 15/18Moses Lake Council Packet 4-13-21, Page 78 CONTRACTOR'S AGREEMENT TO PAY PREVAILINGWAGE RATESEXHIBIT BContractor's Agreement to Pay Prevailing Wage RatesIn accordance with the laws of the State of Washington, Chapter 39. 12 RCW, the hourly wage to be paid tolaborers, workmen or mechanics upon all public works of this State and upon the Work contemplated in thisContract shall not be less than the prevailing rate of wage for an hour's work in the same trade or occupationin the locality within the State where such labor and Work herein contemplated is to be performed.All laborers, workmen or mechanics shall be paid not less than the minimum hourly rate of wage asdetermined by the State Industrial Statistician which rates shall be incorporated into this Contract byreference; provided, however, nothing herein contained shall be construed to prohibit the Contractor,subcontractor or other person doing or contracting to do the whole or any part of the Work under thisContract from paying any such laborers, workers or mechanics wages in excess of the hourly minimum rateabove specified.The Contractor, on or before the date of commencement of the Work, shall file a Statement of Intent to PayPrevailing Wages with the Owner and with the Director of Labor and Industries certifying the rate of hourlywage, including fringe benefits, paid and to be paid each classification of laborers, workers, or mechanicsemployed upon the Work by the Contractor or subcontractor which shall be filed in accordance with thepractices and procedures required by the Department of Labor and Industries.Wage rates so filed will be checked against prevailing wage rates determined by the Industrial Statistician ofthe Department of Labor and Industries. If the wage rates are correct, the Department will issue anacknowledgment of approval to the Contractor with a copy to the Owner. If any incorrect wage rates areincluded, the Contractor will be notified of the correct rates by the Department, and approval will bewithheld until a correct statement is received.Forms for filing a Statement of Intent are available from the Supervisor of Industrial Relations, Departmentof Labor and Industries, General Administration Building, Olympia, Washington.Each request submitted by the Contractor for a progress payment on a Project estimate shall state that theprevailing wages have been paid in accordance with the prefiled Statement of Intent to pay prevailing wageson file with the Department of Labor and Industries and approved by the Department. Certified wageaffidavit listing all classifications and applicable wages paid will not be required for each progress estimatepayment, other than the above statement.At the conclusion of the Project, the Contractor and its subcontractors shall submit affidavits of wages paidto the Industrial Relations Division, Department of Labor and Industries, General Administration Building,2021 Surf 'n Slide Sound SystemPage 16/18Moses Lake Council Packet 4-13-21, Page 79 Olympia, Washington, 98504, for certification. Form "Affidavit of Wages paid on Public Works Contract"or a similarly constructed form shall be filed to secure the certification of the Director of the Department ofLabor and Industries of the State of Washington.Final payment on the contract will be withheld unti l the Owner has received certification by the Director thatthe prevailing wage requirements of the law have been satisfied.The prevailing rate of wages to be paid to all workers, laborers or mechanics employed in the performanceof any part of this Contract shall be in accordance with the provisions of Chapter 39. 12 RCW as amended.The rules and regulations of the State of Washington Department of Labor and Industries and the schedule ofprevailing wage rates for the locality or localities where this Contract wi 11 be performed as deternnined by theIndustrial Statistician of the State of Washington Department of Labor and Industries are by reference madea part of this Contract as though fully set forth herein.In as much as the Contractor will be held responsible for paying the prevailing wages, it is imperative that allcontractors familiarize themselves with the current wage rates before submitting proposals based on theseContract Documents.In case any dispute arises as to what are the prevailing rates of wages for work of a similar nature and suchdispute cannot be adjusted by the parties of interest, including labor and management representatives, thematter shall be referred for arbitration to the Director of the Department of Labor and Industries of the Stateof Washington, and his decision shall be final and conclusive and binding on all parties involved in thedispute as provided for by RCW 39.12.060 as amended.Current prevailing wage data will be furnished by the Industrial Statistician upon request from the IndustrialRelations Division, Department of Labor and Industries, Olympia, Washington, 98504.The Owner does not guarantee that labor can be procured for the minimum wages in the wage scale. Therates of wages listed are minimum only, below which the Contractor camiot pay, and they do not constitute arepresentation that labor can be procured for the minimum listed. The Contractor shall ascertain the wagesabove the minimum set forth that the Contractor may have to pay. Prevailing wage data as of the datespecified is included herein as Part s for the Contractor's reference.2021 Surf 'n Slide Sound SystemPage 17/18Moses Lake Council Packet 4-13-21, Page 80 STAFF REPORT To: Allison Williams, City Manager From: Melissa Bethel, Community Development Director Date: April 6, 2021 Proceeding Type: Consent Agenda Subject: Modular Building Lease Renewal- Sleep Center Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview The Open Doors Sleep Center is operated on leased property. City Council authorized a lease extension for the land lease to keep the Sleep Center at its current location until September 30, 2022. In order to keep operations functioning, the Sleep Center will need to continue to lease the building that operates as the bathroom and showers. The lease contract for the building would be set to begin on October 1, 2021 and will end on September 30th, 2022. The lease amount is $575 per month, with an additional charge of $250 per month for the rental of the ADA compliant access ramp. Fiscal and Policy Implications The total fiscal impact of extending the lease for the bathroom building is $10,008.00. This expense would be paid for utilizing the Emergency Solutions Grants CV-19. This lease extension would have no impact on the general budget. Council Packet Attachments A. City of Moses Lake Lease Extension- Modern Building Systems Finance Committee Review N/A Legal Review N/A Moses Lake Council Packet 4-13-21, Page 81 Options Option Results • Authorize Execution Authorize City Manager to execute lease extension. • Take no action. The Open Doors Sleep Center will lose the bathroom facility at the end of September 2021 and will not be able to continue operations. Action Requested Staff recommends authorization for City Manager to execute the lease extension. Moses Lake Council Packet 4-13-21, Page 82 AGREEMENT - LEASE EXTENSION LEASE EXTENSION AGREEMENT Lessor: Modern Building Systems Lessee: City of Moses Lake PO BOX 110 PO Box 1579 9493 Porter Road Moses Lake, WA 98837 Aumsville, OR 97325 PO#: Sales Contact: Rick Neil Job#: AGREEMENT This document will serve as a 12 month lease extension at the rate of $6,900.00, in monthly installments of $575.00, for your current 12x48, unit #2577, serial #2013.37-1. Your current lease which expired on 2021-09-30 will now expire on 2022-09-30, with all previous terms and conditions to remain in effect. Please sign below as your acceptence of this agreement as soon as possible. If you have any questions, please feel free to call me at (503) 749-4949. Sincerely, Rick Neil rneil@modernbuildingsystems.com 253-266-5683 Signed by duly authorized agents this ______________. Lessor: Modern Building Systems, Inc. Lessee: City of Moses Lake P.O. Box 110 / 9493 Porter Rd, Aumsville, OR 97325 PO Box 1579 Moses Lake, WA 98837 X _________________________________________________ X _________________________________________________ Kenneth D. Mero, Vice President of Sales ________________________ , _______________________ Name Title Official Modern Building Systems, Inc. Document © 2021 _____ Initial 1 / 1Moses Lake Council Packet 4-13-21, Page 83 STAFF REPORT To: Allison Williams, City Manager From: Michael G. Moro, Public Works Division Director Date: April 9, 2021 Proceeding Type: Consent Agenda Subject: Ratify Lad Irrigation Well 21 Repair Contract Amendment Legislative History: •First Presentation:April 13, 2021 •Second Presentation: •Action:Motion Overview Well 21 is a critical water source for the City of Moses Lake. Recent failures on the well required a contract in the amount of $42,535.33 to pull 400 LF of 6-inch pipe, cable, airline, and transducer sleeve so that the submersible pump could be replaced. During this contracted work, conditions of the pipe, cable, airline, and transducer sleeve were inspected and determined that they need to be replaced at this time. These repairs could not be determined prior to removal of the failed pump. The cost of this additional work is $11,292.39, placing the final cost of the project at $53,827.72. The total cost of the project now exceeds $50,000 signing authority for the City Manager. Due to the critical nature to expedite the repair of Well 21, the necessity to order the parts without delay, and the importance of Well 21 for the water system in the coming summer months, staff prepared and executed Change Order No. 1 for these additional repairs. Fiscal and Policy Implications Budgeted monies for the well repairs are spent, but not exceeded. Council Packet Attachments A. Change Order No. 1 Finance Committee Review N-A Moses Lake Council Packet 4-13-21, Page 84 Legal Review N/A Options Option Results • Move to Ratify Change Order 1 Change Order No. 1 will be ratified, and the repair work will continue. • Do not ratify Change Order No. 1 The contractor will be notified to cease work on Well 21. Well 21 will remain idle until further direction is provided to staff. Water supply in the Larson Zone will be compromised in the coming summer months. Action Requested Staff recommends City Council to ratify Change Order No. 1 for the “2021 Well 21 Repair” as presented. Moses Lake Council Packet 4-13-21, Page 85 CITY OF MOSES LAKE, WASHINGTONMunicipal Services DepartmentChange OrderProject: 2021 Well 21 RepairDate: April 1, 2021Change Order No: 1Contractor: Lad Irrigation Company, Inc.Change ordered by Public Works Division Director in accordance with Section 1-04.7 of Standard Specifications.Contract No: 411.2021.01The following additions are made to the 2021 Well 21 Repair contract:The Special Provisions are supplemented with the following:The contractor shall provide and install the following materials prior to replacing the submersible pump at Well 21:1. 400 feet of stainless steel pipe 304 TBE - '/4 w/cplr2. 400 feet of Galv Pipe Sch40 T&C 13. 2 6-inch ductile iron check valve epoxy coated4. 12 6-inch tapered black column pipe T&CThe work shall include all freight costs for the additional materials, and labor to move and haul off and dispose of the existing partsthat are being replaced.The contract time is not increased, but the workdays are stopped on March 29, 2021, with 6 of 15 working days expired. Workingdays will commence on April 12, 2021, with 9 working days remaining to complete the work.Measurement for the additional parts and work shall be per lump sum.Payment for "Additional parts, freight, and labor" shall be per lump sum in the amount of $11,292.39.Original Contract AmountCurrent Contract AmountEstimated Net this ChangeOrderEstimated Contract Totalafter Change$42,535.33$42,535.33$11,292.39$53,827.72Original Contract WorkingDaysCurrent Contract WorkingDaysNet Change Working DaysNew Contract WorkingDays1515015osns-GAK7^Prepared bvC—--^.Chad SlrevyWater Services ManagerCONTRACTORChecked byMichael G MdTb. PEPublic Works Division DirectorBy _CaseyTitle.Gubler' Date AtttsSn WilliamsControl«iA City ManagerDate2021 Well 21 RepairContract No. 411.2021.01CHANGE ORDER NO. 1Page 1/1Moses Lake Council Packet 4-13-21, Page 86 STAFF REPORT To: Allison Williams, City Manager From: Richard Law, City Engineer Date: April 9, 2021 Proceeding Type: Consent Agenda Subject: Award Westshore Watermain Project - 2021 Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview Staff opened bids for the Westshore Drive Watermain Replacement Project - 2021 on April 9, 2021. The City received four (4) bids for the work. The low bid was $206,693.69 and the Engineer’s Estimate was $230,756.50. The low bidder, Industrial Construction of Washington of West Richland, WA has all of their licenses in place with the state and is judged to be a responsible bidder per State requirements. Fiscal and Policy Implications The project will require budgeted funds to be spent. Council Packet Attachments A. Bid Summary Finance Committee Review N/A Legal Review N/A Moses Lake Council Packet 4-13-21, Page 87 Options Option Results •Award as presented Staff will move forward with executing a contract with the low bidder to complete the work. •Provide staff with changes •Take no action.Staff will stop working on this project and wait for further direction from City Council. Action Requested Staff recommends awarding the Westshore Drive Watermain Project - 2021 in the amount of $$206,693.69. Moses Lake Council Packet 4-13-21, Page 88 PROJECT NAME: Westshore Drive Watermain Project - 2021 BID RESULTS 1 Mobilization 1-09 1 L.S. 20,000.00 20,000.00 $23,669.68 $23,669.68 $14,670.00 $14,670.00 2 Traffic Control 1-10 1 L.S.15,000.00 15,000.00 $15,885.63 $15,885.63 $15,000.00 $15,000.00 3 Sawcut Pavement or Concrete 2-02 1700 L.F.4.00 6,800.00 $4.87 $8,279.00 $1.05 $1,785.00 4 Water 2-07 300 MGal 10.00 3,000.00 $2.08 $624.00 $17.81 $5,343.00 5 Shoring or Extra Excavation Class B 2-09 5000 S.F.1.00 5,000.00 $0.33 $1,650.00 $0.34 $1,700.00 6 Trimming and Cleanup 2-11 1 L.S.10,000.00 10,000.00 $1,455.78 $1,455.78 $15,000.00 $15,000.00 7 HMA Patch Cl 3/8-Inch PG 64-28 5-06 850 S.Y.70.00 59,500.00 $48.61 $41,318.50 $40.95 $34,807.50 8 Plug Existing Pipe 7-08 4 EA 500.00 2,000.00 $71.40 $285.60 $129.47 $517.88 9 PVC Pipe for Water Main 10 Inch Diameter 7-09 35 L.F.35.00 1,225.00 $68.42 $2,394.70 $90.88 $3,180.80 10 PVC Pipe for Water Main 12 Inch Diameter 7-09 1000 L.F.40.00 40,000.00 $49.71 $49,710.00 $61.80 $61,800.00 11 PVC Pipe for Water Main 16 Inch Diameter 7-09 30 L.F.45.00 1,350.00 $267.11 $8,013.30 $150.00 $4,500.00 12 Connect to Existing 8 Inch Water Main 7-09 1 EA 1,500.00 1,500.00 $1,350.58 $1,350.58 $1,476.54 $1,476.54 13 Connect to Existing 10 Inch Water Main 7-09 1 EA 1,700.00 1,700.00 $1,314.71 $1,314.71 $1,438.34 $1,438.34 14 Connect to Existing 12 Inch Water Main 7-09 4 EA 1,900.00 7,600.00 $1,549.15 $6,196.60 $1,238.83 $4,955.32 15 Abandon Existing Water Main Valve 7-09 6 EA 1,000.00 6,000.00 $194.78 $1,168.68 $104.82 $628.92 16 Gate Valve 10 inch 7-12 1 EA 2,200.00 2,200.00 $2,247.90 $2,247.90 $1,870.55 $1,870.55 17 Gate Valve 12 inch 7-12 2 EA 2,500.00 5,000.00 $2,752.65 $5,505.30 $2,382.30 $4,764.60 18 Tapping and Sleeve Assembly 8 inch 7-12 1 EA 5,000.00 5,000.00 $2,855.11 $2,855.11 $2,290.12 $2,290.12 19 Tapping and Sleeve Assembly 12 inch 7-12 2 EA 5,500.00 11,000.00 $4,570.76 $9,141.52 $4,047.67 $8,095.34 20 Hydrant Assembly 7-14 1 EA 5,000.00 5,000.00 $5,250.25 $5,250.25 $6,447.24 $6,447.24 21 Paint Line 8-22 800 L.F.5.00 4,000.00 $2.95 $2,360.00 $3.44 $2,752.00 212,875.00$ $190,676.84 $193,023.15 8.4%17,881.50$ $16,016.85 $16,213.94 230,756.50$ $206,693.69 $209,237.09 Schedule A: Water Improvements UNIT PRICE AMOUNT Engineers Estimate Industrial Const of WA W. Richland, WA Rotschy, Inc. Vancouver, WA PROJECT NUMBER: GC2021-027 SUBTOTAL SCHEDULE A SALES TAX Total Schedule A ITEM ITEM DESCRIPTION SECTION APPROX. QUANTITY UNIT UNIT PRICE AMOUNT UNIT PRICE AMOUNT Moses Lake Council Packet 4-13-21, Page 89 PROJECT NAME: Westshore Drive Watermain Project - 2021 BID RESULTS 1 Mobilization 1-09 1 L.S. 2 Traffic Control 1-10 1 L.S. 3 Sawcut Pavement or Concrete 2-02 1700 L.F. 4 Water 2-07 300 MGal 5 Shoring or Extra Excavation Class B 2-09 5000 S.F. 6 Trimming and Cleanup 2-11 1 L.S. 7 HMA Patch Cl 3/8-Inch PG 64-28 5-06 850 S.Y. 8 Plug Existing Pipe 7-08 4 EA 9 PVC Pipe for Water Main 10 Inch Diameter 7-09 35 L.F. 10 PVC Pipe for Water Main 12 Inch Diameter 7-09 1000 L.F. 11 PVC Pipe for Water Main 16 Inch Diameter 7-09 30 L.F. 12 Connect to Existing 8 Inch Water Main 7-09 1 EA 13 Connect to Existing 10 Inch Water Main 7-09 1 EA 14 Connect to Existing 12 Inch Water Main 7-09 4 EA 15 Abandon Existing Water Main Valve 7-09 6 EA 16 Gate Valve 10 inch 7-12 1 EA 17 Gate Valve 12 inch 7-12 2 EA 18 Tapping and Sleeve Assembly 8 inch 7-12 1 EA 19 Tapping and Sleeve Assembly 12 inch 7-12 2 EA 20 Hydrant Assembly 7-14 1 EA 21 Paint Line 8-22 800 L.F. 8.4% Schedule A: Water Improvements PROJECT NUMBER: GC2021-027 SUBTOTAL SCHEDULE A SALES TAX Total Schedule A ITEM ITEM DESCRIPTION SECTION APPROX. QUANTITY UNIT $36,030.00 $36,030.00 $9,000.00 $9,000.00 $3,248.00 $3,248.00 $1,000.00 $1,000.00 $1.12 $1,904.00 $3.00 $5,100.00 $33.23 $9,969.00 $12.00 $3,600.00 $0.23 $1,150.00 $1.00 $5,000.00 $7,392.00 $7,392.00 $15,000.00 $15,000.00 $28.56 $24,276.00 $35.00 $29,750.00 $285.60 $1,142.40 $500.00 $2,000.00 $100.22 $3,507.70 $60.00 $2,100.00 $63.96 $63,960.00 $75.00 $75,000.00 $492.44 $14,773.20 $432.00 $12,960.00 $1,081.00 $1,081.00 $3,500.00 $3,500.00 $1,266.00 $1,266.00 $3,500.00 $3,500.00 $1,764.00 $7,056.00 $4,000.00 $16,000.00 $313.60 $1,881.60 $2,000.00 $12,000.00 $1,904.00 $1,904.00 $1,800.00 $1,800.00 $2,380.00 $4,760.00 $2,200.00 $4,400.00 $3,164.00 $3,164.00 $7,500.00 $7,500.00 $5,068.00 $10,136.00 $7,500.00 $15,000.00 $5,790.00 $5,790.00 $3,500.00 $3,500.00 $2.97 $2,376.00 $2.00 $1,600.00 $206,766.90 $229,310.00 $17,368.42 $19,262.04 $224,135.32 $248,572.04 POW Contracting Pasco, WA UNIT PRICE AMOUNT Fisher Const Group, Inc. Burlington, WA UNIT PRICE AMOUNT Moses Lake Council Packet 4-13-21, Page 90 STAFF REPORT To: Allison Williams, City Manager From: Cindy Jensen, Finance Director Date: April 9, 2021 Proceeding Type: Old Business Subject: Ordinance to participate in the State of Washington LOCAL Program to Finance Rebuilding the Larson Recreation Center Legislative History: •Prior Presentations: •Current Presentation: 2020 and 2021 Budget, September 24, 2020, March 9, 2021 April 13, 2021 •Requested Action: Motion Staff Report Summary The next (and final) step for Council action to finance the reconstruction of the Larson Recreation Center is to approve the bond ordinance and the interlocal agreement with the State of Washington LOCAL program. This program, run by the State Treasurer, allows local governments to use the borrowing power of the State to issue bonds on our behalf. The state has asked for us to have these executed documents back by April 29. Background We discussed this option during the budget process. At the March 9, 2021 meeting, in advance of Council awarding the bid to construct the Larson Recreation Center, an updated spreadsheet was presented that included available resources to pay for the debt service on the LRC, the 3 Fire apparatus which are currently on order, and remodeling the police station after the Parks, Recreation and Cultural Services administrative offices moves to the new facility. We estimate the funds available when the Civic Center debt is paid off, as well as an allocation of Hotel/Motel tax, will be more than adequate to make debt service payments for these 3 purposes. Fiscal and Policy Implications This transaction does bind Council to issue the debt for the reconstruction of the Larson Recreation Center. The state has approved us to borrow $11.5 million, although Council limited the total to $11,350,000 at the March 9 meeting. LOCAL provided an estimate of debt service, with both a current and pessimistic interest rate of 1.72% and 2.47% respectively, producing a first-year annual debt service estimate of between $688,000 and $735,000, with ongoing annual payment of a range of $700,000 and $740,000. An estimate made earlier in 2020 set this annual Moses Lake Council Packet 4-13-21, Page 91 debt service pessimistically at $805,000, so we are seeing a more favorable interest rate environment. The state will conduct their bond sale on June 2, 2021, and proceeds will be available to us on June 22, 2021. Because we can only request funds after they are spent, our first order of business will be to request reimbursement for the “soft costs” that have already been spent on the project (i.e. architect design fees, permits, etc.). This should provide adequate cash flow for current expenses, as we “roll” through the reimbursement process monthly. Other points for Council consideration are that we are pledging the “full faith and credit” of the City, and this debt will be counted as debt in our limitation of debt calculation. Our debt load is relatively small, so we have adequate capacity for these LOCAL issues. Options Option Results •Move to adopt the Ordinance authorizing a local agency financing contract to access the Washington State LOCAL program Action would allow Finance to continue in the process to obtain funding to pay for the LRC currently contracted to be built. •Take no action Find a different way to pay for the construction project. Staff Recommendation Make a motion to adopt the Ordinance to approve entering into a Local Agency Financing Contract to use the State Treasurer’s LOCAL program to finance the reconstruction of the Larson Recreation Center. Attachments The documents attached are from our Bond Counsel. The State is still drafting interlocal agreements to execute the loan transaction, which we have not received as we go to print. We will update the agenda packet, if we get the documents prior to the Council meeting on Tuesday. If we do not receive them by then, then we will need to revisit this issue at the April 27 Council meeting. A. B. Ordinance and attachments Estimate of Debt Service Repayment Schedule from the State Treasurer’s Office Legal Review Our Bond Counsel, K&L Gates LLP, prepared all of the legal documents in this packet. Moses Lake Council Packet 4-13-21, Page 92 ORDINANCE NO. 2970 AN ORDINANCE AUTHORIZING THE ACQUISITION OF REAL PROPERTY THROUGH THE STATE OF WASHINGTON LOCAL PROGRAM AND EXECUTION OF A LOCAL AGENCY SITE LEASE AND LOCAL AGENCY FINANCING LEASE AND RELATED DOCUMENTATION RELATING TO THE ACQUISITION, CONSTRUCTION AND REIMBURSEMENT OF THE LARSON RECREATION CENTER. WHEREAS, the City of Moses Lake, Washington (the “Local Agency”) has executed a Notice of Intent to the Office of State Treasurer, in the form of Annex 1 (the “NOI”), in relation to the acquisition of and financing of the acquisition, improvement and betterment (collectively the “Acquisition”) of the Property, as defined below, under the provisions of RCW