HomeMy WebLinkAbout2023.02.21 Council Meeting Packet
AGENDA
City Council Regular Meeting
7:00 PM - Tuesday, February 21, 2023
Pasco City Hall, Council Chambers & GoToWebinar
Page
1. MEETING INSTRUCTIONS for REMOTE ACCESS - Individuals, who would
like to provide public comment remotely, may continue to do so by filling out
the online form via the City’s website (www.pasco-wa.gov/publiccomment) to
obtain access information to comment. Requests to comment in meetings
must be received by 4:00 p.m. on the day of this meeting.
To listen to the meeting via phone, call (415) 655-0060 and use access code
307-404-066.
City Council meetings are broadcast live on PSC-TV Channel 191 on
Charter/Spectrum Cable in Pasco and Richland and streamed at www.pasco-
wa.gov/psctvlive and on the City’s Facebook page at
www.facebook.com/cityofPasco.
2. CALL TO ORDER
3. ROLL CALL
(a) Pledge of Allegiance
4. CONSENT AGENDA - All items listed under the Consent Agenda are
considered to be routine by the City Council and will be enacted by roll call
vote as one motion (in the form listed below). There will be no separate
discussion of these items. If further discussion is desired by Council members
or the public, the item may be removed from the Consent Agenda to the
Regular Agenda and considered separately.
6 - 20 (a) Approval of Meeting Minutes for February 6th, 10th, and 13th
To approve the minutes of the Pasco City Coun cil Regular Meeting,
Mini Retreat and Regular Workshop held on February 6, 2023,
February 10, 2023 and February 13, 2023 respectively.
21 - 23 (b) Bills and Communications
Page 1 of 238
To approve claims in the total amount of $6,840,266.24 ($5,712,146.45
in Check Nos. 253847-254155; $1,625.60 in Electronic Transfer Nos.
839335; $29,314.01 in Check Nos. 54263-54274; $1,097,180.18 in
Electronic Transfer Nos. 30186431-30187022).
To approve bad debt write-off for accounts receivable including Utility
Billing, Ambulance, Cemetery, General Accounts, and Miscellaneous
Accounts in the total amount of $210,482.77 and, of that amount,
authorize $44,449.16 to be turned over for collection.
24 - 34 (c) Resolutions No. 4308 & No. 4309 - Land Mobile Radio (LMR) to
Cellular (LTE) Radio Interface Infrastructure
To approve Resolution No. 4308, waiving the competitive bidding
requirements and approving the purchase of Catalyst Communications
Technologies Intellilink Gateway Dashboard.
To approve Resolution No. 4309, waiving the competitive bidding
requirements and approving the purchase of Motorola Conventional
Channel Gateways.
35 - 47 (d) Resolution No. 4310 - Agreements for the Purchase of Virtual
Desktop Infrastructure
To approve Resolution No. 4310, authoring the City Manager to
execute contracts with Compunet Inc. of virtual desktop infrastructure
(VDI) technology.
(RC) MOTION: I move to approve the Consent Agenda as read.
5. PROCLAMATIONS AND ACKNOWLEDGEMENTS
6. VISITORS - OTHER THAN AGENDA ITEMS - This item is provided to allow
citizens the opportunity to bring items to the attention of the City Council or to
express an opinion on an issue. Its purpose is not to provide a venue for
debate or for the posing of questions with the expectation of an i mmediate
response. Some questions require consideration by Council over time and
after a deliberative process with input from a number of different sources;
some questions are best directed to staff members who have access to
specific information. Citizen comments will normally be limited to three
minutes each by the Mayor. Those with lengthy messages are invited to
summarize their comments and/or submit written information for
consideration by the Council outside of formal meetings.
7. REPORTS FROM COMMITTEES AND/OR OFFICERS
(a) Verbal Reports from Councilmembers
Page 2 of 238
8. HEARINGS AND COUNCIL ACTION ON ORDINANCES AND
RESOLUTIONS RELATING THERETO
48 - 55 (a) Public Hearing Continued and Ordinance No. 4641 for Mendoza
Right-of-Way Vacation (VAC 2022-007)
PUBLIC HEARING CONTINUED FROM FEBRUARY 6, 2023
MOTION: I move to approve Ordinance No. 4641, vacating portions of
right-of-way along South 5th Avenue in Pasco, and further, authorize
publication by summary only.
56 - 63 (b) Public Hearing Continued and Ordinance No. 4642 Jubilee
Foundation Right-of-Way Vacation (VAC 2022-009)
PUBLIC HEARING CONTINUED FROM FEBRUARY 6, 2023
MOTION: I move to approve Ordinance No. 4642, vacating rights -of-
way in Washington Addition to Pasco in the vicinity of East A Street
and East Helena Street and, further, authorize publication by summary
only.
9. EXECUTIVE SESSION
(a) Discussion with Legal Counsel about Legal risks of Current or
Proposed Action per RCW 42.30.110(1)(i) (15 minutes)
10. ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS
64 - 177 (a) Resolution No. 4311 Process Water Reuse Facility (PWRF) Draft
Processor Wastewater Treatment Agreement (WTA)
MOTION: I move to approve Resolution No. 4311, authorizing the
Interim City Manager to enter into the Process Water Reuse Facility
(PWRF) Industrial Wastewater Pretreatment Agreement with the
Processors for the PWRF Pretreatment Improvements Phase 3
Project.
178 - 207 (b) Resolution No. 4312 - Incorporate the Pasco School District's
2022 Capital Facility Plan Update into the City's Comprehensive
Land Use Plan
MOTION: I move to approve Resolution No. 4312, incorporating the
Pasco School District's 2022 update of the Capital Facilities Plan into
the City of Pasco's Comprehensive Land Use Plan.
208 - 228 (c) *Resolution No. 4313 - Purchase and Sale Agreement for Real
Property (Rico ROW)
Page 3 of 238
MOTION: I move to approve Resolution No. 4313, authorizing the
purchase of real property located at 3932 East Lewis Street, Pasco,
Washington, for future right-of-way.
11. UNFINISHED BUSINESS
12. NEW BUSINESS
229 - 236 (a) Consideration of Potential Rescission of Resolution No. 4303
MOTION: I move to rescind the motion approving Resolution No. 4303
- Retail Cannabis with Conditional Use Permit in I-1 I-2 and I-3 Zones
approved by Council at the January 17, 2023 meeting.
13. MISCELLANEOUS DISCUSSION
14. ADJOURNMENT
15. ADDITIONAL NOTES
(a) (RC) Roll Call Vote Required
* Item not previously discussed
Q Quasi-Judicial Matter
MF# “Master File #....”
237 - 238 (b) Adopted 2020-2021 Council Goals (Reference Only)
(c) REMINDERS
• Tuesday, February 21st, 6:00 PM: LEOFF Disability Board –
City Hall Conference Room 1, Pasco City Hall (MAYOR
BLANCH BARAJAS, Rep.; MAYOR PRO TEM CRAIG
MALONEY, Alt.)
• Tuesday, February 21st, 4:00 PM: Pasco Public Facilities
District Board Meeting – Council Chambers, Pasco City Hall
(MAYOR PRO TEM CRAIG MALONEY, Rep.;
COUNCILMEMBER DAVID MILNE, Alt.)
This meeting is broadcast live on PSC-TV Channel 191 on
Charter/Spectrum Cable in Pasco and Richland and streamed at
www.pasco-wa.gov/psctvlive.
Audio equipment available for the hearing impaired; contact the
Clerk for assistance.
Servicio de intérprete puede estar disponible con aviso. Por favor
avisa la Secretaria Municipal dos días antes para garantizar la
disponibilidad. (Spanish language interpreter service may be
Page 4 of 238
provided upon request. Please provide two business day's notice
to the City Clerk to ensure availability.)
Page 5 of 238
AGENDA REPORT
FOR: City Council February 15, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Debra Barham, City Clerk
Executive
SUBJECT: Approval of Meeting Minutes for February 6th, 10th, and 13th
I. REFERENCE(S):
02.06.2023, 02.10.2023, & 02.13.2023 Draft Council Minutes
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve the minutes of the Pasco City Council Regular Meeting, Mini Retreat
and Regular Workshop held on February 6, 2023, February 10, 2023 and
February 13, 2023 respectively.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
Page 6 of 238
MINUTES
City Council Regular Meeting
7:00 PM - Monday, February 6, 2023
Pasco City Hall, Council Chambers & GoToWebinar
MEETING INSTRUCTIONS FOR REMOTE ACCESS
CALL TO ORDER
The meeting was called to order at 7:00 PM by Blanche Barajas, Mayor.
ROLL CALL
Councilmembers present: Blanche Barajas, Craig Maloney, Irving Brown, Joseph
Campos, David Milne, Zahra Roach, and Pete Serrano
Councilmembers absent: None
Staff present: Adam Lincoln, Interim City Manager; Angela Pashon, Assistant City
Manager; Darcy Buckley, Finance Director; Eric Ferguson, City Attorney; Bob Gear,
Fire Chief; Zach Ratkai, Administrative & Community Services Director; Jesse Rice,
Information Technology Director; Ken Roske, Police Chief; Rick White, Community
& Economic Development Director; Steve Worley, Public Works Director; and
Debby Barham, City Clerk.
The meeting was opened with the Pledge of Allegiance.
CONSENT AGENDA
Ms. Roach requested that the "Approval of Meeting Minutes for January 17th and
23rd" action item be removed from the Consent Agenda for further discussion.
Approval of Meeting Minutes for January 17th and 23rd
This item was moved to Unfinished Business for further discussion.
Page 1 of 10Page 7 of 238
Bills and Communications
To approve claims in the total amount of $10,146,833.14 ($6,446,084.18 in Check
Nos. 253393-253846; $1,517,127.18 in Electronic Transfer Nos. 838813-838824,
838826, 838828-838870, 838875-838897, 838930-839003, 839005-839115,
839120-839131, 839133, 839135-839166, 839168-839206; $30,557.92 in Check
Nos. 54240-54262; $2,153,063.86 in Electronic Transfer Nos. 30185254 -
30186430).
Resolution No. 4305 - Wastewater Treatment Plant Improvements Phase 2A
Sole Source Purchase
To approve Resolution No. 4305, waiving the competitive bidding requirements and
approving the purchase of Allen Bradley Motor Control Centers for the Wastewater
Treatment Plant Improvements Phase 2A Project.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Milne
to approve the Consent Agenda as amended.
RESULT: Motion carried by Roll Call vote 6-1
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, and Councilmember Roach
NAYS: Councilmember Serrano
PROCLAMATIONS AND ACKNOWLEDGEMENTS
Proclaiming February 2023 as "Black History Month"
Mayor Barajas and Councilmember Brown read the proclamation proclaiming
February 2023 as, "Black History Month" in Pasco, Washington; and then both
Mayor Barajas and Mr. Brown presented it to Ms. Chaune' Fitzgerald from the
Washington African American Chamber of Commerce Tri-Cities.
VISITORS - OTHER THAN AGENDA ITEMS
Billie Wensveen, West Richland resident, commented about the Tri -Cities Animal
Control Shelter and a dog named Phoenix.
Angela Zilar, individual, commented about the Tri-Cities Animal Control Shelter and the
Pasco Municipal Code related to animal control.
Michelle Inserra, Friends of the Tri-Cities Animal Shelter organizer, commented about
the Tri-Cities Animal Control Shelter.
Mary Maddox, owner of Maddox's Dog Training Academy, commented about the Tri -
Cities Animal Control Shelter.
Page 2 of 10Page 8 of 238
Mary Mahoney, Franklin County resident, commented about the Tri-Cities Animal
Control Shelter.
Nicole Milne, Pasco resident, commented about the Tri-Cities Animal Control Shelter.
Carl Holder, Downtown Pasco business owner, commented about retail sales of
cannabis in the Pasco downtown area.
Julie Webb, Richland resident, commented about the Tri-Cities Animal Control Shelter.
Andrea Orozco, Kennewick resident, commented about the Tri-Cities Animal Control
Shelter.
Joseph Galbreath, Richland resident, commented about the Tri-Cities Animal Control
Shelter.
Mona Duruy, Richland resident, commented about the Tri-Cities Animal Control
Shelter.
Leo Perales, Pasco resident, commented about the Tri -Cities Animal Control Shelter
and referred to an email he sent directly to Council earlier in the day.
Brian Rio, Pasco resident, commented about the Tri-Cities Animal Control Shelter white
paper he wrote.
Geri Randall, Finley resident, commented about the Tri-Cities Animal Control Shelter.
RECESS
Mayor Barajas called a five-minute recess at 7:48 PM.
REPORTS FROM COMMITTEES AND/OR OFFICERS
Verbal Reports from Councilmembers
Mr. Campos reported on a recent visit he had with the Tierra Vida Homeowners
Association (HOA) during their meeting. He also noted that the Pasco Police
Department participated in the meeting with the Tierra Vida HOA meeting.
Ms. Roach reported on the Visit Tri-Cities Board meeting she attended recently.
She also noted that she is co-coaching the Pasco Recreation Boys Basketball
League.
Mr. Milne reported on a Colima-Pasco Friendship Collaboration Association
meeting he recently attended.
Page 3 of 10Page 9 of 238
Mr. Brown commented on the Children's Developmental Center Gala he recently
attended noting that Ms. Roach is the Executive Director for the Children's
Developmental Center.
Ms. Roach provided a brief recap on the recent Gala.
HEARINGS AND COUNCIL ACTION ON ORDINANCES AND RESOLUTIONS
RELATING THERETO
Public Hearing for Mendoza Right-of-Way Vacation (VAC 2022-007)
Mr. White provided a brief report related to the proposed right-of-way vacation and
asked that Council open and continue the public hearing to February 21st in order
to meet the 20-day notice requirement.
Mayor Barajas declared the Public Hearing open to consider the proposed
Mendoza Right-of-Way Vacation (VAC 2022-007).
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Roach
to continue the public hearing to the Regular Council meeting of February 21,
2023, to consider vacating rights-of-way for South 5th Avenue.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Public Hearing for Jubilee Foundation Right-of-Way Vacation (VAC 2022-009)
Mr. White provided a brief report related to the proposed rights-of-way vacation and
asked that Council open and continue the public hearing to February 21st in order
to meet the 20-day notice requirement.
