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3049 LKQ Development AgreementORDINANCE NO. 3049 AN ORDINANCE OF THE CITY OF MOSES LAKE, WASHINGTON, APPROVING THE LKQ FOSTER AUTO PARTS, INC. DEVELOPMENT AGREEMENT Recitals: 1. The City is a non-charter optional code city incorporated under the laws of the State of Washington, with authority to enact laws and enter into development agreements to promote the health, safety, and welfare of its citizens. 2. The City has the authority to enter into Development Agreements pursuant to RCW 36.70B.170 which provides: a. The Legislature finds that the lack of certainty of the approval of development projects can result in a waste of public and private resources, escalate housing costs for consumers and discourage the commitment to comprehensive planning which would make maximum efficient use of resources at the least economic cost to the public. Assurance to a development project applicant that upon government approval the project may proceed in accordance with existing policies and regulations, and subject to conditions of approval, all as set forth in a development agreement, will strengthen the public planning process, encourage public participation and comprehensive planning, and reduce the economic cost of development. 3. Pursuant to RCW 36.70B.200, the City Council conducted a public hearing on August 27, 2024, for the proposed Development Agreement at its regularly scheduled meeting. 4. The City and the Applicant have reached agreement regarding the terms and conditions of a Development Agreement related to the development of the Project, which Development Agreement, together with its Exhibit A, is attached hereto and incorporated herein. NOW THEREFORE. THE CITY COUNCIL OF THE CITY OF MOSES LAKE, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Public Interest. The City Council for the City of Moses Lake, Washington finds, following a public hearing process, that it is in the public interest for the City or Moses Lake to approve the Development Agreement with LKQ Foster Auto Parts, Inc. Section 2. Development Agreement Approved. The City Council for the City of Moses Lake hereby approves the LKQ Foster Auto Parts, Inc. Development Agreement (“Agreement") attached herein as Exhibit A and authorizes the Interim City Manager to execute the Agreement Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 1 of 23 substantially in the form attached on or before October 31, 2024, and to lake such other actions as may be necessary to effect this Agreement. Section 3. Compliance with other law. Nothing in the Ordinance shall be construed as excusing the Applicant from compliance with all federal, state, or local statutes, ordinances, or regulations applicable to this development other than expressly set forth herein. Section 4. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary clerical corrections to this ordinance including, but not limited to, the correction of scrivener’s / clerical errors, references, ordinance number, section/subsection numbers and any thereto. Section 5. Severability. If any section of this ordinance is found to be unconstitutional or invalid as written or as applied to any particular person or circumstances, no other section of the ordinance shall be deemed to be invalid, but rather, should be deemed to have been enacted independently and without regard to the section affected. Section 6. Effective Date. This ordinance shall take effect and be in force five (5) days after its passage and publication of its summary as provided by law. Adopted by the City Council of the City of Moses Lake, WA and signed by its Mayor on August 27, 2024. _____________________________________ Dustin Swartz, Mayor ATTEST: ____________________________________ Debbie Burke, City Clerk APPROVED AS TO FORM: __________________________________ Katherine L. Kenison, City Attorney Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 2 of 23 Martinez Swartz Myers Fancher Madewell Lombardi Skaug Vote: Aye Aye Aye Aye Aye Aye Aye Date Published: September 3, 2024 Date Effective: September 8, 2024 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 3 of 23 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOSES LAKE AND LKQ FOSTER AUTO PARTS, INC. THIS DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into this ____ day of __________, 2024, by and between the City of Moses Lake, a Washington State municipality (“City”), and LKQ FOSTER AUTO PARTS, INC. an Oregon corporation (“Developer”). The City and Developer may each be individually referred to herein as a “Party” or collectively as “the Parties”. RECITALS WHEREAS, the Washington State Legislature has authorized the execution of a development agreement between a local government and a person having ownership or control of real property within its jurisdiction (RCW 36.70B.170); WHEREAS, local governments may also enter into a development agreement for real property outside its boundaries as part of a proposed annexation or service agreement (RCW 36.70B.170(1)); WHEREAS, a development agreement must set forth the development standards and other provisions that shall apply to, govern and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement (RCW 36.70B.170(1)); WHEREAS, for the purposes of this development agreement, “development standards” includes, but is not limited to, all of the standards listed in RCW 36.70B.170(3); WHEREAS, a development agreement must be consistent with the applicable