ch 39.94; and WHEREAS, it is deemed necessary and advisable by the City Council of the Local Agency that the Local Agency acquire the real property identified on Annex 1 attached hereto, to be known as the Larson Recreation Center (the “Property”); and WHEREAS, it is deemed necessary and advisable by the City Council of the Local Agency that the Local Agency enter into a Local Agency Site Lease with the Washington Finance Officers Association (the “Corporation”) in the form attached hereto as Annex 2 to facilitate the financing of the Property; WHEREAS, it is deemed necessary and advisable by the City Council of the Local Agency that the Local Agency enter into a Local Agency Financing Lease with the Office of the State Treasurer, in the form attached hereto as Annex 3 (the Local Agency Financing lease”), in an amount not to exceed $11,350,000, plus related financing costs, in order to acquire the Property and finance the acquisition of the Property; WHEREAS, the Local Agency will undertake to acquire, improve, or to reimburse itself for the acquisition of the Property, on behalf of and as agent of the Corporation, pursuant to the terms of the Local Agency Financing Lease, and in accordance with all applicable purchasing statutes and regulations applicable to the Local Agency; and WHEREAS, the Local Agency desires to appoint the individuals set forth in Annex 4 as representatives of the Local Agency in connection with the acquisition of the Property and execution of the Local Agency Financing Lease (each an “Authorized Agency Representative”); NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOSES LAKE, WASHINGTON, DO ORDAIN; as follows: Section 1. The individuals holding the office or position set forth in Annex 4 is hereby appointed as representatives of the Local Agency in connection with the acquisition of or reimbursement for the acquisition of the Property and execution of the Local Agency Financing Moses Lake Council Packet 4-13-21, Page 93 Lease and all other related documents. One Authorized Agency Representative shall be required to execute any one document in order for it to be considered duly executed on behalf of the Local Agency. Section 2. The form of the Local Agency Site Lease attached hereto as Annex 2 is hereby approved and an Authorized Agency Representative is hereby authorized and directed to execute and deliver the Local Agency Site Lease, in substantially the form attached hereto with such changes as may be approved by the Authorized Representative, to facilitate the acquisition, reimbursement and/or improvement of the Property and financing of the acquisition of the Property. Section 3. The form of the Local Agency Financing Lease attached hereto as Annex 3 is hereby approved and an Authorized Agency Representative is hereby authorized and directed to execute and deliver the Local Agency Financing Contract, in an amount not to exceed $11,350,000, plus related financing costs, and in substantially the form attached hereto with such changes as may be approved by an Authorized Agency Representative, for the acquisition, reimbursement and/or improvement of the Property and financing of the acquisition of the Property. Section 4. The Local Agency reasonably expects to reimburse a portion of the expenditures described herein with the proceeds of the Local Agency Financing Lease (the “Reimbursement Obligation”). The expenditures with respect to which the Local Agency reasonably expects to be reimbursed from the proceeds of Reimbursement Obligation are for planning, designing, permits and commencement of construction of the Property. The expenditures with respect to which the Local Agency reasonably expects to be reimbursed from the proceeds of Reimbursement Obligation will be made from the Park and Recreation Improvement Fund of the Local Agency, which provides for discretionary spending for the improvement of park and recreation facilities. The maximum principal amount of Reimbursement Obligation expected to be issued for the property described in this section is $5,000,000. Section 5. The Local Agency hereby authorizes the acquisition of or the reimbursement for the acquisition of the Property, as agent of the Corporation in accordance with the terms and provisions of the Local Agency Financing Lease. Section 6. The Authorized Agency Representatives are hereby authorized to execute and deliver to the Office of State Treasurer all other documents, agreements and certificates, and to take all other action, which they deem necessary or appropriate in connection with the financing of the Property, including, but not limited to, any amendment to the NOI, any tax certificate and any agreements relating to initial and ongoing disclosure in connection with the offering of securities related to the financing. Moses Lake Council Packet 4-13-21, Page 94 Section 7. This ordinance shall take effect and be in force from and after its passage and five days following its publication as required by law. Adopted by the City Council and signed by its Mayor on April 13, 2021. David Curnel, Mayor ATTEST: ________________________________ Debbie Burke, City Clerk APPROVED AS TO FORM: __________________________________________ Katherine L. Kenison, City Attorney Date Published: April 19, 2021 Date Effective: April 24, 2021 Attachments: Annex 1: Notice of Intent Annex 2: Form of Local Agency Site Lease Annex 3: Form of Local Agency Financing Lease Annex 4: Certificate Designating Authorized Agency Representatives Moses Lake Council Packet 4-13-21, Page 95 Moses Lake Council Packet 4-13-21, Page 96 Transaction No. 0318-3-1 LOCAL AGENCY AGENCY SITE LEASE FG:54275974.2 LOCAL AGENCY SITE LEASE, SERIES 2021B by and between the CITY OF MOSES LAKE, WASHINGTON, as lessor and the WASHINGTON FINANCE OFFICERS ASSOCIATION, as lessee Dated as of June 22, 2021 Annex 2 Form of Local Agency Site Lease Moses Lake Council Packet 4-13-21, Page 97 -1- LOCAL AGENCY SITE LEASE FG:54275974.2 LOCAL AGENCY SITE LEASE, SERIES 2021B THIS LOCAL AGENCY SITE LEASE, SERIES 2021B (the “Site Lease”), dated as of June 22, 2021 (the “Dated Date”), is entered into by and between the City of Moses Lake, Washington, a municipal corporation duly organized and existing under and by virtue of the laws of the state of Washington (the “Local Agency”), and the Washington Finance Officers Association, a Washington nonprofit corporation (the “Corporation”). RECITALS: The Parties are entering into this Site Lease based upon the following facts and expectations: 1. Chapter 39.94 RCW (the “Act”) authorizes the state of Washington (the “State”), acting by and through the State Treasurer (the “State Treasurer”), to enter into financing contracts, including but not limited to financing leases, on behalf of certain “other agencies” (“Local Agencies”) for the use and acquisition for public purposes of real and personal property by such Local Agencies; and 2. the Local Agency has determined that it is necessary and desirable to lease the Site legally described in Exhibit A to the Corporation for the purpose of enabling the Corporation to sublease the Site to the State, and further to enable the State to sublease the Site back to the Local Agency, to provide financing or refinancing for the acquisition or construction of improvements on the Site (the “Project,” and, together with the Site, the “Property”); and 3. simultaneously with the execution and delivery of this Site Lease, the State is entering into a Master Financing Lease, Series 2021B, dated as of the Dated Date (the “Master Financing Lease”), with the Corporation to provide financing for the costs of acquisition or improvement of various parcels of real property for and on behalf of certain State Agencies and Local Agencies, including the Local Agency, under the terms set forth therein; and 4. pursuant to the Master Financing Lease, the State is obligated to make Rent Payments to the Corporation for the lease of the Property; and 5. simultaneously with the execution and delivery of the Master Financing Lease, the State will sublease the Property to the Local Agency pursuant to a Local Agency Financing Lease, Series 2021B (the “Agency Financing Lease”), dated as of the Dated Date; and 6. the Corporation will grant, sell, assign, transfer and convey without recourse to the Trustee all of its rights to receive the Rent Payments scheduled to be made by the State under the Master Financing Lease, together with all of its remaining right, title and interest in, to and under this Site Lease, the Master Financing Lease, the Agency Financing Leases and the Property by means of a Master Assignment, Series 2021B (the “Master Assignment”), dated as of the Dated Date; and 7. in consideration of such assignment and pursuant to the Trust Agreement, Series 2021B (the “Trust Agreement”), dated as of the Dated Date, by and among the Trustee, Moses Lake Council Packet 4-13-21, Page 98 -2- LOCAL AGENCY SITE LEASE FG:54275974.2 the State and the Corporation, the Trustee has agreed to execute and deliver the State of Washington Certificates of Participation, Series 2021B (State and Local Agency Real and Personal Property), in an aggregate principal amount of $[____] (the “Certificates”), a portion of the proceeds of which will be used to finance or refinance the costs of the Project; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other valuable consideration, the Parties agree as follows: SECTION 1. Definitions; Construction; Miscellaneous Provisions; Supplements. Appendix 1 to the Series 2021B Agreements (“Appendix 1”) is incorporated as part of this Site Lease by this reference. Appendix 1 provides (i) definitions for the capitalized terms used and not otherwise defined in this Site Lease; (ii) certain rules for interpreting this Site Lease; (iii) miscellaneous technical provisions that apply to this Site Lease; and (iv) rules on how this Site Lease may be amended or supplemented. SECTION 2. Lease of the Site; Ownership. (a) The Local Agency leases to the Corporation on the terms and conditions hereinafter set forth, the Site legally described in Exhibit A, subject to all easements, covenants, conditions and restrictions existing as of the date hereof. (b) The Local Agency represents and warrants that it is the owner in fee of the Site, subject only to Permitted Encumbrances. SECTION 3. Term. The term of this Site Lease shall commence on the Dated Date, and shall end on ________________, unless such term is extended or sooner terminated as hereinafter provided. If on such date, the Local Agency Financing Lease shall not be discharged by its terms, then the term of this Site Lease shall be extended until 10 days after all amounts due under the Local Agency Financing Lease shall have been paid and the Local Agency Financing Lease shall have been discharged by its terms, except that the term of this Site Lease shall in no event be extended beyond ________________. If prior to ________________, all amounts due under the Local Agency Financing Lease shall have been paid and the Local Agency Financing Lease shall have been discharged by its terms, the term of this Site Lease shall end 10 days thereafter or 10 days after written notice by the Local Agency to the Corporation, whichever is earlier. SECTION 4. Rental. The Corporation shall pay to State Treasurer, for the benefit of the Local Agency pursuant to the Master Financing Lease and the Local Agency Financing Lease, as the total rent due hereunder, the amount set forth in Exhibit B (the “Prepaid Site Lease Rent”), all of which shall be payable on the Closing Date. The Parties agree that the amount of the Prepaid Site Lease Rent represents fair consideration for the leasehold interest being transferred hereunder, given the purposes, terms and provisions hereof. The Corporation shall not be obligated to pay such rent other than from the proceeds of the Certificates. Anything herein to the contrary notwithstanding, the Corporation waives any right that it may have under the laws of the State to Moses Lake Council Packet 4-13-21, Page 99 -3- LOCAL AGENCY SITE LEASE FG:54275974.2 a rebate or repayment of any portion of such rent in the event that there is substantial interference with the use or right to possession by the Corporation of the Site or any portion thereof as a result of material damage, destruction or condemnation. SECTION 5. Purpose. The Corporation shall use the Site solely for the purpose of subleasing the Property to the State pursuant to the Master Financing Lease, to enable the State to sublease the Property to the Local Agency pursuant to the Local Agency Financing Lease, and for such purposes as may be incidental thereto; provided, that in the event of a default by the State under the Master Financing Lease or by the Local Agency under the Local Agency Financing Lease, the Corporation may exercise the remedies provided therein. SECTION 6. Assignments and Subleases. (a) The Corporation shall not grant, sell, assign, mortgage, pledge, sublet or transfer any of its right, title or interest in, to or under this Site Lease or the Site except as expressly provided in the Master Assignment, the Master Financing Lease and the Local Agency Financing Lease, without the prior written consent of the Local Agency. The Local Agency consents to the sublease of the Property pursuant to the Master Financing Lease, and the assignment of the Corporation’s right, title and interest hereunder to the Trustee pursuant to the Master Assignment for the benefit of the Owners of the Certificates. (b) Upon the occurrence and continuance of an Event of Default or Agency Event of Default with respect to the Property, the Corporation shall have the right, pursuant to the Master Assignment, the Trust Agreement and the Master Financing Lease, to sublease all or any portion of the Property; provided, that the subtenant and the terms and provisions of the sublease shall be subject to the prior written approval of the Local Agency, which approval shall not be unreasonably withheld or delayed. SECTION 7. Right of Entry. The Local Agency reserves the right for any of its duly authorized representatives to enter upon the Site at any reasonable time (or in an emergency at any time) to inspect the same, or to make any repairs, improvements or changes necessary for the preservation thereof. SECTION 8. Termination. The Corporation agrees, upon the termination or expiration of this Site Lease, to quit and surrender the Site in the same good order, condition and repair as the same was in at the time of commencement of the term hereunder, except for acts of God, reasonable wear and tear, and any actions by the Local Agency that affect the condition of the Site. The Corporation agrees that any permanent improvements and structures existing upon the Site at the time of such termination or expiration of this Site Lease shall remain thereon and title thereto shall vest in the Local Agency. The Corporation shall thereafter execute, acknowledge and deliver to the Local Agency such instruments of further assurance as in the reasonable opinion of the Local Agency are necessary or desirable to confirm the Local Agency’s right, title and interest in and to the Site. Moses Lake Council Packet 4-13-21, Page 100 -4- LOCAL AGENCY SITE LEASE FG:54275974.2 SECTION 9. Default. In the event that the Corporation shall be in default in the performance of any obligation on its part to be performed under the terms of this Site Lease, which default continues for 60 days following notice and demand for correction thereof to the Corporation, the Local Agency may exercise any and all remedies granted by law, except that as described in Section (k) of Part 3 of Appendix 1, no merger of this Site Lease shall be deemed to occur as a result thereof; provided, however, that the Local Agency shall have no power to terminate this Site Lease by reason of any default on the part of the Corporation; and provided further, that so long as any Certificates are outstanding and unpaid in accordance with the terms of the Trust Agreement and the Master Financing Lease, the Rent Payments or Additional Rent or any part thereof payable to the Corporation shall continue to be paid to the Corporation. So long as the Trustee shall duly perform the terms and conditions of this Site Lease, the Master Assignment, the Master Financing Lease and of the Trust Agreement, the Trustee shall be deemed to be and shall become the tenant of the Local Agency hereunder and shall be entitled to all of the rights and privileges granted to the Corporation hereunder and under the Master Assignment, the Master Financing Lease and the Trust Agreement. SECTION 10. Waiver. No delay or omission to exercise any right or remedy accruing upon a default hereunder shall impair any such right or remedy or shall be construed to be a waiver of such default, but any such right or remedy may be exercised from time to time and as often as may be deemed necessary or expedient. In order to exercise any remedy reserved to the Local Agency hereunder, it shall not be necessary to give any notice, other than such notice as may be required hereunder. A waiver by the Local Agency of any default hereunder shall not constitute a waiver of any subsequent default hereunder, and shall not affect or impair the rights or remedies of the Local Agency in connection with any such subsequent default. SECTION 11. Quiet Enjoyment. The Corporation and its authorized assignees and sublessees at all times during the term of this Site Lease, subject to the provisions of Section 9, shall peaceably and quietly have, hold and enjoy all of the Site without suit, trouble or hindrance from the Local Agency. SECTION 12. Taxes. The Local Agency covenants and agrees to pay any and all Impositions of any kind or character, including but not limited to possessory interest taxes, levied or assessed upon the Property (including both land and improvements), or with respect to this Site Lease, the Local Agency Financing Lease, or the lease of the Property pursuant to the Master Financing Lease; provided, however, that the Local Agency shall not pay any possessory interest taxes levied as a result of any assignment or sublease of or with respect to all or any part of the Property then in effect between the Corporation and any assignee or subtenant of the Corporation (other than as lessee under the Local Agency Financing Lease). Moses Lake Council Packet 4-13-21, Page 101 -5- LOCAL AGENCY SITE LEASE FG:54275974.2 SECTION 13. Eminent Domain; Loss of Title. In the event the whole or any part of the Property is taken permanently or temporarily under the power of eminent domain (or sold under threat of condemnation), or there is a loss of title to the whole or any part of the Property, the interest of the Corporation in the Property shall be recognized and is hereby determined to be an amount not less than the then unpaid indebtedness incurred by the Local Agency under its Local Agency Financing Lease. The term “unpaid indebtedness,” as used in the preceding sentence, includes all unpaid Agency Principal Components, Agency Interest Components and all other payments required to be made by the Local Agency pursuant to the Local Agency Financing Lease, until all Agency Rent Payments due thereunder have been paid or the payment thereof provided for in accordance therewith. The amount of any such award, judgment or payment shall be paid to the Corporation, and the balance, if any, in excess of the unpaid indebtedness shall be paid to the Local Agency. IN WITNESS WHEREOF, the Local Agency and the Corporation have caused this Site Lease to be executed in their respective names by their respective duly authorized officers, all as of the Dated Date. CITY OF MOSES LAKE, WASHINGTON, as lessor By Authorized Agency Representative By Authorized Agency Representative By Authorized Agency Representative WASHINGTON FINANCE OFFICERS ASSOCIATION, as lessee By Authorized Corporation Representative Moses Lake Council Packet 4-13-21, Page 102 N-1 LOCAL AGENCY SITE LEASE FG:54275974.2 STATE OF WASHINGTON ) ) ss. COUNTY OF GRANT ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that [s]he signed this instrument, on oath stated that [s]he was authorized to execute the instrument and acknowledged it as __________________________ of the CITY OF MOSES LAKE, WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 103 N-2 LOCAL AGENCY SITE LEASE FG:54275974.2 STATE OF WASHINGTON ) ) ss. COUNTY OF GRANT ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that [s]he signed this instrument, on oath stated that [s]he was authorized to execute the instrument and acknowledged it as __________________________ of the CITY OF MOSES LAKE, WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 104 N-3 LOCAL AGENCY SITE LEASE FG:54275974.2 STATE OF WASHINGTON ) ) ss. COUNTY OF GRANT ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that [s]he signed this instrument, on oath stated that [s]he was authorized to execute the instrument and acknowledged it as __________________________ of the CITY OF MOSES LAKE, WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 105 N-4 LOCAL AGENCY SITE LEASE FG:54275974.2 STATE OF WASHINGTON ) ) ss. COUNTY OF THURSTON ) I certify that I know or have satisfactory evidence that DALE E. HOUGH 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 President of the WASHINGTON FINANCE OFFICERS ASSOCIATION to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name DEBORAH A. ARCHER (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at Olympia, WA My commission expires 2-18-2023 (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 106 A-1 LOCAL AGENCY SITE LEASE FG:54275974.2 EXHIBIT A Description of Site LOT 2, LARSON PLAYFIELD ADDITION NO. 1, PER THE PLAT THEREOF, RECORDED IN BOOK 22, PAGES 59 AND 60, RECORDS OF GRANT COUNTY, WASHINGTON. Moses Lake Council Packet 4-13-21, Page 107 B-1 LOCAL AGENCY SITE LEASE FG:54275974.2 EXHIBIT B Prepaid Site Lease Rent Ten Dollars ($10.00) Moses Lake Council Packet 4-13-21, Page 108 TRANSACTION NO. 0318-3-1 FG:54276272.2 LOCAL AGENCY FINANCING LEASE (Real Property) by and between the STATE OF WASHINGTON and the CITY OF MOSES LAKE, WASHINGTON, a municipal corporation (“Local Agency”) Relating to $________________ State of Washington Certificates of Participation, Series 2021B (State and Local Agency Real and Personal Property) Dated as of June 22, 2021 Annex 3 Form of Local Financing Lease Moses Lake Council Packet 4-13-21, Page 109 TABLE OF CONTENTS Page -i- FG:54276272.2 ARTICLE I DEFINITIONS; CONSTRUCTION; MISCELLANEOUS PROVISIONS; SUPPLEMENTS ................................................................................................. 2 Section 1.1 Appendix 1 and Exhibits Incorporated. ............................................................... 2 Section 1.2 Notice of Intent; Certificate Designating Authorized Agency Representative. .......................................................................................................................... 2 Section 1.4 Sublease of Property. ........................................................................................... 