Mayor Barajas declared the Public Hearing open to consider the proposed Jubilee
Foundation Right-of-Way Vacation (VAC 2022-009).
Steve Bauman, consultant for Jubilee Foundation, commented on the proposed
vacation.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Campos to continue the public hearing to the Regular Council Meeting of
February 21, 2023 to consider a request to vacate rights -of-way in Washington
Addition to Pasco in the vicinity of East A Street and East Helena Street.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Pro Tem Maloney, Mayor Barajas,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Page 4 of 10Page 10 of 238
Public Hearing for Burnham Wastewater Treatment Agreement – Process
Water Reuse Facility (PWRF) Pretreatment Improvement Phase 3 Project
Mr. Worley provided a brief report related to the proposed Wastewater Treatment
Agreement for the PWRF Pretreatment Improvement Phase 3 p roject.
Council and staff held a brief question and answer period regarding the proposed
Wastewater Treatment Agreement and next steps for the overall project.
Mayor Barajas declared the Public Hearing open to consider the proposed
agreement.
Karl Dye, TRIDEC CEO, expressed support for the proposed Wastewater
Treatment agreement. He offered to assistance to the Pasco staff noting that there
may be additional funding opportunities to help reduce the cost of the facility.
Doug Pettinger, Darigold Sr. Director of Environmental Compliance, expressed
support for the proposed Wastewater Treatment agreement.
Stephen McFadden, Port of Pasco Director of Economic Development & Marketing,
expressed support for the proposed Wastewater Treatment Agreement.
Following three calls for comments, and there being no further comment, Mayor
Barajas declared the Public Hearing closed.
ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS
Resolution No. 4306 - Third Work Acceleration Agreement for the Process
Water Reuse Facility Pretreatment Improvements
Mr. Worley provided a brief summary of the third (3rd) Work Acceleration
Agreement with Burnham SEV and recommended that Council approve the
agreement.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Campos to approve Resolution No. 4306, authorizing the City Manager to
execute a third Work Acceleration Agreement with Burnham SEV Pasco, LLC
for the Anaerobic Digestion and Renewable Natural Gas Project related to the
Process Water Reuse Facility Phase 3 Project.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Pro Tem Maloney, Councilmember Campos,
Mayor Barajas, Councilmember Brown, Councilmember
Milne, Councilmember Roach, and Councilmember
Serrano
Page 5 of 10Page 11 of 238
Ordinance No 4637 - Eickmeyer/Roundy - Zoning Determination of Annexed
Property (ZD 2022-002)
Mr. White provided a brief summary on the proposed zoning determination for the
recently annexed property.
Mayor Barajas announced that the proposed zoning determination for recently
annexed property was a quasi-judicial action and asked Mr. Ferguson to explain
the procedure for quasi-judicial items.
Mr. Ferguson read the quasi-judicial procedure including how the Appearance of
Fairness Doctrine applies to it. Next, he asked all Councilmembers a series of
questions associated with potential conflicts of interest to disclose such potential
conflicts or appearance of conflicts.
Ms. Roach asked for the applicant’s full name as she know a person with the last
name of Roundy.
Mr. White stated that the applicant was an LLC and did not know the full names of
the individuals that were a part of the LLC.
Ms. Roach stated that she has not discussed this item with anyone and feels that
she may remain impartial.
Mr. Campos noted that he knows the Eickmeyers; however, he has not discussed
this item with anyone and feels that he may remain impartial.
Mr. Ferguson asked if any members of the public were seeking to di squalify a
member of Council from participating in the proceedings. No one came forward.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Serrano to adopt Ordinance No. 4637, assigning zoning to the Eickmeyer/
Roundy annexation area, as recommended by the Hearing Examiner and,
further, authorize publication by summary only.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Ordinance No. 4638 - Alford/Cole - Zoning Determination of Annexed Property
(ZD 2022-003)
Mr. White provided a brief summary on the proposed zoning determination for the
recently annexed property.
Page 6 of 10Page 12 of 238
Mayor Barajas announced that the proposed zoning determination for recently
annexed property was a quasi-judicial action and asked Mr. Ferguson to explain
the procedure for quasi-judicial items.
Mr. Ferguson read the quasi-judicial procedure including how the Appearance of
Fairness Doctrine applies to it. Next, he asked all Councilmembers a series of
questions associated with potential conflicts of interest to disclose such potential
conflicts or appearance of conflicts. With no response from the Councilme mbers,
he asked if any members of the public were seeking to disqualify a member of
Council from participating in the proceedings. No one came forward.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Brown
to adopt Ordinance No. 4638, assigning zoning to the Alford/Cole annexation
area as recommended by the Hearing Examiner and further, authorize
publication by summary only.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Ordinance No. 4639 - 2023 Revenue Bond for LID No. 151 Debt Service
Ms. Buckley provided a brief summary of the proposed Revenue Bond for the Local
Improvement District No. 151.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Milne
to adopt Ordinance No. 4639, relating to Local Improvement District No. 151;
fixing the terms of the Local Improvement District No. 151 Bond; providing f or
the purchase of such Bond by the City from funds on deposit in the City’s
Equipment Replacement Fund; and fixing the term of and interest rate on Local
Improvement District No. 151 assessment installments.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Ordinance No. 4640 - Amending the Pasco Municipal Code, Chapter 13.80
Related to Stormwater
Ms. Serra introduced Environmental Compliance Coordinator Michael Henao who
provided a brief report on the proposed stormwater updates to Chapter 13.80 in the
Pasco Municipal Code related to the upcoming Washington State Department of
Ecology (Ecology) stormwater permit.
Council and staff briefly discussed the pending Ecology stormwater permit.
Page 7 of 10Page 13 of 238
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Campos to adopt Ordinance No. 4640, amending the Pasco Municipal Code,
Chapter 13.80 " Storm Water Management Utility", specifically, section
13.80.120 "Authorized Discharges"; amending section 13.80.130 "Permitted
Discharges."
RESULT: Motion carried 5-2
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos, and
Councilmember Roach
NAYS: Councilmember Milne and Councilmember Serrano
Resolution No. 4307 - Supplement No. 1 to Professional Services Agreement
for Construction Management Services for Citywide Traffic Signal
Improvements Phase 2 with Anderson Perry
Ms. Serra provided a brief report on the proposed amendment to the Citywide
Traffic Signal Improvements agreement with Anderson Perry.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Roach
to approve Resolution No. 4307, authorizing the City Manager to execute
Supplement No. 1 to the Professional Services Agreement with Anderson Perry
& Associates, Inc. for the Citywide Traffic Signal Improvements Phase 2 project.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
UNFINISHED BUSINESS
Approval of Meeting Minutes for January 17th and 23rd
Ms. Roach asked about the voting process on how Cannabis item (the approval of
Resolution No. 4303) was voted on during the January 17, 2023, Council meeting.
Council and Mr. Ferguson discussed the voting process and Mr. Ferguson
confirmed that the Roll Call vote that took place after the voice vote and prior to the
Mayor "calling" the vote. That vote was called after the Roll Call vote was
completed.
MOTION: Councilmember Milne moved, seconded by Councilmember Campos
to approve the minutes of the Pasco City Council Regular Meeting held on
January 17, 2023, and, Special Meeting and Regular Workshop held on January
23, 2023.
RESULT: Motion carried unanimously 7-0
Page 8 of 10Page 14 of 238
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
MISCELLANEOUS DISCUSSION
Mr. Lincoln announced that the groundbreaking event for the new Fire Station No. 85
was scheduled for Wednesday, February 8th.
Ms. Roach commented on discrimination and noted Washington State Senate Bill (SB)
5427 and asked if Council would consider writing a letter of support or add it to the City
Council's Legislative Priorities. She also asked that Council bring items to the Council
and as a whole would decide it was an item that they support and encouraged individual
Councilmembers not sign such items without the whole Council support.
Mr. Brown also commented on SB-5427 and expressed support for the bill.
Mayor Pro Tem Maloney announced that he will be traveling to Olympia next week for
Association of Washington Cities (AWC) Legislative Days. He also commented on the
police pursuits and modifying the State law and asked Mr. Lincoln the timeline of this
issue and if it was inline with Council's Legislative Priorities.
Council as a whole expressed support for the police pursuits policy amendment to State
Law.
Ms. Roach suggested that the animal shelter topic be added to the mini retreat agenda.
Mayor Barajas asked Mr. Ferguson the process for rescinding a vote from a previous
meeting and he provided the procedure for rescinding a vote.
After continued discussion Council considered and voted on the following motions.
Motions Related to Resolution No. 4303
MOTION: Mayor Barajas moved, seconded by Councilmember Roach to rescind
the approval of Resolution No. 4303 from the January 17, 2023, Council meeting.
RESULT: Motion failed by Roll Call vote as it needed a 2/3rds
majority approval. 4-3
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Campos, and Councilmember Roach
NAYS: Councilmember Brown, Councilmember Milne, and
Councilmember Serrano
Page 9 of 10Page 15 of 238
MOTION: Councilmember Roach moved, seconded by Mayor Pro Tem Maloney
to bring back Resolution No. 4303 consideration for retail sales of cannabis to a
future Council meeting for potential rescission.
RESULT: Motion carried by Roll Call vote 5-2
AYES: Mayor Pro Tem Maloney, Councilmember Roach, Mayor
Barajas, Councilmember Brown, and Councilmember
Campos
NAYS: Councilmember Milne and Councilmember Serrano
ADJOURNMENT
There being no further business, the meeting was adjourned at 9:57 PM.
PASSED and APPROVED this ____ day of ________________, 20__.
APPROVED: ATTEST:
Blanche Barajas, Mayor Debra Barham, City Clerk
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MINUTES
City Council Special Meeting
5:30 PM - Friday, February 10, 2023
Courtyard by Marriott Pasco Tri-Cities Airport
CALL TO ORDER
The mini retreat was called to order at 5:44 PM by Blanche Barajas, Mayor.
ROLL CALL
Councilmembers present: Blanche Barajas, Craig Maloney, Irving Brown, Joseph
Campos, David Milne, Zahra Roach, and Pete Serrano
Councilmembers absent: None
Staff present: Adam Lincoln, Interim City Manager; Angela Pashon, Assistant City
Manager; Eric Ferguson, City Attorney; and April Culwell, Executive Assistant.
ITEMS FOR DISCUSSION
Strategic Visioning Discussion
City Council met to discuss goals and strategic priorities.
The City Council generally discussed the following areas: Council administrative
support, Tri-Cities Animal Control Authority, how Council meetings are conducted
(Robert’s Rules of Order guidelines), and inclusion, diversity and equity.
ADJOURNMENT
There being no further business, the meeting was adjourned at 8:06 PM.
PASSED and APPROVED this __ day of ________________, 20__.
APPROVED: ATTEST:
Blanche Barajas, Mayor Debra Barham, City Clerk
Page 1 of 1Page 17 of 238
MINUTES
City Council Workshop Meeting
7:00 PM - Monday, February 13, 2023
Pasco City Hall, Council Chambers & GoToWebinar
CALL TO ORDER
The meeting was called to order at 7:00 PM by Blanche Barajas, Mayor.
ROLL CALL
Councilmembers present: Blanche Barajas, Craig Maloney, Irving Brown, Joseph
Campos, David Milne, Zahra Roach, and Pete Serrano
Councilmembers absent: None
Staff present: Adam Lincoln, Interim City Manager; Angela Pashon, Assistant City
Manager; Darcy Buckley, Finance Director; Eric Ferguson, City Attorney; Bob Gear,
Fire Chief; Zach Ratkai, Administrative & Community Services Director; Jesse Rice,
Information Technology Director; Ken Roske, Police Chief; Rick White, Community
& Economic Development Director; Steve Worley, Public Works Director; and
Debby Barham, City Clerk.
The meeting was opened with the Pledge of Allegiance.
ITEMS FOR DISCUSSION
Housing Authority Interlocal Agreement
Mr. White introduced Housing Authority of the City of Pasco and Franklin County
Executive Director Matt Truman who then provided a brief presentation regarding
Housing Authority statistics, community partnerships, Varney Court and requested
the Interlocal Agreement between the City and the Housing Authority regarding the
Pilot Tax be removed from the affordable housing program.
Council and Mr. White continued to discuss affordable housing options including
Single Room Occupancy, intentions of presenting the Housing Authority to the
Pasco School District an other agencies involved with the Pilot Tax.
Page 1 of 3Page 18 of 238
Presentation - Processors Wastewater Treatment Agreement
Mr. Worley provided a brief report on the draft Processors Wastewater Treatment
Agreement (Processors WTA) including the total cost of the overall Process
Wastewater Reuse Facility (PWRF) project for all phases. He described the options
to reduce that overall cost.
Council and Mr. Worley continued discussion regarding options to reduce the
overall cost.
Ms. Roach requested that the Executive Session be conducted next instead of at
the end as presented on the agenda.
Mayor Barajas asked for a Roll Call vote after Ms. Roach moved and Mr. Campos
seconded the motion to move into Executive Session.
MOTION: Councilmember Roach moved, seconded by Councilmember Campos
to move the Executive Session forward to this portion of the Workshop.
RESULT: Motion carried by Roll Call vote 6-1
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, and Councilmember Roach
NAYS: Councilmember Serrano
EXECUTIVE SESSION (20 MINUTES)
Council adjourned into Executive Session at 7:43 PM for 20 minutes with the City
Manager and the City Attorney to discuss the following:
A. Consideration of site selection or acquisition of real estate purchase or lease if
likelihood that disclosure would increase price per RCW 42.30.110(1)(b);
B. Consideration of the minimum offering price for sale or lease of real estate if
there’s a likelihood that disclosure would decrease the price per RCW
42.30.110(1)(c) including the following factors: sight selecti on, and future use of
property; and
C. Discussion with legal counsel about legal risks of current or proposed action
per RCW 42.30.110(1)(i).
At 8:03 PM Mayor Barajas announced that the Executive Session would continue for
another 20 minutes.
Mr. Ratkai joined the Executive Session at 8:15 PM and left at 8:21 PM.
Mayor Barajas called the meeting back to order at 8:24 PM.