development regulations adopted by a local government under chapter 36.70A RCW (RCW 36.70B.170(1)); WHEREAS, the Developer is owner of the Property (as defined in Section 4); WHEREAS, the Developer intends to enter into a ground lease for the Property (the “Ground Lease”) to a third party as the ground lessee who in turn intends to enter into a sublease of the Property and a lease of the Project (as defined in Section 3) once constructed, with the Developer and/or one or more affiliate(s) thereof, as sublessee and lessee, respectively (the “Lease,” and such ground lessee in its capacity as lessor under the Ground Lease is referred to herein as the “Lessor”) as part of a synthetic lease transaction to provide financing for the construction of the Project (any such synthetic lease financing transaction, a “Synthetic Lease Financing”); WHEREAS, in connection with the Synthetic Lease Financing, the Lessor will appoint the Developer and/or one or more affiliate(s) thereof as the construction agent for Lessor to do all acts necessary and required pursuant to the terms of a separate agreement between Lessor and Developer and/or such affiliate(s) (the “Construction Agent Agreement”), to cause the Project to be constructed on the Property; Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 4 of 23 769323455.2 WHEREAS, the Developer desires to be, and/or cause any one or more of its affiliate(s) to be, appointed as construction agent for Lessor (“Construction Agent”) to cause the construction of the Redevelopment Project on the Property, and thereafter, acting in its (or such affiliate’s (s’)) capacity as lessee, enter into the Lease with Lessor for the Property; WHEREAS, the following events have occurred in the processing of the applications submitted by the Developer, acting in its capacity as Construction Agent, for the Project located on the Property: a)On November 6, 2015, Grant County, the Port of Moses Lake, and the City of Moses Lake released a final Environmental Impact Statement (EIS) covering a planned action for the Grant County International Airport Employment Center (the “Planned Action”). b)After receipt of the proposal submitted by the Developer, acting in its capacity as Construction Agent, to develop the Property, the City of Moses Lake Community Development Department sent a request to applicable agencies and departments to review the proposal for consistency with the Planned Action; c)On May 10, 2024, the Community Development Department issued a Notice of Consistency with the Grant County International Airport Employment Center Project – Environmental Impact Statement - Planned Action (the “Notice of Consistency”), which is attached hereto as Exhibit A and incorporated herein. d)After a public hearing conducted on August 27, 2024, and adoption of Ordinance No. 3049, the City Council authorized the City Manager to sign this Development Agreement with the Developer, in its acting capacity as Construction Agent; and WHEREAS, the City has determined that there are certain impacts as a result of this proposed development, including those associated with City water capacity, utility extensions, and traffic impacts particularly on Stratford Road, Randolph Road, Tyndall Road, and SR Highway 17; WHEREAS, the Developer, acting in its capacity as Construction Agent, has agreed to take certain actions as a condition of the Project to mitigate the impacts; WHEREAS, pursuant to the authority granted by RCW 36.70B.170 through 210, the City and Developer, acting in its capacity as Construction Agent, wish to enter into this Agreement to govern the development, use, and mitigation of certain impacts associated with development of the Property; WHEREAS, the Developer, acting in its capacity as Construction Agent, voluntarily agrees to enter into this Agreement to provide for certain improvements as specified herein; WHEREAS, the agreement of the Developer, acting in its capacity as Construction Agent, to develop the Property as set forth in this agreement are material inducements for the City to enter into this Agreement and the City would not enter into this Agreement but for such agreement and assurances by the Developer; and WHEREAS, the Developer, acting in its capacity as Construction Agent, is entering into this Agreement to provide for mutual agreements related to the planning, development, and use of the Project on the Property. Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 5 of 23 769323455.2 GENERAL PROVISIONS Now, in consideration of the above Recitals, the terms, covenants, and conditions contained herein, the Parties agree as follows: Section 1. Ownership of Property. Developer hereby covenants and warrants to the City that Developer owns the Property free and clear from any encumbrances that prohibit this Agreement. Furthermore, Developer covenants and warrants that the person(s) executing this Agreement below have the right, authority, and capacity to enter into this Agreement. Developer acknowledges that the City has relied on the foregoing representations in connection with its decision to enter into this Agreement. Section 2. Inducements of City Services and Commitments. Based on Developer's acknowledgement and representation to the City that Developer is the owner of the Property and that the Developer is specifically authorized to legally enter into this Agreement, the City agrees to provide municipal services, and abide by the commitments hereunder following the