2 Section 1.5 Agency Rent Payments. ....................................................................................... 3 Section 1.6 Term. .................................................................................................................... 3 ARTICLE II ACQUISITION AND CONSTRUCTION OF THE PROJECT ............................... 3 Section 2.1 Local Agency Financing Lease Consolidated with Master Financing Lease. ....................................................................................................................... 3 Section 2.2 Appointment as Agent; Acquisition and Construction of Project ....................... 3 Section 2.3 Title to the Property ............................................................................................. 5 Section 2.4 Assignment .......................................................................................................... 5 Section 2.5 Disclaimer of Warranties ..................................................................................... 5 Section 2.6 State Not Liable ................................................................................................... 5 ARTICLE III AGENCY RENT PAYMENTS; CONDITIONAL PAYMENT BY STATE; FULL FAITH AND CREDIT OBLIGATION ..................................... 6 Section 3.1 Agency Rent Payments ........................................................................................ 6 Section 3.2 Sources of Payment of Agency Rent Payments ................................................... 6 Section 3.3 Net Lease ............................................................................................................. 7 Section 3.4 Assignments by the Corporation .......................................................................... 8 ARTICLE IV OPTIONAL AND EXTRAORDINARY PREPAYMENT OF AGENCY RENT PAYMENTS ............................................................................................ 8 Section 4.1 Optional Prepayment ........................................................................................... 8 Section 4.2 Extraordinary Prepayments .................................................................................. 9 Section 4.3 Revision of Agency Rent Payments upon Prepayment ....................................... 9 Section 4.4 Discharge of Agency Local Agency Financing Lease ......................................... 9 ARTICLE V EMINENT DOMAIN; LOSS OF TITLE; DAMAGE AND DESTRUCTION ................................................................................................ 10 Moses Lake Council Packet 4-13-21, Page 110 TABLE OF CONTENTS (continued) Page -ii- FG:54276272.2 Section 5.1 Eminent Domain ................................................................................................ 10 Section 5.2 Loss of Title ....................................................................................................... 10 Section 5.3 Damage or Destruction ...................................................................................... 10 ARTICLE VI REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS ................................................................................................ 11 Section 6.1 Representations and Warranties of the Local Agency ....................................... 11 Section 6.2 Covenants and Agreements of the Local Agency .............................................. 12 ARTICLE VII EVENTS OF DEFAULT; REMEDIES ............................................................... 17 Section 7.1 Agency Event of Default ................................................................................... 17 Section 7.2 Rights of State Following Agency Event of Default ......................................... 18 Section 7.3 No Remedy Exclusive; Non-Waiver ................................................................. 20 Section 7.4 Default by State.................................................................................................. 21 ARTICLE VIII MISCELLANEOUS PROVISIONS ................................................................... 21 Section 8.1 Indemnification of State and the Corporation .................................................... 21 Section 8.2 Term ................................................................................................................... 21 Section 8.3 Termination ........................................................................................................ 22 Section 8.4 Notices to Agency .............................................................................................. 23 Exhibit A – Notice of Intent Exhibit B – Certificate Designating Authorized Agency Representative Exhibit C – Legal Description Exhibit D – Agency Rent Payments Moses Lake Council Packet 4-13-21, Page 111 -1- FG:54276272.2 LOCAL AGENCY FINANCING LEASE, SERIES 2021B (Real Property) This Local Agency Financing Lease, Series 2021B (the “Local Agency Financing Lease”), is entered into by and between the state of Washington (the “State”), acting by and through the State Treasurer (the “State Treasurer”), and the City of Moses Lake, Washington, a municipal corporation of the State (the “Local Agency”). RECITALS The Parties are entering into this Local Agency Financing Lease based upon the following facts and expectations: 1. Chapter 39.94 RCW (the “Act”) authorizes the State to enter into financing contracts for itself, including for state agencies, departments or instrumentalities, the state board for community and technical colleges, and any state institution of higher education (“State Agencies”), for the use and purchase of real and personal property by the State; and 2. the Act also authorizes the State to enter into financing contracts on behalf of certain “other agencies” (“Local Agencies”), including the Local Agency, for the use and acquisition for public purposes of real and personal property by such Local Agencies; and 3. the Act authorizes the State Finance Committee to consolidate existing or potential financing contracts into master financing contracts with respect to property acquired by one or more State Agencies or Local Agencies (together, “Agencies”); and 4. Chapter 43.33 RCW provides that the State Treasurer shall act as chair of the State Finance Committee and provide administrative assistance for the State Finance Committee, and the State Treasurer on behalf of the State Finance Committee has established a consolidated program for the execution and delivery of certificates of participation in master financing contracts in series from time to time in order to provide financing or refinancing for the costs of acquisition of such real and personal property by Agencies; and 5. the State Finance Committee has approved the form of this Local Agency Financing Lease by Resolution No. 1190 adopted on October 31, 2016; and 6. the Washington Finance Officers Association (the “Corporation”), a Washington nonprofit corporation, and the Local Agency have entered into a Local Agency Site Lease, Series 2021B, dated as of the Dated Date (the “Site Lease”), for the lease of certain real property legally described in the Site Lease (the “Site”) for the sole purpose of enabling the Corporation to sublease the Site to the State, and for the State to further sublease the Site back to the Local Agency pursuant to this Local Agency Financing Lease, in order to finance or refinance the acquisition or construction of improvements on the Site as described herein (the “Project,” and, together with the Site, the “Property”); and 7. simultaneously with the execution and delivery of this Local Agency Financing Lease, the State is entering into a Master Financing Lease, Series 2021B, dated as of the Dated Date Moses Lake Council Packet 4-13-21, Page 112 -2- FG:54276272.2 (the “Master Financing Lease”) with the Corporation, to provide financing or refinancing for the Project on behalf of the Local Agency, among others, through the sublease of the Property from the Corporation; and 8. the Local Agency has determined that it is necessary and desirable to enter into this Local Agency Financing Lease, in conjunction with the State’s entry into the Master Financing Lease, to obtain financing or refinancing for the Project for the Local Agency; NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other valuable consideration, the Parties hereto mutually agree as follows: ARTICLE I DEFINITIONS; CONSTRUCTION; MISCELLANEOUS PROVISIONS; SUPPLEMENTS Section 1.1 Appendix 1 and Exhibits Incorporated. Appendix 1 to the Series 2021B Agreements (“Appendix 1”) and Exhibits A, B, C and D to this Local Agency Financing Lease are incorporated as part of this Local Agency Financing Lease by this reference. Appendix 1 provides (i) definitions for the capitalized terms used and not otherwise defined in this Local Agency Financing Lease; (ii) certain rules for interpreting this Local Agency Financing Lease; (iii) miscellaneous technical provisions that apply to this Local Agency Financing Lease; and (iv) rules on how this Local Agency Financing Lease may be amended or supplemented. Section 1.2 Notice of Intent; Certificate Designating Authorized Agency Representative. The Local Agency has delivered a Notice of Intent to the State Treasurer in the form of Exhibit A. The Local Agency has delivered a Certificate Designating Authorized Agency Representatives to the State Treasurer in the form of Exhibit B. That Certificate is currently in force and has not been amended, withdrawn or superseded, and the signatures shown thereon are true and correct originals of the signatures of the persons who hold the titles shown opposite their names. The signature of any one of the individuals shown on that Certificate is sufficient to bind the Local Agency under this Local Agency Financing Lease with respect to any of the undertakings contemplated herein. Section 1.3 Performance by Representatives. Any authority granted or duty imposed upon the State hereunder may be undertaken and performed by the State Treasurer or the Treasurer Representative. Any authority or duty imposed upon the Local Agency hereunder may be undertaken and performed by the Authorized Agency Representative. Section 1.4 Sublease of Property. The State subleases to the Local Agency, upon the terms and conditions set forth in this Local Agency Financing Lease, the Site legally described in Exhibit C, together with all improvements, if any, to be constructed on the Site, including but not limited to the Project (collectively, the “Property”), subject to all easements, covenants, conditions and restrictions existing as of the Dated Date. The Local Agency acknowledges and agrees that this Local Agency Financing Lease shall be subject and subordinate in all respects to the terms and provisions of the Master Financing Lease. The Local Agency at all times during the term of this Local Agency Financing Lease, subject to the provisions of Section 7.1, shall peaceably and quietly hold and enjoy all of the Property without suit, trouble or hindrance from the State. Moses Lake Council Packet 4-13-21, Page 113 -3- FG:54276272.2 Section 1.5 Agency Rent Payments. In consideration of the sublease of the Property and the covenants and agreements of the State in this Local Agency Financing Lease, the Local Agency promises to pay to the State the following amounts at the following times: (a) On each Agency Rent Payment Date, the Agency Rent Payment set forth in Exhibit D, consisting of an Agency Principal Component and/or an Agency Interest Component as set forth in Exhibit D; and (b) all Additional Rent incurred by the State in connection with the sublease of the Property to the Local Agency, the execution and delivery of the Certificates, and the observance and performance of the Series 2021B Agreements, within 30 days following receipt of an invoice from the State that includes (i) a brief description of each item of Additional Rent, (ii) the party to whom payment is due, (iii) the amount thereof, and (iv) such additional information as the Local Agency may reasonably request. Section 1.6 Term. The term of this Local Agency Financing Lease shall commence on the Dated Date, and shall end on the scheduled termination date for this Local Agency Financing Lease as set forth in Section 8.2, unless the term is extended or sooner terminated as provided in Section 8.2. ARTICLE II ACQUISITION AND CONSTRUCTION OF THE PROJECT Section 2.1 Local Agency Financing Lease Consolidated with Master Financing Lease. The Local Agency acknowledges that the State Treasurer, acting on behalf of the State Finance Committee, has consolidated this Local Agency Financing Lease with the Master Financing Lease pursuant to RCW 39.94.030(1)(a). Section 2.2 Appointment as Agent; Acquisition and Construction of Project. (a) Appointment as Agent. The Local Agency accepts its appointment in the Master Financing Lease as agent of the Corporation in connection with the design, acquisition and/or construction of the Project and the financing or refinancing of the Property and acknowledges that such appointment is irrevocable, and shall not be terminated by any act of the Local Agency, the State Treasurer or otherwise. (b) Acquisition and Construction of the Project. The Local Agency agrees that (i) it has caused or will cause the Project to be designed, acquired and/or constructed with all reasonable dispatch, as agent for the Corporation, in accordance with the plans, specifications, bidding documents, and construction and other contracts approved by the Local Agency, and in accordance with applicable laws and regulations; and (ii) it will pay or cause to be paid the Project Costs from funds available to it pursuant to this Local Agency Financing Lease and the Master Financing Lease. The Local Agency shall file requisitions with the State Treasurer for the Project Costs of its Project or reimbursement therefor in such form as the State Treasurer shall reasonably require. Neither the Corporation nor the State shall have any responsibility, liability or obligation with respect to the design, acquisition and/or construction of the Project. (c) Payment of Project Costs if Project Fund Not Sufficient. If money in the Project Fund allocable to the Local Agency shall not be sufficient to pay the Project Costs in full, the Local Agency shall cause the Project Costs in excess of the allocable amount in the Project Fund Moses Lake Council Packet 4-13-21, Page 114 -4- FG:54276272.2 to be paid from other money of the Local Agency. Neither the Corporation nor the State Treasurer as agent for the Corporation for the disbursement of funds from the Project Fund makes any representation or warranty, either express or implied, that the money which will be deposited into the Project Fund allocable to the Local Agency will be sufficient to pay the Project Costs. Neither the Corporation nor the State Treasurer as agent for the Corporation for the disbursement of funds from the Project Fund shall have any obligation or liability for the payment of the Project Costs other than from the proceeds of the Certificates and any other amounts that may be provided by the Local Agency. If the Local Agency shall pay or cause the payment of any Project Costs in excess of the allocable amounts in the Project Fund available for such purpose from other funds, the Local Agency shall not be entitled to any reimbursement from the Corporation or the State Treasurer as agent for the Corporation for the disbursement of funds from the Project Fund for such payments, nor shall the Local Agency be entitled to any diminution, reduction, abatement, postponement, counterclaim, defense or set-off of the Agency Rent Payments, Additional Rent or other amounts otherwise required to be paid hereunder. (d) Additions to the Property. The Local Agency shall have the right during the term of this Local Agency Financing Lease, at its cost and expense, to make additions, betterments and improvements to the Property, and to attach fixtures, structures and signs thereto; provided, that such additions, betterments and improvements and fixtures, structures and signs (i) shall be constructed and installed in accordance with applicable laws and regulations, and not in violation of any easements, restrictions, conditions or covenants affecting title to the Property; and (ii) shall not diminish the value, capacity or usefulness of the Property. The Local Agency also shall have the right during the term of this Local Agency Financing Lease, without the consent of any Owners, to enter into Additional Local Agency Financing Leases and Additional Site Leases with the Corporation to finance all or any portion of the cost of such additions, betterments and improvements to the Property so long as such leases do not reduce the obligation of the State to perform its obligations under the Master Financing Lease, including without limitation its obligation to make Rent Payments, and will not, in an Opinion of Counsel, adversely affect the tax-exempt status of the Interest Component of Rent Payments evidenced and represented by the Certificates. If the Local Agency enters into any Additional Local Agency Financing Lease for this purpose, the Corporation may be granted an interest in the Property under an Additional Site Lease of all or any portion of the Property, which leasehold interest may be assigned to the Trustee for the benefit of owners of certificates of participation in the Additional Master Financing Lease to which such Additional Local Agency Financing Lease is related. The occurrence of an Event of Default with respect to this Local Agency Financing Lease shall constitute a like event under any Additional Local Agency Financing Lease, and the occurrence of any such like event under any Additional Local Agency Financing Lease shall constitute an Event of Default under this Local Agency Financing Lease. The owners of certificates of participation in any Additional Master Financing Lease shall be secured pari passu with the Owners with respect to any amounts received by the Trustee with respect to the Property following the occurrence of an Event of Default. (e) Release of Property. After design, acquisition, construction, financing or refinancing of the Project, the Local Agency, with the prior written consent of the State Treasurer and only upon the satisfaction of the requirements set forth in Section 2.2(d) of the Master Financing Lease, may release a portion of the Property leased under the Site Lease, and subleased under and pursuant to the Master Financing Lease and this Local Agency Financing Moses Lake Council Packet 4-13-21, Page 115 -5- FG:54276272.2 Lease. As a condition to any such release, the Local Agency shall (i) deliver to the State Treasurer an appraisal or other written evidence from an independent, disinterested real property appraiser acceptable to the State Treasurer to the effect that the remaining portion of the Property has an estimated fair rental value for the remaining term of this Local Agency Financing Lease equal to or greater than the Agency Rent Payments due from time to time hereunder; (ii) provide any necessary easements, reciprocal agreements or other rights as may be necessary to provide comparable pedestrian and vehicular access, and other uses and amenities (including but not limited to water, sewer, electrical, gas, telephone and other utilities) as existed prior to such release. The State, the Trustee, as assignee of the Corporation, and the Local Agency shall execute, deliver and record such amendments and modifications to the Site Lease, the Master Financing Lease, the Master Assignment and this Local Agency Financing Lease, and such other documents, agreements and instruments, as the State shall deem necessary or desirable in connection with such release. Section 2.3 Title to the Property. Fee title to the Property, and all additions, modifications, repairs and improvements thereto, shall remain and vest in the Local Agency, subject to the respective leasehold estates under the Site Lease, the Master Financing Lease and this Local Agency Financing Lease, without any further action by the State, the Local Agency or the Corporation. Section 2.4 Assignment. In order to secure the payment and performance of the State of its obligations under the Master Financing Lease, the State has assigned and transferred to the Corporation the State’s interest in this Local Agency Financing Lease and the rentals, income and profits to be received under this Local Agency Financing Lease, including without limitation the Agency Rent Payments. The Local Agency acknowledges and agrees to such assignment and transfer. The State irrevocably authorizes and directs the Local Agency, upon receipt of written notice from the Trustee, as assignee of the Corporation, that an Event of Default has occurred and is continuing under the Master Financing Lease, to pay to the Trustee, as assignee of the Corporation, the Agency Rent Payments and other amounts due and to become due hereunder. The State shall not have any right or claim against the Local Agency for any Agency Rent Payments or other amounts so paid by the Local Agency to the Trustee as assignee of the Corporation. Section 2.5 Disclaimer of Warranties. The Local Agency acknowledges and agrees that it has had adequate opportunity to inspect the Property, and that such Property, including but not limited to the structures and improvements thereon, is acceptable to the Local Agency in its present condition. The Local Agency subleases the Property in its present condition, “as is.” The State makes no warranty or representation, either express or implied, and assumes no responsibility, liability or obligation, as to the value, design, structural or other condition, usability, suitability, occupancy or management of the Property, as to the income from or expense of the use or operation thereof, as to title to the Property, as to compliance with applicable zoning, subdivision, planning, safety, fire, health or environmental laws, regulations, ordinances or codes, or as to compliance with applicable covenants, conditions or restrictions, or any other representation or warranty with respect to the Property. Section 2.6 State Not Liable. The State and its officers and employees shall not be liable to the Local Agency or to any other Person for any death, injury or damage that may result Moses Lake Council Packet 4-13-21, Page 116 -6- FG:54276272.2 to any Person or property by or from any cause whatsoever in, on, about or relating to the Property. ARTICLE III AGENCY RENT PAYMENTS; CONDITIONAL PAYMENT BY STATE; FULL FAITH AND CREDIT OBLIGATION Section 3.1 Agency Rent Payments. Each Agency Rent Payment shall consist of an Agency Principal Component and/or an Agency Interest Component as set forth in Exhibit D to this Local Agency Financing Lease. Interest shall accrue and be calculated as determined by the State Treasurer, which determination shall be binding and conclusive against the Local Agency, absent manifest error. Each Agency Rent