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2020 0811 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 Moses Lake Civic Center – 401 S. Balsam Tuesday, August 11, 2020, 7 PM REMOTE ACCESS ONLY Citizens can join this meeting via phone by calling (Toll Free) 877 853 5257 or 888 475 4499 and entering the webinar id: 924 4476 1950#, or online https://zoom.us/j/92444761950 Regular Meeting Agenda Call to Order – 7 p.m. Roll Call Pledge of Allegiance Approval of the Agenda Summary Reports: Mayor’s Report -Childhood Cancer Proclamation pg 4 Additional Business City Manager’s Report -New Employees: Leigh Ramsey (Utilities), and Caleb Martin (Police) -Employee Promotion: Jovita Cantu (Permits) -Bond Financing Report -Consideration of Downtown Street Closure for COVID Citizen’s Communications - Citizens who would like to address the Council must 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, the public will not have access to speak at the meeting. Moses Lake Council Packet 8-11-20, Page 1 of 135 August 11, 2020, 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 pg 5 a.City Council Meeting Minutes dated July 28, 2020 b.Claims and Payroll c.Emergency Declaration Extension Resolution 3813 d.Ratify Easements 2010-2019 Resolution 3816 e.Award Radio Antenna Install on Reservoirs 2, 4, 6, and 7 f.Accept HCI Industrial – Reservoir 8 Painting Project Public Hearings - Citizens who would like to speak on this matter during the meeting will need to contact the City Clerk no later than 3 p.m. on the day of the meeting and provide the name or number you will use to access the virtual meeting. #2 pg 80 Interim Controls Ordinance 2953 Motion #3 Presented by Allison Williams, City Manager Summary: Hear from public and consider adoption pg 101 Fat Beam, LLC, Franchise Ordinance 2954 – First Presentation Presented by Fred Snoderly, Municipal Services Director Summary: Hear from public Old Business – none scheduled New Business #4 Motion #5 Motion pg 117 2715 Westshore Dr NE Request to Connect to Water and Sewer Presented by Fred Snoderly, Municipal Services Director Summary: Council to consider approval pg 121 2597 Westshore Dr NE Request to Connect to Water and Sewer Presented by Fred Snoderly, Municipal Services Director Summary: Council to consider approval Moses Lake Council Packet 8-11-20, Page 2 of 135 August 11, 2020, City Council Meeting Page 3 Administrative Reports -2nd Quarter Financial Report Council Communications and Reports Executive Session -Performance of a Public Employee 42.30.110(1) subsection (g) Adjournment Moses Lake Council Packet 8-11-20, Page 3 of 135 Office of the Mayor City of Moses Lake, WA Proclamation Childhood Cancer Awareness Month Whereas, pediatric cancer is the leading cause of death by disease in children; and Whereas, 1-in-285 children in the United States will be diagnosed by their 20th birthday; and Whereas, 80 percent of childhood cancer cases are diagnosed only after the disease has metastasized and spread to other parts of the body; and Whereas, two-thirds of childhood cancer patients will have long-lasting chronic conditions as a result of the treatment they go through; and Whereas, there has been a twenty-four percent increase in pediatric cancer cases over the last forty years, equal to forty-three children per day or 15,780 children a year diagnosed with cancer in the United States; and Whereas, the National Cancer Institute recognized the unique research needs of childhood cancer and increased funding to conduct this research; and Whereas, researchers and healthcare professionals work diligently to dedicate their expertise to treat and cure children with cancer; and Whereas, too many children are affected by this deadly disease and more must be done to raise awareness and find a cure for all childhood cancers. NOW, THEREFORE, we the Mayor and City Council Members of Moses Lake, do hereby proclaim September 2020 as “Childhood Cancer Awareness Month” in the City of Moses Lake. I encourage all people in our City to join me in this special observance. Presented by _____________________________________ David Curnel, Mayor SIGNED AND SEALED on this 11 th of August, 2020 <city seal> Moses Lake Council Packet 8-11-20, Page 4 of 135 MOSES LAKE CITY COUNCIL July 28, 2020 STUDY SESSION FCS Group Principal Angie Sanchez and Project Consultant Melanie Hobart provided a PowerPoint presentation via Zoom regarding the fundamentals of setting water and sewer rates. They illustrated a snapshot of the existing water and sewer infrastructure, percentage of water usage by residential, commercial, and multifamily, then outlined the cost recovery for the operating and capital expenditures. The Consultants will plan to bring back preliminary findings to a Council subcommittee before final presentation to the full Council. Council concurred to have an annual review of the rates. CALL TO ORDER The regular meeting of the Moses Lake City Council was called to order at 7:00 p.m. by Mayor Curnel via audio only online or telephone meeting access. Special notices for attendance and citizen comment were posted on the meeting agenda as well as online under the COVID-19 alert. ROLL CALL Present: Mayor Curnel, Deputy Mayor Jackson; Council Members Eck, Riggs, Liebrecht, Myers, and Hankins. PLEDGE OF ALLEGIANCE Mayor Curnel led the Flag Salute. AGENDA APPROVAL Action taken: Council Member Eck moved to approve the Agenda as is, second by Council Member Riggs. The motion carried 7 – 0. SUMMARY REPORTS MAYOR’S REPORT Former Mayor Lee Blackwell A moment of silence was called in the memory of former Mayor Lee Blackwell May 2000-2002 who recently passed. Grand Columbia Boy Scouts of America Proclamation Mayor Curnel designated July 29, 2020, as “Scout Me in Day” to commemorate the 1,000 boys and girls participating in programs from Prosser to the Canadian border and from Cle Elum to Ritzville. The public is invited to participate in the River Run Regatta of activities both live and livestream. CITY MANAGER’S REPORT Water and Sewer Rates Study Session City Manager Allison Williams provided accolades to the staff and consultants for their excellent work done on the presentation of the Water/Sewer Rate Study Session. Moses Lake Council Packet 8-11-20, Page 5 of 135 CITY COUNCIL MINUTES – July 28, 2020 pg. 2 New Police Officer Police Chief Kevin Fuhr provided a brief biography and photo for Council of his newest hire of Police Officer and Former Reserve Officer Roland Alejo. His entire academy class voted him the most wanted person to be a partner with. Fee Schedule Analysis Update The previous discussion and analysis have been postponed until next year when the process can be facilitated by the new Community Development Director. The results of fees collected this year are very strong due to the number of large projects being expected. Homeless Program Update Communications continue with Grant County to get funding allocations in place as well as the designed locations for the emergency shelter. Council Members Liebrecht, Eck, and Hankins offered to participate in discussion on this topic outside of Regular Meetings. CONSENT AGENDA #1 a. City Council meeting minutes dated July 14, 2020 b. Claim Checks 148598 through 148792 in the amount of $1,106,249.18; Payroll Checks 63445 through 63458 in the amount of $11,901.35; and Electronic Payments dated July 10, 2020, in the amount of $443,123.73 c. DCMAC and Talenfeld Properties Covenants and Easement Resolution 3812 d. Accept Knolls Vista-Wheeler Road Sewer Improvements Project e. Award 2020 Manhole Lining Project Action taken: Council Member Hankins moved to approve the Consent Agenda as is, second by Council Member Eck. The motion carried 7 – 0. NEW BUSINESS #2 Plat Extension MLMC Title 17 Amendment – First Presentation Staff drafted changes at the Council’s request to allow for additional extension in Expirations of Preliminary Major Subdivision Approvals MLMC 17.12.100. The Planning Commission held a Public Hearing to consider the changes and unanimously voted for no change in the Code. Council and staff discussed change in conditions that may need to be addressed. Sun Terrace is at the end of the maximum eight-year period to develop. Houston Aho, Developer of Sun Terrace, shared that the cost to Bond would be around $135k for one year. Staff advised there would be a 30-day period to draft a Development Agreement. Action taken: Council Member Eck made a motion to authorize staff to move forward in drafting a Development Agreement and advertising for a Public Hearing to get back to the Council for approval, second by Council Member Hankins. The motion carried 7 – 0. (note: staff determined after the meeting that this is not a viable option for this situation) #3 Community Services of Moses Lake Deferral Request Construction of a new food bank is proposed to be located at Grape Dr and Highway 17. Moses Lake Council Packet 8-11-20, Page 6 of 135 CITY COUNCIL MINUTES – July 28, 2020 pg. 3 The contractor has submitted a request for deferral of construction requirements on streets, sewer, and streetlights. Staff recommends Council approve the deferral and authorize a covenant on improvements to be recorded for Moses Lake Community Services new construction since the area is not currently improved to City standards and there are no plans for extending City sewer or storm at this time. Action taken: Council Member Eck moved to approve the deferral request, second by Council Member Myers. The motion carried 7 – 0. ADMINISTRATIVE REPORTS City Manager Allison Williams announced the virtual Open House for the Love’s Travel Stop project will be on Thursday, August 13 from 6 – 7 p.m. The focus will be on the proposed transportation improvements associated with a future Love’s Travel Stop located along eastbound Interstate 90 (Exit 174) between Pritchard Road and Sage Road. Registration to attend is required and comments can be submitted in advance to SCJ Alliance via email. Council and staff discussed the ownership and maintenance of roads in the area and plans to better define the division of duties in this process as well as safety concern for the on and off ramp flow. COUNCIL COMMUNICATIONS AND REPORTS Council Member Hankins inquired about any inclination for future in person meetings. City Manger Allison Williams advised that the Phase 3 meetings requirements have recently been ratcheted down and the Governor has frozen all Counties to their current Phase. Council Member Riggs provided an update on the Watershed Council relative to blue green algae testing of the lake and photos posted online. Warning signs have been posted at City parks by the Department of Health regarding algae contact. The Conservation District has requested comments on impacts from citizens. Council Member Liebrecht expressed appreciation to the Municipal Services Street Division for the bright yellow painting of curbs. Deputy Mayor Jackson echoed Council Member Liebrecht’s appreciation and inquired about the time taken for the Stratford Rd project. Municipal Services Director Fred Snoderly advised that the completion period is 100 days, that he has contacted the Contractor, and he will email Council the result of their discussion via email. Mayor Curnel asked Municipal Services Director Fred Snoderly to check in with the School District for water conservation compliance. He mentioned one school he observed being watered daily. EXECUTIVE SESSION Mayor Curnel called an Executive Session at 7:58 p.m. to be held for 30 minutes pursuant to RCW 42.30.110(1) subsection (g) to discuss performance of a public employee; and there will be no action to follow. The Mayor extended the Executive Session for 15 minutes. Moses Lake Council Packet 8-11-20, Page 7 of 135 CITY COUNCIL MINUTES – July 28, 2020 pg. 4 ADJOURNMENT The regular meeting was adjourned at 8:43 p.m. ______________________________________ David Curnel, Mayor ATTEST____________________________________ Debbie Burke, City Clerk Moses Lake Council Packet 8-11-20, Page 8 of 135 To: Allison Williams, City Manager From: Cindy Jensen, Finance Director Council Meeting Date: August 11, 2020 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 148794 - 149029 $1,386,833.22 Payroll Checks 0063459 - 0063475 $16,834.54 Electronic Payments Payroll ACH –07/24/2020 $445,877.11 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 8-11-20, Page 9 of 135 Moses Lake Council Packet 8-11-20, Page 10 of 135 Moses Lake Council Packet 8-11-20, Page 11 of 135 Moses Lake Council Packet 8-11-20, Page 12 of 135 Moses Lake Council Packet 8-11-20, Page 13 of 135 Moses Lake Council Packet 8-11-20, Page 14 of 135 Moses Lake Council Packet 8-11-20, Page 15 of 135 Moses Lake Council Packet 8-11-20, Page 16 of 135 Moses Lake Council Packet 8-11-20, Page 17 of 135 Moses Lake Council Packet 8-11-20, Page 18 of 135 Moses Lake Council Packet 8-11-20, Page 19 of 135 Moses Lake Council Packet 8-11-20, Page 20 of 135 Moses Lake Council Packet 8-11-20, Page 21 of 135 Moses Lake Council Packet 8-11-20, Page 22 of 135 Moses Lake Council Packet 8-11-20, Page 23 of 135 Moses Lake Council Packet 8-11-20, Page 24 of 135 Moses Lake Council Packet 8-11-20, Page 25 of 135 Moses Lake Council Packet 8-11-20, Page 26 of 135 Moses Lake Council Packet 8-11-20, Page 27 of 135 Moses Lake Council Packet 8-11-20, Page 28 of 135 Moses Lake Council Packet 8-11-20, Page 29 of 135 Moses Lake Council Packet 8-11-20, Page 30 of 135 Moses Lake Council Packet 8-11-20, Page 31 of 135 Moses Lake Council Packet 8-11-20, Page 32 of 135 Moses Lake Council Packet 8-11-20, Page 33 of 135 Moses Lake Council Packet 8-11-20, Page 34 of 135 Moses Lake