date of the Adopting Ordinance. Section 3. The Project. The “Project” is the development and use of the Property, consisting of roughly 159.71 acres, more or less. Specifically, Permit #PLN2024-0060 describes the Project as development of a vehicle recycling and parts warehousing facility consisting of a 182,000 sq ft facility and 140-acre+ stone yard, on two tax parcels #110069513 and #110069511, within the City of Moses Lake. Section 4. The Subject Property. The “Property”, as described in Exhibit B, attached hereto and incorporated herein by this reference, are the following two tax parcels: Parcel A A portion of land located in Section 27, Township 20 North, Range 28 East, Willamette Meridian, records of Grant County, Washington, described as follows: Beginning at a point 7,972.31 feet North and 1,643.38 feet East of the Southeast corner of Section 33 of said Township and Range (Whose Washington State Grid South Zone coordinated are Y=674,047.08 and X=2,298,909.20 and are referred to U.S.C. & G.S. Station "SPAD" whose Washington State South Coordinates are Y=676,911.66 & X=2,288,625.74), said point of beginning being the intersection of County Roads known as Randolph Drive and Tyndall Road; Thence South 72°41'35" East along the centerline of said Tyndall Road, 2,146.22 feet; Thence North 00°31'49" West 960.31 feet; Thence North 72°41"35" West 1,852.40 feet to the centerline of said Randolph Drive; Thence South 17°17'10" West following said centerline of said Randolph Drive, 914.15 feet to the point of beginning. Except therefrom the Southerly and Westerly 30.00 feet thereof for County Roads. Parcel B That portion of property described under Parcel 1 of Auditor's File Number 1020682 in the East half of Section 27, Township 20 North, Range 28 East Willamette Meridian, Grant County, Washington, described as follows: Beginning at a U.S.B.R. Brass Monument marking the Southeast corner of said Section, said point bears South 00°23'30" West 2679.44 feet, from a U.S.B.R. brass Cap monument marking the East quarter corner of said Section; Thence North 00°23'30" East, following the East boundary of said Section, 1762.72 feet, said point bears North 00°23'30" East, 30.00 feet, from a brass cap monument marking the Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 6 of 23 769323455.2 centerline intersection of Stratford Road and Tyndall Road; Thence North 89°36'17" West, 40.00 feet to an intersection with the Northerly right-of-way boundary of said Tyndall Road and the Westerly right-of- way boundary of said Stratford Road, said point being marked by a 1/2 inch rebar with surveyor's cap, said point also being the True Point of Beginning; Thence continuing North 89°36'17" West, following said Northerly right-of-way boundary of said Tyndall Road, 651.79 feet to a ½ inch rebar with surveyor's cap; Thence North 71°46'45" West, continuing to follow said right-of-way boundary, 872.94 feet to a 1/2 inch rebar with surveyor's cap, said point that bears North 00°23'01" East, 31.52 feet, from a brass cap monument marking the centerline of said Tyndall Road; Thence North 00°23'01" East, 3322.22 feet to an intersection with the North boundary of said section said point being marked by a ½ inch rebar with surveyor's cap, said point bears South 89°52'05" East, 1125.01 feet from a U.S.B.R. brass Cap Monument marking the North quarter corner of said section; Thence South 89°52'05' East, following said North boundary 1486.52 feet to an intersection with the Westerly right-of-way boundary of Stratford Road said point being marked by a 1/2 inch rebar with surveyor's cap, said point also being North 89°52'06" West, 40.00 feet, from a U.S.B.R. Brass Cap Monument marking the Northeast corner of said section; Thence South 00°27'40" West, following said right-of-way boundary and parallel with the East boundary of said section, 2678.52 feet; Thence South 00°23'30" West continuing to follow said right-of-way boundary and parallel with the East boundary of said section, 917.75 feet to the True Point of Beginning. EXCEPT ROADS situated in the County of Grant, State of Washington. Section 5. Title Evidence and Survey. A. As a condition precedent to the execution of this Agreement by the City, the Developer shall provide title evidence, in a form and substance reasonably satisfactory to the City, showing the Developer as the owner of fee simple title to the Property. Such title evidence shall also show whether the Property is encumbered by a mortgage or otherwise. In the event the Property is encumbered, the Developer shall provide a Joinder, Consent and Subordination of all mortgagees to this Agreement prior to the execution of this Agreement by the City. B. As a condition of this Agreement by the City, the Developer, acting in its capacity as Construction Agent, shall provide a survey of the Property in a form suitable to the City within six (6) months of the Effective Date. Such survey shall be consistent with the legal description of the Property set forth in Exhibit B. Section 6. Definitions. As used in this Agreement, the following terms, phrases, and words shall have the meanings and be interpreted as set forth in this Section. Other terms clearly designated in this Agreement shall have the meaning provided in connection with identification of that term. A. “Adopting Ordinance” means the Ordinance which approves this Agreement, as required by RCW 36.70B.200. B. “Ordinance(s)” means a piece of legislation acted upon