Payment shall be paid to or upon the order of the State Treasurer by electronic funds transfer (or by other means acceptable to the State Treasurer) in lawful money of the United States of America at such place as the State Treasurer shall direct in writing not less than 10 Business Days prior to the Agency Rent Payment Date. Payments of Additional Rent shall be made to or upon the order of the State Treasurer. Each Agency Rent Payment shall be applied first to the Agency Interest Component, and then to the Agency Principal Component. The Agency Rent Payments and Additional Rent for each rental payment period during the term of this Local Agency Financing Lease shall constitute the total rental due for such period, and shall be paid for and in consideration of the use and occupancy and continued quiet enjoyment of the Property for such period. The Parties have determined and agreed that such total rental does not exceed the fair rental value of the Property for each such rental period, given the purposes, terms and provisions of this Local Agency Financing Lease. Anything herein to the contrary notwithstanding, the Local Agency waives any right that it may have under the laws of the State to a rebate or repayment of any portion of such rental in the event that there is substantial interference with the use or right to possession by the Local Agency of the Property or any portion thereof as a result of material damage, destruction or condemnation. Section 3.2 Sources of Payment of Agency Rent Payments. (a) Local Agency Financing Lease. The Local Agency acknowledges and agrees that the State is subleasing the Property from the Corporation for and on behalf of the Local Agency. Concurrently with the execution of this Local Agency Financing Lease, the State shall execute and deliver the Master Financing Lease with the Corporation, pursuant to which the State agrees to make Rent Payments for the sublease of the Property for and on behalf of the Local Agency, at such times and in such amounts as provided therein, that will be sufficient in the aggregate to pay the Project Costs of the Project to be designed, acquired and/or constructed by the Local Agency, but only to the extent such Project Costs are financed under the Master Financing Lease. The Agency Rent Payments by the Local Agency under this Local Agency Financing Lease shall be sufficient in the aggregate to pay, on each Rent Payment Date, the Rent Payment for the Property subleased by the State from the Corporation for and on behalf of the Local Agency under the Master Financing Lease. The Local Agency pledges its full faith and credit to make the Agency Rent Payments that are required to be paid to the State under this Local Agency Financing Lease. Moses Lake Council Packet 4-13-21, Page 117 -7- FG:54276272.2 Rent Payments allocable to Project Costs of Local Agencies shall be payable by the State solely from Agency Rent Payments to be made by the respective Local Agencies, including the Local Agency, except as otherwise provided in Sections 3.2(c) and 3.2(d) of the Master Financing Lease and Sections 3.2(b) and 3.2(c) of this Local Agency Financing Lease. (b) Intercept of Local Agency Share of State Revenues. In the event that the Local Agency fails to make any payment due under this Local Agency Financing Lease, pursuant to RCW 39.94.030(1), the State Treasurer shall withhold an amount sufficient to make such payment from the Local Agency’s share of State revenues or other amounts authorized or required by law to be distributed by the State to the Local Agency; but (i) only if the use of any such revenues or amounts to make such payments is otherwise authorized or permitted by State law, and (ii) only to the extent the Local Agency is otherwise entitled to receive such share of State revenues or other amounts. Such withholding shall continue until all such delinquent payments have been made. Amounts withheld by the State Treasurer pursuant to this Section 3.2(b) shall be applied to make any such payment due under this Local Agency Financing Lease on behalf of the Local Agency, or to reimburse the State for any such payment made pursuant to Section 3.2(c). The Local Agency authorizes, approves and consents to any such withholding. (c) Conditional Payment of Agency Rent Payments. Upon the failure of the Local Agency to make any Agency Rent Payment at such time and in such amount as required pursuant to this Local Agency Financing Lease, the State shall, to the extent of legally available appropriated funds and subject to any Executive Order reduction, make such payment into the Agency Rent Payment Fund (established under the Master Financing Lease) on behalf of such Local Agency within 15 Business Days after such Agency Rent Payment Date. The Local Agency shall reimburse the State for such payments made on its behalf immediately thereafter and in any case not later than 10 Business Days after such Agency Rent Payment Date, together with interest thereon at a rate equal to the State Reimbursement Rate. Anything herein to the contrary notwithstanding, failure of the Local Agency to reimburse the State Treasurer for any such payment shall not constitute an Agency Event of Default, but the State may institute such legal action and pursue such other remedies against the Local Agency as the State deems necessary or desirable including but not limited to actions for specific performance, injunction and/or the recovery of damages. (d) Payments by Local Agency Treasurer. The treasurer of the Local Agency shall establish and/or maintain a special fund in the “bonds payable” category of accounts of the Local Agency for the purposes of paying the Local Agency’s Agency Rent Payments and Additional Rent. The treasurer of the Local Agency shall remit each Agency Rent Payment to the State on each Agency Rent Payment Date and any Additional Rent when due hereunder from any legally available funds of the Local Agency. Section 3.3 Net Lease. The obligation of the Local Agency to make Agency Rent Payments from the sources set forth herein and to perform its other obligations hereunder shall be absolute and unconditional. This Local Agency Financing Lease shall be deemed and construed to be a “triple net lease” with respect to the State. The Local Agency shall pay the Agency Rent Payments, Additional Rent and all other amounts due hereunder, as well as taxes, assessments, insurance, utilities, and all normal maintenance and operating costs for the Project, as further described in part in Sections 6.2(k), (l) and (n) of this Local Agency Financing Lease. Moses Lake Council Packet 4-13-21, Page 118 -8- FG:54276272.2 The Local Agency shall pay such obligations without notice or demand, and without any diminution, reduction, postponement, abatement, counterclaim, defense or set-off as a result of any dispute, claim or right of action by, against among the Local Agency, the State, the Corporation, the Trustee, and/or any other Person, or for any other reason; provided, that nothing in this Section 3.3 shall be construed to release or excuse the State from the observance or performance of its obligations hereunder. Section 3.4 Assignments by the Corporation. The Local Agency acknowledges and agrees that, concurrently with the execution and delivery of this Local Agency Financing Lease, the Corporation will unconditionally assign to the Trustee pursuant to the Master Assignment, without recourse, (i) all of its rights to the Sites pursuant to the Site Leases, (ii) all of its rights to receive the Rent Payments and any Additional Rent under the Master Financing Lease, (iii) its right to take all actions, exercise all remedies, and give all consents under the Site Leases and the Master Financing Lease, (iv) all of its remaining right, title and interest in, to and under the Site Leases, the Master Financing Lease and this Local Agency Financing Lease, and in and to the Property and any rents or profits from the Property, and (v) its right of access described in the Master Financing Lease, in consideration for the Trustee’s causing to be paid to the State Treasurer, as agent of the Corporation, of the proceeds of the sale of the Certificates. The State and the Corporation have acknowledged and agreed that such assignment by the Corporation is intended to be a true sale of the Corporation’s right, title and interest, and that upon such assignment the Corporation shall cease to have any rights or obligations under the Site Leases and Master Financing Lease or with respect to the Property, and the Trustee shall thereafter have all the rights and obligations of the Corporation under the Site Leases and Master Financing Lease as if the Trustee had been the original party thereto. Except where the context otherwise requires, every reference in the Site Leases, Master Financing Lease and this Local Agency Financing Lease to the Corporation shall be deemed to be a reference to the Trustee in its capacity as assignee of the Corporation. ARTICLE IV OPTIONAL AND EXTRAORDINARY PREPAYMENT OF AGENCY RENT PAYMENTS Section 4.1 Optional Prepayment. (a) The Local Agency may, at its option and upon approval of the State Treasurer, prepay its Agency Rent Payments then unpaid, in whole or in part on any date, by causing to be deposited with the State Treasurer money and/or Government Obligations in an amount sufficient for the State to provide for the payment or defeasance of the portion of the State’s Rent Payments corresponding thereto in accordance with Section 4.1(a) or 4.1(b), respectively, of the Master Financing Lease and to pay any Additional Rent in connection therewith. (b) The Local Agency shall provide the State Treasurer with not less than 60 days’ prior written notice of its intention to prepay any of its Agency Rent Payments, which notice shall specify the date of prepayment, and the amount and the Agency Rent Payment Dates of the Agency Rent Payments to be prepaid. The State Treasurer shall notify the Local Agency within 15 Business Days after receipt of such notice from the Local Agency as to the amount required to be paid in connection with such prepayment or provision for payment of the corresponding Rent Payments, including any Additional Rent in connection therewith. The determination by Moses Lake Council Packet 4-13-21, Page 119 -9- FG:54276272.2 the State Treasurer of the amount to be paid by the Local Agency shall be binding and conclusive against such Local Agency, absent manifest error. Section 4.2 Extraordinary Prepayments. (a) Eminent Domain; Loss of Title. The Local Agency shall prepay or cause to be prepaid from eminent domain awards or sale proceeds received pursuant to Section 5.1, and from the net proceeds of title insurance received pursuant to Section 5.2, Agency Principal Components then unpaid, in whole or in part on any date, at a prepayment price equal to the sum of the Agency Principal Components so prepaid, plus accrued interest to the date of prepayment. The aggregate annual Agency Rent Payments for the related Property from and after such prepayment date shall be in approximately equal amounts. (b) Insurance Proceeds. The Local Agency may, at its option and upon approval of the State Treasurer, prepay or cause to be prepaid from net insurance proceeds received pursuant to Section 5.3, Agency Principal Components then unpaid, in whole or in part on any date, at a prepayment Price equal to the sum of the Agency Principal Components so prepaid, plus accrued interest to the date of prepayment. The aggregate annual Agency Rent Payments for the related Property from and after such prepayment date shall be in approximately equal amounts. Section 4.3 Revision of Agency Rent Payments upon Prepayment. The Agency Principal Component and Agency Interest Component of the Agency Rent Payment due on each Agency Rent Payment Date on and after the date of any prepayment pursuant to Sections 4.1 or 4.2, as set forth in Exhibit D, shall be reduced by the State Treasurer to reflect such prepayment, in such amounts and on such Agency Rent Payment Dates as the Local Agency shall elect in its written notice to the State Treasurer pursuant to Section 4.1(b). Section 4.4 Discharge of Agency Local Agency Financing Lease. All right, title and interest of the State and all obligations of the Local Agency under this Local Agency Financing Lease shall terminate and be completely discharged and satisfied (except for the right of the State and the Corporation and the obligation of the Local Agency to have the money and Government Obligations set aside pursuant to Section 4.4(b) applied to make the remaining Agency Rent Payments) when either: (a) all Agency Rent Payments and all Additional Rent and other amounts due hereunder have been paid in accordance herewith; or (b) (i) the Local Agency shall have delivered a written notice to the State Treasurer of its intention to prepay all of the Agency Rent Payments remaining unpaid; (ii) the Local Agency shall have caused to be deposited with the State Treasurer (A) money and/or Government Obligations in accordance with Section 4.1; and (B) an Opinion of Counsel to the effect that such actions are permitted under this Local Agency Financing Lease, the Master Financing Lease and the Trust Agreement and will not cause interest evidenced and represented by the Certificates to be includable in gross income for federal income tax purposes under the Code; and (iii) for so long as any Rent Payments remain unpaid, provision shall have been made satisfactory to the Corporation for payment of all Additional Rent. Moses Lake Council Packet 4-13-21, Page 120 -10- FG:54276272.2 ARTICLE V EMINENT DOMAIN; LOSS OF TITLE; DAMAGE AND DESTRUCTION Section 5.1 Eminent Domain. If all of the Property subleased to the Local Agency pursuant to this Local Agency Financing Lease, or so much of it that the remainder becomes unsuitable for the Local Agency’s then-existing needs, is taken under the power of eminent domain (or sold under threat of condemnation), the sublease of the Property pursuant to this Local Agency Financing Lease shall cease as of the day that the Local Agency is required to vacate the Property. If less than all of the Property is taken under the power of eminent domain (or sold under threat of condemnation), and the remainder is suitable for the Local Agency’s then-existing needs, as reasonably determined by the State, then this Local Agency Financing Lease shall continue in effect as to the remainder, and the Parties waive any benefits of the law to the contrary. In that event, there shall be no abatement of the rental due from the Local Agency. So long as any Agency Rent Payments under this Local Agency Financing Lease remain unpaid, any eminent domain award and any proceeds of sale under threat of condemnation for all or any part of the Property shall be applied to the prepayment of Agency Rent Payments as provided in Section 4.2(a). Any award or proceeds in excess of the amount necessary to prepay the Agency Rent Payments, and thereby to prepay or provide for the payment of the corresponding portion of the Rent Payments under the Master Financing Lease, shall be paid to the Corporation, the State and the Local Agency as their respective interests may appear. Section 5.2 Loss of Title. If there is a loss of title to the Property which is insured under a policy or policies of title insurance, or so much of it that the remainder becomes unsuitable for the Local Agency’s then-existing needs, then the Local Agency’s sublease of the Property shall cease as of the day that the Local Agency is required to vacate the Property. If there is a loss of title to less than all of the Property, and the remainder is suitable for the Local Agency’s then-existing needs, as reasonably determined by the State Treasurer, then this Local Agency Financing Lease shall continue in effect as to the remainder, and the Parties waive any benefits of the law to the contrary. In that event, there shall be no abatement of the rental due from the Local Agency. So long as any Agency Rent Payments under this Local Agency Financing Lease remain unpaid, any payments under any title insurance policy or policies with respect to the Property shall be applied to the prepayment of Agency Rent Payments as provided in Section 4.2(a). Any payment in excess of the amount necessary to prepay such Agency Rent Payments, and thereby to prepay or provide for the payment of the corresponding portion of the Rent Payments due under the Master Financing Lease, shall be paid to the Corporation, the State and the Local Agency as their respective interests may appear. Section 5.3 Damage or Destruction. If all or any portion of the Property subleased to the Local Agency pursuant to this Local Agency Financing Lease is damaged or destroyed by fire or other casualty, this Local Agency Financing Lease shall not terminate, and there shall be no abatement of the rent due from the Local Agency. So long as any Agency Rent Payments remain unpaid, any payments under the property insurance policy or policies with respect to the Property may be applied to the prepayment of Agency Rent Payments as provided Section 4.2(b), or may be paid to the State Treasurer and applied as provided in Section 5.03 of the Trust Agreement. Moses Lake Council Packet 4-13-21, Page 121 -11- FG:54276272.2 ARTICLE VI REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS Section 6.1 Representations and Warranties of the Local Agency. The Local Agency represents and warrants as follows: (a) The Local Agency is an “other agency” within the meaning of the Act, duly organized and validly existing under the Constitution and laws of the State. (b) The Local Agency is authorized under the laws of the State and its charter or other constituent document, if any, to enter into and perform its obligations under this Local Agency Financing Lease. (c) Neither the execution and delivery by the Local Agency of this Local Agency Financing Lease, nor the observance and performance of its terms and conditions, nor the consummation of the transactions contemplated by it, conflicts with or constitutes a breach of or default under any agreement or instrument to which the Local Agency is a party or by which the Local Agency or its property is bound, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon the Site or the Project, except as expressly provided in this Local Agency Financing Lease and the Master Financing Lease. (d) The Local Agency has duly authorized, executed and delivered this Local Agency Financing Lease. (e) This Local Agency Financing Lease constitutes valid and binding general obligation indebtedness of the Local Agency, enforceable against it in accordance with its terms, except as such enforceability may be affected by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally, to the application of equitable principles, and to the exercise of judicial discretion in appropriate cases. (f) The Site and the Project thereon to be designed, acquired and/or constructed pursuant to this Local Agency Financing Lease is essential to the Local Agency’s ability to carry out its governmental functions and responsibilities, and the Local Agency expects to make immediate and continuing use of such Property during the term of this Local Agency Financing Lease. (g) The useful life of the Property is equal to or exceeds the term of this Local Agency Financing Lease. (h) The obligations of the Local Agency under this Local Agency Financing Lease, together with all other outstanding indebtedness of the Local Agency, do not exceed any statutory or constitutional debt limit applicable to the Local Agency. (i) The Local Agency is the owner in fee of the Property. (j) The Local Agency is not in violation of, or subject to any pending or threatened investigation by, any governmental authority under any federal, State or local law, regulation, or ordinance pertaining to the handling, transportation, storage, treatment, usage or disposal of Moses Lake Council Packet 4-13-21, Page 122 -12- FG:54276272.2 Toxic or Hazardous Substances, air emissions, other environmental matters or any zoning or land use matters with respect to the Property or the Project. Section 6.2 Covenants and Agreements of the Local Agency. The Local Agency covenants and agrees as follows: (a) Preservation of Existence. The Local Agency will do or cause to be done all things necessary to preserve its existence as an “other agency” within the meaning of the Act. (b) Budget. The Local Agency shall take such action as may be necessary to include all the Agency Rent Payments and Additional Rent due hereunder in its annual budget and to make any necessary appropriations for all such Agency Rent Payments and Additional Rent. (c) Levy of Taxes. If and to the extent authorized by law, the Local Agency covenants that it will levy taxes in such amounts and at such times as shall be necessary, within and as a part of the tax levy, if any, permitted to be made by the Local Agency without a vote of its electors, to provide funds, together with other legally available money, sufficient to make the Agency Rent Payments and the other payments required under this Local Agency Financing Lease. (d) Notice of Nonpayment. The Local Agency shall give written notice to the State Treasurer and the Corporation prior to any Agency Rent Payment Date if the Local Agency knows prior to such date that it will be unable to make all or any portion of the Agency Rent Payment due on such date. (e) Tax-Exemption. The Local Agency shall not make any use of the proceeds of this Local Agency Financing Lease or the Certificates or of any other amounts, regardless of the source, or of any property, and shall not take or refrain from taking any action, that would cause the Master Financing Lease or the Certificates to be “arbitrage bonds” within the meaning of Section 148 of the Code. The Local Agency shall not use or permit the use of the Property or any part thereof by any Person other than a “governmental unit” as that term is defined in Section 141 of the Code, in such manner or to such extent as would result in the loss of the exclusion from gross income for federal income tax purposes of the Interest Component of the Rent Payments under Section 103 of the Code. The Local Agency shall not make any use of the proceeds of this Local Agency Financing Lease or the Certificates or of any other amounts, and shall not take or refrain from taking any action, that would cause the Master Financing Lease or the Certificates to be “federally guaranteed” within the meaning of Section 149(b) of the Code or “private activity bonds” within the meaning of Section 141 of the Code, or “hedge bonds” within the meaning of Section 149 of the Code. To that end, for so long as any Agency Rent Payments remain unpaid, the Local Agency, with respect to such proceeds and other amounts, will comply with all requirements under such Sections and all applicable regulations of the United States Department of the Treasury promulgated thereunder. The Local Agency will at all times do and perform all acts and things permitted by law which