Council Packet 8-11-20, Page 35 of 135 Moses Lake Council Packet 8-11-20, Page 36 of 135 Page 1 of 2 STAFF REPORT To: City Council From: Allison Williams, City Manager Date: August 5, 2020 Proceeding Type: Consent Agenda Subject: COVID-19 Emergency Procedures Extension Legislative History: • First Presentation: March 24, 2020 • Second Presentation: • Third Presentation: • Current Presentation: April 28, 2020 May 12, 2020 August 11, 2020 • Action: Motion Staff Report Summary The COVID-19 emergency procedures need to remain in effect in response to the COVID-19 Pandemic under direction from the Governor in order to slow the spread of this disease. Background The draft resolution extends the effective date of original provisions adopted by Resolution 3798 on March 24, 2020, then extended by Resolution 3802 on April 28, and Resolution 3805 on May 12. Fiscal and Policy Implications Due to ongoing threat of the COVID-19 pandemic, this Resolution provides City management with the flexibility to operate and provide the essential staffing and services our residents depend on. This Resolution also provides additional measures to support small business and residents by the temporary lifting of codes to allow for alternative methods of business operation and extension of utility payment arrangements. Moses Lake Council Packet 8-11-20, Page 37 of 135 Page 2 of 2 Options Option Results • Adopt the Resolution Staff will continue best practices and measures to minimize or avoid personal contact • Take no action. Provide staff with alternative direction Staff Recommendation Staff recommends the City Council consider adoption of the Resolution as presented. Attachments A. Draft Resolution Legal Review The following documents are attached and subject to legal review: Type of Document Title of Document Date Reviewed by Legal Counsel • Resolution COVID-19 Response August 10, 2020 Moses Lake Council Packet 8-11-20, Page 38 of 135 RESOLUTION NO. 3813 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOSES LAKE EXTENDING THE EFFECTIVE DATE AND TEMPORARY PROCEDURES TO RESPOND TO THE COVID-19 PANDEMIC Recitals: 1.City Manager Williams and Mayor Curnel issued a Proclamation of Emergency, declaring COVID-19 pandemic to be an emergency in the City of Moses Lake pursuant to Section 38.52 RCW and other relevant provisions of state, local, and federal law; and 2.Council adopted Resolution 3798 on March 24, 2020, to ratify the emergency proclamation with an expiration date of April 28, 2020; and 3.Council adopted Resolution 3802 on April 28, 2020, for the first extension having a new expiration date of May 12, 2020; and 4.Council adopted Resolution 3805 on May 12, 2020, for the second extension having a new expiration date of June 9, 2020; and 5.The City remains committed to protecting the public and staff by minimizing the spread of COVID-19. NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Moses Lake, Washington, that: Section 1. Effectiveness Extension. The provisions of Resolution 3798 shall remain effective upon adoption of this resolution and will continue without expiration until the Governor allows movement forward in phases under the “Safe Start Plan” which will allow the resumption of normal operations. released under direction of the Grant County Health District or further extended by formal action of Council. Section 2. CARES Act Funding Flexibility. Due to the extended impact of the COVID-19 pandemic on the residents and businesses of the City of Moses Lake, this Resolution hereby provides for the temporary lifting of certain codes or requirements that will allow for the flexibility in business operations or residential/business utility payment requirements as anticipated for reimbursement by the CARES Act funding received by the City. INTRODUCED, PASSED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MOSES LAKE on this 11th day of August, 2020. Moses Lake Council Packet 8-11-20, Page 39 of 135 ________________________________________ David Curnel, Mayor ATTEST: __________________________________ Debbie Burke, City Clerk Moses Lake Council Packet 8-11-20, Page 40 of 135 Page 1 of 2 STAFF REPORT To: From: Date: Proceeding Type: Subject: Allison Williams, City Manager Fred Snoderly, Municipal Services Director August 5, 2020 New Business Request to Accept Easements Legislative History: •First Presentation: •Second Presentation: •Requested Action: August 11, 2020 Motion Staff Report Summary Staff is presenting several easements to Council for acceptance pursuant to Resolution 238. Background Staff reviewed past records and have discovered easements that have been recorded in the City’s favor over the last 10 years. Staff is presenting these easements before Council to ratify acceptance as follows: 1.The following easements requested to be accepted by the City of Moses Lake: a.Bargals, LLC AFN #1274155 on July 28, 2010 b.Wenatchee Valley Medical – Ball Edition AFN #1398104 on August 24, 2018 c.Wenatchee Valley Medical – Ball Edition AFN #1398103 on August 24, 2018 d.Mercy Properties - AFN #1398102 on August 24, 2018 e.Mercy Properties - AFN #1398101 on August 24, 2018 f.PUD #2 Tract 07 Lot 1 abandonment, Grant County Parcel No. 11-084-001 – AFN 1405024 on February 1, 2019 2.The following easements were previously approved by Council, but not by Resolution: a.Maiers Development December 19, 2013 AFN# 1330563 b.Cascade Natural Gas – March 12, 2019 c.CBRR Pipeline License Agreements 18-3302 and 18-3303 – July 9, 2019 d.Wetland Bank Conservation Easement Amendment – May 8, 2019 AFN#1421839 Moses Lake Council Packet 8-11-20, Page 41 of 135 Page 2 of 2 Fiscal and Policy Implications Municipal code directs Council to accept easements that are conveyed to the City. Options Option Results • Move to adopt resolution The City will ratify acceptance of presented easements by Resolution • Refer back to staff Provide direction to staff Staff Recommendation Staff recommends City Council accept the easements as presented. Attachment A. Resolution and Attachments Legal Review The City Attorney assisted in preparation of the resolution. Moses Lake Council Packet 8-11-20, Page 42 of 135 RESOLUTION NO. 3816 A RESOLUTION ACCEPTING VARIOUS EASEMENTS RECITALS: 1. Resolution #238 provides that all grants of real estate, or any interest therein, to the City of Moses Lake, shall not be accepted until a resolution has been duly passed by the City Council. 2. Several easements over the last ten years have no record of City Council’s acceptance and this resolution provides formal approval and acceptance by the City Council for those easements identified below. RESOLVED: 1. The following easements are hereby accepted by the City of Moses Lake: a. Bargals, LLC AFN #1274155 on July 28, 2010 b. Wenatchee Valley Medical – Ball Edition AFN #1398104 on August 24, 2018 c. Wenatchee Valley Medical – Ball Edition AFN #1398103 on August 24, 2018 d. Mercy Properties - AFN #1398102 on August 24, 2018 e. Mercy Properties - AFN #1398101 on August 24, 2018 f. PUD #2 Tract 07 Lot 1 abandonment, Grant County Parcel No. 11-084-001 – AFN 1405024 on February 1, 2019 2. The following easements were previously approved by Council, but not by Resolution: a. Maiers Development December 19, 2013 AFN# 1330563 b. Cascade Natural Gas – March 12, 2019 (Attachment A) c. CBRR 2006 Pipeline License Agreement – July 9, 2019 (Attachment B) d. Wetland Bank Conservation Easement Amendment – May 8, 2019 AFN#1421839 Adopted by the City Council on August 11, 2020. ___________________________________ David Curnel, Mayor ATTEST: ___________________________________ Debbie Burke, City Clerk Moses Lake Council Packet 8-11-20, Page 43 of 135 WHEN RECORDED RETURN TO: CASCADE NATURAL GAS CORPORATION 8113 W. GRANDRIDGE BLVD. KENNEWICK, WA 99336 ATTENTION: Engineering / Right of Way RIGHT OF WAY EASEMENT GRANT CNG317 City: Moses Lake County: Grant County Project #: 248251 The undersigned ________City of Moses Lake, WA, a Political Subdivision of the State of Washington_______; located at 401 S. Balsam, Moses Lake, WA 98837 (hereinafter referred to as the "Grantor"), for and in consideration of mutual benefit of the parties and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, convey, and warrant to CASCADE NATURAL GAS CORPORATION, 8113 W Grandridge Blvd,. Kennewick, Washington, a Washington corporation (hereinafter referred to as the "Grantee"), an easement over the following described land (hereinafter referred to as Property) of the Grantor: PROPERTY DESCRIPTION: TAX PARCEL NUMBER: 312-558-000 Portion of the Northeast ¼ of the Northeast ¼, Section 19 and a portion of the Northwest ¼ of the Northwest ¼ Section 20, T-19-N, R-29-E, W.M. in Grant County, WA. DESCRIPTION OF THE EASEMENT AREA: See Exhibit A, attached hereto and incorporated by reference. The Grantee is granted the right to construct, install, operate, maintain, protect, improve, repair, replace, change the size of a natural gas pipeline or pipelines, regulation devices, metering equipment and pipeline appurtenances under, over, through, and across the above-described easement area. The Grantee is further granted an easement for the nonexclusive right of temporary construction workspace and ingress and egress on, across, over and through said Property for the purpose of utilizing the rights herein granted. The term "pipeline" includes gas lines, services, machinery, equipment, facilities, identifying signage and appurtenances related to the operation or maintenance of said gas lines. The Grantor, on behalf of itself and its agents, invitees and licensees, agrees not to impair or interfere with the full use and enjoyment by the Grantee of the rights herein granted. Without limiting the generality of the foregoing, the Grantor shall not without the express written permission of the Grantee, erect any structure or improvement or change the grade or elevation of the land within the easement area, or conduct or permit any activities that may impair or interfere with the rights herein granted. Grantor agrees to cooperate with Grantee to obtain all necessary permits, licenses and governmental action so that Grantee may enjoy the full use and benefit of this right-of-way easement. Moses Lake Council Packet 8-11-20, Page 44 of 135 Cascade Natural Gas Corporation Right of Way Easement Page 2 Grantee hereby agrees to pay any damages which may arise to any of Grantor’s fences, buildings, landscaping, drainage systems, crop damage, and other improvements disturbed or cut in the construction, maintenance, or operation of pipeline or pipelines hereunder. The Grantee agrees to hold the Grantor harmless from any loss, cost, or damage resulting from the Grantee's negligence in connection with the operation or maintenance of any pipelines installed under or over the easement premises and the Grantor agrees to hold the Grantee harmless from any loss, cost, or damage caused by the Grantor, its agents, invitees, or licensees or from any breach of this easement. This easement shall be binding upon the heirs, executors, administrators, personal representatives, successors, and assigns of the parties hereto. In witness whereof, the undersigned have executed this easement this _____ day of _______________ 2019. _______________________________ Printed Name:___________________________ State of Washington ) ) ss. County of GRANT ) I certify that I know or have satisfactory evidence that _______________________ known to me to be the _____________________________of City of Moses Lake that executed this instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. Dated: ____________________________________ ____________________________________ Notary Public Print Name __________________________ My commission expires________________ Moses Lake Council Packet 8-11-20, Page 45 of 135 Cascade Natural Gas Corporation Right of Way Easement Page 3 EXHIBIT A That portion of the below described Property, to wit: CITY OF MOSES LAKE, TAX PARCEL 312-558-000 10-FOOT WIDE CASCADE NATURAL GAS PIPELINE EASEMENT DESCRIPTION A gas pipeline easement located in a portion of Farm unit 87, Irrigation Block 41, Columbia Basin Project, Tenth Revision, lying in the North-half of the Northeast quarter of Section 19 and the North-half of the Northwest quarter of Section 20, Township 19 North, Range 28 East, Willamette Meridian, City of Moses Lake, Grant County, Washington described as follows: A 10-foot wide gas pipeline easement for the installation, operation, maintenance, renewal and replacement of gas lines and structures over, under and across the following described parcel of land; The South 10.00 feet of the North 20.00 feet of the East 143.00 feet of Lot 1, Well #18 Short Plat, according to the Plat thereof, recorded in Volume 15 of Short Plats, Page 54 and recorded under Auditor’s File No. 1143874, Records of Grant County, Washington, said easement also lying immediately South of and parallel to an existing 10.00-foot Public Utility easement as shown on said Well #18 Short Plat. Containing; 1429.79 square feet (0.03 acres), more or less. ALSO TOGETHER WITH AND SUBJECT TO easements, reservations, covenants and restrictions apparent or of record. Moses Lake Council Packet 8-11-20, Page 46 of 135 Cascade Natural Gas Corporation Right of Way Easement Page 4 EXHIBIT A-1 Moses Lake Council Packet 8-11-20, Page 47 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 1 - PIPELINE LICENSE THIS LICENSE (“License”), made as of the 1st day of April, 2018 ("Effective Date") by and between COLUMBIA BASIN RAILROAD, a Washington corporation ("Licensor") and CITY OF MOSES LAKE, a Washington municipal corporation ("Licensee"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), one (1) Pipeline, 8 inches in diameter inside a 18 inch steel casing (“PIPELINE”), across or along the rail corridor of Licensor at or near the station of Moses Lake, County of Grant, State of Washington, Line Segment 0379, Mile Post 12.87 as shown redlined on the attached Drawing, dated 4/10/2018, attached hereto as Exhibit “A” and made a part hereof (“Premises”). 