by the City of Moses Lake. C. “Council” means the duly elected legislative body governing the City of Moses Lake. D. “Effective Date” means the effective date of the City’s ordinance approving this Agreement. E. “Existing Land Use Regulations” means all of the following in effect on the Effective Date: Ordinances adopted by the City of Moses Lake in effect on the Effective Date, including the adopting ordinances that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 7 of 23 769323455.2 development of the Property, including, but not limited to the Comprehensive Plan, the City’s Official Zoning Map and development standards, SEPA, and all other ordinances, codes, rules and regulations of the City establishing subdivision standards, park regulations, and building standards, including without limitation the currently enacted Moses Lake Municipal Code (“MLMC”) as well as the most currently adopted Community Street and Utility Standards, in existence as of the effective Date; provided however, that all building permit applications shall be subject to the building codes in effect when a complete building permit application is submitted. To the extent any Existing Land Use Regulation is specifically modified by a provision set forth in this Agreement, the provision of this Agreement shall prevail and be consistent with the applicable Existing Land Use Regulation. Existing Land Use Regulations do not include non- land use regulations, which include taxes and impact fees. F. “Preliminary Plat” means as defined in Chapter 17.06 MLMC. G. “Final Plat” means as defined in Chapter 17.06 MLMC. Section 7. Exhibits. Exhibits to this Agreement are as follows: A. Exhibit A - Notice of Consistency B Exhibit B – Legal description of the Property C. Exhibit C – Verification that Developer has full and legal authorization to enter into this Agreement. D. Exhibit D– Proposed development schedule Section 8. Project is a Private Undertaking. It is agreed among the Parties that the Project is a private development, and that the City has no interest therein except as authorized in the exercise of its governmental functions. Section 9. Term of Agreement. This Agreement shall commence upon the Effective Date and shall continue in force for a period of five (5) years (the “Term”). Developer may request up to two (2) one (1) year extensions of the Term, which may be granted at the discretion of the City Council. The Term of Agreement applies to this Agreement and amendments to this Agreement, including subdivision, and shall under no circumstances exceed five (5) years unless an extension is granted. Following the expiration of the Term, as the same may be extended, or if sooner terminated, this Agreement shall have no force and effect, subject however, to post-termination obligations of the Developer. Section 10. Vested Rights of the Developer. Upon the Effective Date and throughout the Term of this Agreement, unless sooner terminated in accordance with the terms hereof, in developing the Property consistent with the Project described herein, the Developer, acting in its capacity as Construction Agent, and the City agree that the development rights, obligations, terms and conditions of the Project specified in this Agreement, are fully vested to the Existing Land Use Regulations; provided that, amendments to the Existing Land Use Regulations adopted by the City through the 2024 Comprehensive Plan and Moses Lake Municipal Code Amendment process shall apply to the Project. Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 8 of 23 769323455.2 Section 11. Development Permits. Developer, acting in its capacity as Construction Agent, agrees to develop the Property as a facility used for vehicle recycling and parts warehousing. Developer, acting in its capacity as Construction Agent, agrees to submit applications for the building permit and other development permits for the development of the Property, and to develop the Property within five (5) years of application submittal. Developer, acting in its capacity as Construction Agent, agrees to submit a final conceptual plan showing location of building and walkways, streets, water, sanitary sewer, and other public improvements within one year after the Effective Date. Section 12. Permitted Uses, Performance Standards, and Development Standards. Throughout the Term of this Agreement, the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservations and dedications of land or payment of fees in lieu of dedication for public purposes, the construction, installation, and extension of public improvements, development guidelines and standards for development of the Project and Property shall be those set forth in the Existing Land Use Regulations, as currently adopted at time of the Agreement. Section 13. Improvements. The Parties acknowledge that the most efficient and economic development of the Property depends upon numerous factors such as market orientation and demand, competition, and similar factors, and that generally it will be most economically beneficial to have the rate of development determined by Developer, acting in its capacity as Construction Agent. The anticipated development schedule of the Project is set forth in Exhibit D, attached hereto and incorporated herein, and in addition to Section 19 of this Agreement, is subject to the following schedule and conditions: A.General. i. Build-out of the Project shall be concurrent with timing of infrastructure