are necessary or desirable in order to assure that the Interest Components of the Rent Payments will not be included in gross income of the Owners of the Certificates for federal income tax purposes under the Code, and will take no action that would result in such interest being so included. The Local Agency shall comply with the applicable provisions of the Tax Certificate. Moses Lake Council Packet 4-13-21, Page 123 -13- FG:54276272.2 (f) No Liens, Assignments or Subleases. The Local Agency shall not create, incur or assume any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Property or any part thereof, except for Permitted Encumbrances. The Local Agency shall promptly, at its own expense, take such action as may be necessary to duly discharge any such mortgage, pledge, lien, charge, encumbrance or claim if the same shall arise at any time. The Local Agency shall not grant, sell, transfer, assign, pledge, convey, mortgage, pledge, sublet or otherwise dispose of any of the Property or any interest therein during the term of this Local Agency Financing Lease, and any such attempted grant, sale, transfer, assignment, pledge, conveyance or disposal shall be void. (g) Performance. The Local Agency shall punctually pay the Agency Rent Payments and Additional Rent in conformity with the terms and provisions of this Local Agency Financing Lease, and will faithfully observe and perform all the covenants, terms and other obligations contained herein required to be observed and performed by the Local Agency. The Local Agency will not suffer or permit any default to occur hereunder, or do or permit anything to be done, or omit or refrain from doing anything, in any case where any such act done or permitted to be done, or any such omission or refraining from doing anything, would or might be ground for cancellation or termination of this Local Agency Financing Lease. (h) Further Assurances. The Local Agency will preserve and protect the rights of the State hereunder, and will warrant and defend such rights against all claims and demands of all Persons. The Local Agency will promptly execute, make, deliver, file and record any and all further assurances, instruments and agreements, and do or cause to be done such other and further things, as may be necessary or proper to carry out the intention or to facilitate the performance hereof and for the better assuring and confirming to the State the rights and benefits provided to it hereunder. (i) Use of Property. During the term of this Local Agency Financing Lease, the Local Agency will use the Property for the purposes of performing one or more of its essential governmental functions or responsibilities. (j) Financial Statements. The Local Agency shall prepare annual financial statements and obtain audits thereof as required by law. Upon the Written Request of the State Treasurer, the Local Agency shall provide the State Treasurer with a copy of its most recent audited and unaudited financial statements. (k) Maintenance; Repairs. For so long as the Local Agency is in possession of the Property, the Local Agency shall be solely responsible for the maintenance and repair, both ordinary and extraordinary, of the Property. The Local Agency will (i) keep and maintain the Property in good repair and condition, protect the same from deterioration other than normal wear and tear, and pay or cause to be paid all charges for utility services to the Property; (ii) comply with the requirements of applicable laws, ordinances and regulations and the requirements of any insurance or self-insurance program required under Section 6.2(n) in connection with the use, occupation and maintenance of the Property; (iii) obtain all permits and licenses, if any, required by law for the use, occupation and maintenance of the Property; and (iv) pay all costs, claims, damages, fees and charges arising out of its possession, use or maintenance of the Property. Moses Lake Council Packet 4-13-21, Page 124 -14- FG:54276272.2 (l) Impositions. If during the term of this Local Agency Financing Lease, any Imposition is imposed or incurred in connection with the sublease of the Property by the Corporation to the State, or by the State to the Local Agency, or the ownership, operation, possession or use of the Property by the Corporation, the State or the Local Agency, or the payment of the Agency Rent Payments by the Local Agency, or the payment of the Rent Payments payable therefrom by the State, the Local Agency shall pay all such Impositions when due. The Local Agency at its own expense may contest any such Impositions until it obtains a final administrative or judicial determination with respect thereto, unless the Property is encumbered by any levy, lien or any other type of encumbrance because of the Local Agency’s failure to pay such Impositions. If the Corporation or the State pays any such Impositions for which the Local Agency is responsible or liable hereunder, the Local Agency shall reimburse the Corporation or the State for such payments as Additional Rent. (m) Hazardous Substances. (i) Use. The Property does not currently violate, and neither the Local Agency nor its officers, agents, employees, contractors, or invitees, shall use the Property in a manner that violates, any applicable federal, state or local law, regulation or ordinance, including, but not limited to, any such law, regulation or ordinance pertaining to air and water quality, the handling, transportation, storage, treatment, usage and disposal of Toxic or Hazardous Substances, air emissions, other environmental matters, and all zoning and other land use matters. The Local Agency shall not cause or permit the release or disposal of any Toxic or Hazardous Substances on or from the Property. (ii) Indemnity. The Local Agency, to the extent permitted by law, agrees to protect, indemnify, defend (with counsel satisfactory to the Local Agency) and hold the State, the Corporation and the Trustee, and their respective directors, officers, employees and agents harmless from any claims, judgments, damages, penalties, fines, expenses, liabilities or losses arising out of or in any way relating to the presence, release or disposal of Toxic or Hazardous Substances on or from the Property; provided, however, that the Local Agency shall not be obligated to indemnify such parties, in its capacity as Lessor under the Site Lease, from any such claims, judgments, damages, penalties, fines, expenses, liabilities or losses relating to the presence, release or disposal of Toxic or Hazardous Substances on or from the Property occurring when the Local Agency is not or was not in possession of the Property. Such indemnity shall include, without limitation, costs incurred in connection with: (A) Toxic or Hazardous Substances present or suspected to be present in the soil, groundwater or soil vapor on or under the Property; or (B) Toxic or Hazardous Substances that migrate, flow, percolate, diffuse, or in any way move onto or under the Property; or (C) Toxic or Hazardous Substances present on or under the Property as a result of any discharge, dumping, spilling (accidental or otherwise) onto the Property by any person, corporation, partnership, or entity other than the Local Agency, its officials, officers, employees or agents. Moses Lake Council Packet 4-13-21, Page 125 -15- FG:54276272.2 The indemnification provided by this subsection shall also specifically cover, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision or other third party because of the presence or suspected presence of Toxic or Hazardous Substances in the soil, groundwater, or soil vapor on or under the Property. Such costs may include, but not be limited to, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Property, sums paid in settlements of claims, attorney’s fees, consultants fees, and expert fees. (iii) Notification Requirements. The Local Agency shall promptly notify the other Parties in writing of all spills or releases of any Toxic or Hazardous Substances, all failures to comply with any federal, state, or local law, regulation or ordinance, all inspections of the Property by any regulatory entity concerning the same, all notices, orders, fines or communications of any kind from any governmental entity or third party that relate to the existence of or potential for environmental pollution of any kind existing on or resulting from the use of the Property or any activity conducted thereon, and all responses or interim cleanup action taken by or proposed to be taken by any government entity or private party on the Property. Upon request by any Party, the Local Agency shall provide such Party with a written report (A) listing the Toxic or Hazardous Substances that were used or stored on the Property; (B) discussing all releases of Toxic or Hazardous Substances that occurred or were discovered on the Property and all compliance activities related to Toxic or Hazardous Substances, including all contacts with and all requests from third parties for cleanup or compliance; (C) providing copies of all permits, manifests, business plans, consent agreements or other contracts relating to Toxic or Hazardous Substances executed or requested during that time period; and (D) including such other information requested by such Party. (iv) Inspection Rights. The Parties, and their officers, employees and agents, shall have the right, but not the duty, to inspect the Property and the Local Agency’s relevant environmental and land use documents at any time and to perform such tests on the Property as are reasonably necessary to determine whether the Local Agency is complying with the terms of this Local Agency Financing Lease. The Local Agency shall be responsible for paying for any testing that is conducted if the Local Agency is not in compliance with this Local Agency Financing Lease and such Party has reason to believe such noncompliance is due to the Local Agency’s operations or use of the Property. If the Local Agency is not in compliance with this Local Agency Financing Lease, such Party, without waiving or releasing any right or remedy it may have with respect to such noncompliance, shall have the right to immediately enter upon the Property to remedy any contamination caused by the Local Agency’s failure to comply notwithstanding any other provision of this Local Agency Financing Lease. The Party shall use reasonable efforts to minimize interference with the Local Agency’s business but shall not be liable for any interference caused thereby. Moses Lake Council Packet 4-13-21, Page 126 -16- FG:54276272.2 (v) Corrective Action. In the event any investigation, site monitoring, containment, cleanup, removal, restoration or other remedial work (“Remedial Work”) of any kind is necessary under any applicable federal, state or local laws, regulations or ordinances, or is required by any governmental entity or other third person because of or in connection with the presence or suspected presence of Toxic or Hazardous Substances on or under the Property, the Local Agency shall assume responsibility for all such Remedial Work and shall promptly commence and thereafter diligently prosecute to completion all such Remedial Work. The Local Agency shall pay for all costs and expenses of such Remedial Work, including, without limitation, the Party’s reasonable attorneys’ fees and costs incurred in connection with monitoring or review of such Remedial Work. In the event the Local Agency shall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, such Remedial Work, such Party may, but shall not be required to, cause such Remedial Work to be performed and all costs and expenses thereof, or incurred in connection therewith, shall become immediately due and payable as Additional Rent due to the State from the Local Agency. (n) Insurance. (i) The Local Agency shall maintain, or cause to be maintained, in full force and effect, comprehensive general liability insurance with respect to the Property in such amounts as may be reasonably determined by the Local Agency from time to time but in any event not less than $1,000,000 per occurrence, or such greater amount as the State Treasurer may reasonably require from time to time. Such insurance may be carried under a blanket policy with umbrella coverage. Such insurance shall cover any and all liability of the Local Agency and its officials, officers, employees and volunteers. Such insurance shall include (A) coverage for any accident resulting in personal injury to or death of any person and consequential damages arising therefrom; and (B) comprehensive property damage insurance. (ii) The Local Agency shall maintain or cause to be maintained in full force and effect fire and extended coverage insurance with respect to the Property in such amounts and covering such risks as the Local Agency may reasonably determine from time to time, but in any event not less than the aggregate amount of the Agency Principal Components of Agency Rent Payments due hereunder which remain unpaid. Such insurance may be carried under a policy or policies covering other property of the Local Agency. Such property insurance shall be “all risk” insurance, and shall cover physical loss or damage as a result of fire, lightning, theft, vandalism, malicious mischief, flood, earthquake, and boiler and machinery; provided, that the State Treasurer may waive the requirement for earthquake or flood insurance if it determines, in its reasonable discretion, that the same is not available from reputable insurers and commercially reasonable rates. Such extended coverage insurance shall, as nearly as practicable, cover loss or damage by explosion, windstorm, riot, aircraft, vehicle damage, smoke and such other hazards as the Local Agency may reasonably determine from time to time. Such policies of insurance shall provide that all proceeds thereunder shall be payable to the Trustee, as assignee of the Corporation, pursuant to a lender’s loss payable endorsement in a form approved in writing by the State Treasurer, which approval shall not be unreasonably withheld or delayed. The net proceeds of such insurance shall be applied as Moses Lake Council Packet 4-13-21, Page 127 -17- FG:54276272.2 provided in Section 5.03 of the Trust Agreement. Such insurance may at any time include a deductible of not to exceed $5,000 for losses in any year, or such greater amount as the State Treasurer may approve in writing. (iii) The insurance required under paragraphs (i) and (ii) above (A) shall be provided by a financially responsible insurance company authorized to do business in the State; (B) except for the insurance required under paragraph (ii) above and as provided in paragraph (iv) below, shall name the State and the Trustee as additional insureds thereunder; (C) shall provide that the same may not be canceled or given notice of non-renewal, nor shall the terms or conditions thereof be altered, amended or modified, without at least 45 days’ prior written notice being given by the insurer to the State Treasurer; and (D) may be provided in whole or in part through a funded program of self-insurance reviewed at least annually by an insurance actuary. (iv) In the event that the Local Agency provides the insurance required under paragraph (i) above through its membership in a local government risk pool established under chapter 48.62 RCW, the State and the Trustee shall not be required to be named as additional insureds under such insurance; provided, however, that in such event the Local Agency agrees to protect, indemnify, and hold the State and the Trustee harmless from any claims, judgments, damages, expenses and losses covered by such insurance. (v) A certificate of insurance with respect to the required coverages shall be provided by the Local Agency to the State Treasurer annually on or prior to December 1 with respect to any required insurance maintained pursuant hereto. (vi) Unless otherwise agreed by the State, the Local Agency shall obtain a policy or policies of title insurance on the Property, subject only to Permitted Encumbrances, in an amount equal to the aggregate amount of Agency Rent Payments to become due hereunder, payable to the State and the Trustee, in a form and from a provider approved in writing by the State Treasurer, which approval shall not be unreasonably withheld or delayed. The proceeds received under any such policy shall be applied as provided in Section 5.2. (vii) The Local Agency will pay or cause to be paid when due the premiums for all insurance policies required by this Section 6.2(n). ARTICLE VII EVENTS OF DEFAULT; REMEDIES Section 7.1 Agency Event of Default. Each of the following shall constitute an “Agency Event of Default” hereunder: (a) Failure by the Local Agency to pay or cause to be paid any Agency Rent Payment required to be paid hereunder within ten 10 Business Days of the respective Agency Rent Payment Date; (b) Failure by the Local Agency to observe or perform any covenant, agreement, term or condition on its part to be observed or performed hereunder, other than as set forth in Moses Lake Council Packet 4-13-21, Page 128 -18- FG:54276272.2 paragraph (a) above, for a period of 30 days after written notice from the State or the Trustee to the Local Agency specifying such failure and requesting that it be remedied; provided, however, that such period shall be extended for an additional 60 days if such failure cannot be corrected within such period, and the corrective action is commenced by the Local Agency within such period and diligently pursued until the failure is corrected; (c) If any statement, representation, or warranty made by the Local Agency in this Local Agency Financing Lease or in any writing delivered by the Local Agency pursuant hereto or in connection herewith is false, misleading, or erroneous in any material respect; (d) If the Local Agency shall abandon or vacate the Property; and (e) Inability of the Local Agency to generally pay its debts as such debts become due, or admission by the Local Agency, in writing, of its inability to pay its debts generally, or the making by the Local Agency of a general assignment for the benefit of creditors, or the institution of any proceeding by or against the Local Agency seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, reimbursement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or for appointment of a receiver, trustee, or other similar officer of it or any substantial part of its property, or the taking of any action by the Local Agency to authorize any of the actions set forth above in this Section 7.1(e). (f) If an event of default shall occur under any Additional Financing Lease Agreement. Notwithstanding the foregoing provisions of this Section 7.1, if by reason of force majeure the Local Agency is unable in whole or in part to carry out the covenants, agreements, terms and conditions on its part contained in this Local Agency Financing Lease, the Local Agency shall not be deemed in default during the continuance of such inability. The term “force majeure” means the following: acts of God; strikes; lockouts or other industrial disturbances or disputes; acts of public enemies; orders or restraints of any kind of the government of the United States of America or any of its departments, agencies or officials, or of its civil or military authorities; orders or restraints of the State or of any of its departments, agencies or officials or civil or military authorities of the State; wars, rebellions, insurrections; riots; civil disorders; blockade or embargo; landslides; earthquakes; fires; storms; droughts; floods; explosions; or any other cause or event not within the control of the Local Agency. The State Treasurer, with the prior written consent of the Corporation, may, at its election, waive any default or Agency Event of Default and its consequences hereunder and annul any notice thereof by written notice to the Local Agency to such effect, and thereupon the respective rights of the Parties hereunder shall be as they would have been if such default or Agency Event of Default had not occurred. Section 7.2 Rights of State Following Agency Event of Default. Whenever an Agency Event of Default hereunder shall have occurred and be continuing, the State shall have the following rights and may exercise any one or more of the following remedies: Moses Lake Council Packet 4-13-21, Page 129 -19- FG:54276272.2 (a) Continuation; Reentry and Reletting. The State may continue this Local Agency Financing Lease in full force and effect, and (i) collect rent and other amounts as they become due hereunder, (ii) enforce every other term and provision hereof to be observed or performed by the Local Agency, and (iii) exercise any and all rights of entry and reentry upon the Property. In the event that the State does not elect to terminate this Local Agency Financing Lease in the manner provided pursuant to paragraph (b) of this Section, the Local Agency agrees to observe and perform all terms and provisions herein to be observed or performed by it, and, if the Property is not relet, to pay the full amount of the rent and other amounts due hereunder for the term of this Local Agency Financing Lease, or, if the Property or any part thereof is relet, to pay any deficiency that results therefrom, in each case at the same time and in the same manner as otherwise provided herein, and notwithstanding any reentry or reletting by the State, or suit in unlawful detainer or otherwise brought by the State for the purpose of effecting such re-entry or obtaining possession of all or any part of the Property. Should the State elect to re-enter or obtain possession of all or any part of the Property, the Local Agency hereby irrevocably appoints the State as the Local Agency’s agent and attorney-in-fact (i) to relet the Property, or any part thereof, from time to time, either in the name of the State or otherwise, upon such terms and conditions and for such use and period as the State may determine in its discretion, (ii) to remove all persons in possession thereof and all personal property whatsoever situated upon the Property, and (iii) to place such personal property in storage in any warehouse or other suitable place for the Local Agency in the county in which such personal property is located, for the account of and at the expense of the Local Agency. The Local Agency shall be liable for, and hereby agrees to pay the State, the State’s costs and expenses in connection with reentry of the Property, removal and storage of any personal property, and reletting of the Property. The Local Agency hereby agrees that the terms of this Local Agency Financing Lease constitute full and sufficient notice of the right of the State to reenter and relet the Property or any part thereof without effecting a surrender or termination of this Local Agency Financing Lease. Termination of this Local Agency Financing Lease upon an Agency Event of Default shall be effected solely as provided in paragraph (b) of this Section. The Local Agency further waives any right to, and releases, any rental obtained by