ITEMS FOR DISCUSSION CONTINUED
Page 2 of 3Page 19 of 238
Discussion - Right-of-Way Vacation for Snake River Agriculture LLC (VAC
2022-006)
Mr. White provided a brief summary of the proposed Right -of-Way Vacation
previously set for a public hearing at the December 5, 2022 meeting. He stated
that the concerns of the property owner may be addressed administratively.
However, Council will need to hold a new public hearing and it must be properly
noticed before final action may occur.
Single Room Occupancy (SRO) Housing Moratorium
Mr. White provided a brief report on the status of the moratorium of the Single Room
Occupancy, noting that status of the current SRO projects within Tri-Cities (Pasco,
Kennewick and Richland).
Council and Mr. White briefly discussed the continuation of the moratorium of the
SROs until the Housing Capacity Plan is completed.
Resolution - Agreements for the Purchase of Virtual Desktop Infrastructure
Mr. Rice provided a brief overview of the purchase agreements for the needed
Virtual Desktop Infrastructure (VDI).
Presentation - Land Mobile Radio (LMR) to Cellular (LTE) Radio Interface
Infrastructure
Fire Chief Gear introduced Deputy Fire Chief Patrick Reid and Brad Steiner,
ATT/FirstNet Engineer who provided a brief report on the need for updating
emergency services communications equipment.
MISCELLANEOUS COUNCIL DISCUSSION
Mr. Worley invited Council to Road 76 fundraising event scheduled for Saturday,
February 18, 2023.
ADJOURNMENT
There being no further business, the meeting was adjourned at 8:50 PM.
PASSED and APPROVED this __ day of ________________, 20__.
APPROVED: ATTEST:
Blanche Barajas, Mayor Debra Barham, City Clerk
Page 3 of 3Page 20 of 238
AGENDA REPORT
FOR:City Council February 16, 2023
TO:Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM:Darcy Buckley, Finance Director
Finance
SUBJECT:Bills and Communications
I.REFERENCE(S):
Accounts Payable 02.17.23
Bad Debt Write-off/Collection for January 2023
II.ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve claims in the total amount of $6,840,266.24 ($5,712,146.45 in
Check Nos. 253847-254155; $1,625.60 in Electronic Transfer Nos. 839335;
$29,314.01 in Check Nos. 54263-54274; $1,097,180.18 in Electronic Transfer
Nos. 30186431-30187022).
To approve bad debt write-off for accounts receivable including Utility Billing,
Ambulance, Cemetery, General Accounts, and Miscellaneous Accounts in the
total amount of $210,482.77 and, of that amount, authorize $44,449.16 to be
turned over for collection.
III.FISCAL IMPACT:
IV.HISTORY AND FACTS BRIEF:
V.DISCUSSION:
Page 21 of 238
REPORTING PERIOD:
February 21, 2023
Claims Bank Payroll Bank Gen'l Bank Electronic Bank Combined
Check Numbers 253847-254155 54263-54274
Total Check Amount $5,712,146.45 $29,314.01 Total Checks 5,741,460.46$
Electronic Transfer Numbers 839335 30186431-30187022
Total EFT Amount $1,625.60 $1,097,180.18 $0.00 Total EFTs 1,098,805.78$
Grand Total 6,840,266.24$
Councilmember
779,021.78
35,691.44
17,684.74
2,713.11
78,216.93
841.47
3,147.76
0.00
43,336.71
835.88
1,621.74
56.40
262.70
22,465.29
20,160.54
2.79
HOTEL/MOTEL EXCISE TAX 13,847.20
1,087,299.86
3,480,864.36
81,477.14
13,059.90
13,403.41
1,625.60
1,142,629.49
GRAND TOTAL ALL FUNDS:6,840,266.24$
FLEX
PAYROLL CLEARING
ECONOMIC DEVELOPMENT
STADIUM/CONVENTION CENTER
GENERAL CAP PROJECT CONSTRUCTION
UTILITY, WATER/SEWER
EQUIPMENT RENTAL - OPERATING GOVERNMENTAL
EQUIPMENT RENTAL - OPERATING BUSINESS
EQUIPMENT RENTAL - REPLACEMENT GOVERNMENTAL
CEMETERY
ATHLETIC PROGRAMS
GOLF COURSE
ANIMAL CONTROL
SENIOR CENTER OPERATING
MULTI-MODAL FACILITY
RIVERSHORE TRAIL & MARINA MAIN
LITTER ABATEMENT
REVOLVING ABATEMENT
Councilmember
SUMMARY OF CLAIMS BY FUND:
GENERAL FUND
STREET
C.D. BLOCK GRANT
MARTIN LUTHER KING COMMUNITY CENTER
AMBULANCE SERVICE
February 2 - February 15, 2023
C I T Y O F P A S C O
Council Meeting of:
Accounts Payable Approved
The City Council
City of Pasco, Franklin County, Washington
We, the undersigned, do hereby certify under penalty of perjury the materials have been furnished, the services rendered or the labor performed as described
herein and the claim is a just, due and unpaid obligation against the city and we are authorized to authenticate and certify to such claim.
Adam Lincoln, Interim City Manager Griselda Garcia, Finance Manager
We, the undersigned City Councilmembers of the City Council of the City of Pasco, Franklin County, Washington, do hereby certify on this
21st day of February, 2023 that the merchandise or services hereinafter specified have been received and are approved for payment:
Page 22 of 238
BAD DEBT WRITE-OFF/COLLECTION
January 1 - January 31, 2023
1. UTILITY BILLING - These are all inactive accounts, 60 days or older. Direct write-offs under
$20 with no current forwarding address or are accounts in "occupant" status. Accounts
submitted for collection exceed $20.00.
2. AMBULANCE - These are all delinquent accounts over 90 days past due or statements are
returned with no forwarding address. Those submitted for collection exceed $10.00. Direct
write off including DSHS and Medicare customers; the law requires that the City accept
assignment in these cases.
3. CODE ENFORCEMENT – LIENS - These are Code Enforcement violation penalties which
are either un-collectable or have been assigned for collections because the property owner has
not complied or paid the fine. There are still liens in place on these amounts which will
continue to be in effect until the property is brought into compliance and the debt associated
with these liens are paid.
4. CEMETERY - These are delinquent accounts over 120 days past due or statements are returned
with no forwarding address. Those submitted for collection exceed $10.00.
5. GENERAL - These are delinquent accounts over 120 days past due or statements are returned
with no forwarding address. Those submitted for collection exceed $10.00.
6. MISCELLANEOUS - These are delinquent accounts over 120 days past due or statements are
returned with no forwarding address. Those submitted for collection exceed $10.00.
Direct
Write-off
Referred to
Collection
Total
Write-off
Utility Billing $ .00 .00 .00
Ambulance $ 210,482.77 44,449.16 254,931.93
Code Enforcement $ .00 .00 .00
Cemetery $ .00 .00 .00
General $ .00 .00 .00
Miscellaneous $ .00 .00 .00
TOTAL: $ 210,482.77 44,449.16 254,931.93
Page 23 of 238
AGENDA REPORT
FOR: City Council February 15, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Bob Gear, Fire Chief
Fire Department
SUBJECT: Resolutions No. 4308 & No. 4309 - Land Mobile Radio (LMR) to Cellular
(LTE) Radio Interface Infrastructure
I. REFERENCE(S):
Resolutions
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4308, waiving the competitive
bidding requirements and approving the purchase of Catalyst Communications
Technologies Intellilink Gateway Dashboard.
MOTION: I move to approve Resolution No. 4309, waiving the competitive
bidding requirements and approving the purchase of Motorola Conventional
Channel Gateways.
III. FISCAL IMPACT:
LMR to LTE Radio Interface Infrastructure Project is included in the 2023-2024
Biennial Budget in the amount of $409,606.56.
IV. HISTORY AND FACTS BRIEF:
The Pasco Fire Department has been exploring the integration of Long -Term
Evolution (LTE) into its current radio communications platform. LTE is 4/5G
cellular communications that functions in the 700 MHz communications band
width. The purpose of the LTE is to enhance our ability to communicate at
emergency incidents by interfacing the ATT/First Net cellular system into our
existing radio system. In order for the Fire Department to implement the use of
cellular communications into its emergency radio platform, it will require some
technology upgrades to the emergency radio infrastructure.
Page 24 of 238
The reason the Fire Department is moving in the direction of LTE is due to the
growth of the city and the various types of new commercial and industrial
buildings and facilities that will be developed as a result of this growth.
During emergency incidents, the ability to track and communicate with first
responders (firefighters and police officers) is vital for the safety of the public and
first responders. Each new commercial or industrial building creates different
communications challenges during emergencies, which includes being able to
track the location of the first responders who are tasked with mitigating the event.
The integration of Long-Term Evolution (LTE) into the current emergency radio
communications platform will increase service capabilities of the radio system
because it will allow the selection of better band strength based on radio or
cellular having the stronger transmission capability when being used at
emergency incidents.
Long-Term Evolution (LTE) will enhance firefighter and first responder safety
because it will allow the Incident Commander to track the location of personnel
assisting in the mitigation of emergency incidents. It will ensure accountability of
personnel at emergency incidents and provide the Incident Commande r with
situational awareness of their location at the emergency incident.
Furthermore, the integration of Long-Term Evolution (LTE) into the current
emergency radio communications platform ensures that the Pasco Fire
Department will have Mission-Critical push-to-talk via First Net in all existing
devices which will prevent interruption of emergency communications should a
natural or man-made disaster occur, which would impact the Land Mobile Radio
system.
To integrate Long-Term Evolution into the Land Mobile Radio System there are
some critical technology upgrades that must be added to the Fire Departments
existing emergency communication platform/system infrastructure. One of the
technology upgrades is the addition of Motorola Solutions Conventional Channel
Gateways that will increase the number of radio channels so the Long -Term
Evolution/Cellular communication can be used without reducing the number of
available radio channels used in the current communications platform/system.
The second technology upgrade is the Catalyst Communications Technologies
IntelliLink Gateway software system that converts LTE to LMR and LMR to LTE
communications frequencies/wave lengths. Both technologies are needed to
integrate Long-Term Evolution into the Land Mobile Radio System.
Page 25 of 238
V. DISCUSSION:
Two sole source Resolutions for the purchase of Catalyst Communications
Technologies IntelliLink Gateway Dashboard and Motorola Solutions
Conventional Gateways were presented by staff to Council for consideration at
the February 13, 2023, Council Workshop.
Page 26 of 238
Resolution Sole Source Catalyst Communications Technologies - 1
RESOLUTION NO. 4308
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
WAIVING THE COMPETITIVE BIDDING REQUIREMENTS AND
APPROVING THE PURCHASE OF CATALYST COMMUNICATIONS
TECHNOLOGIES INTELLILINK GATEWAY DASHBOARD.
WHEREAS, it is critical for the City of Pasco to have proper equipment to perform
emergency communications functions; and
WHEREAS, the City has the need to purchase Catalyst Communications Technologies
IntelliLink Gateway Dashboard equipment which will provide the software to integrate the Long-
Term Evolution cellular communications into the fire department’s existing emergency
communication platform/system; and
WHEREAS, the City currently uses traditional Land Mobile Radio equipment and
accessories and Catalyst Communications Technologies IntelliLink Gateway Dashboard will
provide the technology to convert cellular communications so that it can be used with the current
fire department emergency communications platform/system; and
WHEREAS, the City has established work standards that are supported by the use of
Catalyst Communications Technologies IntelliLink Gateway Dashboard; and
WHEREAS, the Council of the City of Pasco hereby determines that the paramount
considerations in the acquisition of IntelliLink Gateway Dashboard; and
WHEREAS, the use of IntelliLink Gateway Dashboard equipment is clearly and
legitimately limited to a single source of supply, as detailed in the Sole Source Worksheet
(Exhibit A), to support current operation standards, this purchase becomes subject to waiving
competitive bidding requirements per RCW 35.23.352(9) competitive bidding requirements,
RCW 39.04.280(1)(a) sole source, and RCW 39.04.280 (1)(b) special market conditions; and
WHEREAS, RCW 39.04.280(2)(a) requires that prior to utilizing the sole source
exemption, the City Council must first adopt a Resolution reciting the factual basis supporting the
exemption; and
WHEREAS, the City Council pursuant to RCW 39.04.280(2)(a) finds that such factual
basis as described herein and detailed in the Sole Source Worksheet does support application of
the sole source exemption as pertaining to the purchase of IntelliLink Gateway Dashboard.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
Page 27 of 238
Resolution Sole Source Catalyst Communications Technologies - 2
That the City Council of Pasco, Washington hereby find the above-described circumstance
is justification for the waiver of bidding requirements under the authority of RCW 35.23.352(9)
and pursuant to sole source provider (RCW 39.04.280(1)(a)) and special facilities or market
conditions (RCW 39.04.280(1)(b)) and, therefore, the bidding requirement is hereby waived for
the purchase of IntelliLink Gateway Dashboard equipment from Catalyst Communications
Technologies.
Be It Further Resolved, that the City of Pasco Fire Department purchase Catalyst
Communications Technologies IntelliLink Gateway Dashboard for an amount not to exceed the
sum of $131,403.35.
Be It Further Resolved, that this Resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington this, on 21st day of
February, 2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 28 of 238
SOLE SOURCE WORKSHEET
Sole source purchases are de?ned as clearly and legitimately limited to a single supplier.Sole source
purchases are normally not allowed except when based upon strong technological grounds such as
operational compatibility with existing equipment and related parts or upon a clearly unique and cost-
effective feature requirement.
Requisition Item:Catalyst Communications Technologies IntelliLink Gateway Dashboard
Requisition No.
Prior Purchase Order Number (if item had been approved previously):
1.
Resolution Sole Source
Please describe the items and its ?inction:IntelliLink Gateway Dashboard is a combination of
hardware and software that will enable the Pasco Fire Department to incorporate Long Term
Evolution (cellular/ATT First Net)into its emergency communication platform/system.The
IntelliLink Gateway Dashboard allows the Pasco Fire Department to map cellular communication
over twelve of the standard Pasco radio channels.The inclusion of the cellular communication with
enhance ?re?ghter and ?rst responder safety because the integration of cellular will allow the
incident commander to track the location of personnel operating at emergency incidents.