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying potable water. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor’s property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro- rata part of any recurring charge paid in advance, or for any damage Licensee sustains in Moses Lake Council Packet 8-11-20, Page 48 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 2 - connection therewith. 5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Six Hundred Dollars ($3,600.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $800.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, Moses Lake Council Packet 8-11-20, Page 49 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 3 - ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction (“Legal Requirements”) relating to the construction, maintenance, and use of the PIPELINE and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor’s applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the following Internet Website “http://contractororientation.com”. This training must be completed no more than one year in advance of Licensee’s entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, “cost’ or “costs” “expense” or “expenses” includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE’S OPERATIONS 11. (a) Licensee shall notify Licensor's Dispatcher, telephone 509-453-9166 ext 105, at least five (5) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee has Moses Lake Council Packet 8-11-20, Page 50 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 4 - obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee’s sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's Premises to their former state as of the Effective Date of this License. 14. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the PIPELINE, Licensee shall, at its sole expense, within ninety (90) days after receiving Moses Lake Council Packet 8-11-20, Page 51 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 5 - written notice from Licensor to such effect, make such changes in the PIPELINE as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor’s rail corridor, including, without limitation, the relocation of the existing or the construction of new a PIPELINE(s). 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee’s written request, which shall be made thirty (30) business days in advance of Licensee’s requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor’s underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor’s property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. Moses Lake Council Packet 8-11-20, Page 52 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 6 - 17. Upon termination of this License, Licensee shall, at its sole cost and expense: (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee’s use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee’s on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, Moses Lake Council Packet 8-11-20, Page 53 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 7 - (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE SOLE NEGLIGENCE OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN “OWNER”, “OPERATOR”, “ARRANGER”, OR “TRANSPORTER” WITH RESPECT TO THE PIPELINE FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES Moses Lake Council Packet 8-11-20, Page 54 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 8 - OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. Moses Lake Council Packet 8-11-20, Page 55 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 9 - ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee’s statutory liability under the worker’s compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. Other Requirements: Licensee agrees to waive, through policy endorsement, their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee’s insurance policies through policy endorsement must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee’s insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the Moses Lake Council Packet 8-11-20, Page 56 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 10 - certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee’s obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the “Environmental Laws”). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor’s Dispatcher at (509) 453-9166 x 105 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental Moses Lake Council Packet 8-11-20, Page 57 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 11 - authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the PIPELINE which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises related to Licensee’s activities or PIPELINE, known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor’s request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor’s prior written consent. NO WARRANTIES 24. LICENSOR’S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. Moses Lake Council Packet 8-11-20, Page 58 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 12 - DEFAULT 26. If material default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS AND CHARGES 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. Licensee shall pay when due any taxes, assessments or other charges (collectively, “Taxes”) levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving ninety (90) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor’s sole discretion. Moses Lake Council Packet 8-11-20, Page 59 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 13 - NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: Iron Horse Development, LLC Railroad Property Management 111 University Parkway, Suite 200 Yakima, WA 98901 With a copy to: Columbia Basin Railroad Company P.O. Box 159 Warden, WA 98857 Attn: General Manager If to Licensee: City of Moses Lake P.O. Box 1579 Moses Lake, WA 98837 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the PIPELINE and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Washington without regard to conflicts of law provisions. SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be Moses Lake Council Packet 8-11-20, Page 60 of 135 Contract No. 18-3302 Form 424; Rev. 04/26/05 - 14 - ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee’s use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee’s use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee’s obligation to defend and hold Licensor harmless in any prior written agreement between the parties. MISCELLANEOUS 37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Iron Horse Development, LLC is acting as representative for Columbia Basin Railroad Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. COLUMBIA BASIN RAILROAD COMPANY By: _____________________________________________ Name: Nicholas B. Temple, Jr. Title: President CITY OF MOSES LAKE By: Name: Title: Moses Lake Council Packet 8-11-20, Page 61 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 1 - PIPELINE LICENSE THIS LICENSE (“License”), made as of the 1st day of April, 2018 ("Effective Date") by and between COLUMBIA BASIN RAILROAD, a Washington corporation ("Licensor") and CITY OF MOSES LAKE, a Washington municipal corporation ("Licensee"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), one (1) Pipeline, 2 inches in diameter inside a 6 inch steel casing (“PIPELINE”), across or along the rail corridor of Licensor at or near the station of Moses Lake, County of Grant, State of Washington, Line Segment 0379, Mile Post 12.88 as shown redlined on the attached Drawing, dated 4/10/2018, attached hereto as Exhibit “A” and made a part hereof (“Premises”). 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying sewage. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor’s property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paid in advance, or for any damage Licensee sustains in connection therewith. Moses Lake Council Packet 8-11-20, Page 62 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 2 - 5. Any contractors or subcontractors performing work on the PIPELINE or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Three Hundred Dollars ($3,600.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $800.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent Moses Lake Council Packet 8-11-20, Page 63 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 3 - jurisdiction (“Legal Requirements”) relating to the construction, maintenance, and use of the PIPELINE and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor’s applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the following Internet Website “http://contractororientation.com”. This training must be completed no more than one year in advance of Licensee’s entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, “cost’ or “costs” “expense” or “expenses” includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE’S OPERATIONS 11. (a) Licensee shall notify Licensor's Dispatcher, telephone 509-453-9166 ext 105, at least five (5) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and Moses Lake Council Packet 8-11-20, Page 64 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 4 - expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE in such a manner and of such material that it will not at any time be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee’s sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's Premises to their former state as of the Effective Date of this License. 14. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the PIPELINE, Licensee shall, at its sole expense, within ninety (90) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE as in the Moses Lake Council Packet 8-11-20, Page 65 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 5 - sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor’s rail corridor, including, without limitation, the relocation of the existing or the construction of new a PIPELINE(s). 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee’s written request, which shall be made thirty (30) business days in advance of Licensee’s requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor’s underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor’s property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole cost and expense: Moses Lake Council Packet 8-11-20, Page 66 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 6 - (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee’s use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee’s on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR Moses Lake Council Packet 8-11-20, Page 67 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 7 - (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE SOLE NEGLIGENCE OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN “OWNER”, “OPERATOR”, “ARRANGER”, OR “TRANSPORTER” WITH RESPECT TO THE PIPELINE FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR Moses Lake Council Packet 8-11-20, Page 68 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 8 - LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. Moses Lake Council Packet 8-11-20, Page 69 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 9 - No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee’s statutory liability under the worker’s compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. Other Requirements: Licensee agrees to waive, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee’s insurance policies through policy endorsement must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee’s insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Moses Lake Council Packet 8-11-20, Page 70 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 10 - Any insurance policy shall be written by a reputable insurance company acceptable to Licensor and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee’s obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the “Environmental Laws”). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor’s Dispatcher at (509) 453-9166 x 105 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice Moses Lake Council Packet 8-11-20, Page 71 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 11 - of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the PIPELINE which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises related to Licensee’s activities or PIPELINE, known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor’s request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations to the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor’s prior written consent. NO WARRANTIES 24. LICENSOR’S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 26. If material default shall be made in any of the covenants or agreements of Licensee Moses Lake Council Packet 8-11-20, Page 72 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 12 - contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS AND CHARGES 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. Licensee shall pay when due any taxes, assessments or other charges (collectively, “Taxes”) levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving ninety (90) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor’s sole discretion. NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited Moses Lake Council Packet 8-11-20, Page 73 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 13 - into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: Iron Horse Development, LLC Railroad Property Management 111 University Parkway, Suite 200 Yakima, WA 98901 With a copy to: Columbia Basin Railroad Company P.O. Box 159 Warden, WA 98857 Attn: General Manager If to Licensee: City of Moses Lake P.O. Box 1579 Moses Lake, WA 98837 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the PIPELINE and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Washington without regard to conflicts of law provisions. SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. Moses Lake Council Packet 8-11-20, Page 74 of 135 Contract No. 18-3303 Form 424; Rev. 04/26/05 - 14 - INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee’s use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee’s use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee’s obligation to defend and hold Licensor harmless in any prior written agreement between the parties. MISCELLANEOUS 37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Iron Horse Development, LLC is acting as representative for Columbia Basin Railroad Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. COLUMBIA BASIN RAILROAD COMPANY By: _____________________________________________ Name: Nicholas B. Temple, Jr. Title: President CITY OF MOSES LAKE By: Name: Title: Moses Lake Council Packet 8-11-20, Page 75 of 135 Page 1 of 2 STAFF REPORT To: Allison Williams, City Manager From: Fred Snoderly, Municipal Services Director Date: August 5, 2020 Proceeding Type: Consent Agenda Subject: Award Reservoirs 2, 4, 6, 7 Radio Installation Project 2020 Legislative History: • First Presentation: • Second Presentation: • Requested Action: August 11, 2020 Motion Staff Report Summary Staff opened bids for the Reservoirs 2, 4, 6, 7 Radio Installation Project 2020 on July 23. The City received five (5) bids for the work. The low bid was $186,448 and the Engineer’s Estimate was $151,760.00. Background The 2020 budget includes funds for completing these improvements. The project consists of installing new communications radios on four water towers to communicate the water well and reservoir production and levels, and the sewer lift station performance data throughout town to the water and sewer headquarters. The low bidder, Northeast Electric of Woodland, WA completed the ballfield lighting project for the City of Moses Lake. Fiscal and Policy Implications The project will require budgeted funds to be spent. Description Amount 2020 Budgeted funds for Water SCADA improvements $1,000,000.00 Award amount for Reservoirs 2, 4, 6, 7 Radio Installation Project 2020 186,448.00 Remaining Budget $ 813,552.00 Moses Lake Council Packet 8-11-20, Page 76 of 135 Page 2 of 2 Options Option Results • Award Reservoirs 2, 4, 6, 7 Radio Installation Project 2020 to the lowest bidder Staff will move forward with executing a contract with the low bidder to complete the work. • Take no action Staff will stop working on this project and wait for further direction from City Council. Staff Recommendation Staff recommends accepting the bid for the Reservoirs 2, 4, 6, 7 Radio Installation Project 2020 from Northeast Electric in the amount of $186.448.00. Attachments A. Bid Summary Legal Review N-A Moses Lake Council Packet 8-11-20, Page 77 of 135 Moses Lake Council Packet 8-11-20, Page 78 of 135 Page 1 of 1 STAFF REPORT To: Allison Williams, City Manager From: Fred Snoderly, Municipal Services Director Date: August 5, 2020 Proceeding Type: Consent Agenda Subject: Accept Reservoir 8 Painting Project - 2020 Legislative History: • First Presentation: • Second Presentation: August 11, 2020 • Action Motion Staff Report Summary HCI Industrial & Marine Coatings has completed work for the above project. Background The project consisted of painting the exterior with the new City logo on Reservoir 8 (near the intersection of Highway 17 and I-90). The work completed is in the amount of $126,642.14. The original contract price for the project was $123,032.92. The increased cost was for additional sanding and priming when certain sections of existing paint were dislodged during pressure washing. 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 • Move to accept the project as presented. The 60-day lien period will begin. • Take no action. The project won’t be accepted at this time. Staff Recommendation Staff recommends accepting the Reservoir 8 Painting Project 2020. Moses Lake Council Packet 8-11-20, Page 79 of 135 Page 1 of 3 STAFF REPORT To: Mayor Curnel, City Council From: Allison Williams, City Manager Date: August 3, 2020 Proceeding Type: Old Business/Public Hearing Subject: Interim Controls Ordinance 2953 Legislative History: • First Presentation: June 23, 2020 • Second Presentation: August 11, 2020 • Action: Hold public hearing Staff Report Summary The purpose of this action is to hold a public hearing on the Interim Controls ordinance adopted June 23, 2020. The Ordinance adopted interim regulations regarding small wireless facilities and wireless communication eligible facilities requests in order to comply with federal law and Federal Communication Commission (FCC) declaratory rulings, entered findings in support of adopting interim regulations, established a work program for permanent regulations, and declared an emergency. Background In September 2018, the FCC adopted a declaratory Ruling and Order that substantially preempts the City's authority on the siting of small wireless facilities (also known as "small cell facilities") and set specific rules for small cell permitting. This ruling affects small cell facilities in the public rights- of-way and private properties, and went into effect in 2019. Some impacts of the FCC Order related to small wireless facilities include a shortened period of time in which the City has to process franchise agreements and right-of-way use permits, limits on City permit applications fees, and limits on the City's ability to regulate design requirements. After reviewing the Municipal Code, it is necessary to amend the City's regulations to comply with the FCC Order in these and other areas. Given that 5G deployment is starting to reach Moses Lake, it is necessary to adopt interim regulations so the City can process applications in compliance with federal statutes and the FCC Order. The Interim Ordinance is in effect for one year, pursuant to Moses Lake Council Packet 8-11-20, Page 80 of 135 Page 2 of 3 RCW 36.70A.390. At this hearing, City staff will review the work program anticipated to develop permanent regulations tailored to the City's needs for Council consideration and adoption. This interim ordinance is based on a model set of design standards and permitting procedures being utilized by a number of Washington cities. Fiscal and Policy Implications The established work program will provide an update to the Interim Controls which may have policy impacts in regard to land use and the use of right of way. Staff Recommendation Staff’s work program follows. The intent is for the City Council to hold a hearing and adopt any additional findings justifying the interim development regulations after the close of the public hearing. Action Requested: Hold Public Hearing Adopt any additional findings after the close of the hearing Attachment A. B. Interim Controls Workplan for Wireless Communication Eligible Facilities Ordinance 2953 Legal Review The attached Ordinance was provided by legal. Moses Lake Council Packet 8-11-20, Page 81 of 135 Page 3 of 3 Interim Controls Workplan for Wireless Communication Eligible Facilities: Interim Controls adoption: June 23, 2020 Public Hearing with Work Plan: August 11, 2020 Work Plan: August 2020: Develop Small Wireless and Eligible Facilities Request application form Hold public hearing with City Council Review interim controls with Planning Commission Ensure staff understands routing of complete applications and adherence to the 60 day shot clock September – October 2020: Circulate interim regulations to wireless carriers, existing franchisees, City staff and impacted utilities for review/comment Review applicable standards with Planning Commission Develop updated code provisions October – November 2020: Circulate updated code for comment Conduct SEPA review if required December 2020: Hold Public Hearing with the Planning Commission for adoption of any changes/modifications December 2020: Forward to City Council for adoption Moses Lake Council Packet 8-11-20, Page 82 of 135 Moses Lake Council Packet 8-11-20, Page 83 of 135 Moses Lake Council Packet 8-11-20, Page 84 of 135 Moses Lake Council Packet 8-11-20, Page 85 of 135 Moses Lake Council Packet 8-11-20, Page 86 of 135 Moses Lake Council Packet 8-11-20, Page 87 of 135 Moses Lake Council Packet 8-11-20, Page 88 of 135 Moses Lake Council Packet 8-11-20, Page 89 of 135 Moses Lake Council Packet 8-11-20, Page 90 of 135 Moses Lake Council Packet 8-11-20, Page 91 of 135 Moses Lake Council Packet 8-11-20, Page 92 of 135 Moses Lake Council Packet 8-11-20, Page 93 of 135 Moses Lake Council Packet 8-11-20, Page 94 of 135 Moses Lake Council Packet 8-11-20, Page 95 of 135 Moses Lake Council Packet 8-11-20, Page 96 of 135 Moses Lake Council Packet 8-11-20, Page 97 of 135 Moses Lake Council Packet 8-11-20, Page 98 of 135 Moses Lake Council Packet 8-11-20, Page 99 of 135 Moses Lake Council Packet 8-11-20, Page 100 of 135 Page 1 of 1 STAFF REPORT To: Allison Williams, City Manager From: Fred Snoderly, Municipal Services Director Date: August 5, 2020 Proceeding Type: Public Hearing Subject: Fatbeam, LLC, Franchise Ordinance 2954 Legislative History: • First Presentation: August 11, 2020 • Second Presentation: • Action: Hold public hearing Staff Report Summary The purpose of this action is to hold a public hearing on the Fatbeam, LLC, franchise ordinance. The Ordinance grants Fatbeam, LLC, a non-exclusive franchise for right of entry, as well as use and occupation of certain rights-of-way within the City to operate telecommunication facilities. Background Earlier this year, Fatbeam, LLC, requested the City grant them a franchise to locate telecommunications infrastructure within certain rights-of-way to serve various buildings owned by the Moses Lake School District. Fiscal and Policy Implications None. Staff Recommendation Staff recommends for the City Council conduct the hearing and consider any public input to granting the franchise and consider adoption at the next regular meeting. Attachment – Ordinance 2954 Legal Review - The attached Ordinance was provided by legal. Moses Lake Council Packet 8-11-20, Page 101 of 135 Ordinance 2954 Page 1 of 15 ORDINANCE NO. 2954 – 1st Presentation AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOSES LAKE, WASHINGTON, FATBEAM, LLC, A WASHINGTON LIMITED LIABILITY COMPANY, A FRANCHISE FOR TELECOMMUNICATIONS SERVICES AND RELATED WHEREAS, Fatbeam, LLC, a Washington limited liability company (“Grantee”) has applied to the City of Moses Lake (“City”) for a non-exclusive Franchise for the right of entry, use, and occupation of certain public right(s)-of-way within the City, to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, over, under, along or across those right(s)-of-way; WHEREAS, following proper notice, the City Council held a public hearing on Grantee’s request for a Franchise; and WHEREAS, based on the information presented at the public hearing, and from facts and circumstances developed or discovered through independent study and investigation, the City Council now deems it appropriate and in the best interest of the City and its inhabitants to grant the franchise to Grantee. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOSES LAKE, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Grant of Right to Use; Franchise Area A. Subject to the terms and conditions stated in this Agreement, the City grants to the Grantee general permission to enter, use, and occupy the Franchise Area, located within the incorporated area of the City. Grantee may locate the Grantee’s Facilities within the Franchise Area subject to all applicable laws, regulations, and permit conditions. B. The Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate, upgrade, replace, restore, and repair Grantee’s Facilities to provide Grantee’s Services in the Franchise Area. C. This Franchise does not authorize the use of the Franchise Area for any facilities or services other than Grantee’s Facilities and Grantee’s Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee’s Facilities and Grantee’s Services, on public or private property elsewhere within the City. Ordinance No. Franchise Agreement No. August __, 2020 Page 1 of 15 Moses Lake Council Packet 8-11-20, Page 102 of 135 Ordinance 2954 Page 2 of 15 D. This Franchise is non-exclusive and does not prohibit the City from entering into other agreements, including Franchises, impacting the Franchise Area, for any purpose that does not interfere with Grantee’s rights under this Franchise. E. Except as explicitly set forth in this Agreement, this Franchise does not waive any rights that the City has or may acquire with respect to the Franchise Area or any other City roads, rights-of-way, or property. This Franchise will be subject to the power of eminent domain, and in any proceeding under eminent domain, the Grantee acknowledges its use of the Franchise Area will have no value. F. The City reserves the right to change, regrade, relocate, abandon, or vacate any right-of-way within the Franchise Area. If, at any time during the term of this Franchise, the City vacates any portion of the Franchise Area containing Grantee’s Facilities, the City will reserve an easement for public utilities within that vacated portion, pursuant to RCW 35.79.030, within which the Grantee may continue to operate any existing Grantee’s Facilities under the terms of this Franchise for the remaining period set forth under Section 3. G. The Grantee agrees that its use of Franchise Area will at all times be subordinated to and subject to the City and the public’s need for municipal infrastructure, travel, and access to the Franchise Area, except as may be otherwise required by law. Section 2. Notice A. Written notices to the parties will be sent by a nationally recognized overnight courier or by certified mail to the following addresses, unless a different address is designated in writing and delivered to the other party. City: Engineering Division, Municipal Services Department City of Moses Lake 401 S. Balsam Street Moses Lake, WA 98837 Telephone: (509) 764-3783 with a copy to: City Clerk City of Moses Lake 401 S. Balsam Street Moses Lake, WA Moses Lake Council Packet 8-11-20, Page 103 of 135 Ordinance 2954 Page 3 of 15 Grantee: Fatbeam, LLC 2065 W Riverstone Drive, Suite 105 Coeur d’Alene, ID 83814 Phone: 509-344-1008 E-Mail: regulatory@Fatbeam.com B. Any changes to the contact information will be sent to the City’s Engineering Division, Municipal Services Department, with copies to the City Clerk, referencing the title of this Agreement. C. The above-stated Grantee voice and fax telephone numbers will be staffed at least during normal business hours, Pacific time zone. The City may contact Grantee at the following number for emergency or other needs outside of normal business hours of the Grantees: (855) 979-8844. Section 3. Term of Agreement A. execution. This Franchise will run for a period of five (5) years, from the date of B. Renewal Option of Term: The Grantee may renew this Franchise for an additional five (5) year period upon submission and approval of the application specified under MLMC 5.60.130, as it now exists or is amended, within the timeframe set forth therein (currently 180 to 120 days prior to expiration of the then- current term). Any materials submitted by the Grantee for a previous application may be considered by the City in reviewing a current application, and the Grantee will only submit those materials deemed necessary by the City to address changes in the Grantee’s Facilities or Grantee’s Services, or to reflect specific reporting periods mandated by the MLMC. C. Failure to Renew Franchise – Automatic Extension. If the Parties fail to formally renew this Franchise prior to the expiration of its term or any extension thereof, the Franchise automatically continues month to month until renewed or either party gives written notice at least one hundred and eighty (180) days in advance of intent not to renew the Franchise. Section 4. Definitions For the purpose of this Agreement: A. “MLMC” means the Moses Lake Municipal Code. Moses Lake Council Packet 8-11-20, Page 104 of 135 Ordinance 2954 Page 4 of 15 B. "Emergency" means a condition of imminent danger to the health, safety and welfare of persons or property located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. C. “Franchise Area” means all present and future Rights-of-Way as defined in Section 4.H., within the City Limits as they currently exist or as amended in the future. D. “Grantee’s Facilities” means Grantee’s fiber optic and broadband communications services constructed and operated within the City’s Rights-of- Way, and shall include all cables, wires, conduits, ducts, pedestals and any associated converter, equipment or other facilities within the City’s Rights-of-Way, designed and constructed for the purpose of providing Telecommunications Service and other lawful services not prohibited by this Ordinance. E. “Grantee’s Services” means any telecommunications service, telecommunications capacity, or dark fiber, provided by the Grantee using its Facilities, including, but not limited to, the transmission of voice, data or other electronic information, or other subsequently developed technology that carries a signal over fiber optic cable. Grantee’s Services shall also include non-switched, dedicated and private line, high capacity fiber optic transmission services to firms, businesses or institutions within the City and other lawful services not prohibited by this Ordinance. However, Grantee’s Services shall not include the provision of “cable services”, as defined by 47 U.S.C. §522, as amended, for which a separate franchise would be required. F. “Maintenance” or “Maintain” means examining, testing, inspecting, repairing, maintaining, restoring, and replacing the existing Grantee’s Facilities or any part thereof as required and necessary for safe operation. G. “Relocation” means permanent movement of Grantee facilities required by the City, and not temporary or incidental movement of such facilities, or other revisions Grantee would accomplish and charge to third parties without regard to municipal request. Relocation shall conform to the meanings and requirements of Chapter 35.99 RCW. H. “Rights-of-Way” means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-ways and similar public properties and areas. Moses Lake Council Packet 8-11-20, Page 105 of 135 Ordinance 2954 Page 5 of 15 Section 5. Acceptance of Franchise A. City Clerk insurance This Franchise will not become effective until Grantee files with the (1) the Statement of acceptance (Exhibit “A”), (2) all verifications of coverage specified under Section 15, (3) the financial guarantees specified in Section 16, and (4) payment of any outstanding application fees required in the City Fee Schedule. These four items will collectively be the “Franchise Acceptance”. The date that such Franchise Acceptance is filed with the City Clerk will be the effective date of this Franchise. B. If the Grantee fails to file the Franchise Acceptance with the City Clerk within thirty (30) days after the effective date of the ordinance approving the Franchise, the City’s grant of the Franchise will be null and void. Section 6. Construction and Maintenance A. The Grantee will apply for, obtain, and comply with the terms of all permits required under MLMC Chapter 12.16 for any work done within the City. Grantee will comply with all applicable City, State, and Federal codes, rules, regulations, and orders in undertaking such work. B. Grantee agrees to coordinate its activities with the City and all other utilities located within the public right-of-way within which Grantee is undertaking its activity. C. The City expressly reserves the right to prescribe how and where Grantee’s Facilities will be installed within the public right-of-way and may require the removal, relocation or replacement thereof in the public interest and safety at the expense of the Grantee as provided for in Chapter 35.99 RCW D. Before beginning any work within the public right-of-way, the Grantee will comply with the One Number Locator provisions of Chapter 19.122 RCW to identify existing utility infrastructure. E. Tree Trimming. Grantee will have the authority to reasonably trim vegetation on and overhanging streets, public rights-of-way, and places in the Franchise Area so as to prevent the branches of such trees from coming in physical contact with the Grantee’s Facilities. Grantee must get written approval from the City before trimming vegetation in or over the ROW. Grantee will be responsible for debris removal from trimming activities. If debris is not removed within twenty- four (24) hours of completion of the trimming, the City may, at its sole discretion, remove the debris and charge Grantee for the cost of removal. This section does not grant automatic authority to clear vegetation for purposes of providing a clear path for radio signals. Any general vegetation clearing will require a permit. Moses Lake Council Packet 8-11-20, Page 106 of 135 Ordinance 2954 Page 6 of 15 Section 7. Repair and Emergency Work In the event of an emergency, the Grantee may commence repair and emergency response work as required under the circumstances. The Grantee will notify the City telephonically during normal business hours (at 509-764-3783) and during non-business hours (at 509-764-3951) as promptly as possible, before such repair or emergency work commences, and in writing as soon thereafter as possible. The City may commence emergency response work, at any time, without prior written notice to the Grantee, but will notify the Grantee in writing as promptly as possible under the circumstances. Grantee will reimburse the City for the City’s actual cost of performing emergency response work. Section 8. Damages to City and Third-Party Property Grantee agrees that if any of its actions under this Franchise impairs or damages any City property, survey monument, or property owned by a third-party, Grantee will restore, at its own cost and expense, the property to a safe condition. All repair work will be performed and completed to the satisfaction of the City Engineer. Section 9. Location Preference A. Any structure, equipment, appurtenance or tangible property of a utility, other than the Grantee’s, which was installed, constructed, completed or in place prior in time to Grantee’s application for a permit to construct or repair Grantee’s Facilities under this Franchise will have preference as to positioning and location with respect to the Grantee’s Facilities. However, to the extent that the Grantee’s Facilities are completed and installed before another utility’s submittal of a permit for new or additional structures, equipment, appurtenances or tangible property, then the Grantee’s Facilities will have priority. These rules governing preference will continue when relocating or changing the grade of any City road or right-of-way. A relocating utility will not cause the relocation of another utility that otherwise would not require relocation. This Section will not apply to any City facilities or utilities that may in the future require the relocation of Grantee’s Facilities. Such relocations will be governed by Section 11 and Chapter 35.99 RCW. B. Grantee will maintain a minimum underground horizontal separation of five (5) feet from City water, sanitary sewer and storm sewer facilities and ten (10) feet from above-ground City water facilities; provided, that for development of new areas, the City, in consultation with Grantee and other utility purveyors or authorized users of the Public Way, will develop guidelines and procedures for determining specific utility locations. Moses Lake Council Packet 8-11-20, Page 107 of 135 Ordinance 2954 Page 7 of 15 Section 10. Grantee Information A. Grantee agrees to supply, at no cost to the City, any information reasonably requested by the City to coordinate municipal functions with Grantee’s activities and fulfill any municipal obligations under state law. This information will include, at a minimum, as-built drawings of Grantee’s Facilities, installation inventory, and maps and plans showing the location of existing or planned facilities within the City. This information may be requested either in hard copy or electronic format, compatible with the City’s data base system, including the City’s Geographic Information System (GIS) data base. Grantee will keep the City Engineer informed of its long-range plans for coordination with the City’s long-range plans. B. The parties understand that Washington law limits the ability of the City to shield from public disclosure any information given to the City. the City agrees to notify the Grantee of requests for public records related to the Grantee, and to give the Grantee ten (10) business days to obtain an injunction to prohibit the City’s release of records. Grantee will indemnify and hold harmless the City for any loss or liability for fines, penalties, and costs (including attorney’s fees) imposed by an administrative or judicial authority on the City because of non-disclosures requested by Grantee under Washington’s public records act, provided the City has notified Grantee of the pending request. Section 11. Relocation of Grantee’s Facilities A. Except as otherwise so required by law, Grantee agrees to relocate, remove, or reroute its facilities as ordered by the City Engineer at no expense or liability to the City, except as may be required by Chapter 35.99 RCW. Pursuant to the provisions of Section 14, Grantee agrees to protect and save harmless the City from any customer or third-party claims for service interruption or other losses in connection with any such change, relocation, abandonment, or vacation of the Pubic Way. B. If a readjustment or relocation of the Grantee’s Facilities is necessitated by a request from a party other than the City, that party will pay the Grantee the actual costs associated with such relocation. Section 12. Abandonment and or Removal of Grantee’s Facilities A. Within one hundred and eighty days (180) of Grantee’s permanent cessation of use of any portion of the Grantee’s Facilities, the Grantee will, at the City’s discretion, either abandon in place or remove the affected facilities. Moses Lake Council Packet 8-11-20, Page 108 of 135 Ordinance 2954 Page 8 of 15 B. The parties expressly agree that this Section will survive the expiration, revocation or termination of this Franchise. Section 13. Undergrounding A. The parties agree that this Franchise does not limit the City’s authority under federal law, state law, or local ordinance, to require the undergrounding of utilities. B. Whenever