improvements set forth herein and in accordance with Exhibit D. B.Studies. i. The Developer, acting in its capacity as Construction Agent, shall comply with the findings and recommendations of the April 2024 Traffic Impact Analysis prepared by WPES, in which the mitigation costs are in the amount of $61,970.00. ii. The Developer, acting in its capacity as Construction Agent, agrees to abide by the findings and mitigation measures outlined in the Habitat Analysis completed for the Property. C.Environmental. The Developer, acting in its capacity as Construction Agent, shall follow the recommendation in the Notice of Consistency and, accordingly, no further environmental mitigation shall be required for the Project. D.Off-Site Improvements. i. Developer, acting in its capacity as Construction Agent, agrees to extend the water main at Randolph Road east along Tyndall Road for the length of the property identified as parcel # 110069513. ii. Developer, acting in its capacity as Construction Agent, agrees to improve the stormwater system along the full extent of the subject property boundaries, to Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 9 of 23 769323455.2 include a re-profiling of the ditches, in conformance with Grant County Road standards. iii.Intentionally omitted. iv. Developer, acting in its capacity as Construction Agent, agrees, subject to written approval from Grant County Public Works and any other authority having jurisdiction, to construct an eight (8) foot wide trail paralleling Tyndall Road on either side of the ditch, built in a form consisting of either asphalt or concrete. v. Prior to the expiration of this Agreement all improvements required as a condition of any approval are to be fully constructed and or bonded or are to be vested under the most-current development regulations. Prior to the Project being deemed complete, all improvements required as any condition of approval shall be fully constructed, and the release of any bond(s) shall be executed. vi. Developer, acting in its capacity as Construction Agent, shall pay any traffic mitigation fees, as identified in the Traffic Impact Analysis, to the authority having jurisdiction over the recommended improvement(s). E.On-Site Improvements. i. Developer agrees to convey 60’ feet of right-of-way at the northern extent of the Parcel #110069511 for the purpose of future east-west road extending between Stratford Road and Randolph Road NE. ii. Developer, acting in its capacity as Construction Agent, agrees to comply with Fire Code requirements by causing to be constructed a: (1) minimum 72,000 gallon water storage tank/reservoir; (2) ship’s ladder/stair along east elevation; (3) ladder to office roof on north elevation; (4) ladder from office roof to warehouse roof on west elevation; and (5) hose stations, both interior and roof exterior, to accommodate 150’ hose distance. Section 14. Minor Modifications. Minor modifications from the approved permits or the exhibits attached hereto may be approved in accordance with the provisions of the City’s code and shall not require an amendment to this Agreement. Section 15. Further Discretionary Actions. Developer acknowledges that the Existing Land Use Regulations contemplate the exercise of further discretionary powers by the City Nothing in this Agreement shall be construed to limit the authority or the obligation of the City to hold legally required public hearings, or to limit the discretion of the City and any of its officers or officials in complying with or applying Existing Land Use Regulations. Section 16. Financing of Public Facilities. Developer, acting in its capacity as Construction Agent, shall pay the impact fees as set forth in the Notice of Consistency. Section 17. Existing Land Use Fees and Impact Fees. Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 10 of 23 769323455.2 A.Developer, acting in its capacity as Construction Agent, shall pay any required impact fees as incurred from time to time, in accordance with this Agreement. B.Land use fees adopted by the City by ordinance as of the Effective Date of this Agreement may be increased by the City from time to time. Such increased land use fees may apply to unpaid permits and approvals for the Property, as long as such fees apply to similar applications and projects in the City. C.All impact fees shall be paid as set forth in the approved permit or approval, or as addressed in Moses Lake Municipal Code. Section 18. Phasing and Schedule. Intentionally omitted. Section 19. Dedication of Public Lands. Except as otherwise provided herein, the Developer shall dedicate all public lands in accordance with the following schedule: A. Road Right-Of-Way. Per Section 13.E.i above, the Developer agrees to dedicate the road right of way at the northern extent of the Property without expense to the City. Section 20. Default. A. With exception to extensions of time by mutual consent in writing, or as otherwise provided by this Agreement, failure or delay by either Party to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the non-defaulting Party alleging such default or breach shall give the other Party not less than thirty (30) consecutive days after such other Party’s receipt of notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During the thirty (30) day cure period, the alleged defaulting Party charged shall not be considered in default for purposes of termination or institution of legal proceedings. A default