This is a sole source because:
sole provider of a licensed or patented good or service
[I sole provider of items that are compatible with existing equipment,inventory,systems,
programs,or services
sole provider of goods and services for which the City has established a standard
>14 sole provider of goods or services that will meet the specialized needs of the City or
perform the intended function (please detail below or in an attachment)
_the vendor/distributor is a holder of a used item that would represent good value and is
advantageous to the City (please attach information on market price survey,availability,
etc.)
What necessary features does this vendor provide which are not available from other vendors?
Please be speci?c.
A.Catalyst Communication Technologies is the only vendor that is authorized and licensed
by ATT/First Net,Motorola Solutions and L—3Harris to link the three system together to create
Land Mobile Radio to Long Term Evolution interface for the Pasco emergency communications
platfomi/system.
B.Catalyst Communication Technologies is the only vendor that produces/manufactures
the IntelliLink Gateway Dashboard that facilitates the interface for the Pasco emergency
communications platform/system.
C.Catalyst Communication Technologies will provide regular maintenance and a warranty
on all items they provide to the City.
What steps were taken to verify that these features are not available elsewhere?
IZJ Other brands/manufacturers were examined (please list phone numbers and names and
explain why these were not suitable).
There are no other vendors that provide an IntelliLink Gateway Dashboard to interface LMR to
LTE.
El Other vendors were contacted (please list phone numbers and names and explain why these
were not suitable).
Equipment -1
Page 29 of 238
5.Sole source vendor certi?es that the City is getting the lowest price offered for the item.
Certi?cation of Need
This recommendation for sole source is based upon on objective review of the product/service required and
appears to be in the best interest of the City.I know of no conflict of interest on my part of personal
involvement in any way with this request.No gratuities,favors or comprising actions have been taken.
Neither has my person familiarity with particular brands,types or equipment,materials or ?rm been a
deciding in?e my request to sole sour 'purchase.
Resolution Sole Source Equipment -2
Page 30 of 238
Resolution Sole Source Motorola Conventional Channel Gateways - 1
RESOLUTION NO. 4309
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
WAIVING THE COMPETITIVE BIDDING REQUIREMENTS AND
APPROVING THE PURCHASE OF MOTOROLA CONVENTIONAL
CHANNEL GATEWAYS.
WHEREAS, the City of Pasco (City) entered into an Interlocal with Benton County
Emergency Services on June 19, 2018, to perform emergency management services within both
Benton and Franklin Counties including municipal jurisdictions located within the two counties;
and
WHEREAS, it is critical for the City to have proper equipment to perform emergency
communications functions; and
WHEREAS, the City has the need to purchase Motorola Solutions Conventional Channel
Gateways equipment to enhance the fire department’s Land Mobile Radio system, this technology
will support the integration of Long-Term Evolution/cellular into the fire departments current
emergency communications platform/system; and
WHEREAS, the City currently uses traditional Motorola Solutions Land Mobile Radio
equipment and accessories, and the Conventional Channel Gateways will ensure the current
emergency communications infrastructure is able to accept the long-term evolution integration;
and
WHEREAS, the City has established work standards that are supported by the use of
Motorola Conventional Channel Gateways equipment; and
WHEREAS, the Council of the City of Pasco hereby determines that the paramount
considerations in the acquisition of Motorola Conventional Channel Gateways; and
WHEREAS, the use of Motorola Conventional Channel Gateways equipment is clearly and
legitimately limited to a single source of supply, as detailed in the Sole Source Worksheet (Exhibit
A), to support current operation standards, this purchase becomes subject to waiving competitive
bidding requirements per RCW 35.23.352(9) competitive bidding requirements, RCW
39.04.280(1)(a) sole source and RCW 39.04.280 (1)(b) special market conditions; and
WHEREAS, RCW 39.04.280(2)(a) requires that prior to utilizing the sole source
exemption, the City Council must first adopt a Resolution reciting the factual basis supporting the
exemption; and
WHEREAS, the City Council, pursuant to RCW 39.04.280(2)(a), finds that such factual
basis as described herein and detailed in the Sole Source Worksheet does support application of
the sole source exemption as pertaining to the purchase of Motorola Conventional Channel
Gateways.
Page 31 of 238
Resolution Sole Source Motorola Conventional Channel Gateways - 2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
That the City Council of Pasco, Washington, hereby find the above-described
circumstance is justification for the waiver of bidding requirements under the authority of RCW
35.23.352(9) and pursuant to sole source provider (RCW 39.04.280(1)(a)) and special facilities or
market conditions (RCW 39.04.280(1)(b)) and, therefore, the bidding requirement is hereby
waived for the purchase of Motorola Conventional Channel Gateways equipment from Motorola
Solutions.
Be It Further Resolved that the Benton County Emergency Services, on behalf of the
Pasco Fire Department, will purchase Motorola Conventional Channel Gateways equipment from
Motorola Solutions for an amount not to exceed the sum of $173,224.00.
Be It Further Resolved, that this Resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington this, on 21st day of February, 2023
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 32 of 238
SOLE SOURCE WORKSHEET
Sole source purchases are de?ned as clearly and legitimately limited to a single supplier.Sole source
purchases are normally not allowed except when based upon strong technological grounds such as
operational compatibility with existing equipment and related parts or upon a clearly unique and cost-
effective feature requirement.
Requisition Item:Motorola Solutions Conventional Channel Gateways Requisition No.
Prior Purchase Order Number (if item had been approved previously):
1.Please describe the items and its ?mction:Motorola Conventional Channel Gateways is a
combination of hardware and software that will enable the Pasco Fire Department to incorporate
Long Term Evolution (cellular/ATT First Net)into its emergency communication platform/system.
The Motorola Conventional Channel Gateways allows the Pasco Fire Department to map cellular
communication over twelve of the standard Pasco radio channels.The inclusion of the cellular
communication with enhance ?re?ghter and first responder safety because the integration of
cellular will allow the incident commander to track the location of personnel operating at
emergency incidents.
2.This is a sole source because:
Cl sole provider of a licensed or patented good or service
El sole provider of items that are compatible with existing equipment,inventory,systems,
programs,or services
I]sole provider of goods and services for which the City has established a standard
sole provider of goods or services that will meet the specialized needs of the City or
perform the intended function (please detail below or in an attachment)
El the vendor/distributor is a holder of a used item that would represent good value and is
advantageous to the City (please attach information on market price survey,availability,
etc.)
3.What necessary features does this vendor provide which are not available from other vendors?
Please be speci?c.
A.The Motorola Conventional Channel Gateways are the only communications equipment
that is capable of integrating and interfacing with the existing Motorola Land Mobile Radio
infrastructure radio system used by the Pasco Fire Department and Benton County Emergency
Services and SECOMM emergency dispatch center.Motorola Solutions has agreements in place
with Catalyst Communication Technologies,and ATT/FirstNet to link the system together to create
land mobile radio to long term evolution interface for the Pasco emergency communications
platform/system.
B.Motorola Solutions is the only vendor that produces/manufactures the Conventional
Channel Gateways that will interface with the existing Motorola radio infrastructure that is current
used by PFD,Benton County Emergency Services and SECOMM facilitates the integration of the
Land Mobile Radio to Long-Term Evolution for the Pasco emergency communications
platform/system.
C.Motorola Solutions will provide regular maintenance and a warramty on all items they
provide to the City.
Resolution Sole Source Equipment —1
Page 33 of 238
4.What steps were taken to verify that these features are not available elsewhere?
K Other brands/manufacturers were examined (please list phone numbers and names and
explain why these were not suitable).There are no other vendors that provide the
Conventional Channel Gateways to interface LMR to LTE.
El Other vendors were contacted (please list phone numbers and names and explain why these
were not suitable).
5.Sole source vendor certi?es that the City is getting the lowest price offered for the item.
Certi?cation of Need
This recommendation for sole source is based upon on objective review of the product/service required and
appears to be in the best interest of the City.I know of no con?ict of interest on my part of personal
involvement in any way with this request.No gratuities,favors or comprising actions have been taken.
Neither has my personal familiarity with particular brands,types or equipment,materials or ?rm been a
deciding in my request to sol rce is purchase.
Date:9?
Resolution Sole Source Equipment -2
Page 34 of 238
AGENDA REPORT
FOR: City Council February 15, 2023
TO: Adam Lincoln, Interim City Manager City Council Workshop
Meeting: 2/21/23
FROM: Jesse Rice, Director
Information Technology
SUBJECT: Resolution No. 4310 - Agreements for the Purchase of Virtual Desktop
Infrastructure
I. REFERENCE(S):
Resolution
Virtual Desktop Infrastructure - Hardware Purchase Agreement
Virtual Desktop Infrastructure - Software Purchase Agreement
Virtual Desktop Infrastructure - Device Purchase Agreement
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4310, authoring the City Manager
to execute contracts with Compunet Inc. of virtual desktop infrastructure (VDI)
technology.
III. FISCAL IMPACT:
Purchase Request Total: $896,803.51
IV. HISTORY AND FACTS BRIEF:
The City of Pasco (City) primarily uses traditional Windows based desktop and
laptop personal computing devices to support staff technology needs. These
devices are replaced regularly via planned replacement lifecycles and generally
ordered support technology streamline to models and batches similar in
processes. Historically they have met staff technology needs. However, as the
City continues to grow, adding more staff and facilities, and technology
requirements vary by user and department, the one type fits all approach of
traditional computers is becoming less cost effective while the increasing
quantity of devices are becoming challenging to proactively manage and
responsively support.
Page 35 of 238
Due to the dependency on technology for city operations, the need to provide
rapid support service, and obtain maximum value from technology costs,
Information Technology staff researched other computing options to better
support the City’s expanding technology needs.
Based on Information Technology staff research to improve supportability and
cost effectiveness of the current computer environment, staff requested 2023
budget funds to purchase Virtual Desktop Infrastructure (VDI) technology. VDI
transitions computing resources from being purchased and located on each
device, to a central processor, memory, and storage “warehouse”. Users access
the “warehouse” using similar, but less costly desktop and laptop equipment,
which remotely connects users to their familiar Windows desktop to perform
work.
VDI offers several improvements over tradition desktops including centralized
management, flexibility to assign resources by demand, longer replacement
lifecycles, remote accessibility, centralized data locatio n, security, redundancy,
and less energy usage.
Staff reviewed VDI solutions from the City's current technology providers and
selected CompuNet Inc. to provide an initial VDI solution, which consists of three
different technology manufactures. These include a VDI hardware solution from
Dell Inc. for $422,019.40, a VDI software solution from VMWare Inc. for
$312,996.62, which combined creates the “warehouse infrastructure” and VDI
desktop and laptop devices from 10Zig for $88,495.02 to transition 2023 planned
replacement and new computing devices to VDI. The total cost of purchases is
$896,803.51, which aligns with approved 2023 budget funds for infrastructure
and devices totaling $924,000.00.
Staff requests approval to proceed with the purchase of the qu oted VDI
technologies from CompuNet Inc. who is a listed State of Washington contact
vendor with the National Association of State Procurement Officials (NASPO)
using contracts “WA, NASPO, AR2472-05116”, “WA, NASPO, MNWNC-109
05815-004 (C000000733605)” and OMNIA purchasing cooperative contract
“NCPA 01-107”.
V. DISCUSSION:
Staff presented the contracts to Council at the February 13th Workshop and is
recommending approval of the resolution approving the purchase of the
equipment.
Page 36 of 238
Resolution –Virtual Desk Top PCs Purchase Contract - 1
RESOLUTION NO. 4310
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE
CONTRACTS WITH COMPUNET INC. FOR VIRTUAL DESKTOP
INFRASTRUCTURE (VDI) TECHNOLOGY.
WHEREAS, the City of Pasco, Washington, determined a need to replace traditional
desktop and laptop computer devices with modern virtual desktop and laptop devices; and
WHEREAS, City staff reviewed currently used City technology manufacturers’ VDI
solutions; and
WHEREAS, the City Council of the City of Pasco, Washington, has after due
consideration, determined that it is in the best interest of the City of Pasco to enter
contracts with CompuNet Inc. for the purchase VDI Technology including hardware, software,
and devices.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
That the City Council of the City of Pasco approves the terms and conditions of the VDI
contract purchases between the City of Pasco and CompuNet Inc. using member cooperative
purchase agreements “WA, NASPO, AR2472-05116”, “WA, NASPO, MNWNC-109 05815-004
(C000000733605)” and “OMNIA - NCPA 01-107”, as attached hereto and incorporated herein
as Exhibits A, B and C.
Be It Further Resolved that the Interim City Manager of the City of Pasco, Washington,
is hereby authorized, empowered, and directed to execute said Contracts on behalf of the City of
Pasco; and to make minor substantive changes as necessary to execute the Contracts.
PASSED by the City Council of the City of Pasco, Washington on this 21st day of February,
2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 37 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF206610
10Zig
Contract Information
All, NCPA, 01-107
Quote Information:Prepared for:Bill To:Ship To:
Quote #: MF206610 City of Pasco City of Pasco City of Pasco
Version: 1
Quote Date: 02/07/2023
Expiration Date: 03/09/2023
Anthony Wright
(509) 543-5752
wrightaj@pasco-wa.gov
Accounts Payable
P.O. Box 293
Pasco , WA 99301
accountspayable@pasco-wa.gov
Anthony Wright
525 N 3rd Avenue
Pasco, WA 99301
10Zig
Manufacturer
Part Number
Product Description Quantity Price Ext. Price
4610q-47610 4610q WIN10 64 Bit 4GB RAM 32GB SATA 79 $589.50 $46,570.50
6110-87610 6110 WIN10 64 Bit 8GB RAM 32GB SATA 3 $909.99 $2,729.97
7510q-85613 7510q WIN10 64 Bit 8GB RAM 128GB SATA w/
Wireless
45 $870.99 $39,194.55
Subtotal:$88,495.02
Shipping
Product Description Quantity Price Ext. Price
Free Shipping 1 $0.00 $0.00
Quote Summary
Description Amount
10Zig $88,495.02
Total:$88,495.02
1 of 2 www.compunet.biz help@compunet.biz
Page 38 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF206610
Taxes, shipping, handling and other fees may apply. We reserve the right to cancel any order arising from pricing or other
errors. If Customer is purchasing a subscription-based product, Customer agrees to pay all charges for the complete term of the
subscription. By signing below or issuing a Purchase Order, Customer agrees to CompuNet's standard terms and conditions,
which can be reviewed here, provided, that if Customer and CompuNet are parties to a currently effective Master Product
Purchase and Services Agreement (MSA), the terms and conditions of such MSA shall control and shall supersede these
standard terms and conditions. Your electronic signature, per the Electronic Signature Act, is considered equivalent to your
signed and faxed signature, and allows you to accept and place your order. This Quote becomes binding and noncancelable
upon Customer's return to CompuNet of acceptance. A copy of this acceptance and the attached proposal document will be sent
to your email address to complete your order acceptance. You are NOT required to electronically sign your order, you may fax or
email your signed proposal to your Account Executive.