the State upon reletting in excess of the rental and other amounts otherwise due hereunder. (b) Termination. The State may terminate this Local Agency Financing Lease, but solely upon written notice by the State to the Local Agency of such election. No notice to pay rent, notice of default, or notice to deliver possession of the Property or of any part thereof, nor any entry or reentry upon the Property or any part thereof by the State, nor any proceeding in unlawful detainer or otherwise brought by the State for the purpose of effecting such reentry or obtaining possession, nor any surrender of the Property or any part thereof by the Local Agency, nor any other act shall operate to terminate this Local Agency Financing Lease, and no termination of this Local Agency Financing Lease on account of a Master Financing Lease Event of Default shall be or become effective by operation of law or acts of the Parties or otherwise, unless and until such notice of termination shall have been given by the State. Upon such termination, the State may (i) reenter the Property or any part thereof and remove all persons in possession thereof and all personal property whatsoever situated upon the Property, and (ii) place such personal property in storage in any warehouse or other suitable place for the Local Agency in the county in which such personal property is located, for the account of and at the expense of the Local Agency. Upon such termination, the Local Agency’s right to possession of the Property shall terminate, and the Local Agency shall surrender possession thereof to the State. Moses Lake Council Packet 4-13-21, Page 130 -20- FG:54276272.2 In the event of such termination, the Local Agency shall remain liable to the State for damages in an amount equal to the rent and other amounts that would have been due hereunder for the balance of the term hereof, less the net proceeds, if any, of any reletting of the Property or any part thereof by the State subsequent to such termination, after deducting the expenses incurred by the State in connection with any such reentry, removal and storage of personal property, and reletting. The State shall be entitled to collect damages from the Local Agency on the respective Agency Rent Payment Dates. (c) Other Remedies. In addition to the other remedies set forth in this Section, upon the occurrence and continuance of an Agency Event of Default, the State shall be entitled to proceed to protect and enforce the rights vested in them by this Local Agency Financing Lease or by law. The terms and provisions of this Local Agency Financing Lease and the duties and obligations of the Local Agency hereunder, and the officers and employees thereof, shall be enforceable by the State by an action at law or in equity, for damages or for specific performance, or for writ of mandate, or by other appropriate action, suit or proceeding in any court of competent jurisdiction. Without limiting the generality of the foregoing, the State shall have the right to bring the following actions: (i) Accounting. By action or suit in equity to require the Local Agency and its officers and employees to account as the trustee of an express trust; (ii) Injunction. By action or suit in equity to enjoin the violation of the rights of the State. (iii) Mandate. By writ of mandate or other action, suit or proceeding at law or in equity to enforce the State’s rights against the Local Agency and its officers and employees, and to compel the Local Agency to perform and carry out its duties and obligations under the law and its covenants and agreements with the State as provided herein. In the event that the State shall prevail in any action, suit or proceeding brought to enforce any of the terms of provisions of this Local Agency Financing Lease, the Local Agency shall be liable for the reasonable attorneys’ fees of the State in connection therewith. The Local Agency hereby waives any and all claims for damages caused or which may be caused by the State in reentering and taking possession of the Property or any part thereof as provided herein, and all claims for damages that may result from the destruction of or injury to the Property or any part thereof, and all claims for damages to or loss of any personal property that may be in or upon the Property. Section 7.3 No Remedy Exclusive; Non-Waiver. No remedy conferred upon or reserved to the State hereunder or under applicable law is intended to or shall be exclusive, and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Local Agency Financing Lease or now or hereafter existing at law or in equity. No delay or omission to exercise any right or remedy accruing upon a default or an Agency Event of Default hereunder shall impair any such right or remedy or shall be construed to be a waiver of such default or Agency Event of Default, but any such right or remedy may be exercised from Moses Lake Council Packet 4-13-21, Page 131 -21- FG:54276272.2 time to time and as often as may be deemed necessary or expedient. In order to exercise any remedy reserved to the State hereunder, it shall not be necessary to give any notice, other than such notice as may be required hereunder. A waiver by the State of any default or Agency Event of Default hereunder shall not constitute a waiver of any subsequent default or Agency Event of Default, and shall not affect or impair the rights or remedies of the State Treasurer in connection with any such subsequent default or Agency Event of Default. No acceptance of less than the full amount of a rental payment due hereunder shall constitute an accord and satisfaction or compromise of any such payment unless the State specifically agrees to such accord and satisfaction or compromise in writing. Section 7.4 Default by State. Anything herein to the contrary notwithstanding, the State shall not be in default in the observance or performance of any of the covenants, agreements, terms or conditions to be observed or performed by it hereunder unless and until the State shall have failed to observe or perform such covenant, agreement, term or condition for a period of 60 days after written notice by the Local Agency to the State Treasurer specifying such failure and requesting that it be remedied; provided, however, that such period shall be extended for such additional time as shall be reasonably required to correct such failure if corrective action is commenced by the State within such period and diligently pursued until the failure is corrected. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1 Indemnification of State and the Corporation. To the extent permitted by law, the Local Agency hereby releases the State and the Corporation from, agrees that the State and the Corporation shall not be liable for, and agrees to indemnify and hold the State and the Corporation and their respective directors, officers, officials, employees, and agents harmless from, any liability for any loss or damage to property or any injury to or death of any person that may be occasioned by any cause whatsoever arising out of the ownership or operation of the Property or the design, acquisition, construction, financing or refinancing thereof. To the extent permitted by law, the Local Agency agrees to indemnify and hold the State and the Corporation and their respective directors, officers, officials, employees, and agents harmless from any losses, costs, charges, expenses (including reasonable attorneys’ fees), judgments and liabilities incurred by it or them, as the case may be, in connection with any action, suit or proceeding instituted or threatened in connection with the transactions contemplated by this Local Agency Financing Lease or the exercise of rights or the performance of duties of the State or the Corporation under this Local Agency Financing Lease, the Master Financing Lease or the other Series 2021B Agreements, except to the extent caused by the gross negligence or willful misconduct of such indemnified party. The indemnification provided in this Section 8.1 shall survive the final payment of the Agency Rent Payments and the termination of this Local Agency Financing Lease for any reason. Section 8.2 Term. If on [____] (the “Scheduled Termination Date”), all amounts due hereunder shall not have been paid or the payment thereof duly provided for pursuant to Section 4.4, then the term of this Local Agency Financing Lease shall be extended until 10 days after all amounts due hereunder shall have been paid or the payment thereof so provided for, Moses Lake Council Packet 4-13-21, Page 132 -22- FG:54276272.2 except that the term of this Local Agency Financing Lease shall in no event be extended more than five years beyond the Scheduled Termination Date. If prior to the Scheduled Termination Date, all amounts due hereunder shall have been paid or the payment thereof so provided for, the term of this Local Agency Financing Lease shall end 10 days thereafter or 10 days after written notice by the Local Agency to the State Treasurer, whichever is earlier. Section 8.3 Termination. The Local Agency agrees, upon the termination of this Local Agency Financing Lease, to quit and surrender the Property (i) in the same good order, condition and repair as the same was in at the time of commencement of the term hereunder, except for acts of God and reasonable wear and tear, that affect the condition of the Property; and (ii) free and clear of all leases, occupancies, liens and encumbrances, other than those existing as of the Dated Date or subsequently created in accordance herewith. The Local Agency agrees that any permanent improvements and structures existing upon the Property at the time of such termination of this Local Agency Financing Lease shall remain thereon. The Local Agency shall thereafter execute, acknowledge and deliver to the State such instruments of further assurance as in the reasonable opinion of the State Treasurer are necessary or desirable to confirm the State’s leasehold right, title and interest in and to the Property. Moses Lake Council Packet 4-13-21, Page 133 -23- FG:54276272.2 Section 8.4 Notices to Agency. The notice address for the Local Agency shall be as set forth in the Notice of Intent. STATE OF WASHINGTON OFFICE OF THE STATE TREASURER By Treasurer Representative CITY OF MOSES LAKE, WASHINGTON as Local Agency By Authorized Agency Representative By Authorized Agency Representative By Authorized Agency Representative Moses Lake Council Packet 4-13-21, Page 134 N-1 FG:54276272.2 STATE OF WASHINGTON ) ) ss. COUNTY OF THURSTON ) I certify that I know or have satisfactory evidence that JASON P. RICHTER 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 Deputy State Treasurer Debt Management of the STATE OF WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 135 N-2 FG:54276272.2 STATE OF WASHINGTON ) ) ss. COUNTY OF GRANT ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that [s]he signed this instrument, on oath stated that [s]he was authorized to execute the instrument and acknowledged it as __________________________ of the CITY OF MOSES LAKE, WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 136 N-3 FG:54276272.2 STATE OF WASHINGTON ) ) ss. COUNTY OF GRANT ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that [s]he signed this instrument, on oath stated that [s]he was authorized to execute the instrument and acknowledged it as __________________________ of the CITY OF MOSES LAKE, WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 137 N-4 FG:54276272.2 STATE OF WASHINGTON ) ) ss. COUNTY OF GRANT ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that [s]he signed this instrument, on oath stated that [s]he was authorized to execute the instrument and acknowledged it as __________________________ of the CITY OF MOSES LAKE, WASHINGTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: _________________ (Signature of Notary) Print Name (Legibly Print or Stamp Name of Notary) Notary public in and for the state of Washington, residing at My commission expires (Use this space for notarial stamp/seal) Moses Lake Council Packet 4-13-21, Page 138 FG:54276272.2 EXHIBIT A NOTICE OF INTENT Moses Lake Council Packet 4-13-21, Page 139 FG:54276272.2 EXHIBIT B CERTIFICATE DESIGNATING AUTHORIZED AGENCY REPRESENTATIVE Moses Lake Council Packet 4-13-21, Page 140 FG:54276272.2 EXHIBIT C LEGAL DESCRIPTION LOT 2, LARSON PLAYFIELD ADDITION NO. 1, PER THE PLAT THEREOF, RECORDED IN BOOK 22, PAGES 59 AND 60, RECORDS OF GRANT COUNTY, WASHINGTON. Moses Lake Council Packet 4-13-21, Page 141 FG:54276272.2 EXHIBIT D AGENCY RENT PAYMENTS Moses Lake Council Packet 4-13-21, Page 142 Moses Lake Council Packet 4-13-21, Page 143 CERTIFICATE OF AUTHORIZING ORDINANCE I, the undersigned, Clerk of the City Council of City of Moses Lake, Washington (the “Local Agency”), DO HEREBY CERTIFY: 1. That the attached Ordinance No. _____ (herein called the “Ordinance”) is a true and correct copy of a Ordinance of the Local Agency passed at a regular meeting of the City Council held on the 13th day of April, 2021, and duly recorded in my office; 2. That said meeting was duly convened and held in all respects in accordance with law; and to the extent required by law, due and proper notice of such meeting was given; that a quorum of the City Council was present throughout the meeting and a legally sufficient number of members of the City Council voted in the proper manner for the passage of the Ordinance; 3. That all other requirements and proceedings incident to the proper passage of the Ordinance have been duly fulfilled, carried out and otherwise observed; 4. That the Ordinance remains in full force and effect and has not been amended, repealed or superseded; and 5. That I am authorized to execute this certificate. IN WITNESS WHEREOF, I have hereunto set my hand as of this 13th day of April, 2021. City Clerk Moses Lake Council Packet 4-13-21, Page 144 City of Moses Lake -Larson Rec Center Delivery Date 6/22/2021 Project Funds $11,867,000 All-In Interest Cost 1.72% 2.47% Payment Debt Service Debt Service Date Current Interest Pessimistic Scenario Rates 12/1/2021 $ 233,047 s 250,422 6/1/2022 s 474,625 s 506,000 12/1/2022 s 213,250 $229,250 6/1/2023 s 493,250 $ 529,250 12/1/2023 s 206,250 s 221,750 6/1/2024 s 501,250 s 536,750 12/1/2024 $ 198,875 s 213,875 6/1/2025 $ 508,875 s 543,875 12/1/2025 s 191,125 s 205,625 6/1/2026 s 516,125 s 550,625 12/1/2026 s 183,000 s 197,000 6/1/2027 $ 523,000 $562,000 12/1/2027 $ 174,500 $ 187,875 6/1/2028 $ 529,500 s 572,875 12/1/2028 $ 165,625 $ 178,250 6/1/2029 $ 540,625 s 578,250 12/1/2029 $ 156,250 $168,250 6/1/2030 s 551,250 $588,250 12/1/2030 $ 146,375 s 157,750 6/1/2031 $ 561,375 s 602,750 12/1/2031 $ 136,000 $ 146,625 6/1/2032 $ 571,000 $61'1,625 12/1/2032 $ 125,125 $135,000 6/1/2033 $ 580,125 $ 625,000 12/1/2033 s 113,750 s 122,750 6/1/2034 s 588,750 s 637,750 12/1/2034 $ 101,875 s 109,875 6/1/2035 $ 601,875 $649,875 12/1/2035 s 89,375 s 96,375 6/1/2036 $ 614,375 $ 661,375 12/1/2036 $ 76,250 $ 82,250 6/1/2037 s 626,250 $677,250 12/1/2037 $ 62,500 $ 67,375 6/1/2038 $ 642,500 s 692,375 12/1/2038 s 48,000 s 51,750 6/1/2039 $ 658,000 s 706,750 12/1/2039 s 32,750 s 35,375 6/1/2040 s 672,750 s 725,375 12/1/2040 $ 16,750 s 18,125 6/1/2041 s 686,750 s 743,125 Total $ 14,112,921.53 s 15,176,672.22 Note: All figures are estimates. Actual rates are determined on the day of sale. Moses Lake Council Packet 4-13-21, Page 145 STAFF REPORT To: Allison Williams, City Manager From: Richard A. Law P.E., City Engineer Date: April 7, 2021 Proceeding Type: New Business Subject: Westshore Drive Covenants as to Improvements Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview Hayden Homes LLC is the developer of the Sagecrest Major Plat sub-division. The sub-division includes approximately 95 single family lots with improvements being made to Westshore Drive and Hanson Road. Hayden Homes is required to install improvements with each phase of development to the current City of Moses Lake Standards as part of the platting process. Due to the dynamic and size of some of the improvements it has been determined a developer agreement would better serve the interests of both the City of Moses Lake and Hayden Homes. The developer agreement stated as part of Sagecrest Phase 3 Major Plat, Hayden Homes would develop Westshore drive and Hansen Road to current standards. Hayden homes plans installing the improvements to Westshore Drive and Hansen Road in the summer of 2021. The City of Moses Lake has four (4) existing covenants for improvements to Westshore Drive Cove West Major Plat, Cove West Phase 2 Major Plat, Cacchiotti Short Plat, and Poplar Sands Phase 2 Short Plat. All four covenants state each plat is responsible for the full width street improvements to Westshore Drive. Moses Lake Municipal Code 17.24.03 Streets states: A.The applicant is responsible for constructing all the streets within the subdivision full width, and all the streets adjacent to the subdivision half width. Except, the applicant shall be responsible for constructing the adjacent streets full width if the City determines that the use within the subdivision requires full width streets. Moses Lake Council Packet 4-13-21, Page 146 With Hayden Homes platting the property adjacent to the existing covenants they are responsible for the half-width improvements to Westshore Drive. This responsibility will help alleviate some of the financial burden to the existing covenant holders. COVE WEST PHASE 1 In September of 1986, the Cove West plat was filed with Grant County. As part of that platting process certain roadway improvements were required. At that time it was the City of Moses Lake’s desire to allow the owners to complete the platting process without installing improvements that were required by ordinance. The owners entered into an agreement with the City of Moses Lake to install the required improvements at a later date. The terms of that agreement, as stated in item 3. of the recorded covenant (AFN 790402), are as follows: 3.1 Improvements: Full width street improvements to Westshore Drive to City standards in effect at the time of improvement is built for the full length of the plat fronting on Westshore Drive. 3.2 Triggering event: The City of Moses Lake shall give written notice to the owners to proceed ti install those improvements when the City determines that sufficient development has occurred to require the installation of those improvements. A letter was sent to the President and Vice President of the Cove West Homeowners Association March 15, 2021 notifying of the intent for the City of Moses lake to call in this covenant. COVE WEST PHASE 2 In July of 1995, the Cove West Phase 2 plat was filed with Grant County. As part of that platting process certain roadway improvements were required. At that time, it was the City of Moses Lake’s desire to allow the owners to complete the platting process without installing improvements that were required by ordinance. The owners entered into an agreement with the City of Moses Lake to install the required improvements at a later date. The terms of that agreement, as stated in item 3. of the recorded covenant (AFN 950721034), are as follows: 3.2 Improvements: Full width street improvements to Westshore Drive to City standards in effect at the time of improvement is built for the full length of the plat fronting on Westshore Drive. 3.3 Triggering event: The City of Moses Lake shall give written notice to the owners to proceed ti install those improvements when the City determines that sufficient development has occurred to require the installation of those improvements. A letter was sent to the President and Vice President of the Cove West Homeowners Association March 15, 2021 notifying of the intent for the City of Moses lake to call in this covenant. POPLAR SANDS PHASE 2 SHORT PLAT In January of 2001, the Poplar Sands Phase 2 Short Plat was filed with Grant County. As part of that platting process certain roadway improvements were required. At that time, it was the City of Moses Lake’s desire to allow the owners to complete the platting process without installing Moses Lake Council Packet 4-13-21, Page 147 improvements that were required by ordinance. The owners entered into an agreement with the City of Moses Lake to install the required improvements at a later date. The terms of that agreement, as stated in item 3. of the recorded covenant (1077655), are as follows: 3.2 Improvements: The following improvements for the entire premises remain to be installed in connection with the platting process. Full width street improvements to Westshore Drive to City standards in effect at the time of construction. 3.3 Triggering event: The City of Moses Lake shall give written notice to the owners to proceed to install those improvements when the City determines installation of those improvements is required. Letters were sent to the known residents of the Poplar Sands Phase 2 short plat March 15, 2021 notifying of the intent for the City of Moses lake to call in this covenant. Staff was contacted by the President of the Poplar Sands Homeowners Association and advised some addresses were missed in the mailing. Staff was advised the homeowners association did have a copy of the notice and would notify the remaining members of the association. CACCHIOTTI SHORT PLAT In February of 2006, the Cacchiotti Short Plat was filed with Grant County. As part of that platting process certain roadway improvements were required. At that time, it was the City of Moses Lake’s desire to allow the owners to complete the platting process without installing improvements that were required by ordinance. The owners entered into an agreement with the City of Moses Lake to install the required improvements at a later date. The terms of that agreement, as stated in item 3. of the recorded covenant (AFN 1185041), are as follows: 3.2 Improvements: The following improvements for the entire premises remain to be installed in connection with the platting process. Full width street improvements to Westshore Drive to City standards in effect at the time of construction. 