by either party under this Agreement shall entitle the other party to all remedies available at law or in equity, which shall include, but not be limited to, the right to damages, injunctive relief, and specific performance. In the event either party is required to enforce this Agreement by court proceedings or otherwise, then the prevailing party shall be entitled to recover from the other party all costs incurred, including reasonable attorneys' fees at all pre-trial, trial, appeal, and alternative dispute resolution levels. B. After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the non-defaulting Party may, at its option, institute legal proceedings against the defaulting Party. In addition, the City may decide to file an action to enforce the City’s Ordinances, and to obtain penalties and costs as provided in the MLMC for violations of this Agreement and the Existing Land Use Regulations, in force and effective on the Effective Date. Section 21. Termination. This Agreement shall terminate upon the expiration of the Term identified in Section 9 or when the Property has been fully developed, which ever first occurs, and all of the Developer’s obligations in connection therewith are satisfied as reasonably determined by the City. Upon termination of this Agreement, the City shall record a notice of such termination in a form satisfactory to the City Attorney that the Agreement has been terminated. This Agreement shall automatically terminate and be of no further force and effect as to any single-family residence, any Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 11 of 23 769323455.2 other residential dwelling unit or any nonresidential building and the lot or parcel upon which such residence or building is located, when it has been approved by the City for occupancy. Nothing in this Agreement shall extend the expiration date of any permit or approval issued by the City for any development. Section 22. Effect upon Termination on Developer Obligations. Termination of this Agreement as to the Developer, acting in its capacity of Construction Agent, of the Property, or any portion thereof, shall not affect any of the Developer’s obligations, acting in its capacity of Construction Agent, to comply with the land use entitlements approved with respect to the Property, or any other conditions of the development specified in the Agreement to continue after the termination of this Agreement or obligations to pay assessments, liens, fees or taxes. Section 23. Effects upon Termination on City Obligations. Upon any termination of this Agreement as to the Developer, acting in its capacity of Construction Agent, of the Property, or any portion thereof, the approved land use entitlements, conditions of development, or limitations on fees shall be vested. Any land use entitlements and processes not approved prior to termination of this Agreement shall not be vested to any regulations or provisions set forth or contemplated in this Agreement. Section 24. Assignment and Assumption. Developer shall have the right to sell, assign, or transfer this Agreement with all its rights, title, and interest therein to any person, firm, or corporation at the time during the Term of this Agreement subject to the prior written approval of the City which shall not be unreasonably withheld. Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Property, at least 30 days in advance of such action. Any building permit submitted to the City for any individual residential lot shall be deemed sufficient notice for intent to construct and sell. Notwithstanding any provision to the contrary set forth herein, (i) the City does hereby approve the Ground Lease, the Lease, the Synthetic Lease Financing and any and all instruments that evidence and secure such Synthetic Lease Financing, and any and all instruments ancillary to any of the foregoing, all of which shall also be deemed permitted assignments without the requirement of first obtaining the consent of the City, and (ii) the Developer shall be permitted to collaterally assign this Agreement to the Lessor and/or its affiliates and/or to any other person or entity providing financing for the construction of the Project, including, without limitation, the Synthetic Lease Financing, without the requirement of first obtaining the consent of the City. Section 25. Covenants Running with the Land. The terms, conditions and covenants set forth in this Agreement shall run with the land and the benefits and burdens shall bind and inure to the benefit of the Parties and their successors, assigns, and legal representatives. The Developer, and every purchaser, assignee, ground lessee, or transferee of an interest in the Property, or any portion thereof shall be obligated and bound by the terms and conditions of this Agreement and shall be the beneficiary thereof and a party thereto, but only with respect to the Property, or such portion thereof sold, assigned, ground leased, or transferred to it. Any such purchaser, assignee, ground lessee, or transferee shall observe and fully perform all of the duties and obligations of the Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Property sold, assigned, ground leased, or transferred to it. Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 12 of 23 769323455.2 Section 26. Amendment to Agreement; Effect of Agreement on Future Actions. This Agreement may be amended by mutual written consent of all of the Parties, provided that any such amendment shall follow the process established by law for the adoption of a development agreement (see, RCW 36.70B.200). However, if acting pursuant to a serious threat to public health and safety, nothing in this Agreement shall prevent the City Council from making any amendment to its Comprehensive Plan, Zoning Code, Official Zoning Map, or development regulations affecting the Property during the Term of this Agreement. Nothing in this Agreement shall prevent the City Council from making any amendments of any type to the Comprehensive Plan, Zoning Code, Official Zoning Map, or development regulations relating to the Property through the termination date set forth by Section 9, but any application of such amendments to the Project is subject to the terms and limitations set forth in this Agreement. Section 27. Releases. Developer may release itself from further obligations relating to the sold, assigned, ground leased, or transferred property, provided that the buyer, assignee, ground lessee, or transferee expressly assumes the obligations under this Agreement as provided herein. Section 28. Indemnification. The Developer acknowledges that appeals or other actions outside the City’s control may occur concerning the Property. The Developer, acting in its capacity of Construction Agent, specifically agrees to hold the City harmless from any claims, injuries, suits, losses or damages arising out of or in connection with City compliance with any orders or required comprehensive plan changes related to such actions outside the City’s control. Section 29. Notices. Notices, demands, or correspondence to the Parties shall be sufficiently given if dispatched by pre-paid first-class mail to the addresses of the Parties as designated below. Notices to subsequent owners of the Property shall be required to be given by the City only for those owners who have given the City written notice of their address for such notice. The Parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence. A. City Notice Address: City of Moses Lake, Attn: City Manager and City Attorney, 401 S. Balsam, Moses Lake, WA 98837 B. Developer Notice Address: c/o LKQ Corporation, 500 West Madison Street, Suite 2800, Chicago, IL 60661, Attn: General Counsel Section 30. Reimbursements. A.Reimbursement of the Developer. Any reimbursement outlined by applicable sections of this Agreement shall be paid to, or as otherwise directed by, the Developer within ninety (90) consecutive days of completion subject to the acceptance of City Council. B.Reimbursement for Agreement Expenses of the City. Developer, in its capacity as Construction Agent, agrees to reimburse the City for actual expenses incurred over and above fees paid by Developer, in its capacity as Construction Agent, as an applicant incurred by City directly relating to this Agreement, including recording fees, publishing fees, and reasonable staff and consultant costs not otherwise included within application fees. Upon payment of all such expenses, the Developer may request written acknowledgement of all fees. Section 31. Applicable Law and Attorneys’ Fees. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. If litigation is initiated to enforce the terms of this Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 13 of 23 769323455.2 Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party. Venue for any action shall lie in Grant County Superior Court or the U.S. District Court for the Eastern District of Washington. Section 32. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a party to challenge this Agreement or any provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer. In such event, Developer, acting in its capacity of Construction Agent, shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to, attorneys’ fees and expenses of litigation, and damages awarded to the prevailing party or parties in such litigation. The Developer shall not settle any lawsuit without the consent of the City. The City shall act in good faith and shall not unreasonably withhold consent to settle. Section 33. Specific Performance. The Parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the Parties are entitled to compel specific performance of all material terms of this Agreement by any Party in default hereof. Section 34. Severability. If any portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any statute of the State of Washington which became effective after the Effective Date , and either party in good faith determines that such provision or provisions are material to its entering into this Agreement, that party may elect to terminate this Agreement as to all of its obligations remaining unperformed. Section 35. Integration. This Agreement and its exhibits contain all terms of the Agreement between the Parties. No other writings, communication, or representations are part of this Agreement unless as otherwise expressed herein. Section 36. Developer as Construction Agent. The City acknowledges that Developer and/or one or more affiliate(s) thereof is and/or will be acting as agent for the Lessor in respect of the design, development and construction of the Project. ACKNOWLEDGEMENT IN WITNESS WHEREOF, the Parties hereto have caused this Development Agreement to be executed as of the dates set forth below: DEVELOPER CITY OF MOSES LAKE LKQ FOSTER AUTO PARTS, INC., an Oregon corporation By __________________________ By ___________________________ Michael Jackson, Interim