City of Pasco
Signature:
Name:
Title:
Date:
PO Number:
2 of 2 www.compunet.biz help@compunet.biz
Page 39 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203531
Dell VxRail - 5 Year
Contract Information
WA, NASPO, MNWNC-109 05815-004 (C000000733605)
Quote Information:Prepared for:Bill To:Ship To:
Quote #: MF203531 City of Pasco City of Pasco City of Pasco
Version: 3
Quote Date: 02/07/2023
Expiration Date: 03/03/2023
Anthony Wright
(509) 543-5752
wrightaj@pasco-wa.gov
Accounts Payable
P.O. Box 293
Pasco, WA 99301
accountspayable@pasco-wa.gov
Anthony Wright
525 N 3rd Avenue
Pasco, WA 99301
Dell
Manufacturer Part
Number
Product Details Qty List Price Price Ext. Price
210-BBGS VXRAIL V670F, ALL FLASH 4 $10,823.73 $4,912.89 $19,651.56
329-BDWH PSNT INFO 4 $0.00 $0.00 $0.00
379-BENB VSAN NODE 4 $0.00 $0.00 $0.00
384-BDGD VXRAIL P670F FIRMWARE LOCK 4 $0.00 $0.00 $0.00
634-BZQT VXRAIL SOFTWARE 7.0.380 FACTORY
INSTALL
4 $0.00 $0.00 $0.00
379-BDYQ NO TRANSFORMATIONAL LICENSE
AGREEMENT
4 $0.00 $0.00 $0.00
379-BEWY INFORMATIONAL PURPOSES ONLY 4 $0.00 $0.00 $0.00
321-BGZM 2.5" CHASSIS WITH UP TO 24 HDDS
(SAS/SATA) INCLUDING 8 UNIVERSAL
SLOTS
4 $1,180.00 $535.60 $2,142.40
379-BDSQ GPU ENABLEMENT 4 $0.00 $0.00 $0.00
325-BDYT VXRAIL 2U BEZEL V2 4 $194.29 $88.19 $352.76
338-CBCI INTEL XEON GOLD 6348 2.6G, 28C/56T,
11.2GT/S, 42M CACHE, TURBO, HT (235W)
DDR4-3200
4 $7,489.00 $3,399.27 $13,597.08
1 of 6 www.compunet.biz help@compunet.biz
Page 40 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203531
Dell
Manufacturer Part
Number
Product Details Qty List Price Price Ext. Price
338-CBCI INTEL XEON GOLD 6348 2.6G, 28C/56T,
11.2GT/S, 42M CACHE, TURBO, HT (235W)
DDR4-3200
4 $7,489.00 $3,399.27 $13,597.08
379-BDCO ADDITIONAL PROCESSOR SELECTED 4 $0.00 $0.00 $0.00
370-AEVR 3200MT/S RDIMMS 4 $0.00 $0.00 $0.00
370-AEVP 64GB RDIMM, 3200MT/S, DUAL RANK,
16GB
64 $3,399.00 $1,542.81 $98,739.84
400-BKGF 1.6TB ENTERPRISE NVME MIXED USE AG
DRIVE U.2 GEN4 WITH CARRIER
8 $3,615.22 $1,640.95 $13,127.60
400-AXSD 1.92TB SSD SATA READ INTENSIVE 6GBPS
512 2.5IN HOT-PLUG AG DRIVE, 1 DWPD,
28 $2,174.62 $987.07 $27,637.96
540-BCOC BROADCOM 57414 DUAL PORT 10/25GBE
SFP28, OCP NIC 3.0
4 $709.00 $321.81 $1,287.24
490-BHVO NVIDIA AMPERE A2, PCIE, 60W, 16GB
PASSIVE, SINGLE WIDE, LOW PROFILE GPU,
V2
4 $3,899.00 $1,769.76 $7,079.04
461-AADZ NO TRUSTED PLATFORM MODULE 4 $0.00 $0.00 $0.00
770-BBBQ READYRAILS SLIDING RAILS 4 $149.00 $67.63 $270.52
770-BDRQ CABLE MANAGEMENT ARM, 2U 4 $69.00 $31.32 $125.28
450-AKKS DUAL, HOT-PLUG, POWER SUPPLY, 1100W
MM (100-220VAC) TITANIUM,
REDUNDANT (1+1)
4 $1,429.00 $648.63 $2,594.52
492-BBDG JUMPER CORD - C13/C14, 4M, 250V, 12A
(NORTH AMERICA, GUAM, NORTH
MARIANAS, PHILIPPINES, SAMOA)
8 $35.00 $15.88 $127.04
750-ACOM FAN FOAM, HDD 2U 4 $0.00 $0.00 $0.00
470-AAGP DELL NETWORKING, CABLE, SFP+ TO SFP+,
10GBE, COPPER TWINAX DIRECT ATTACH
CABLE, 3 METER
16 $105.00 $47.65 $762.40
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Page 41 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203531
Dell
Manufacturer Part
Number
Product Details Qty List Price Price Ext. Price
149-BBTC VXRAIL VMWARE, VSAN ENTERPRISE, 5
YEARS
8 $0.00 $0.00 $0.00
634-BYPD VXRAIL HCI SYSTEM SOFTWARE, E 8 $10,081.00 $4,575.77 $36,606.16
634-BRIG VXRAIL HCI SYSTEM SOFTWARE, CAPACITY
DRIVE 1.92TB SATA, SSD
28 $1,521.22 $690.48 $19,333.44
634-BYLZ VXRAIL HCI SYSTEM SOFTWARE MEMORY,
64GB
64 $631.41 $286.60 $18,342.40
379-BDTE NO REAR STORAGE 4 $0.00 $0.00 $0.00
329-BHKE VXRAIL V670F BRANDING 4 $55.00 $24.96 $99.84
800-BBCF FUTURISTIC ORDER FLAG SKU 4 $0.00 $0.00 $0.00
878-0273 DELL HARDWARE LIMITED WARRANTY 4 $648.90 $294.53 $1,178.12
878-0959 PROSUPPORT PLUS NEXT BUSINESS DAY
ONSITE SERVICE AFTER PROBLEM
DIAGNOSIS 2 YEARS EXTENDED
4 $4,459.00 $2,023.95 $8,095.80
878-0960 PROSUPPORT PLUS NEXT BUSINESS DAY
ONSITE SERVICE AFTER PROBLEM
DIAGNOSIS 3 YEARS
4 $1,393.00 $632.28 $2,529.12
878-0963 PROSUPPORT PLUS 7X24 TECHNICAL
SUPPORT AND ASSISTANCE 5 YEARS
4 $41,569.00 $18,868.24 $75,472.96
951-2015 THANK YOU FOR CHOOSING DELL
PROSUPPORT PLUS. FOR TECH SUPPORT,
VISIT //WWW.DELL.COM/CONTACTDELL
4 $0.01 $0.00 $0.00
975-3461 DELL LIMITED HARDWARE WARRANTY
EXTENDED YEAR(S)
4 $0.00 $0.00 $0.00
379-BEWY INFORMATIONAL PURPOSES ONLY 4 $0.00 $0.00 $0.00
829-2844 PROSUPPORT PLUS NEXT BUSINESS DAY
VSAN ADVANCED 1 PROCESSOR
SOFTWARE SUPPORT-MAINTENANCE 5
YEARS
8 $6,321.42 $2,869.29 $22,954.32
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Page 42 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203531
Dell
Manufacturer Part
Number
Product Details Qty List Price Price Ext. Price
825-8624 CERTIFIED DEPLOYMENT PARTNER T2 4 $0.00 $0.00 $0.00
389-DYHC POWEREDGE R750 CE, CCC, MARKING 4 $0.00 $0.00 $0.00
389-DYHF DELL/EMC LABEL (BIS) FOR 2.5" CHASSIS 4 $0.00 $0.00 $0.00
379-BDSW SAS/SATA/NVME CAPABLE BACKPLANE 4 $0.00 $0.00 $0.00
340-CWLS P/V 670 SHIPPING, DAO 4 $0.00 $0.00 $0.00
481-BBFG POWEREDGE R750 SHIPPING MATERIAL 4 $99.00 $76.23 $304.92
379-BDTF 2.5 CHASSIS 4 $0.00 $0.00 $0.00
330-BBVW VXRAIL V670F, RISER CONFIG 1, 1B+2A+3B
+4B, 6X8FH, 2X16LP
4 $365.82 $166.04 $664.16
329-BFGT R750 MOTHERBOARD WITH BROADCOM
5720 DUAL PORT 1GB ON-BOARD LOM
4 $0.00 $0.00 $0.00
412-AAVC HEATSINK FOR 2 CPU WITH GPU
CONFIGURATION
4 $199.00 $90.32 $361.28
370-AAIP PERFORMANCE OPTIMIZED 4 $0.00 $0.00 $0.00
780-BCQR C43, NO RAID, VXRAIL PV670F/S670 4 $0.00 $0.00 $0.00
405-AAXY DELL HBA355I CONTROLLER FRONT 4 $719.00 $326.36 $1,305.44
750-ADED FRONT PERC MECHANICAL PARTS, FOR
2.5" X24 SAS/SATA CHASSIS
4 $0.00 $0.00 $0.00
403-BCMB BOSS-S2 CONTROLLER CARD + WITH 2
M.2 480GB (RAID 1)
4 $1,699.00 $771.17 $3,084.68
470-AERR BOSS CABLES AND BRACKET FOR R750
(RISER 1)
4 $50.00 $22.69 $90.76
385-BBQV IDRAC9, ENTERPRISE 15G 4 $489.00 $221.96 $887.84
379-BCQY IDRAC GROUP MANAGER, DISABLED 4 $0.00 $0.00 $0.00
379-BCSG IDRAC,LEGACY PASSWORD 4 $0.00 $0.00 $0.00
4 of 6 www.compunet.biz help@compunet.biz
Page 43 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203531
Dell
Manufacturer Part
Number
Product Details Qty List Price Price Ext. Price
379-BCRB DHCP WITH ZERO TOUCH CONFIGURATION 4 $0.00 $0.00 $0.00
379-BELZ REQUIRES 30C OR LESS AMBIENT TEMP 4 $0.00 $0.00 $0.00
750-ADGJ VERY HIGH PERFORMANCE FAN X6 4 $289.00 $131.17 $524.68
350-BBYX NO QUICK SYNC 4 $0.00 $0.00 $0.00
631-AACK NO SYSTEMS DOCUMENTATION, NO
OPENMANAGE DVD KIT
4 $0.00 $0.00 $0.00
387-BBEY NO ENERGY STAR 4 $0.00 $0.00 $0.00
800-BBDM UEFI BIOS BOOT MODE WITH GPT
PARTITION
4 $0.00 $0.00 $0.00
350-BCGB V670F LUGGAGE TAG 4 $0.00 $0.00 $0.00
865-3531 5 YEARS PROSUPPORT PLUS NEXT
BUSINESS DAY RECOVERPOINT FOR
VIRTUAL MACHINES SFTWR SPT-
CONTRACT
4 $0.00 $0.00 $0.00
900-9997 ON-SITE INSTALLATION DECLINED 4 $0.00 $0.00 $0.00
210-ARZC RECOVER POINT FOR VIRTUAL MACHINE 4 $0.01 $0.00 $0.00
142-BBNV HCIA RECOVERPOINT FOR VMS FOR 1
NODE
4 $0.00 $0.00 $0.00
626-BBBG STORAGE SOFTWARE INFO 4 $0.00 $0.00 $0.00
Subtotal:$392,928.24
Pro-Services Installation Services
Product Details Qty Price Ext. Price
CNet FF -
Installation
CompuNet Installation Services 1 $29,000.00 $29,000.00
Subtotal:$29,000.00
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Page 44 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203531
Shipping
Product Description Quantity Price Ext. Price
Free Shipping 1 $0.00 $0.00
Quote Summary
Description Amount
Dell $392,928.24
Pro-Services Installation Services $29,000.00
Total:$421,928.24
Taxes, shipping, handling and other fees may apply. We reserve the right to cancel any order arising from pricing or other
errors. If Customer is purchasing a subscription-based product, Customer agrees to pay all charges for the complete term of the
subscription. By signing below or issuing a Purchase Order, Customer agrees to CompuNet's standard terms and conditions,
which can be reviewed here, provided, that if Customer and CompuNet are parties to a currently effective Master Product
Purchase and Services Agreement (MSA), the terms and conditions of such MSA shall control and shall supersede these
standard terms and conditions. Your electronic signature, per the Electronic Signature Act, is considered equivalent to your
signed and faxed signature, and allows you to accept and place your order. This Quote becomes binding and noncancelable
upon Customer's return to CompuNet of acceptance. A copy of this acceptance and the attached proposal document will be sent
to your email address to complete your order acceptance. You are NOT required to electronically sign your order, you may fax or
email your signed proposal to your Account Executive.