3.3 Triggering event: The City of Moses Lake shall give written notice to the owners to proceed to install those improvements when the City determines installation of those improvements is required. A letter was sent to Dr Dino Cacchiotti March 15, 2021 notifying of the intent for the City of Moses lake to call in this covenant. Fiscal and Policy Implications Policy indicates calling in of a covenant requires a legislative action by City Council. Moses Lake Council Packet 4-13-21, Page 148 Council Packet Attachments A. Area Map B. Cove West Covenant C. Cove West Phase 2 Covenant D. Poplar Sands Phase 2 Covenant E. Cacchiotti Short Plat Covenant F. Copy of Letters sent to the affected residents Finance Committee Review N/A Options Option Results • Authorize as presented Staff will notify the property owner the covenant is due. • Provide staff with changes Staff would revise the request and re-submit for approval. • Take no action. Staff will take no further action with these covenants. Action Requested Staff recommends Council call in the above covenants. Moses Lake Council Packet 4-13-21, Page 149 Moses Lake Council Packet 4-13-21, Page 150 Moses Lake Council Packet 4-13-21, Page 151 Moses Lake Council Packet 4-13-21, Page 152 Moses Lake Council Packet 4-13-21, Page 153 Moses Lake Council Packet 4-13-21, Page 154 Moses Lake Council Packet 4-13-21, Page 155 Moses Lake Council Packet 4-13-21, Page 156 Moses Lake Council Packet 4-13-21, Page 157 Moses Lake Council Packet 4-13-21, Page 158 Moses Lake Council Packet 4-13-21, Page 159 Moses Lake Council Packet 4-13-21, Page 160 Moses Lake Council Packet 4-13-21, Page 161 Moses Lake Council Packet 4-13-21, Page 162 Moses Lake Council Packet 4-13-21, Page 163 Moses Lake Council Packet 4-13-21, Page 164 Moses Lake Council Packet 4-13-21, Page 165 Moses Lake Council Packet 4-13-21, Page 166 Moses Lake Council Packet 4-13-21, Page 167 Moses Lake Council Packet 4-13-21, Page 168 Moses Lake Council Packet 4-13-21, Page 169 Moses Lake Council Packet 4-13-21, Page 170 Moses Lake Council Packet 4-13-21, Page 171 Moses Lake Council Packet 4-13-21, Page 172 Moses Lake Council Packet 4-13-21, Page 173 Moses Lake Council Packet 4-13-21, Page 174 Moses Lake Council Packet 4-13-21, Page 175 Moses Lake Council Packet 4-13-21, Page 176 Moses Lake Council Packet 4-13-21, Page 177 Moses Lake Council Packet 4-13-21, Page 178 Moses Lake Council Packet 4-13-21, Page 179 Moses Lake Council Packet 4-13-21, Page 180 Moses Lake Council Packet 4-13-21, Page 181 Moses Lake Council Packet 4-13-21, Page 182 Moses Lake Council Packet 4-13-21, Page 183 Moses Lake Council Packet 4-13-21, Page 184 Moses Lake Council Packet 4-13-21, Page 185 Moses Lake Civic Center · 401 S. Balsam Street · P.O. Drawer 1579 · Moses Lake, WA 98837 www.cityofml.com · 509-764-3701 March 15, 2021 Cove West Home Owners Association Dave Canfield – President 4072 W Cove West Drive Reed Raymond – Vice President 500 N Bluff West Drive Moses Lake Washington 98837 RE: COVE WEST PHASE 1 Dave, You are listed as the President of the Cove West Home Owners Association, UBI number 601-262-876. The property listed was platted in September of 1986, Grant County Auditors file number 790404 book 13 page 2. Part of that platting process includes a list of improvements that were required. Those improvements listed full width street improvements to Westshore Drive for the frontage of the plat. At the time of platting, the owner was either required to install the required improvements or they could covenant for the improvements to be installed at a later date. The property owner at the time chose to covenant for the improvements. This covenant is tied to the land and is passed from property owner to property owner. The covenant was signed and recorded with the County Auditor’s office; auditors file number 790402, recorded September 08, 1986. The triggering event for this covenant is defined as “ The City of Moses Lake shall give written notice to the owners to proceed to install those improvements when the city determines that sufficient development has occurred to require the installation of those improvements”. The City of Moses Lake has entered into a Developer Agreement with Hayden Homes for the construction of Westshore Drive and Hansen Road, per the agreement, Hayden Homes is required to construct the improvements with Phase 3 of their Sagecrest project. PBS Engineering, acting on behalf of Hayden Homes, submitted Sagecrest Phase 3 construction plans on February 23, 2021 with plans to begin construction in the spring of 2021. This letter is to inform you the City of Moses Lake is preparing to call in this covenant for the required improvements to Westshore Drive. Calling in the covenant requires a legislative action by the City Council, and an agenda bill is being prepared for the April 13, 2021 meeting. If you wish to comment at City Council meeting you can contact the City Clerk, Debbie Burke, 509-764-3703 dburke@cityofml.com and request to be added to the meeting. Sincerely. Rob Harris City of Moses Lake Development Engineering Manager Cc; City Manager, City Engineer, Community Development Director, Planning Manager Attached; Covenant as to Improvements Moses Lake Council Packet 4-13-21, Page 186 Moses Lake Civic Center · 401 S. Balsam Street · P.O. Drawer 1579 · Moses Lake, WA 98837 www.cityofml.com · 509-764-3701 March 15, 2021 Cove West Home Owners Association Dave Canfield – President 4072 W Cove West Drive Reed Raymond – Vice President 500 N Bluff West Drive Moses Lake Washington 98837 RE: COVE WEST PHASE II Dave, You are listed as the President of the Cove West Home Owners Association, UBI number 601-262-876. The property listed was platted in July of 1995, Grant County Auditors file number 950721032 book 16 page 58. Part of that platting process includes a list of improvements that were required. Those improvements listed full width street improvements to Westshore Drive for the frontage of the plat. At the time of platting, the owner was either required to install the required improvements or they could covenant for the improvements to be installed at a later date. The property owner at the time chose to covenant for the improvements. This covenant is tied to the land and is passed from property owner to property owner. The covenant was signed and recorded with the County Auditor’s office; auditors file number 950721034, recorded July 21, 1995. The triggering event for this covenant is defined as “ The City of Moses Lake shall give written notice to the owners to proceed to install to install those improvements when the city determines installation of those improvements is required”. The City of Moses Lake has entered into a Developer Agreement with Hayden Homes for the construction of Westshore Drive and Hansen Road, per the agreement, Hayden Homes is required to construct the improvements with Phase 3 of their Sagecrest project. PBS Engineering, acting on behalf of Hayden Homes, submitted Sagecrest Phase 3 construction plans on February 23, 2021 with plans to begin construction in the spring of 2021. This letter is to inform you the City of Moses Lake is preparing to call in this covenant for the required improvements to Westshore Drive. Calling in the covenant requires a legislative action by the City Council, and an agenda bill is being prepared for the April 13, 2021 meeting. If you wish to comment at City Council meeting you can contact the City Clerk, Debbie Burke, 509-764-3703 dburke@cityofml.com and request to be added to the meeting. Sincerely. Rob Harris City of Moses Lake Development Engineering Manager Cc; City Manager, City Engineer, Community Development Director, Planning Manager Attached; Covenant as to Improvements Moses Lake Council Packet 4-13-21, Page 187 Moses Lake Civic Center · 401 S. Balsam Street · P.O. Drawer 1579 · Moses Lake, WA 98837 www.cityofml.com · 509-764-3701 March 16, 2021 Poplar Sands Condominium Association Steve Tolley 807 Westshore M-32 Moses Lake Washington 98837 RE: POPLAR SANDS #2 SHORT PLAT Steve, You are shown as residing in unit M-32 of the Poplar Sands #2 Short Plat. The property listed was platted in February of 2001, Grant County Auditors file number 1078407 book 11 page 24. Part of that platting process includes a list of improvements that were required. Those improvements listed full width street improvements to Westshore Drive for the frontage of the plat. At the time of platting, the owner was either required to install the required improvements or they could covenant for the improvements to be installed at a later date. The property owner at the time chose to covenant for the improvements. This covenant is tied to the land and is passed from property owner to property owner. The covenant was signed and recorded with the County Auditor’s office; auditors file number 1077655, recorded January, 23, 2001. The triggering event for this covenant is defined as “ The City of Moses Lake shall give written notice to the owners to proceed to install to install those improvements when the city determines installation of those improvements is required”. The City of Moses Lake has entered into a Developer Agreement with Hayden Homes for the construction of Westshore Drive and Hansen Road, per the agreement, Hayden Homes is required to construct the improvements with Phase 3 of their Sagecrest project. PBS Engineering, acting on behalf of Hayden Homes, submitted Sagecrest Phase 3 construction plans on February 23, 2021 with plans to begin construction in the spring of 2021. This letter is to inform you the City of Moses Lake is preparing to call in this covenant for the required improvements to Westshore Drive. Calling in the covenant requires a legislative action by the City Council, and an agenda bill is being prepared for the April 13, 2021 meeting. If you wish to comment at City Council meeting you can contact the City Clerk, Debbie Burke, 509-764-3703 dburke@cityofml.com and request to be added to the meeting. Sincerely. Rob Harris City of Moses Lake Development Engineering Manager Cc; City Manager, City Engineer, Community Development Director, Planning Manager Attached; Covenant as to Improvements Moses Lake Council Packet 4-13-21, Page 188 Moses Lake Civic Center · 401 S. Balsam Street · P.O. Drawer 1579 · Moses Lake, WA 98837 www.cityofml.com · 509-764-3701 March 15, 2021 Dr. Dino A. Cacchiotti 791 N. Westshore Drive Moses Lake Washington 98837 RE: 791 N. WESTSHORE DRIVE Dr. Cacchiotti, You are listed as the owner of record for 791 N Westshore Drive, Lot 1 Cacchiotti Short Plat, Grant County Parcel number 312783000. The property listed was platted in February of 2006, Grant County Auditors file number 1185040. Part of that platting process includes a list of improvements that were required. Those improvements listed full width street improvements to Westshore Drive for the frontage of the plat. At the time of platting, the owner was either required to install the required improvements or they could covenant for the improvements to be installed at a later date. The property owner at the time chose to covenant for the improvements. This covenant is tied to the land and is passed from property owner to property owner. The covenant was signed and recorded with the County Auditor’s office; auditors file number 1185041, recorded February 07, 2006. The triggering event for this covenant is defined as “ The City of Moses Lake shall give written notice to the owners to proceed to install those improvements when the city determines installation of those improvements is required”. The City of Moses Lake has entered into a Developer Agreement with Hayden Homes for the construction of Westshore Drive and Hansen Road, per the agreement, Hayden Homes is required to construct the improvements with Phase 3 of their Sagecrest project. PBS Engineering, acting on behalf of Hayden Homes, submitted Sagecrest Phase 3 construction plans on February 23, 2021 with plans to begin construction in the spring of 2021. This letter is to inform you the City of Moses Lake is preparing to call in this covenant for the required improvements to Westshore Drive. Calling in the covenant requires a legislative action by the City Council, and an agenda bill is being prepared for the April 13, 2021 meeting. If you wish to comment at City Council meeting you can contact the City Clerk, Debbie Burke, 509-764-3703 dburke@cityofml.com and request to be added to the meeting. Sincerely. Rob Harris City of Moses Lake Development Engineering Manager Cc; City Manager, City Engineer, Community Development Director, Planning Manager Attached; Covenant as to Improvements Moses Lake Council Packet 4-13-21, Page 189 STAFF REPORT To: Allison Williams, City Manager From: Richard A. Law PE, City Engineer Date: April 8, 2021 Proceeding Type: New Business Subject: Request to Connect to City Water and Sewer- 2327 Westshore Drive NE Parcel # 141708000 Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview Lisa Curry requests approval to connect to the City’s water and sewer systems to serve a single- family residence on their lot, Parcel #141708000 located at 2327 Westshore Drive NE. The property is located outside of the current City limits and is inside the UGA as defined in the most current Grant County Comprehensive Plan. The proponent is requesting to connect to City water and sewer. The City’s water and sewer systems have the capacity to serve the lot. If approved, the property owners will be required to sign an Extra Territorial Agreement (ETA). The ETA must be in place before a permit is issued for connecting to City service. Fiscal and Policy Implications The water main and sewer force main on Westshore Drive NE were installed by the developers of the Moses Pointe development beginning in 2000. The property is under County jurisdiction, but the property owner wishes to connect to the City services. Council Packet Attachments A. Combined Utility Reference B. Vicinity Map C. Written Request Moses Lake Council Packet 4-13-21, Page 190 Finance Committee Review N/A Options Option Results • Move to approve the request The owners will provide an Extra Territorial Agreement and connect to City water and sewer. • Provide staff with changes Action would require staff to bring a revised document to Council for consideration. • Take no action. The proponent would not connect to City utilities and pursue other options to provide sewer to the property. Action Requested Staff recommends City Council approve to connect to the City water and sewer system. If approved, the owners will be required to sign an Extra Territorial Agreement before issuing a permit for the connections. Moses Lake Council Packet 4-13-21, Page 191 3/19/2021 ArcGIS Enterprise - Combined Utility Reference https://arcgis.cityofml.com/portal/home/webmap/viewer.html?webmap=490c358ea637470a877ae8862ba93603 1/1 + − Details Add Basemap Save Combined Utility ReferenceHome Moses Lake Council Packet 4-13-21, Page 192 3/19/2021 ArcGIS Enterprise - Extra Territorial https://arcgis.cityofml.com/portal/home/webmap/viewer.html?webmap=faaba2e331ec49f7a44ce69748b7ceca 1/1 + − Details Add Basemap Save Extra TerritorialHome Moses Lake Council Packet 4-13-21, Page 193 From: Lisa Curry <lisa@curry.net> Sent: Thursday, March 18, 2021 8:20 AM To: Rob Harris Subject: Water I am requesting to hook into city services for water and sewer at my home. 2327 Westshore Drive. Thank you. Lisa Curry Sent from my iPhone Moses Lake Council Packet 4-13-21, Page 194 STAFF REPORT To: Allison Williams, City Manager From: Susan Schwiesow, Parks, Recreation & Cultural Services Director Date: April 8, 2021 Proceeding Type: New Business Subject: 2021 Surf ‘n Slide Water Park Fees Resolution 3848 Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview The Surf ‘n Slide Water Park will be opening for the 2021 season under restrictive guidances. To meet these guidelines, we need to revise admission prices, swimming lessons and add a no show fee. The new guidance recommends that reservations be made, by offering an on-site price we will encourage more people to sign up online, complete waivers digitally and will incure less points of contact between staff and patrons. Season passes will be available for purchase but with the on- line registration, they could potentially book every single day of the season. If they register and do not show, this would prevent other paying cutomers to register. So, we propose to charge a no show fee for season pass holders. These are the proposed fee changes: Current Admission Proposed Online/On-Site 0-4 Free 0-2 Free Youth 3-4 $7/$9 Youth 5-17 $14. Youth 5-17 $14/$16 Adult 18-64 $15 Adult 18-64 $15/$17 Senior $14 Senior $14/$16 Current Proposed On-Site Youth Punchcard $130 $150 Adult Punchcard $140 $160 Proposed Fee for 2021 Season Pass Youth 3-4 $35 Resident $40 Non Resident No Show Fee $10 Season Pass Holders Current Swimming Lessons Proposed Swimming Lessons $35 per child with 8 participants $50 per child with 4 participants Moses Lake Council Packet 4-13-21, Page 195 Fiscal and Policy Implications N/A Council Packet Attachments A. Fee Schedule Update Resolution 3848 Finance Committee Review N/A Legal Review N/A Options Option Results • Adopt as presented Staff will move forward with the fee structure for 2021. • Provide staff with changes Staff will make requested corrections and bring a revised request for Council consideration. • Take no action. Fees will remain as is. Action Requested Staff recommends Council adopt Resolution 3848 for the Surf ‘n Slide Water Park fee structure for 2021. Moses Lake Council Packet 4-13-21, Page 196 RESOLUTION NO. 3848 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOSES LAKE, WASHINGTON AMENDING THE 2021 FEE SCHEDULE TO UPDATE THE SURF ‘N SLIDE WATER PARK FEES. Recitals: 1. The City Council adopted Resolution 3836 establishing the 2021 Fee Schedule on December 8, 2020; and 2. The City Council was presented with a new daily admission fees for the Surf ‘n Slide Water Park. Resolved: The following fee will be added and adjusted to the 2021 fee schedule: Parks Recreation Group Swim Lessons – All Levels $50.00 Parks Recreation Surf 'n Slide Daily Admission (per person) $7-$17 Parks Recreation No Show Fee (Season Pass Holders) $10.00 Parks Recreation Youth Season Pass 3-4 years $55-$60 Parks Recreation Surf 'n Slide 10 Punch Card (per person) $150-$160 Adopted by the City Council of Moses Lake, Washington on April 13, 2021. ______________________________ David Curnel, Mayor ATTEST: _________________________ Debbie Burke, City Clerk Moses Lake Council Packet 4-13-21, Page 197 STAFF REPORT To: Allison Williams, City Manager From: Melissa Bethel, Community Development Director Date: April 9, 2021 Proceeding Type: New Business Subject: Sunshine Grow LUA2020-056 Covenant Legislative History: •First Presentation: April 13, 2021 •Second Presentation: •Action: Motion Overview Hearing Examiner Kottkamp recently approved a Conditional Use Permit for Sunshine Grow, a marijuana processing facility. The property is described as Lot 1, ASPI Industrial Park and 9.81 acres. The site was originally platted within the County and later annexed into the City. Although the property was platted within the County, the City deems it unplatted for the purposes of development and requires certain infrastructure improvements upon building permit. The Developer is requesting a deferral to those improvements in the form of a covenant. City Code requires Council approval of the deferral. Refer to attached memo from the Engineering Department for a more detailed description of requirements. Following this memo is the Hearings Examiner decision and a map outlining the project area and the covenants that are in place in this area. Please note the number of covenants in this area. The Hearings Examiner did not analyze the development requirements for this application because our code provides for the ability to defer/deviate/covenant with Council approval which was requested by the proponent. Staff desires to change the city’s practice of allowing covenants for development requirements and will address it in our upcoming code revision as the practice of allowing covenants/deferrals and deviations becomes an issue when the city calls for the improvements and may have to settle for less than what should have been required at the time of development. In addition, the ability of the Council to grant waivers and deferrals to individual developers with no specific criteria becomes arbitrary and capricious. Suggested motions include the ability of Council to deny the covenant which would mean the proponent would need to make the improvements concurrent with development. The proponent has the option in our code to do a reimbursement agreement to recoup their costs. Council can approve the covenant and defer the improvements, which as described above would continue to exacerbate the issue. The last option, and staff recommendation, is to approve the covenant but Moses Lake Council Packet 4-13-21, Page 198 direct staff to develop a local improvement district for this area so that the improvements that should have been made concurrent with development in the ASPI Industrial Park are put into place. Fiscal and Policy Implications: The City will need to weigh the options regarding deferring improvements and/or possibly creating an LID to have improvements constructed in the area verses mandating construction at the time of development. Council Packet Attachments A. Engineering staff report B. Map of existing covenants in immediate area C. CUP Decision D. Draft Covenant Finance Committee Review The City Finance Committee will review the item on April 13, 2021. Legal Review Type of Document Title of Document Date Reviewed Covenant Covenant and Agreement for Deferral of Improvements with LID Waiver 4/9/21 Options Option Results • Approve Covenant and Provide direction to staff to explore LID options Staff will execute the covenant and start the process of exploring and LID in the area. • Approve the Covenant Improvements will be deferred for a set time period. • Deny the Covenant Applicant will be required to install infrastructure before moving forward. Action Requested Suggested Motion: I move the City of Moses Lake City Council approve the applicant’s request to covenant for improvements and direct staff to start the process of exploring an LID in the ASPI Industrial Park area. Moses Lake Council Packet 4-13-21, Page 199 City of Moses Lake Memorandum To: Melissa Bethel Community Development Director From: Rob Harris Development Engineering Manager CC: Vivian Ramsey Planning Manager RE: Sunshine Grow Facility Sunshine Grow Facility. Sunshine Estate Developer LLC is proposing to develop 9.81 acres into a marijuana processing facility. The project is located east of Randolph Road and south of Tyndall Road NE and is currently inside of the city limits. The legal description reads as Lot 1, ASPI Industrial Park Short Plat. Property is addressed as 9897 Randolph Road NE. The property is currently platted however MLMC 16.02.110 deems the platting to be insufficient. 