City Manager Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 14 of 23 769323455.2 Title: _________________________ ATTEST: By ___________________________ Debbie Burke, City Clerk APPROVED AS TO FORM: By ___________________________ Katherine L. Kenison, City Attorney Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 15 of 23 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 16 of 23 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 17 of 23 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 18 of 23 DEVELOPMENT AGREEMENT EXHIBIT B – LEGAL DESCRIPTION BY AND BETWEEN THE CITY OF MOSES LAKE AND LKQ FOSTER AUTO PARTS, INC. Parcel A A portion of land located in Section 27, Township 20 North, Range 28 East, Willamette Meridian, records of Grant County, Washington, described as follows: Beginning at a point 7,972.31 feet North and 1,643.38 feet East of the Southeast corner of Section 33 of said Township and Range (Whose Washington State Grid South Zone coordinated are Y=674,047.08 and X=2,298,909.20 and are referred to U.S.C. & G.S. Station "SPAD" whose Washington State South Coordinates are Y=676,911.66 & X=2,288,625.74), said point of beginning being the intersection of County Roads known as Randolph Drive and Tyndall Road; Thence South 72°41'35" East along the centerline of said Tyndall Road, 2,146.22 feet; Thence North 00°31'49" West 960.31 feet; Thence North 72°41"35" West 1,852.40 feet to the centerline of said Randolph Drive; Thence South 17°17'10" West following said centerline of said Randolph Drive, 914.15 feet to the point of beginning. Except therefrom the Southerly and Westerly 30.00 feet thereof for County Roads. Parcel B That portion of property described under Parcel 1 of Auditor's File Number 1020682 in the East half of Section 27, Township 20 North, Range 28 East Willamette Meridian, Grant County, Washington, described as follows: Beginning at a U.S.B.R. Brass Monument marking the Southeast corner of said Section, said point bears South 00°23'30" West 2679.44 feet, from a U.S.B.R. brass Cap monument marking the East quarter corner of said Section; Thence North 00°23'30" East, following the East boundary of said Section, 1762.72 feet, said point bears North 00°23'30" East, 30.00 feet, from a brass cap monument marking the centerline intersection of Stratford Road and Tyndall Road; Thence North 89°36'17" West, 40.00 feet to an intersection with the Northerly right-of-way boundary of said Tyndall Road and the Westerly right-of-way boundary of said Stratford Road, said point being Marked by a 1/2 inch rebar with surveyor's cap, said point also being the True Point of Beginning; Thence continuing North 89°36'17" West, following said Northerly right-of-way boundary of said Tyndall Road, 651.79 feet to a 1/2 inch rebar with surveyor's cap; Thence North 71°46'45" West, continuing to follow said right-of-way boundary, 872.94 feet to a 1/2 inch rebar with surveyor's cap, said point that bears North 00°23'01" East, 31.52 feet, from a brass cap monument marking the centerline of said Tyndall Road; Thence North 00°23'01" East, 3322.22 feet to an intersection with the North boundary of said section said point being marked by a ½ inch rebar with surveyor's cap, said point bears South 89°52'05" East, 1125.01 feet from a U.S.B.R. brass Cap Monument marking the North quarter corner of said section; Thence South 89°52'05' East, following said North boundary 1486.52 feet to an intersection with the Westerly right-of-way boundary of Stratford Road said point being marked by a 1/2 inch rebar with surveyor's cap, said point also being North 89°52'06" West, 40.00 feet, from a U.S.B.R. Brass Cap Monument marking the Northeast corner of said section; Thence South 00°27'40" West, following said right-of-way boundary and parallel with the East boundary of said section, 2678.52 feet; Thence South 00°23'30" West continuing to follow said right-of-way boundary and parallel with the East boundary of said section, 917.75 feet to the True Point of Beginning. EXCEPT ROADS situated in the County of Grant, State of Washington Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 19 of 23 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 20 of 23 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 21 of 23 Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 22 of 23 DEVELOPMENT AGREEMENT EXHIBIT D – TIMELINE BY AND BETWEEN THE CITY OF MOSES LAKE AND LKQ FOSTER AUTO PARTS, INC. PLACEHOLDER Document Ref: MVLZQ-CVFKB-X8WVJ-ZOARW Page 23 of 23 Signature Certificate Reference number: MVLZQ-CVFKB-X8WVJ-ZOARW Document completed by all parties on: 28 Aug 2024 22:16:59 UTC Page 1 of 1 Signer Timestamp Signature Katherine Kenison Email: kkenison@basinlaw.com Recipient Verification: Sent:28 Aug 2024 19:17:06 UTC Viewed:28 Aug 2024 20:01:15 UTC Signed:28 Aug 2024 20:09:29 UTC ✔Email verified 28 Aug 2024 20:01:15 UTC IP address: 173.209.171.7 Location: Moses Lake, United States Mayor Dustin Swartz Email: dswartz@cityofml.com Signed in person Hosted by: Debbie Burke Email: dburke@cityofml.com Sent:28 Aug 2024 19:17:06 UTC Signed:28 Aug 2024 22:16:39 UTC IP address: 63.135.54.162 Location: Moses Lake, United States Debbie Burke Email: dburke@cityofml.com Sent:28 Aug 2024 19:17:06 UTC Signed:28 Aug 2024 22:16:59 UTC IP address: 63.135.54.162 Location: Moses Lake, United States Signed with PandaDoc PandaDoc is a document workflow and certified eSignature solution trusted by 50,000+ companies worldwide.