the City requires the undergrounding of aerial utilities in the Franchise Area, the Grantee will underground the Grantee’s Facilities in the manner specified by the City Engineer at no expense or liability to the City, except as may be required by RCW Chapter 35.99. Where other utilities are present and involved in the undergrounding project, Grantee will only be required to pay its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Grantee’s Facilities. Common costs will include necessary costs for common trenching and utility vaults. Fair share will be determined in comparison to the total number and size of all other utility facilities being undergrounded. Section 14. Indemnification and Hold Harmless A. The Grantee will defend, indemnify, and hold the City and its officers, officials, agents, employees, and volunteers harmless from any and all costs, claims, injuries, damages, losses, suits, or liabilities of any nature including attorneys’ fees arising out of or in connection with the Grantee’s performance under this Franchise, except to the extent those costs, claims, injuries, damages, losses, suits, or liabilities are caused by the sole negligence or willful misconduct of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Grantee and the City, its officers, officials, employees, and volunteers, the Grantee’s liability hereunder shall be only to the extent of the Grantee’s negligence. B. The Grantee will hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee’s Facilities caused by maintenance and/or construction work performed by, or on behalf of, the City within the Franchise Area or any other City road, right-of-way, or other property, except to the extent any such damage or loss is directly caused by the negligence or willful misconduct of the City, or its agent performing such work. Moses Lake Council Packet 8-11-20, Page 109 of 135 Ordinance 2954 Page 9 of 15 C. The Grantee acknowledges that neither the City nor any other public agency with responsibility for firefighting, emergency rescue, public safety or similar duties within the City has the capability to provide trench, close trench or confined space rescue. The Grantee, and its agents, assigns, successors, or contractors, will make such arrangements as Grantee deems fit for the provision of such services. The Grantee will hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee for the City’s failure or inability to provide such services, and, pursuant to the terms of Section 14(A), the Grantee will indemnify the City against any and all third-party costs, claims, injuries, damages, losses, suits, or liabilities based on the City’s failure or inability to provide such services. D. Acceptance by the City of any work performed by the Grantee will not be grounds for avoidance of this section. E. It is further specifically and expressly understood that the indemnification provided herein constitutes the Grantee’s waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section will survive the expiration or termination of this Agreement. Section 15. Insurance A. The Grantee will procure and maintain for the duration of this Franchise, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Grantee, its agents, representatives, or employees in the following amounts and types: 1. Automobile Liability insurance covering all owned, non- owned, hired, and leased vehicles with a minimum combined single limit for bodily injury and property damage of $1,000,000.00 per accident. Coverage will be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy will be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $2,000,000.00 each occurrence, $2,000,000.00 general aggregate and a $2,000,000.00 products-completed operations aggregate limit. Coverage will be written on ISO occurrence form CG 00 01 and will cover liability arising from premises, operations, independent contractors, products-completed operations, stop gap liability, and personal injury and advertising injury and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 Moses Lake Council Packet 8-11-20, Page 110 of 135 Ordinance 2954 Page 10 of 15 11 85. There will be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse, or underground property damage. The City will be named as an additional insured under the Grantee’s Commercial General Liability insurance policy with respect to the work performed under this Franchise using ISO Additional Insured Endorsement CG 20 10 10 01 and Additional Insured-Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. 3. Professional Liability insurance with limits no less than $2,000,000.00 per claim for all professional employed or retained Grantee to perform services under this Franchise. 4. Workers’ Compensation coverage as required by the Industrial Insurance laws of the State of Washington. B. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability, and Commercial General Liability insurance: 1. The Grantee’s insurance coverage will be primary insurance as respects the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City will be in excess of the Grantee’s insurance and will not contribute with it. 2. The Grantee’s insurance will be endorsed to state that coverage will not be cancelled by either party except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. D. Verification of Coverage. Grantee will furnish the City with documentation of insurer’s A.M. Best rating and with original certificates and a copy of amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. E. Grantee will have the right to self-insure any or all of the above- required insurance. Any such self-insurance is subject to approval by the City. F. Grantee’s maintenance of insurance as required by this Franchise will not be construed to limit the liability of Grantee to the coverage provided by that insurance, or otherwise limit the City’s recourse to any remedy to which the City is otherwise entitled at law or in equity. Moses Lake Council Packet 8-11-20, Page 111 of 135 Ordinance 2954 Page 11 of 15 Section 16. Performance Security The Grantee will provide the City with a financial guarantee in the amount of Fifty Thousand Dollars ($50,000.00) running for, or renewable for, the term of this Franchise, in a form and substance acceptable to the City. If Grantee fails to substantially comply with any one or more of the provisions of this Franchise, the City may recover jointly and severally from the principal and any surety of that financial guarantee any damages suffered by City as a result of Grantee’s failure to comply, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of facilities. Grantee specifically agrees that its failure to comply with the terms of Section 19 will constitute damage to the City in the monetary amount set forth in that section. Any financial guarantee will not be construed to limit the Grantee’s liability to the guarantee amount, or otherwise limit the City’s recourse to any remedy to which the City is otherwise entitled at law or in equity. Section 17. Successors and Assignees A. All the provisions, conditions, regulations and requirements contained in this Franchise are binding upon the successors, assigns of, and independent contractors of the Grantee, and all rights and privileges, as well as all obligations and liabilities of the Grantee will inure to its successors, assignees and contractors equally as if they were specifically mentioned herein wherever the Grantee is mentioned. B. This Franchise will not be leased, assigned or otherwise alienated without the express prior consent of the City by ordinance, which such consent will not be unreasonably withheld. C. Grantee and any proposed assignee or transferee will provide and certify the following to the City not less than sixty (60) days prior to the proposed date of transfer: (a) Complete information setting forth the nature, term and conditions of the proposed assignment or transfer; (b) All information required by the City of an applicant for a Franchise with respect to the proposed assignee or transferee; and, (c) An application fee which will be set by the City, plus any other costs actually and reasonably incurred by the City in processing, and investigating the proposed assignment or transfer. D. Before the City’s consideration of a request by Grantee to consent to a Franchise assignment or transfer, the proposed Assignee or Transferee will file with the City a written promise to unconditionally accept all terms of the Franchise, effective upon transfer or assignment of the Franchise. The City is under no obligation to undertake any investigation of the transferor’s state of compliance Moses Lake Council Packet 8-11-20, Page 112 of 135 Ordinance 2954 Page 12 of 15 and failure of the City to insist on full compliance before transfer does not waive any right to insist on full compliance thereafter. Section 18. Dispute Resolution A. In the event of a dispute between the City and the Grantee arising by reason of this Franchise, the dispute will first be referred to the operational officers or representatives designated by Grantor and Grantee to have oversight over the administration of this Franchise. The officers or representatives will meet within thirty (30) calendar days of either party's request for a meeting, whichever request is first, and the parties will make a good faith effort to achieve a resolution of the dispute. B. If the parties fail to achieve a resolution of the dispute in this manner, either party may then pursue any available judicial remedies. This Franchise will be governed by and construed in accordance with the laws of the State of Washington. If any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue will be exclusively in Grant County, Washington. The prevailing party in any action will be entitled to its attorneys’ fees and costs. Section 19. Enforcement and Remedies A. If the Grantee willfully violates, or fails to comply with any of the provisions of this Franchise through willful or unreasonable negligence, or fails to comply with any notice given to Grantee under the provisions of this agreement, the City may, at its discretion, provide Grantee with written notice to cure the breach within thirty (30) days of notification. If the City determines the breach cannot be cured within thirty days, the City may specify a longer cure period, and condition the extension of time on Grantee’s submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or the Grantee does not comply with the specified conditions, the City may, at its discretion, either (1) revoke the Franchise with no further notification, or (2) impose liquidated damages of Two Hundred Fifty Dollars ($250.00) per day against the financial guarantee set forth in Section 16 for every day after the expiration of the cure period that the breach is not cured. B. If the City determines that Grantee is acting beyond the scope of permission granted in this Franchise for Grantee’s Facilities and Grantee’s Services, the City reserves the right to cancel this Franchise and require the Grantee to apply for, obtain, and comply with all applicable City permits, franchises, or other City permissions for such actions, and if the Grantee’s actions Moses Lake Council Packet 8-11-20, Page 113 of 135 Ordinance 2954 Page 13 of 15 are not allowed under applicable federal and state or City laws, to compel Grantee to cease those actions. Section 20. Compliance with Laws and Regulations A. This Franchise is subject to, and the Grantee will comply with, all applicable federal and state or City laws, regulations and policies (including all applicable elements of the City's comprehensive plan), in conformance with federal laws and regulations, affecting performance under this Franchise. The Grantee will be subject to the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Franchise Area. B. The City reserves the right at any time to amend this Franchise to conform to any federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted pursuant to such federal or state statute or regulation enacted, amended, or adopted after the effective date of this Franchise if it provides Grantee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. The amendment will become automatically effective on expiration of the notice period unless, before expiration of that period, the Grantee makes a written call for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the call for negotiations, the City may enact the proposed amendment, by incorporating the Grantee’s concerns to the maximum extent the City deems possible. C. The City may terminate this Franchise on thirty (30) days written notice to the Grantee, if the Grantee fails to comply with such amendment or modification. Section 21. License, Tax and Other Charges This Franchise will not exempt the Grantee from any future license, tax, or charge which the City may adopt under authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of the Franchise Area. Section 22. Consequential Damages Limitation Notwithstanding any other provision of this Agreement, in no event will either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Moses Lake Council Packet 8-11-20, Page 114 of 135 Ordinance 2954 Page 14 of 15 Section 23. Severability If any portion of this Franchise is deemed invalid, the remainder portions will remain in effect. Section 24. Titles The section titles are for reference only and should not be used for the purpose of interpreting this Franchise. Section 25. Implementation. The City Manager is authorized to implement those administrative procedures necessary to carry out the directions of this legislation. Section 26. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval and publication as provided by law. Adopted by the City Council of the City of Moses Lake, WA and signed by its Mayor on August 25, 2020. _____________________________________ David Curnel, Mayor ATTEST: _______________________________________ Debbie Burke, City Clerk APPROVED AS TO FORM: _______________________________________ Katherine L. Kenison, City Attorney Vote: Riggs Liebrecht Myers Jackson Curnel Eck Hankins Aye Nay Abstain Absent Date Published: August 31, 2020 Date Effective: September 5, 2020 Moses Lake Council Packet 8-11-20, Page 115 of 135 Ordinance 2954 Page 15 of 15 EXHIBIT “A” STATEMENT OF ACCEPTANCE Fatbeam, LLC, for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Franchise attached hereto and incorporated herein by this reference. Fatbeam, LLC 2065 W Riverstone Drive, Suite 105 Coeur d’Alene, ID 83814 By: Name: Title: Date: STATE OF ) )ss. COUNTY OF ) On this day of , 2020, before me the undersigned, a Notary Public in and for the State of , duly commissioned and sworn, personally appeared, of _, the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature NOTARY PUBLIC in and for the State of , residing at MY COMMISSION EXPIRES: Moses Lake Council Packet 8-11-20, Page 116 of 135 Page 1 of 2 STAFF REPORT To: Allison Williams, City Manager From: Fred Snoderly, Municipal Services Director Date: July 29, 2020 Proceeding Type: New Business Subject: Request to Connect to City Water and Sewer- 2715 Westshore Drive NE Parcel # 14731000 Legislative History: • First Presentation: August 11, 2020 • Second Presentation: • Requested Action: Motion Staff Report Summary Jolene and Robert Burke request approval to connect to the City’s water and sewer systems to serve a single-family residence on their lot, Parcel #147731000, located at 2715 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 services Background 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. Fiscal and Policy Implications Per Resolution No. 3717, non-contiguous lands may be permitted to connect if it is impractical for the property owner to annex with Council approval. Moses Lake Council Packet 8-11-20, Page 117 of 135 Page 2 of 2 Options Option Results • Move to approve the request The owners will provide an Extra Territorial Agreement and connect to City water and sewer. • Modify the request 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. Staff Recommendation Staff recommends City Council approve the request 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. Attachments A. Vicinity Map, Written Request Legal Review - N-A Moses Lake Council Packet 8-11-20, Page 118 of 135 7/29/2020 City of Moses Lake Utilities https://arcgis.cityofml.com/portal/apps/View/index.html?appid=ef1f84bdbe124701b15222e925ff36b8 1/1 City of Moses Lake Utilit…       +  − Moses Lake Council Packet 8-11-20, Page 119 of 135 07/27/2020 Rob, My husband and I are requesting city connection to city services. The address is 2715 Westshore Dr. NE Moses Lake WA 98837. The parcel number is 141731000, let me know if you have any questions. I look forward to working with you and your team. Jolene R. & Robert L Burke 200 Sunset Vista Ln Selah WA 98942 jolene@burkeplumbing.org lance@burkeplumbing.org 509-901-9469 Moses Lake Council Packet 8-11-20, Page 120 of 135 Page 1 of 2 STAFF REPORT To: Allison Williams, City Manager From: Fred Snoderly, Municipal Services Director Date: August 5, 2020 Proceeding Type: New Business Subject: Request to Connect to City Water and Sewer- 2597 Westshore Drive NE Parcel # 141722000 Legislative History: •First Presentation: August 11, 2020 •Second Presentation: •Requested Action: Motion Staff Report Summary Andy Tonklin requests approval to connect to the City’s water and sewer systems to serve a single- family residence on their lot, Parcel #141722000 located at 2597 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 services Background 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. Fiscal and Policy Implications Per Resolution No. 3717, non-contiguous lands may be permitted to connect if it is impractical for the property owner to annex with Council approval. Moses Lake Council Packet 8-11-20, Page 121 of 135 Page 2 of 2 Options Option Results • Move to approve the request. The owners will provide an Extra Territorial Agreement and connect to City water and sewer. • Modify the request 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. Staff Recommendation Staff recommends City Council approve the request 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. Attachments A. Vicinity Map, Written Request Legal Review N-A Moses Lake Council Packet 8-11-20, Page 122 of 135 8/5/2020 City of Moses Lake Utilities https://arcgis.cityofml.com/portal/apps/View/index.html?appid=ef1f84bdbe124701b15222e925ff36b8 1/1 City of Moses Lake Utilit…       +  − Moses Lake Council Packet 8-11-20, Page 123 of 135 1 Rob Harris From:Andy Tonkin <andrewjtonkin@gmail.com> Sent:Wednesday, August 5, 2020 9:55 AM To:Rob Harris Cc:Eldon Broughton Subject:City water hookup to parcel 141722000 Caution! This message was sent from outside your organization. Allow sender | Block sender Hi Rob, I’d like to hook up to city water at my house at 2597 Westshore Dr NE, Moses Lake. Tax parcel141722000. Please let us know next steps. Thanks, Andy Tonkin 206.890.8912 Moses Lake Council Packet 8-11-20, Page 124 of 135 MEMORANDUM August 7, 2020 To: Allison Williams, City Manager From: Cindy Jensen, Finance Director Subject: 2020 2nd Quarter Budget Revenue and Expenditure Report I am pleased to submit the City of Moses Lake’s 2020 second quarter actual results compared to budgeted revenue and expenditure report for all city funds. Beginning Fund Balances shown are subject to final adjustments made as a result of the year-end closing process, which will not be officially concluded until the State Auditor’s work is completed this fall. Overall, we are seeing some effects of the economic slowdown caused by the “Stay Home, Stay Safe” response to COVID-19, however, we are weathering this storm in much better financial condition than many other local governments. The City budget is performing as expected in many areas through the second quarter of 2020. At the end of the second quarter 2020, we are seeing typical variances tied to position vacancies and the timing of annual dues/assessments. Because several of the principal payments on debt service are due in the 3rd quarter, we completed the debt service transfers in the 2nd quarter. Some of the operational activity that was slower in the first quarter because of the winter months have picked up in the summer, although the Parks and Recreation programs were greatly reduced, and the aquatic center is not opening for the season. Capital projects are still underspent because of long lead-in times that are typical of this activity. This report is summarized by type of fund, and reported by functional type, and includes the following sections: • City-Wide Overview • General Fund Revenue Analysis • General Fund Expenditure Analysis • Other Funds Analysis • Conclusion • Exhibit I—Fund Detail that supports the Summaries Moses Lake Council Packet 8-11-20, Page 125 of 135 City-Wide Overview 2019 Adopted Percent Actual Budget Actual Rec'd General Fund 12,765,716$ 26,643,060$ 12,491,203$ 46.9% Operating/Enterprise Funds 16,315,971 35,493,649 17,479,019 49.2% Capital Improvement Funds 3,392,422 16,345,600 2,599,465 15.9% Risk Mgmt/Employee Benefit 288,600 790,000 423,128 53.6% Debt Service Funds 2,269,748 2,268,797 2,268,797 100.0% Total City Revenues 35,032,457$ 81,541,106$ 35,261,612$ 43.2% 2020 Revenue Comparison (Budget vs. Actual--50% of year) 2019 Adopted Percent Actual Budget Actual Spent General Fund 12,428,044$ 28,685,891$ 12,919,323$ 45.0% Operating/Enterprise Funds 16,813,555 38,814,077 16,798,098 43.3% Capital Improvement Funds 1,773,505 21,935,000 3,021,979 13.8% Risk Mgmt/Employee Benefit 611,635 922,000 722,145 78.3% Debt Service Funds 188,875 2,270,119 734,175 32.3% Total City Expenditures 31,815,614$ 92,627,087$ 34,195,720$ 36.9% Expenditure Comparison (Budget vs. Actual--50% of year) 2020 Moses Lake Council Packet 8-11-20, Page 126 of 135 General Fund Revenue Analysis Property Tax – The first half of the Property Tax assessment is due to the Grant County Treasurer by April 30, and the second half is due October 31. The budget was set based on assumptions of new construction and collection rates, and then discounted for collection delinquencies. Even though the levy for 2020 was set at $7.62 million, we only budgeted $7.205 million. At this point in time it appears collections could come in slightly over budget, so we are not anticipating a loss of revenue in this major revenue source because of COVID-19. Sales Tax –This major revenue source ended 2019 at $7.2 million, and was conservatively set slightly below the 2019 actual at $7.0 million assuming some of the construction will taper off. In the first quarter report I noted that we expected this major revenue source to be hardest hit from the COVID-19 economic shutdown. However, through the 2nd quarter, sales tax was up 1.6% over the prior year, and at the end of July, we are ahead of 2019 by $156,000 or 4.0% year to date. We could still see some long-term downturns, but this major revenue source is still trending to exceed this year’s budget estimate. 2019 19 vs 20 Adopted Percent Percent Actual Budget Actual Rec'd Change 310 Taxes Property Tax 4,147,907$ 7,205,000$ 4,125,888$ 57.3% -0.5% Sales Tax 3,289,330 7,000,000 3,341,429 47.7% 1.6% Sales Tax-Public Safety - 700,000 88,037 Utility Tax 1,795,678 3,278,000 1,752,297 53.5% -2.4% Gambling Tax 144,105 251,400 121,244 48.2% -15.9% Other Taxes 44,435 88,000 20,595 23.4% -53.7% Subtotal-Taxes 9,421,455 18,522,400 9,449,490 51.0% 0.3% 320 Licenses & Permits 418,007 651,500 322,368 49.5% -22.9% 330 Intergovernmental Revenues 222,652 1,114,510 263,640 23.7% 18.4% 340 Charges for Goods & Services 1,698,601 4,430,600 1,880,974 42.5% 10.7% 350 Fines and Penalties 556,122 966,300 256,110 26.5% -53.9% 360 Miscellaneous Revenues 448,879 457,750 318,621 69.6% -29.0% 390 Other Financing Resources - 500,000 - 0.0% Total General Fund Revenues 12,765,716$ 26,643,060$ 12,491,203$ 46.9% -2.2% 2020 General Fund Revenues As of June 30, 2020 - 50% of year Moses Lake Council Packet 8-11-20, Page 127 of 135 Sales Tax-Public Safety—The City started receiving this revenue in June, so the $88,000 represents the first distribution of the new 0.3% Criminal Justice Tax. This new revenue is being used to meet our match on the current COPS grants, and support the additional School Resource Officers hours available for general city policing, since the school district is not paying for the SROs when the schools are closed. This could be at risk like the regular sales tax, but we are currently seeing collections that will bring us close to the budget estimate. Utility Tax – This revenue source experiences fluctuations either from rate adjustments or fluctuations in usage. Second quarter results are slightly down compared to the prior year. Rate increases in Water and Wastewater were offset by the continuing downward trend in telephone utility taxes and the rate reduction in the City’s Solid Waste utility. Electric utility tax receipts are also down, possibly due to both mild weather and COVID-19. Through 6 months, this revenue source is on track to meet budget. Gambling Taxes—This revenue stream is historically higher in the first half of the year. It should be noted that Council reduced the card game tax rate over the next five years, so this is expected to trend below the prior year actual. The shutdown of restaurants and bars will negatively affect this revenue source, and I am not expecting any revenue to speak of for 2nd to 3rd quarter activity, which may be a loss of between $65,000 to $130,000. Other Taxes—This consists of Leasehold Excise Tax and Admissions Tax, both of which have been hard hit because of the economic shut-down. Fortunately, this is a small budget, and we will likely be short about $60,000. Licenses and Permits – This revenue is generated by the development community, and is difficult to budget because it is volatile by nature. 