City of Pasco
Signature:
Name:
Title:
Initials:
Date:1/1/0001 12:00:00 AM
PO Number:
Email Address:
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Page 45 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203931
VMWare Horizon Universal - 5 Year
Contract Information
WA, NASPO, AR2472-05116
Quote Information:Prepared for:Bill To:Ship To:
Quote #: MF203931 City of Pasco City of Pasco City of Pasco
Version: 1
Quote Date: 02/07/2023
Expiration Date: 03/07/2023
Anthony Wright
5095435752
wrightaj@pasco-wa.gov
Accounts Payable
P.O. Box 293
Pasco, WA 99301
accountspayable@pasco-wa.gov
Anthony Wright
525 N 3rd Avenue
Pasco, WA 99301
VMWare
Manufacturer Part
Number
Product Details Qty List Price Price Ext. Price
HAH-ADCUB-60PT0-
C1S-491
VMware Horizon Universal Subscription -
(Add-On to Core) Concurrent User Qty 10 -
60 Month Prepaid
25 $14,097.60 $10,432.22 $260,805.50
HAH-CRCUB-60PT0-
C1S-491
VMware Horizon Universal Subscription -
(Core) Concurrent User Qty 50 - 60 Month
Prepaid
1 $70,488.00 $52,161.12 $52,161.12
Subtotal:$312,966.62
Quote Summary
Description Amount
VMWare $312,966.62
Total:$312,966.62
Taxes, shipping, handling and other fees may apply. We reserve the right to cancel any order arising from pricing or other
errors. If Customer is purchasing a subscription-based product, Customer agrees to pay all charges for the complete term of the
subscription. By signing below or issuing a Purchase Order, Customer agrees to CompuNet's standard terms and conditions,
which can be reviewed here, provided, that if Customer and CompuNet are parties to a currently effective Master Product
Purchase and Services Agreement (MSA), the terms and conditions of such MSA shall control and shall supersede these
standard terms and conditions. Your electronic signature, per the Electronic Signature Act, is considered equivalent to your
signed and faxed signature, and allows you to accept and place your order. This Quote becomes binding and noncancelable
upon Customer's return to CompuNet of acceptance. A copy of this acceptance and the attached proposal document will be sent
to your email address to complete your order acceptance. You are NOT required to electronically sign your order, you may fax or
email your signed proposal to your Account Executive.
1 of 2 www.compunet.biz help@compunet.biz
Page 46 of 238
Mark Friedman
509-795-8276
mfriedman@compunet.biz
Quote #: MF203931
City of Pasco
Signature:
Name:
Title:
Date:
PO Number:
2 of 2 www.compunet.biz help@compunet.biz
Page 47 of 238
AGENDA REPORT
FOR: City Council February 15, 2023
TO: Adam Lincoln, City Manager City Council Regular
Meeting: 2/21/23
FROM: Rick White, Director
Community & Economic Development
SUBJECT: Public Hearing Continued and Ordinance No. 4641 for Mendoza Right-of-
Way Vacation (VAC 2022-007)
I. REFERENCE(S):
Proposed Ordinance
Exhibit B
Overview Map
Vicinity Map
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
PUBLIC HEARING CONTINUED FROM FEBRUARY 6, 2023
MOTION: I move to approve Ordinance No. 4641, vacating portions of right -of-
way along South 5th Avenue in Pasco, and further, authorize publication by
summary only.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
The adjacent property owners have petitioned for the vacation of a portion of
South 5th Avenue right-of-way to align with the rights-of-way of adjacent
properties. The vacation of right-of-way for adjacent properties took place in
1997 (Ordinance No. 3254).
The vacation request was initiated by the owner (Mendoza) and the adjacent
property to the north was added by the City with the concurrence of Mr.
Valdovinos.
Page 48 of 238
This hearing was continued from the February 6, 2023, Council regular meeting
to provide adequate public notice.
V. DISCUSSION:
Per the Pasco Municipal Code (PMC) Chapter 12.40, the Council may require
compensation for vacated rights-of-way. The compensation involves obtaining a
title report and appraisal of value. However, the compensation and the
requirements attached thereto may be waived if one or more of the following
conditions apply:
1. The vacation is initiated by the City Council by Resolution;
2. The vacation is at the request of the City;
3. The right-of-way to be vacated was previously determined by the City
Council not to be essential to public traffic circulation and available for
vacation;
4. The grant of substitute right-of-way which has a value as a right-of-way at
least equal to that right-of-way to be vacated; and
5. The resulting benefit to the community of the project requiring the vacation
outweighs the appraised value of the right-of-way to be vacated.
In the current situation, the vacation appears to meet the above criteria because
the city has initiated a portion of the vacation.
Page 49 of 238
Ordinance VAC 2022-007 - 1
FILED FOR RECORD AT REQUEST OF:
City of Pasco, Washington
WHEN RECORDED RETURN TO:
City of Pasco, Washington
Attn: City Clerk
525 North 3rd Avenue
Pasco, WA 99301
____________________________________________________________________________
ORDINANCE NO. 4641
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON,
VACATING PORTIONS OF RIGHT-OF-WAY ALONG SOUTH 5TH AVENUE
ADJACENT LOTS 9-11, BLK 8 OF GANTENBEINS ADDITION TO PASCO,
WA.
WHEREAS, from time to time in response to petitions or in cases where it serves the
general interest of the City, the City Council may vacate rights-of-way; and
WHEREAS, a petition for vacating portions of right-of-way along South 5th Avenue
adjacent to Lots 9-11, Block 8, of Gantenbeins Addition has been submitted to the City by owners
of more than two-third of the properties abutting the part of right-of-way to be vacated per Pasco
Municipal Code (PMC); and
WHEREAS, the City deems it appropriate to extend the length of the vacation area to
include a portion of right-of-way long lot 11, BLK 8, of Gantenbein’s addition to Pasco as to
maintain ROW continuity; and
WHEREAS, on January 17, 2023, pursuant to the PMC Section 12.40.040, the City passed
Resolution No. 4298, initiating the vacation procedures and setting a public hearing for the
proposed vacation; and
WHEREAS, the City opened the public hearing on February 6, 2023, and continued it to
February 21, 2023 to allow the public ample opportunity to provide their comments; and
WHEREAS, pursuant to PMC Section 12.40.050, appropriate notice was given of the
City’s intent to vacate the public right-of-way; and
WHEREAS, the City held a public hearing on the proposed vacation on February 21,
2023; and
Page 50 of 238
Ordinance VAC 2022-007 - 2
WHEREAS, the vacation process provided in PMC Chapter 12.40 requires a title report,
and an appraisal of value and compensation unless waived by the City Council; and
WHEREAS, pursuant to PMC Section 12.40.120(2) the City may waive the requirements
for a title report, an appraisal of value and compensation if one or more of the following are
applicable: the vacation is initiated by Council Resolution; the vacation is at the request of the
City; the Council had previously determined that the right-of-way is not essential to public traffic
circulation and is available for vacation; the grant of a substitute right-of-way has value as a right-
of-way at least equal to the right-of-way to be vacated; and or the resulting benefit to the
community of the project requiring the vacation outweighs the appraised value of the right-of-way
to be vacated; and
WHEREAS, the proposed vacation does meet the above listed criteria for waiver of the
requirements for a title report, an appraisal of value, and compensation pursuant to PMC Section
12.40.120(2) as it was acquired without cost to the City and the resulting benefit to the community,
in terms of increased traffic safety as a direct result of safer turn radius, will outweigh any value
of the vacated right-of-way; and
WHEREAS, the City Council may approve a right-of-way vacation upon making findings
pursuant to PMC Section 12.40.070(1)-(4), that the vacation of the right-of-way will not adversely
affect traffic accessibility and circulation within the immediate area or with the City as a whole; is
not contemplated or needed for future use; no abutting property will become landlocked or have
access substantially impaired; and the public needs shall not be adversely affected and the vacation
will provide a public benefit or serve a public purpose; and
WHEREAS, the City Council finds that the required criteria of the PMC Section
12.40.070(1)-(4) have been met; and
WHEREAS, all steps and procedures required by law to vacate said right-of-way have
been duly taken and performed.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. That a portion of right-of-way, as described below and as depicted in Exhibit
A be and the same is hereby vacated;
THE EASTERLY 10 FEET OF SOUTH 5TH AVENUE ADJACENT LOTS 9-11,
BLOCK 8, GANTENBEIN’S ADDITION TO PASCO
HAVING AN AREA OF 1,600 SQUARE FEET (.04 ACRES), MORE OR LESS.
SITUATE IN FRANKLIN COUNTY, STATE OF WASHINGTON.
Page 51 of 238
Ordinance VAC 2022-007 - 3
Section 2. That the City shall retain an easement and the right to exercise or grant
easements with respect to the east 10’ of South 5th Avenue adjacent Lots 9-11, Block 8,
Gantenbein’s Addition to Pasco for the construction, repair and maintenance of public utilities and
services.
Section 3. That a certified copy of this Ordinance be recorded by the City Clerk of the City
of Pasco in and with the office of the Auditor of Franklin County, Washington.
Section 4. This Ordinance shall take full force and effect five (5) days after approval,
passage and publication as required by law.
Section 5. That pursuant to PMC Chapter 12.40, the City Council hereby waives the
requirements for an appraisal, title report, and compensation for the vacated right-of-way.
PASSED by the City Council of the City of Pasco, Washington, on this 21st day of
February, 2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Published: _____________________________
Page 52 of 238
Item:5th Avenue Street ROW Vacation
"Exhibit B"Applicant(s):Ramon Mendoza
F11e#:VAC 2022-007
V/////////////T//////////////////////JS5THAVEPage 53 of 238
Item:5th Avenue Street ROW Vacation
App1icant(s):Ramon MendozaOverview
Page 54 of 238
Item:H&REliteTruckingAcademyinanI-1ZoneVlclnltyApp1icant(s):JuanRojasMapFile#:SP2022-015Page 55 of 238
AGENDA REPORT
FOR: City Council February 14, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Rick White, Director
Community & Economic Development
SUBJECT: Public Hearing Continued and Ordinance No. 4642 Jubilee Foundation
Right-of-Way Vacation (VAC 2022-009)
I. REFERENCE(S):
Proposed Ordinance
Overview Map
Vicinity Map
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
PUBLIC HEARING CONTINUED FROM FEBRUARY 6, 2023
MOTION: I move to approve Ordinance No. 4642, vacating rights-of-way in
Washington Addition to Pasco in the vicinity of East A Street and East Helena
Street and, further, authorize publication by summary only.
III. FISCAL IMPACT:
None.
IV. HISTORY AND FACTS BRIEF:
The applicant has submitted an application to vacate streets and alleys adjacent
and within Blocks 5, 11, and 12 of the 1913 Washington Addition to Pasco plat.
The plat contains 25'-wide lots and 80'-wide street rights-of-way, as well as 14'
wide north-south alleys and 20' wide east west alleys. The proposed vacation
comprises approximately 3.87 acres.
Applicant's objective is to reconfigure the rights -of-way to accommodate a
subdivision and multi-family units along East Helena and East "A" Street to
match similar existing developments to the east.
Page 56 of 238
This hearing was continued from the February 6, 2023 Council regular meeting
to provide adequate public notice.
V. DISCUSSION:
Per the Pasco Municipal Code (PMC) Chapter 12.40, the Council may require
compensation for vacated rights-of-way. The compensation involves obtaining a
title the and compensation the However, of appraisal and report value.
requirements attached thereto may be waived if one or more of the following
conditions apply:
1. The vacation is initiated by the City Council by Resolution;
2. The vacation is at the request of the City;
3. The right-of-way to be vacated was previously determined by the City
Council not to be essential to public traffic circulation and available for
vacation;
4. The grant of substitute right-of-way which has a value as a right-of-way at
least equal to that right-of-way to be vacated; and
5. The resulting benefit to the community of the project requiring the vacation
outweighs the appraised value of the right-of-way to be vacated.
In order to justify a waiver under condition No. 4, Applicant would be required to
grant substitute travel and access corridors which meet Pasco Municipal Code
requirements and Comprehensive Plan goals and policies. This has not occurre d
to date - however it is the applicant's intent to submit a preliminary plat
application that will accomplish this condition.
Staff also brings to Council attention the following:
• Per PMC 21.15.010(1) "Streets shall normally continue as an extension
of existing streets unless good planning dictates a different solution.
Street patterns shall take into consideration access needed to develop
adjacent properties." The current proposal does not continue an existing
street nor take into consideration access needed to develop adjacent
properties.
• Per PMC 21.15.070 "Cul-de-sacs will be permitted where topography or
other conditions justify their use." The topography of the site, slightly
sloping southward, does not justify a cul-de-sac.
Applicant will ultimately need to submit a plan for travel and access corridors,
which meet the Pasco Municipal Code requirements and Comprehensive Plan
goals and policies. This may be accomplished through the subdivision process.
Page 57 of 238
Ordinance VAC 2022-009 – Jubilee Foundation LLC - 1
FILED FOR RECORD AT REQUEST OF:
City of Pasco, Washington
WHEN RECORDED RETURN TO:
City of Pasco, Washington
Attn: City Clerk
525 North 3rd Avenue
Pasco, WA 99301
____________________________________________________________________________
ORDINANCE NO. 4642
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON,
VACATING RIGHTS-OF-WAY IN WASHINGTON ADDITION TO PASCO IN
THE VICINITY OF EAST A STREET AND EAST HELENA STREET IN
PASCO, WA.