16.02.110 Platting Deemed Insufficient - When: A. Property located within the city which is presently platted and which property was platted without the extension or provision of city water, city sewer, storm sewer, curb, sidewalk, streets or other improvements through some or all of the lots of the plat shall be deemed to be unplatted for purposes of the issuance of any development permit or building permit. Any lot so affected shall be permitted to develop and a building permit will be issued upon the installation of city water, city sewer, storm drains, curbs, sidewalks, streets, and other improvements to community standards, including fire protection devices, or upon the posting of security in an amount approved by the city, which is equal to the estimated cost of the extensions and/or improvements remaining to be installed through the lot, in a form acceptable to the City Attorney to insure the construction of the required improvements and extensions at the same time as construction of the building for which the building permit was issued or at the time of the improvement of the affected lot. Moses Lake Council Packet 4-13-21, Page 200 B. Any property owner can make application to the City Council for a waiver, deferral, or deviation from or of the requirement to install improvements. A waiver, deferral, or deviation from or of the requirement to install improvements shall not be granted unless the City Council finds that because of the nature of the property, its topography, the conditions or nature of the adjoining areas or the existence of unusual physical conditions, the requirement to install improvements would cause an unusual and unnecessary hardship on the property owner. In granting a waiver, deferral or deviation from or of the requirements to install improvements, the City Council may require such conditions as will secure the objectives of the requirement waived, deferred, or deviated from or of. Any waiver, deferral, or deviation authorized shall be entered in the minutes of the Moses Lake City Council together with the circumstances that justify the waiver, deferral, or deviation granted. The improvements required are as follows: Moses Lake Municipal Code 17.24.030 Streets: a. The applicant is responsible for constructing all the streets within the subdivision full width, and all the streets adjacent to the subdivision half width. Except, the applicant shall be responsible for constructing the adjacent streets full width if the City determines that the use within the subdivision requires full width streets. b. Cul-de-sacs may be approved when they do not hinder the connectivity of streets in the surrounding neighborhoods. Where cul-de-sacs are approved, they shall terminate in a cul-de-sac bulb unless they meet all the following criteria: 1. No more than one lot has sole access from the cul-de-sac. 2. The end of the street right-of-way terminates at the plat boundary. 3. The adjacent property is not platted. 4. The street should continue through the adjacent property when it is developed. 5. The length of the cul-de-sac is less than 175 feet. 6. An end of roadway barricade is installed at the end of the cul-de-sac. c. Temporary cul-de-sac bulbs, in lieu of a permanent cul-de-sac bulb, are allowed to be constructed when all the following criteria are met: 1. The street is expected to be extended within the next five years. 2. The developer signs a covenant to construct a permanent cul-de-sac in five years. 3. The design for the permanent cul-de-sac bulb is included in the street construction plans. 4. The right-of-way required for a permanent cul-de-sac and bulb is dedicated to the City on the plat. Randolph Road and Tyndall Road are existing BST roads, both roads are improved to county standards. The applicant is responsible for the halfwidth construction of both Randolph Road and Tyndall Road to City of Moses Lake standards. City policy does not allow halfwidth streets. Adjacent parcels have been allowed to covenant for the required improvements. Moses Lake Municipal Code 17.24.040 WATER MAINS: a. The applicant shall install water main improvements for the full length of all streets within and adjacent to the subdivision, unless the Moses Lake Council Packet 4-13-21, Page 201 Municipal Services Director determines that the additional water main provides no additional benefit. b. Fire hydrants are not required to be installed when water mains are installed through or adjacent to property other than the proposed subdivision. The City of Moses Lake Water Comprehensive Plan 2015 shows a 10” water main being installed in Tyndall Road. The applicant would be responsible for installing the 10” water main in Tyndall Road. The City may participate in the cost of oversizing the water main in Tyndall Road. There currently is a reimbursement due in the amount of $6712,80 (MLMC 13.08.102). Moses Lake Municipal Code 17.24.040 SEWER MAINS: The applicant shall install sewer main improvements for the full length of streets within and adjacent to the subdivision, unless the Municipal Services Director determines that the additional sewer main provides no additional benefit. Sewer would need to be extended in Tyndall Road as deemed necessary. Moses Lake Municipal Code 17.24.060 SIDEWALKS: All sidewalks required with a subdivision shall be completed prior to acceptance of required municipal improvements. This section does not allow for the completion of sidewalks for each lot at the time of building construction. Moses Lake Municipal Code 17.24.090 STREET LIGHTING: Street lighting is required for all streets, per plans that are approved by Grant County PUD and the City Engineer. There are allowances in the code for the City to participate in the development of improvements that go beyond what is required of the developer. In the past the City has participated in the construction of halfwidth streets. 17.24.020 City Participation: A. The City may participate in the cost of street and over- sizing municipal utility improvements that are not required of the applicant. Examples of these types of improvements include one-half street improvements, over sizing municipal utility mains and lift stations, street extensions, activity trails, stormwater improvements, and extensions of municipal utilities. The City will reimburse the owner of the subdivision for the agreed cost for the additional street and municipal utility improvements after the construction is complete and accepted by the City Council. No approval is authorized by the City unless a written approval for the reimbursement by the City is sent to the owner of the Subdivision prior to construction. B. This chapter shall not be construed to establish an affirmative obligation upon the City to participate in any project. The City’s participation is limited by the funds available, priority of projects throughout the City, and the desirability of a particular project. Moses Lake Municipal Code 18.67.170 Street and Utility Improvements Performance Bond states: Moses Lake Council Packet 4-13-21, Page 202 A. No building permit shall be issued until the applicant has posted a performance bond or other approved security in a form satisfactory to the City Attorney in such an amount to cover one hundred and fifty percent (150%) of the estimated cost, as determined by the Municipal Services Director of all street and utility improvements required by the City Council in granting planned development district approval. All street and utility improvements must be completed within two (2) years of City Council approval of the final planned development district. B. In the event that all street and utility improvements are not completed within the time limit specified in the performance bond or approved security, the bond or security may be forfeited and the city may undertake the installation and completion of all required street and utility improvements. In the past Developers have not been required to bond for the required improvements it has been the practice to allow the Developer to covenant for the required improvements. The covenant contains a power of attorney and runs with the land. This practice also has its downfalls i.e.: The Developer sells the property and passes the financial responsibility on to an unsuspecting party; another possible downfall is the development fails and the current property owner is no longer financially sound to participate in the improvements. . Moses Lake Council Packet 4-13-21, Page 203 Moses Lake Council Packet 4-13-21, Page 204 Moses Lake Council Packet 4-13-21, Page 205 Moses Lake Council Packet 4-13-21, Page 206 Moses Lake Council Packet 4-13-21, Page 207 Moses Lake Council Packet 4-13-21, Page 208 Moses Lake Council Packet 4-13-21, Page 209 Moses Lake Council Packet 4-13-21, Page 210 Moses Lake Council Packet 4-13-21, Page 211 Moses Lake Council Packet 4-13-21, Page 212 Moses Lake Council Packet 4-13-21, Page 213 Moses Lake Council Packet 4-13-21, Page 214 Moses Lake Council Packet 4-13-21, Page 215 Moses Lake Council Packet 4-13-21, Page 216 Return Address: Legal Department City of Moses Lake PO Box 1579 Moses Lake, WA 98837 COVENANT AND AGREEMENT FOR DEFERRAL OF IMPROVEMENTS With L.I.D. Waiver THIS AGREEMENT made and entered into on the _____ day of April, 2021, by and between the City of Moses Lake, a municipal corporation of the State of Washington, hereinafter referred to as “City”, and Fedoro Svyatoslav, dba Sunshine Estate Developer, LLC, hereinafter referred to as “Property Owner(s)”, WITNESSETH: WHEREAS, the Property Owner(s) is (are) the owner(s) of real property in the City of Moses Lake, County of Grant, State of Washington, located at 7897 NE Randolph Road, Moses Lake, Grant County, Washington, and described as and shown on Exhibit A, attached hereto; and, WHEREAS, The Property Owner(s) has caused the Premises to be platted, or has purchased the Premises which were platted, under the jurisdiction of Grant County, Washington, within the City of Moses Lake’s Urban Growth Area. In connection with that platting, the Premises lack sufficient infrastructure and improvements as required by the City Municipal Codes (MLMC). The Premises have since been annexed into the City of Moses Lake’s corporate limits; and WHEREAS, The Property Owner(s) now desires to develop the Premises with a marijuana processing facility for which a conditional use permit and building permit are required from the City. Pursuant to MLMC 16.02.110, the Premises and underlying plat are deemed insufficient. Property within the City which was platted without the extension or provision of city water, city sewer, storm water, curb, sidewalk, streets or other improvements shall be deemed to be unplatted for purposes of the issuance of any development permit or building permit. Such lots may be permitted to develop upon the installation of city‐required infrastructure, upon the posting of security in an amount approved by the city to ensure the future construction of the required improvements, or upon a grant by the City Council for a waiver, deferral, or deviation from or of the requirement to install improvements; and WHEREAS, in connection with the improvement or development of such property, certain street‐ public works improvements would need to be made or otherwise provided for; and, WHEREAS, the Property Owner(s) desire(s) to defer those street‐public works improvements to a later time, and has (have) requested agreement by the City for such deferral; and, WHEREAS, it is the desire of the Property Owner(s) that the terms upon which certain improvements will be required in the future to be placed upon the premises shall become covenants running with the land and shall be binding upon the land and all present and subsequent owners and persons dealing with the same. Moses Lake Council Packet 4-13-21, Page 217 NOW THEREFORE, based upon good and valuable consideration, the sufficiency of which is hereby acknowledged, IT IS AGREED as follows: 1. PROPERTY OWNER(S) WAIVER AND ACKNOWLEDGMENT REGARDING DELAY OF IMPROVEMENTS Property Owner acknowledges that the Premises are insufficiently platted pursuant to MLMC 16.02.110. Property Owner, on behalf of Property Owner and Property Owner’s heirs, successors and assigns, hereby waives any right to assert any and all present and future claims against the City, whether known or unknown, for any loss or damage occurring either on or off the Property, including without limitation personal injury, death, property damage, and loss of use by reason of or arising out of issuance of any permit or approval by the City for development or alteration of the Premises. In connection with this agreement, and in connection with the development and/or improvement to the land of the Property Owner(s), the City agrees to allow the Property Owner(s) to delay the making, constructing, installing and providing for the street‐public works improvements identified and set forth in paragraph 4 of this Agreement 2. CONSTRUCTION OF IMPROVEMENTS The Property Owner(s) hereby agree and covenant that he/she/they shall construct or caused to be constructed the deferred improvements described below at his/her/their expense upon determination by the City of Moses Lake that the improvements have become necessary, or in event the City determines to construct the improvements as part of a public works project, then the property owner, or owners, shall make payment to the City of Moses Lake of the pro‐rata share of the cost of the project, including but not limited to engineering, construction, inspection and other project related expenses, which benefits the property of the Property Owner(s), described on Exhibit “A” attached hereto and incorporated herein by this reference. In the event that said property is subdivided in the future, the Property Owner(s) agree to include as a condition of sale and/or a restrictive covenant the condition that the obligations to make, construct, install or provide for the street‐public works improvements identified and set forth in paragraph 4, below, shall apply to the subdivisions and future sales of portions of the property identified on Exhibit “A”, and that the aforesaid pro‐rata fair share of each portion of the property shall be computed by dividing the total assessment applicable to the original parcel amongst the subdivided lots on an area basis. It is further provided that in consideration of the benefits hereof, should the City wish to pursue the identified improvements through a Local Improvement District (LID) project, the Property Owner(s) hereby waive(s) all rights to protest the formation of such LID for the construction of said improvements. For purposes of this Instrument, “rights of protest” shall mean only those formal rights to protest contained within the LID statutes, except, however, nothing herein shall constitute a waiver by the Property Owner(s) or the heirs, assigns or successors in interest of the Property Owner(s), of the right to object to the individual assessment amount or to appeal to the Superior Court for the County in which the property is located the decision of the Council affirming the final assessment role, which rights are specifically preserved. Moses Lake Council Packet 4-13-21, Page 218 The determination of the City of Moses Lake shall be conclusive. 3. NOTICE AND TIME OF CONSTRUCTION The obligation of the Property Owner(s) to make, construct, install and provide for the street/public works improvements described and set forth in paragraph 4, below, shall arise upon not less than thirty (30) days prior written notice to the Property Owner(s) by the City. The time by which the Property Owner(s) shall make, construct, install or provide for said improvements shall be not later than six (6) months after the written notice by the City. If the Property Owner(s) fail to make, construct, install or provide for the improvements, or otherwise arrange for the construction and installation of such improvements, then the City shall be entitled and authorized to make, construct, install or provide for such improvements and bill the Property Owner(s) for the costs incurred in connection therewith. Any such billing by the City to the Property Owner(s) shall be paid by the Property Owner(s) within sixty (60) days of the billing, unless other arrangements are made in advance. 4. DESCRIPTION OF IMPROVEMENTS The improvements to be included in connection with this agreement shall be as follows: A. Streets: Construction of the half‐width streets of Randolph Road NE and Tyndall Road NE for the full frontage of the plat pursuant to MLMC Sections 17.24.030, .060, and .090; deferred half‐width street improvements would include asphalt, curb, sidewalk, storm, and street lighting. B. Water: Installation of the water main in Tyndall Road NE pursuant to MLMC 17.24.040. C. Sewer: Installation of the gravity sewer in Tyndall Road NE, pursuant to MLMC 17.24. 040. Or pay to the city the cost of these improvements when completed by others. Construction Standards: These improvements shall be designed and constructed to current city standards at the time of construction. 5. NONEXCLUSIVE REMEDIES In addition to any and all other remedies available to the City, at law or in equity, if the Property Owner(s) fail to make, construct, install or provide for the improvements, or otherwise arrange for the construction and installation of such improvements, then the City shall be entitled and authorized to make, construct, install or provide for such improvements and bill the Property Owner(s) for the costs incurred in connection therewith, and/or file a lien on the property of the Property Owner(s) for the amount of the City’s full costs and expenses therefor, and enforce the lien in accordance with legal process. Any such billing by the City to the Property Owner(s) shall be paid by the Property Owner(s) within sixty (60) days of the billing, unless other arrangements are made in advance. Moses Lake Council Packet 4-13-21, Page 219 6. BINDING ON HEIRS, ASSIGNS This agreement shall be binding on the heirs, assigns and successors in interest of the parties hereto, and all other persons claiming an interest in the premises or any portion thereof, and the obligations hereunder shall run with the land described in Exhibit “A”. The liability for the cost of the installation of the improvements, the construction of which is delayed by this agreement, is joint and several to the entire premises and any lots, tracts, parcels, or divisions of the premises. 7. CONSTRUCTION AND VENUE This agreement shall be construed in accordance with the laws in the State of Washington. In the event of any litigation regarding the construction or effect of this agreement, or the rights of the parties to this agreement, it is agreed that venue shall be in Grant County, Washington. 8. ENFORCEMENT In the event of enforcement action by the City, the City shall be entitled to recover all costs of litigation including but not limited to the costs of title searches, service of process, discovery, and disposition costs, and all actual attorney's fees incurred before, during and after trial, including appeals. 9. INDEMNITY To the full extent of Property Owner’s negligence and the full extent of the negligence of Property Owner’s heirs, successors and assigns, as well as the negligence of agents and employees of any of the above, Property Owner, on behalf of Property Owner and Property Owner’s heirs, successors and assigns, agrees to indemnify, hold harmless and defend the City and its officers, agents and employees from and against any and all claims, losses, costs and damages including without limitation personal injury, death, property damage, loss of use, and attorneys’ fees, arising out of or relating to the City’s involvement in permit issuance, inspection, or approval of any development or alteration of the Premises, and caused by or resulting from the concurrent negligence of the City or the City’s agents or employees, and: (a) Property Owner or Property Owner’s agents or employees; (b) Property Owner’s heirs, successors or assigns; (c) the agents or employees of Property Owner’s heirs, successors or assigns; or (d) any combination thereof. Property Owner, on behalf of Property Owner and Property Owner’s heirs, successors and assigns, agrees to indemnify, hold harmless and defend the City and its officers, agents and employees from and against any and all claims, losses, costs and damages, including without limitation personal injury, death, property damage, loss of use, and attorneys’ fees, arising out of or relating to the City’s involvement in permit issuance, inspection, or approval of any development or alteration of the Property, and caused by or resulting from the non‐concurrent negligence of the City or the City’s agents or employees, and: (a) Property Owner or Property Owner’s agents or employees; (b) Property Owner’s heirs, successors or assigns; (c) the agents or employees of Property Owner’s heirs, successors or assigns; or (d) any combination thereof. Property Owner, on behalf of Property Owner and Property Owner’s heirs, successors and assigns, agrees to indemnify, hold harmless and defend the City and its officers, agents and employees from and against any and all claims, losses, costs and damages, including without limitation personal injury, death, property damage, loss of use, and attorneys’ fees, and caused by or resulting from the negligence of any and all persons and entities involved in the design, construction, or maintenance Moses Lake Council Packet 4-13-21, Page 220 of improvements to the Property, other than: (a) Property Owner and Property Owner’s agents and employees; (b) Property Owner’s heirs, successors and assigns; and (c) the agents or employees of Property Owner’s heirs, successors or assigns. Nothing in this Section is intended to require indemnification of the City for damages or other losses caused by or resulting from the sole negligence of the City, its agents or employees. Property Owner, on behalf of Property Owner and Property Owner’s heirs, successors and assigns, specifically and expressly agrees to waive Property Owner’s and Property Owner’s heirs’, successors’ and assigns’ immunity under industrial insurance, Title 51 of the Revised Code of Washington, to the extent necessary to provide the City with a full and complete indemnity from claims made by employees of Property Owner or Property Owner’s heirs, successors and assigns. Property Owner, on behalf of Property Owner and Property Owner’s heirs, successors and assigns, specifically and expressly agrees that such waiver of immunity was mutually negotiated by the parties. 9. ENTIRE AGREEMENT This agreement contains the entire understanding of the parties with respect to the matters set forth herein and any prior or contemporaneous understandings are merged herein. This contract shall not be modified except by written instrument executed by the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the date and year first above set forth. CITY OF MOSES LAKE PROPERTY OWNER(S): _______________________________ _______________________________ Title: City Manager Title: Fedoro Svyatoslav, dba Sunshine Estate Developer, LLC STATE OF WASHINGTON) ) ss. COUNTY OF __________) ON THIS _____ day of ___________________, 20____, before me, personally appeared Fedoro Svyatoslav, dba Sunshine Estate Developer, LLC, to me known to be the Property Owner(s), the party(ies) who executed within and foregoing instrument, and acknowledged said instrument to be his/her/their free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal this ____day of ___________________, 20_____. NAME _______________________________________ NOTARY PUBLIC in and for the State of Washington, residing at ___________________ My Commission Expires: __________________ Moses Lake Council Packet 4-13-21, Page 221 EXHIBIT A Lot 1 ASPI Industrial Park SP 10‐22; located at 7897 NE Randolph Road, Moses Lake, Grant County, Washington, per plat thereof filed with the Grant County Auditor. Parcel No. 312079000 Moses Lake Council Packet 4-13-21, Page 222