2020 2nd quarter results are very close to the 50% mark of the budget estimate. Construction was slowed during the beginning of the COVID shutdown, but has opened back up. This category is an indicator of future construction-related sales tax. Intergovernmental Revenue – This category includes State-shared revenue ($440k), the PUD privilege tax ($320k), and other grants (consisting primarily of Public Safety grants totaling $354k). State-shared revenue is slightly exceeding budgeted estimates. The PUD tax is received once a year in August. We have only received one quarter reimbursement for COPS grant, and the SAFER grant has been billed but not yet been received. Overall, the category is under budget at the mid-point of the year, but is anticipated to slightly exceed the total budget by year end. Charges for Goods and Services primarily consist of: • Fees charged for Parks and Recreation Programs; • The City Administrative fee charged to funds for the services provided by the executive branch and finance; Moses Lake Council Packet 8-11-20, Page 128 of 135 • Engineering services charged both to internal projects and external developers; and • School Resource Officers reimbursed by Moses Lake School District This revenue source is 42.5% received through half the year. The Parks and Recreation program revenues are greatly reduced because of COVID, but there is also a corresponding reduction in direct costs to run the programs. As discussed previously, the Moses Lake School District is not reimbursing for SRO while school is not in session in the physical school buildings, but the new criminal justice sales tax can be applied to avoid a layoff of those officers. Fines and Penalties consist almost entirely of fines generated by the red-light camera program. With the schools closed, much the speeding in a school zone fine revenue is not being generated, and the “Stay Home” message has resulted in less traffic so that the normally high ticket intersections are not generating as many tickets. We have paid Redflex $232,500 through 6 months, so this program is barely breaking even. Unfortunately, this one revenue could be short about $500k for the year. Miscellaneous Revenues include interest earnings on investments and facility rentals. This category is slightly exceeding budget but running below prior year actual primarily because interest rates have dropped again. Interest is recorded in General Fund throughout the year and is allocated out to applicable funds at year-end, so this is ahead of budget now but will end the year closer to the budget estimate. Other Financing Resources is made up primarily of a transfer from the Water Department of excess maintenance and operating charges as authorized by RCW 35.23.535 ($500k). This revenue is transferred at year-end. Summary --Overall, the second quarter 2020 General Fund revenue came in at $12,491,203 which is 46.9% of the total year budget. Primarily because of pressures tied to the economic shutdown in the wake of COVID-19, total revenue dropped by $274,513 or 2.2% from the second quarter 2019 actual of $12,765,716. This reduction was spread among several categories. Moses Lake Council Packet 8-11-20, Page 129 of 135 General Fund Expenditure Analysis In total, General Fund Expenditures for the second quarter are 5.0% below the 50% mark, but are up by 4.0% compared to the prior year. This increase consists primarily of the 2020 COLA adjustment for Police and Fire union salaries, along with the implementation of the Condrey pay and compensation study. (The study is being funded primarily by an additional transfer from Water and Wastewater for engineering administrative overhead—the related revenue increase is in the “charges for services” revenue category.) Another reason for the increase is the additional staff added in 2020 for the SAFER grant and administrative support in Fire and Finance. Since General Fund is over 59% staffing, events effecting total payroll have a significant impact on budgets. Position vacancies may start out being an “overage” because of the cashout of earned accrued leave balances, but then can produce savings when the position is vacant for any length of time. The City has had several high-level positions vacant for an extended period, i.e. Community Development and Human Resources Directors, and Parks Maintenance Superintendent. Most variances in individual divisions are the result of position vacancies. When the economic shutdown occurred, operating divisions tried to curb spending, since we were not sure how our revenues would react. The major component in the Miscellaneous Services budget is the General Fund transfers to Streets and Debt Service funds. The transfers for debt service are accelerated in the 1st half of 2019 19 vs 20 Adopted Percent Percent Actual Budget Actual Spent Change Legislative 169,646$ 382,308$ 176,311$ 46.1% 3.9% Executive 563,707 1,087,306 527,223 48.5% -6.5% Finance 493,354 1,213,093 557,524 46.0% 13.0% Community Development 695,952 1,646,631 728,326 44.2% 4.7% Legal 91,251 192,800 92,806 48.1% 1.7% Misc. Services 934,512 1,910,490 956,315 50.1% 2.3% Library 39,512 82,100 38,894 47.4% -1.6% Engineering 1,061,996 2,289,531 1,109,547 48.5% 4.5% Parks & Recreation 2,729,186 6,467,411 2,590,696 40.1% -5.1% Police 3,745,445 8,855,366 4,034,636 45.6% 7.7% Fire 1,903,483 4,558,855 2,107,045 46.2% 10.7% Total General Fund Expenditures 12,428,044$ 28,685,891$ 12,919,323$ 45.0% 4.0% 2020 As of June 30, 2020 - 50% of Year General Fund Expenditures Moses Lake Council Packet 8-11-20, Page 130 of 135 the year so that debt service funds have adequate balances to make payments when due, which is why this budget is slightly over the 50% mark. All other General Fund budgets are at varying levels below 50%. The largest percentage below budget is the Parks and Recreation department because of the cancellation of the swimming season, and reductions in other recreation programs. Conclusion--Because of the revenue reductions previously mentioned, the divisions are trying to keep their operating expenditures down. With revenues bringing in about $12.5 million, compared to expenditures of $12.9 million, we are using about $400,000 of beginning General Fund balance during the first 6 months of 2020. The reductions in capital expenditures have not yet been totally factored in, and if the next few months revenue stays steady, we should be well within the “excess” or contingency fund balance of $1.4 million. Moses Lake Council Packet 8-11-20, Page 131 of 135 Other Funds Analysis Second quarter 2020 results generally performed as expected. Variances in capital funds are related to timing of major projects, as well as capital components in operating funds (such as Building Maintenance and Fleet Maintenance capital projects/purchases). Debt Service funds primarily only have interest payments due in the first half of the year—principal payments are typically scheduled for later in the year so the fund can build up the necessary balance. Property and liability insurance premiums are due at the first of the year, so the Risk Management fund is almost 83% spent already. Transfers out to Debt Service funds were all done in the first half of the year, as principal payments come due in the 3rd and 4th quarters. This put Water/Wastewater fund expenditures over the 50% mark and affected the fund balance total by approximately $900,000. The revenues in most funds are at or over the 50% mark. The two exceptions are the Hotel/Motel Tax in the Tourism Activities fund, and Gas Tax in the Streets Fund. Hotel/Motel tax is down 12% from the prior year at the end of June, and 17% at the end of July. My estimate is that this fund revenue will be under budget by up to $200,000 depending on when traveling picks back up. This fund has a fund balance that was 100% of the annual revenue ($745,000), so it should be able to hold up to this downturn. Additionally, a few of the events 2019 19 vs 20 Adopted Percent PercentRevenuesActualBudgetActualto Budget Change Operating/Enterprise Funds 16,315,971$ 35,493,649$ 17,479,019$ 49.2% 7.1% Capital Improvement Funds 3,392,422 16,345,600 2,599,465 15.9% -23.4% Risk Mgmt/Employee Benefit 288,600 790,000 423,128 53.6% 46.6% Debt Service Funds 2,269,748 2,268,797 2,268,797 100.0% 0.0% Subtotal-Revenue 22,266,741$ 54,898,046$ 22,770,409$ 41.5% 2.3% Expenditures Operating/Enterprise Funds 16,813,555$ 38,814,077$ 16,798,098$ 43.3% -0.1% Capital Improvement Funds 1,773,505 21,935,000 3,021,979 13.8% 70.4% Risk Mgmt/Employee Benefit 611,635 922,000 722,145 78.3% 18.1% Debt Service Funds 188,875 2,270,119 734,175 32.3% 288.7% Subtotal-Expenditures 19,387,570$ 63,941,196$ 21,276,397$ 33.3% 9.7% 2020 Other Funds Revenues and Expenditures As of June 30, 2020 - 50% of Year Moses Lake Council Packet 8-11-20, Page 132 of 135 that were authorized were cancelled, or greatly curtailed, so the expenditures will not be spent up to the budget. Be prepared for this fund to use some of its balance in 2019. We will need to probably have a lower estimate for projects next year, as the sluggish revenue could continue into next year, depending on when people feel comfortable traveling again. The Gas Tax is in the Streets Fund. The budget was $458,000, and the last three months have seen drops of an average of 32%. If that continues through the end of the year, we could see this revenue coming in about $85,000 below budget. The Streets Fund had a beginning balance of $668,000, which is about 25% of the expenditure budget. They are also postponing a capital purchase of this amount, but a use of $100,000 will leave the fund balance at 21%, still within recommended limits of 16.7%. Conclusion Overall, second quarter results are performing as expected. Most variances from the 50% mark are related to normal timing, a reduction of programs because of the “Stay Safe” initiatives, and focused efforts to reduce expenditures wherever possible, including the postponing of capital purchases in General Fund. All funds have a healthy fund balance going into the COVID 19 economic shutdown. In the first half of the year, even in the midst of the economic downturn, $1.06 million was added to citywide fund balances, and all funds had positive fund balances on June 30, 2020. General Fund used $428,000 of its beginning balance through the first 6 months, which is within the estimates that we made when the shutdown first happened. Staff will continue to monitor revenues in the aftermath of the COVID 19 pandemic and propose additional responses if necessary. Moses Lake Council Packet 8-11-20, Page 133 of 135 Exhibit 1CITY OF MOSES LAKE2020 Actual vs. Budget Variance50% of year completed2nd Quarter 202001/01/202020 Budget- 2020 YTD2020 2020 YTD 2020 06/30/20Actual Begin.Adopted Actual %Adopted Actual % (Use) Gain of EndingFund BalRevenuesRevenuesReceivedBudget Expenditure Expended Fund Balance Fund BalanceGeneral FundLegislative382,308$ 176,311$ 46.1%Executive1,087,306 527,223 48.5%Finance1,213,093 557,524 46.0%Community Development1,646,631 728,326 44.2%Legal192,800 92,806 48.1%Misc. Services1,910,490 956,315 50.1%Library82,100 38,894 47.4%Engineering2,289,531 1,109,547 48.5%Parks & Recreation6,467,411 2,590,696 40.1%Police8,855,366 4,034,636 45.6%Fire4,558,855 2,107,045 46.2%Total General Fund5,874,998$ 26,643,060$ 12,491,203$ 46.9%28,685,891 12,919,323 45.0% (428,120)$ 5,446,878$ Other Operating/EnterpriseTourism Activities -102 745,575 765,000 244,050 31.9%685,400 363,412 53.0% (119,362) 626,213 Grants & Donations -103 765,940 202,600 303,268 149.7%348,300 331,589 95.2% (28,321) 737,619 Paths & Trails - 114 101,292 2,000 10,987 549.4%26,000 22,189 85.3% (11,202) 90,090 Streets - 116 668,091 2,518,000 1,161,378 46.1%2,721,860 1,266,054 46.5% (104,676) 563,415 Transportation Benefit District - 170 556,767 1,601,000 786,380 49.1%1,650,000 825,000 50.0%(38,620) 518,147 Water/Wastewater Operating - 410 2,075,849 12,984,300 5,767,996 44.4%13,081,697 6,935,191 53.0% (1,167,195) 908,654 Sanitation -490343,788 4,220,000 2,046,385 48.5%4,075,000 1,610,793 39.5% 435,592 779,380 Stormwater - 493514,464 940,000 492,469 52.4%1,306,622 484,086 37.0% 8,383 522,847 Airport - 49596,645 27,000 16,742 62.0%54,059 14,089 26.1% 2,653 99,298 Ambulance - 498621,497 2,902,640 1,850,112 63.7%3,358,435 1,628,917 48.5% 221,195 842,692 Central Svc - 517498,924 1,673,600 853,150 51.0%1,676,482 858,934 51.2% (5,784) 493,140 Equipment Rental -5192,663,786 3,795,309 2,012,075 53.0%4,953,123 1,597,276 32.2% 414,799 3,078,585 Build Maint -5281,085,649 3,862,200 1,934,027 50.1%4,877,099 860,568 17.6% 1,073,459 2,159,108 Total Other Operating/Enterprise10,738,267 35,493,649 17,479,019 49.2%38,814,077 16,798,098 43.3% 680,921 11,419,188 cjj 08/07/20 9:43 AM 2020 2nd qtr actual vs budget 7 13 20.xlsx1 of 2Moses Lake Council Packet 8-11-20, Page 134 of 135 Exhibit 1CITY OF MOSES LAKE2020 Actual vs. Budget Variance50% of year completed2nd Quarter 202001/01/202020 Budget- 2020 YTD2020 2020 YTD 2020 06/30/20Actual Begin.Adopted Actual %Adopted Actual % (Use) Gain of EndingFund BalRevenuesRevenuesReceivedBudget Expenditure Expended Fund Balance Fund BalanceCapital ImprovementStreet Repair/reconst -119 2,069,361 2,315,600 1,172,925 50.7%3,280,000 505,020 15.4% 667,905 2,737,266 Parks & Recreation Improvement-314 300,057 12,480,000 490,000 3.9%11,500,000 417,860 3.6% 72,140 372,197 Park Mitigation Capital Proj-315 705,082 - 47,540 680,000 340,000 50.0% (292,460) 412,622 Water Rights - 471 1,934,340 114,000 - - - 114,000 2,048,340 Water/Sewer Construction-4777,875,568 1,550,000 775,000 50.0%6,475,000 1,759,099 27.2% (984,099) 6,891,469 Total Capital Improvement12,884,407 16,345,600 2,599,465 15.9%21,935,000 3,021,979 13.8% (422,514) 12,461,893 Risk Mgmt/Employee Benefit ReservesUnemployment Compensation - 50114,795 30,000 16,146 41,500 16,896 40.7% (750) 14,045 Risk Management -503444,019 727,000 363,500 50.0%830,000 686,693 82.7% (323,193) 120,826 Firemen's Relief & Pension - 611352,388 33,000 43,482 131.8%50,500 18,556 36.7% 24,926 377,314 Total Employee Benefit Reserves811,202 790,000 423,128 53.6%922,000 722,145 78.3% (299,017) 512,185 Debt ServiceGOB 2016 Refunding-286184,433 381,217 381,217 100.0%381,442 42,604 11.2% 338,613 523,046 Water-Sewer 2011 Bond-4508,306 565,000 565,000 100.0%565,538 17,469 3.1% 547,531 555,837 Bond Reserve-2011 451567,600 - - - - 567,600 Water-Sewer 2004 Bond-4527,044 676,250 676,250 100.0%676,850 95,625 14.1% 580,625 587,669 Water-Sewer 2004 Bond Reserve-453 701,500 - - - 701,500 PWTF W/S Debt Serv - 48520,177 569,930 569,930 100.0%569,930 569,956 100.0%(26) 20,151 2015 GO Bond Redempt- 4877,629 76,400 76,400 100.0%76,359 8,521 11.2% 67,879 75,508 Total Debt Service1,496,689 2,268,797 2,268,797 100.0%2,270,119 734,175 32.3% 1,534,622 3,031,311 Total City Budget31,805,564$ 81,541,106$ 35,261,612$ 43.2%92,627,087$ 34,195,720$ 36.9% 1,065,892$ 32,871,456$ cjj 08/07/20 9:43 AM 2020 2nd qtr actual vs budget 7 13 20.xlsx2 of 2Moses Lake Council Packet 8-11-20, Page 135 of 135