WHEREAS, from time to time in response to petitions or in cases where it serves the
general interest of the City, the City Council may vacate rights-of-way; and
WHEREAS, a petition for vacating right-of-way in Washington Addition to Pasco in the
vicinity of East A Street and East Helena Street in Pasco, Washington, has been submitted to the
City by owners of more than two-third of the properties abutting the part of right-of-way to be
vacated per Pasco Municipal Code (PMC); and
WHEREAS, on January 17, 2023, pursuant to the PMC Section 12.40.040, the City passed
Resolution No. 4299, initiating the vacation procedures and setting a public hearing for the
proposed vacation; and
WHEREAS, the City opened the public hearing on February 6, 2023 and continued it to
February 21, 2023 to allow the public ample opportunity to provide their comments; and
WHEREAS, pursuant to PMC Section 12.40.050, appropriate notice was given of the
City’s intent to vacate the public right-of-way; and
WHEREAS, the City completed a public hearing on the proposed vacation on February
21, 2023; and
WHEREAS, the vacation process provided in PMC Chapter 12.40 requires a title report,
and an appraisal of value and compensation unless waived by the City Council; and
Page 58 of 238
Ordinance VAC 2022-009 – Jubilee Foundation LLC - 2
WHEREAS, pursuant to PMC Section 12.40.120(2) the City may waive the requirements
for a title report, an appraisal of value and compensation if one or more of the following are
applicable; the vacation is initiated by Council Resolution; the vacation is at the request of the
City; the City Council had previously determined that the right-of-way is not essential to public
traffic circulation and available for vacation; the grant of substitute public right-of-way which has
a value as a right-of-way at least equal to that right-of-way to be vacated; and the resulting benefit
to the community of the project requiring the vacation outweighs the appraised value of the right-
of-way to be vacated; and
WHEREAS, the proposed vacation does not meet the above listed criteria for waiver of
the requirement for a title report, an appraisal of value, and compensation pursuant to the PMC
Section 12.40.120(2); and
WHEREAS, the City Council may approve a right-of-way vacation upon making findings
pursuant to PMC Section 12.40.070(1)-(4), that the vacation of the right-of-way will not adversely
affect traffic accessibility and circulation within the immediate area or with the City as a whole; is
not contemplated or needed for future use; no abutting property will become landlocked or have
access substantially impaired; and the public needs shall not be adversely affected and the vacation
will provide a public benefit or serve a public purpose; and
WHEREAS, the City Council finds that the required criteria of the PMC Section
12.40.070(1)-(4) have been met; and
WHEREAS, all steps and procedures required by law to vacate said right-of-way have
been duly taken and performed.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. That a portion of right-of-way, as described below and as depicted in Exhibit
A be and the same is hereby vacated;
THE THAT PORTION OF WASHINGTON ADDITION TO PASCO,
ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME B OF
PLATS, PAGE 54, RECORDS OF FRANKLIN COUNTY, WASHINGTON,
DESCRIBED AS FOLLOWS:
ALL ROADS AND ALLEYS LYING SOUTHERLY OF THE CENTERLINE OF
BUTTE STREET, EASTERLY OF A LINE WHICH IS PARALLEL WITH AND
30.00 FEET EASTERLY OF THE CENTERLINE OF SPOKANE STREET, AND
NORTHERLY OF THE NORTHERLY MARGIN OF A STREET AS
DEDICATED ON SAID PLAT.
Page 59 of 238
Ordinance VAC 2022-009 – Jubilee Foundation LLC - 3
TOGETHER WITH ALL ROAD AND ALLEYS LYING SOUTHERLY OF A
LINE WHICH IS PARALLEL WITH AND 30.00 FEET SOUTHERLY OF THE
CENTERLINE OF HELENA STREET, EASTERLY OF THE CENTERLINE OF
SPRAGUE STREET, AND NORTHERLY OF THE CENTERLINE OF BUTTE
STREET.
HAVING AN AREA OF 3.87 ACRES, MORE OR LESS.
Section 2. That a certified copy of this Ordinance be recorded by the City Clerk of the City
of Pasco in and with the office of the Auditor of Franklin County, Washington.
Section 3. This Ordinance shall take full force and effect five (5) days after approval,
passage and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington this 21st day of February
2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Published: _____________________________
Page 60 of 238
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Item:WashingtonAdditionStreetsandAlleysROWVacationApplicant(s):JubileeFoundationc/0SteveBaumanFile#:VAC2022-009OverviewPage 62 of 238
Item:WashingtonAdditionStreetsandAlleysROWVacationVlclnltyApplicant(s):JubileeFoundationc/0SteveBaumanMapFile#;VAC2022-009Page 63 of 238
AGENDA REPORT
FOR: City Council February 17, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Steve Worley, Director
Public Works
SUBJECT: Resolution No. 4311 Process Water Reuse Facility (PWRF) Draft
Processor Wastewater Treatment Agreement (WTA)
I. REFERENCE(S):
Resolution Approving PWRF Processor WTA
Pasco-Processor Wastewater Treatment Agreement (WTA) – Draft 2
PWRF Pretreatment Cost Allocation – January 6, 2023
Exhibit C – Projected Influent Criteria for each Processor
Draft Burnham WTA
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4311, authorizing the Interim City
Manager to enter into the Process Water Reuse Facility (PWRF) Industrial
Wastewater the for Processors PWRF with Agreement Pretreatment the
Pretreatment Improvements Phase 3 Project.
III. FISCAL IMPACT:
The estimated Phase 3 Cost is $135 million. However, recent value engineering
proposals and other potential cost saving efforts, have reduced the current
estimated cost to approximately $122 million.
The overall cost to the PWRF Processors includes the benefits of revenues
generated through the sale of renewable natural gas (RNG) and a 30%
investment tax credit for all RNG-related facilities.
Monthly Fee:Service Estimated provisions with month per for $850,000
adjustments based on final costs. Monthly fee to be proportionately allocated to
Pasco Processing, Twin City Foods, Reser’s, Simplot, Grimmway, Freeze Pack,
and Darigold.
Page 64 of 238
Estimated Renewable Natural Gas (RNG) Revenue: ~$6 million per year, with
provisions for adjustment based on final RNG sales contract. (~$350,000 per
month available for debt service.)
Potential Federal Income Tax Credit:
$26 million with provisions for adjustments based on final credit. (Available to
reduce principal amount).
Community Economic Revitalization Board (CERB):
$5 million low-interest loan for the Phase 3 project.
Potential Federal or State Grants:
Staff continues to pursue grants for this project to help reduce final costs to the
PWRF Processors.
IV. HISTORY AND FACTS BRIEF:
The City owns and operates an industrial wastewater treatment system to treat
industrial wastewater from six agricultural food processors (Processors). The
system includes the Process Water Reuse Facility (PWRF). The PWRF requires
expansion in storage and treatment capacity, and the application of new
technology, to allow existing Processors to expand their operations and provide
capacity for Darigold’s future wastewater.
Upgrades to the PWRF pretreatment system will significantly improve treatment
capacity for the benefit six existing and one or two future Processors, customers,
and the local community. The PWRF improvements also have a positive impact
on the Municipal Wastewater Treatment Plant (WWTP) by redirecting a
significant load of industrial wastewater away from the WWTP. This frees up
much and residential increased for capacity WWTP at needed allowing
commercial developments that can be served.
In 2019, Ecology approved Pasco’s PWRF Facility Plan which identified a series
of improvements to expand the PWRF to meet current and future needs. The
scope of the PWRF recommended improvements included the following:
• Extension of potable water and electrical services to the site (Phase 1)
• Additional winter storage ponds (Phase 2)
• Industrial wastewater pretreatment improvements (Phase 3)
The PWRF stakeholders agreed to move forward with design and construction
following this phased approach. The Phase 1 project is currently under
construction. The Phase 2 project is in the design phase.
Page 65 of 238
On January 10, 2022, staff provided Council a presentation on proposed updates
to the Process Water Reuse Facility (PWRF) with the potential to include a
Renewable Natural Gas (RNG) option that will help reduce costs to the PWRF
Processors. Council indicated support to move forward with the proposed
concept.
Through processes outlined in Chapter 70A.140 RCW, Water Quality Joint
Development Act, Burnham SEV, a renewable natural gas (RNG) Project
Developer, was selected to privately finance, design, construct, and operate an
upgraded industrial wastewater treatment plant that includes a renewable
natural gas plant at the PWRF. This Phase 3 project is 70% complete with
design and ready to move forward with final design and construction managed
by Burnham SEV.
Staff presented to Council on October 12, 2022, a draft WTA between the City
and Burnham SEV. On February 13, 2023 staff presented to Council the
proposed draft WTA between the City and Processors.
V. DISCUSSION:
The attached draft WTA outlines the terms and conditions for payment of
industrial wastewater treatment services. The PWRF Phase 3 facilities that will
treat the Processor’s industrial wastewater include a low-rate anaerobic digester
(LRAD), a biological nitrogen removal system (sequential batch reactor (SBR) or
rotating algal biofilm (RAB)), and a renewable natural gas (RNG) system.
The RNG produced from the Processor’s wastewater will be sold by Burnham
SEV on the volunteer RNG market and revenue from the sale of RNG will be
used to pay a portion of the capital cost of the Phase 3 project, subsequently
reducing fees paid by the Processors.
The proportionate fee for each Processor is still being finalized. The fee will be
based on several factors including total annual and peak flows fro m each
Processor to the PWRF, and concentrations of Biochemical Oxygen Demand
(BOD), Nitrogen, Total Suspended Solids (TSS), and other factors. The City is
utilizing the services of the FCS Group to develop a rate model to assist in
determining the proportionate fee to each Processor. The rate model has been
reviewed several times with the Processor group evaluating different
alternatives. Included in the attachments is the latest cost distribution for all four
phases of the PWRF Pretreatment project. O nly the Phase 3 project is the
subject of the Processor WTA.
Page 66 of 238
Staff recommends approval of draft Processor WTA recognizing that minor non-
substantive changes may be made to the agreement prior to execution by each
Processor.
Page 67 of 238
Resolution – Pasco Processors Wastewater Treatment Agreement. - 1
RESOLUTION NO. 4311
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE INTERIM CITY MANAGER TO ENTER INTO THE
PROCESS WATER REUSE FACILITY (PWRF) INDUSTRIAL
WASTEWATER PRETREATMENT AGREEMENTS WITH MULTIPLE
PROCESSORS FOR THE PWRF PRETREATMENT IMPROVEMENTS PHASE
3 PROJECT.
WHEREAS, the City of Pasco (City) operates a Process Water Reuse Facility (PWRF) to
treat industrial wastewater from Food Processors (Processors) located in the vicinity of the City of
Pasco; and
WHEREAS, the City’s current PWRF system has reached its design life and capacity,
such that upgrades and expansion are necessary to accommodate existing and new agricultural
food processor wastewater from current and future processors; and
WHEREAS, Burnham SEV, a renewable natural gas (RNG) Project Developer, is in the
process of being selected, through processes outlined in Chapter 70A.140 RCW, to privately
develop a new industrial wastewater treatment plant, utilizing a low-rate anaerobic digester and
nitrogen removal system (System) along with a renewable natural gas plant at the PWRF; and
WHEREAS, City and Burnham SEV entered an agreement on November 24, 2021,
wherein the City (and Processors) agreed to support the cost of initial engineering for the System;
and
WHEREAS, Chapter 70A.140 of the RCW Water Quality Joint Development Act
provides a mechanism for the City to provide service from water pollution control facilities by
means of services agreements with public or private parties; and
WHEREAS, pursuant to RCW 70A.140.040(9), prior to execution of the Wastewater
Treatment Agreement, Burnham and the City understand the necessity of submitting the “proposed
service agreement” to the Department of Ecology to review for consistency with RCW 90.46 and
RCW 90.48, as a condition precedent to the City’s authority to execute the Wastewater Treatment
Agreement with Burnham and have complied with this condition; and
WHEREAS, Processors agree to pay City a Base Treatment Fee and/or an Adjustment
Treatment Fee as described herein and shown in Exhibit B; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
Page 68 of 238
Resolution – Pasco Processors Wastewater Treatment Agreement. - 2
That the Interim City Manager is hereby authorized to execute the attached PWRF
Industrial Wastewater Pretreatment Agreement in substantially the same form with each of the
Processors for the PWRF Pretreatment Improvements Phase 3 Project, a copy of which is attached
hereto and incorporated herein by reference as Exhibit A; and to make substantive changes as
necessary to execute the Agreement.
Be It Further Resolved that this Resolution shall take effect and be in full force
immediately upon passage by the City Council.
PASSED by the City Council of the City of Pasco, Washington, on this 21st day of
February, 2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ __________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 69 of 238
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CITY OF PASCO – PROCESS WATER REUSE FACILITY (PWRF)
INDUSTRIAL WASTEWATER PRETREATMENT AGREEMENT
WITH [PROCESSOR NAME]
1.AGREEMENT. This Industrial Wastewater Treatment Agreement (“Agreement”) is entered as
of the Effective Date by and between [Processor Name], a ______________ (“Processor”), with offices
at [Processor address], and the City of Pasco, a Washington municipal corporation (“City”), with offices
at 525 N 3rd Avenue, Pasco, WA 99301. The City and Processor are each a “Party” and collectively the
“Parties” to this Agreement. The Parties agree as follows
2. RECITALS
2.1 The City owns and operates a wastewater utility, including a process wastewater reuse facility
(“PWRF”) that operates for the benefit of the City and large agricultural food processors. The PWRF
pretreats, treats, and disposes of approximately one billion gallons of agricultural industrial wastewater by
land application on 1,854 acres of City-owned farmland. See Washington State Discharge Permit No.
ST0005369. The existing PRWF consists of a primary treatment process (including two rotary drum
screens, one modified clarifier, 12 septic tanks for solids collection from the clarifier, one screw press for
solids removal from the rotary drum screens system), one approximately five million gallon pond
previously used as solids storage, one eight million gallon pond used as an equalization pond, one 35
million gallon pond for winter storage, and one 115 million gallon (“MG”) pond for winter storage, and
an irrigation system for land application of agricultural industrial wastewater.
2.2 The City’s current PWRF system has reached it design life and capacity, such that upgrades, and
expansion are necessary to accommodate new and increasing agricultural food processor wastewater. To
meet the Washington Department of Ecology’s (“Ecology”) permit requirements to expand the PWRF’s
capacity, the City sought a contractor capable of treating agricultural and milk-processing industrial
wastewater and using the biogas produced from such treatment to generate Renewable Natural Gas
(“RNG”). Following a competitive selection process, the City selected Burnham SEV Pasco, LLC
(“Burnham”) to develop, design, construct, and operate, a wastewater treatment and nitrogen removal
system (the “System,” as more particularly described in Exhibit A) and integration of Burnham’s RNG
production process. Burnham is to finance, construct, own, and operate the System on City-owned
property.
2.3 The City is in the process of preparing and submitting a new Washington State Waste Discharge
Permit (“Discharge Permit”) application to Ecology, to include the System and all other components of
the agricultural industrial wastewater treatment and disposal process. The City will develop, operate, and
maintain other facilities, including its storage ponds (equalization and winter storage), irrigation system,
land application area, and all related assets (e.g., conveyance water pipes, pump stations, wells, and
appurtenances) (“City Facilities”) and the City intends to be a joint permittee with Burnham under the
Discharge Permit with roles and responsibilities for its implementation as defined in a separate
Wastewater Treatment Agreement.
2.4 Under RCW 70A.140.040(9), prior to execution of the Wastewater Treatment Agreement with
Burnham, Burnham and the City understand the necessity of submitting a “proposed service agreement”
to Ecology to review for consistency with chapters 90.46 and 90.48 RCW, as a condition precedent to the
City’s authority to execute the Wastewater Treatment Agreement with Burnham. Ecology has reviewed
the proposed service agreement and found it consistent with referenced laws.
2.5 The System and City Facilities will be supported by rates and fees paid to the City by processors,
including Processor. This Agreement provides for Processor agreement to pay City for a Base Treatment
Page 70 of 238
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Fee and Adjustment Treatment Fee as described herein and shown in Exhibit D, and for the City to
provide for the System and the City Facilities to receive and process Processor’s wastewater.
3.DEFINITIONS
3.1 “Abnormal Substances” means substances or materials (including viscous, toxic or hazardous
substances) that (i) were not reasonably anticipated by City as being in the Influent Industrial Wastewater,
(ii) are present in the Influent Industrial Wastewater in a type, concentration or loading that was not
reasonably anticipated by City; or (iii) exceed the design capacity of the System to adequately treat when
operated in accordance with Prudent Industry Practices.
3.2 “Adjusted Treatment Fee” has the meaning given in Exhibit F.
3.3 “Base Treatment Fee” has the meaning given in Exhibit F.
3.4 “Change of Law” means after the Effective Date (i) the enactment, adoption, promulgation,
modification or repeal of any law or regulation applicable to the System or the production or sale of RNG;
(ii) the imposition of any material conditions on the issuance or renewal of any applicable Permit
(notwithstanding the general requirements contained in any applicable Permit at the time of application or
issue to comply with future laws, ordinances, rules, regulations or similar legislation), or (iii) a change by
any governmental authority that establishes requirements affecting owning, supplying, constructing,
installing, operating or maintaining the System, or other performance of the obligations of either Party
hereunder.
3.5 “Changed Circumstances” has the meaning given in Section 4.2.
3.6 “City Facilities” has the meaning given in Agreement Section 2.3.
3.7 “City Obligation(s)” has the meaning given in Section 4.1.
3.8 “City Permits” means the Permits that must be obtained and maintained by Processor as set forth
in Exhibit G.
3.9 “Commercial Operation” means the System is capable of processing Influent Wastewater
sufficient to meet the Effluent Wastewater specifications on a regular, daily basis and in commercial
quantities as determined by a third-party independent engineer selected by Burnham in its sole discretion.
3.10 “Consumer Price Index” means the United States Department of Labor’s Bureau of Labor
Statistics Consumer Price Index, All Urban Consumers, All Items, West Region, (1982-84 equals 100), or
the successor of such index.
3.11 “Discharge Permit” has the meaning given in Agreement Section 2.3.
3.12 “Ecology” means the Washington State Department of Ecology.
3.13 “Effective Date” has the meaning given in Agreement Section 13.3.
3.14 “Effluent Wastewater” means agricultural or dairy industrial wastewater, as measured at [the
point at which the Effluent Wastewater is returned to the City as more particularly described in [Exhibit
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A]1, that meets the specifications in Exhibit A.
3.15 “Effluent Wastewater Failure” has the meaning given in Section 7.1.
3.16 “Influent Wastewater” means agricultural and dairy processing industrial wastewater that does
not contain industrial wastewater in excess of applicable federal and state industrial pre-treatment
standards, does not contain Abnormal Substances, and otherwise meets the specifications in
1 NTD: monitoring locations for influent and effluent return(s).
Page 72 of 238
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Exhibit C, as measured at [the point at which the Influent Wastewater is delivered to the PWRF as more
particularly described in Exhibit A2].
3.17 “Initial Term” has the meaning given in Section 2.1.
3.18 “Insolvency Event” means with respect to any Party, when: (a) the Party commences a voluntary
case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction now or
hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar
official of such Party or any substantial part of its property, or consents or agrees to any such relief or to
the appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or makes a general assignment for the benefit of creditors, or becomes or is
declared insolvent, or acknowledges, in writing, its inability to pay its debts as they become due, or takes
any corporate action in any jurisdiction to authorize any of the foregoing; (b) an involuntary case or other
proceeding is commenced against the Party seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of such person or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety (90) days; or (c) an order for
relief has been entered against that Party under the United States federal, state or other bankruptcy laws of
any jurisdiction as now or hereafter in effect.
3.19 “Late Payment Rate” has the meaning given in Section 5.3.
3.20 “Major Maintenance Expenses” means all costs, fees, obligations and other liabilities incurred
by Burnham and associated with maintaining System performance, including without limitation
maintenance, repair, renewal, capital expenditures, reconstruction or replacement of any portion or
component of the System, as applicable.
3.21 “Material Breach” has the meaning given in section 6.2.
3.22 “MG” means million gallon(s).
3.23 “Modifications” has the meaning given in Section 5.4.
3.24 “Non-Conforming Influent Wastewater” means agricultural or dairy industrial wastewater
delivered or directed by Processor to the System that fails to meet in any respect or for whatever reason
the specifications in
2 NTD: monitoring locations for influent and effluent return(s).
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Exhibit C.
3.25 “Non-Material Breach” has the meaning given in Section 6.1.
3.26 “Pass-Through Costs” has the meaning given in Exhibit F.
3.27 “Permits” means the permits, licenses, certificates, clearances, approvals, authorizations,
variances, or consents of any governmental authority, department, or agency, including all amendments
thereto and replacements thereof, that must be obtained and/or maintained for construction and operation
System.
3.28 “Processors” means the collective of all food product Processors that discharge their industrial
wastewater to the PWRF, including Processor.
3.29 “Processor Obligations” means the obligations as set out in this Agreement specific to the
processors which must be met as a condition of continued use of the PWRF system.
3.30 “Prudent Industry Practices” means any of the practices, methods and acts engaged in or
approved by a significant portion of the wastewater treatment industry for facilities of similar size and
characteristics to the System or any of the practices, methods or acts, which, in the exercise of reasonable
judgment in the light of the facts known or that should reasonably have been known at the time a decision
is made, could have been expected to accomplish the desired result at the lowest reasonable cost
consistent with law, regulation, permits, [written notice from City]es, standards, equipment
manufacturer's recommendations, reliability, safety, environmental protection, economy, and expedition.
3.31 “PWRF” has the meaning given in Agreement Section 2.1.
3.32 “Remedy” has the meaning given in Section 7.3(e)
3.33 “Renewable Natural Gas” or “RNG” means biomethane produced by the System that meets
natural gas pipeline-quality standards such that the biomethane may blend with, or substitute for, geologic
natural gas.
3.34 “Renewal Term” has the meaning given in Section 2.2.
3.35 “Services” means the services to be provided by the City, its subcontractors, agents, or assigns,
under this Agreement, as set forth in Exhibit B.
3.36 “System” means the City- and Burnham-supplied industrial wastewater treatment and RNG
production facility and ancillary components as set forth in Exhibit A.
3.38“Term” has the meaning given in Section 2.2.
3.38 “Total System Capital Cost” means actual costs incurred or payable by City or its affiliates in
connection with the development, construction and completion of the System, excluding working capital
required for System start-up and financing costs.
4.TERM
4.1 This Agreement shall commence on the Effective Date and continue thereafter for a
period of thirty (30) years (the “Initial Term”) unless terminated in accordance with this
Agreement or extended as provided in Section 2.2.
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4.2 Upon expiration of the Initial Term, this Agreement shall automatically extend for two
additional five (5)-year periods (each a “Renewal Term” and together with the Initial Term, the
“Term”), unless terminated by either Party by sending written notice of termination to the other
Party no later than one hundred and eighty (180) days before the end of the Initial Term or any
Renewal Term, as applicable.
5. PROCESSOR OBLIGATIONS In addition to any other obligations set forth herein, including
any obligations in
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Exhibit C, Processor shall comply with the following obligations (each a “Processor Obligation” and
together the “Processor Obligations”):
5.1 Influent Wastewater. Commencing on written notice from City and continuing
throughout the Term, Processor shall at its sole cost and expense deliver to City the Influent
Wastewater in accordance with the specifications in
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Exhibit C. If at any time City becomes aware that Influent Wastewater delivered by Processor is
Non-Conforming Influent Wastewater, City may, in its sole discretion, choose to refuse, accept or
bypass such Non-Conforming Influent Wastewater; provided, however, that City’s acceptance of
Non-Conforming Influent Wastewater shall not relieve Processor of any responsibility or any
costs, damages, or liabilities associated with Non-Conforming Influent Wastewater, and City does
not waive any other rights or remedies associated with Processor’s delivery of Non-Conforming
Influent Wastewater.
5.2 Payment. Processor shall pay City in accordance with Section 5.
5.3 If there are any changes in Processor’s ability to comply with the Processor’s Obligations
in
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Exhibit C, any change in circumstances, or a Change of Law that necessitates a change to the
System or the services to be provided by City in connection herewith (individually or
collectively, “Changed Circumstances”), Processor shall be proportionally responsible for any
increased costs incurred by City to operate the System due to such Changed Circumstances.
6. CITY OBLIGATIONS
6.1 In addition to any other obligations set forth herein, including any obligations in
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Exhibit C, City shall comply with the following obligations (each a “City Obligation” and together the
“City Obligations”):
6.2 Other Agreements. City shall enter into agreements with service providers to design,
develop, construct and operate the System and the City Facilities if not operated by the City.
7. PAYMENT FOR SYSTEM AND SERVICES; CHANGE ORDERS
7.1 Commencing on written notice from City and continuing throughout the Term, Processor
shall pay City the Adjusted Treatment Fee, Pass-Through Costs, and any applicable adjustments
as calculated and invoiced by City on a monthly basis in accordance with this Agreement. City
collection on delinquent Processor accounts is governed by Chapters 3.65 and Title 13 Pasco
Municipal Code, as may be amended in the future.
7.2 Except in the case of Material Breach by City or as explicitly specified in this Agreement,
commencing on written notice from City Processor shall pay to City the Adjusted Treatment Fee
each month and through the end of the Term notwithstanding any failure by Processor to deliver
Influent Wastewater or failure or inability of City to accept Influent Wastewater or deliver
Effluent Wastewater.
7.3 At any time during the Term, Processor may request additional services from the City or request
any alterations, additions, omissions, modifications, or changes in the scope, schedule, sequence,
methods, or performance of the System or Services (together “Modifications”). City agrees to
reasonably cooperate with Processor to evaluate and implement Modifications proposed by Processor
and accepted by City. 8.NON-MATERIAL AND MATERIAL BREACHES OF THIS AGREEMENT
8.1 Any breach under this Agreement by either Party that is not a Material Breach shall be a “Non-
Material Breach.”
8.2 The following circumstances shall constitute a “Material Breach” by the applicable non-
performing Party:
The Processor’s failure to make any payment required under this Agreement and invoiced by the City in
accordance with Section 5 and Exhibit F; provided, however, that City shall provide written notice of
such failure to Processor and [Processor name] shall have thirty (30) days to submit payment in full
(including any interest or penalties) following such notice;
An Influent Wastewater Failure (as defined in Section 7.2a) of cause and sufficient duration to be a
Material Breach under Section 7.1(c)
Processor’s relocation, alteration, addition, improvement, maintenance or repair of its system made
without City’s written consent.
In respect of either Party, the other Party’s material misrepresentation, fraud, or intentional misconduct in
connection with this Agreement,.
In respect of either Party, an Insolvency Event for that Party.
9. REMEDIES; CROSS-DEFAULTS
9.1 Remedies for Non-Material Breach Due to Effluent Wastewater Failure. The City’s failure
or inability to meet the Effluent Wastewater specifications listed in Exhibit D (“Effluent Wastewater
Failure”) shall be a Non-Material Breach of this Agreement.
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9.2 Upon either Party’s determination that an Effluent Wastewater Failure has occurred, such Party
shall provide a reasonably detailed notice to the other Party explaining the circumstances of such Effluent
Wastewater Failure as soon as reasonably practical but no later than ten (10) days of such determination.
The Parties will immediately cooperate and take steps to remedy such Effluent Wastewater Failure
consistent with Section 0.
9.3 Notwithstanding the above, if the Effluent Wastewater Failure was caused by Processor’s
delivery of Non-Conforming Influent Wastewater, such remedy shall be determined by Section 9.4.
9.4 Remedies for Non-Material Breaches of Certain Processor Obligations.
9.4.1 If Processor fails to deliver Influent Wastewater in accordance with
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Exhibit C and Section 3.1A or delivers Non-Conforming Influent Wastewater, the City shall promptly
notify Processor of such failure and Processor shall be solely responsible for any and all losses, damage to
the System, or additional costs incurred by the City or its contractors that were caused by Processor ’s
failure or delivery of Non-Conforming Influent Wastewater, including without limitation any additional
costs of treating, handling, storing, and disposing of such Non-Conforming Influent Wastewater.
9.4.2 In the event of any damage to the System caused by Processor’s acts or omissions or
breach of this Agreement, Processor shall remain obligated to perform all obligations under this
Agreement and Processor shall reimburse City for the repair and restoration of the System to the same
condition as existed immediately before such damage occurred. The City shall promptly notify Processor
of any damage to the System caused by Processor’s acts or omissions.
9.4.3 Such remedies in this Section 9.4 shall be non-exclusive, and every other right and
remedy be cumulative and in addition to every other right and remedy given under this Agreement or
existing at law, in equity, or otherwise now or after the Effective Date, and the assertion or employment
of any right or remedy under this Agreement should not prevent the concurrent assertion of any other
right or remedy.
9.5 Remedies for Other Non-Material Breach by Either Party. As promptly as may be
reasonably practicable, and in all circumstances no later than thirty (30) business days after becoming
aware of a Non-Material Breach, the performing Party shall provide written notice of the Non-Material
Breach to the non-performing Party (“Claim Notice”). The failure by the performing Party to give such
prompt notice shall not constitute a waiver except to the extent, if any, that the non-performing Party is
materially prejudiced by such failure.
9.5.1 Any Claim Notice sent by the performing Party to the non-performing Party shall set forth in
reasonable detail, to the extent then known or reasonably available:
(a) the facts and circumstances giving rise to such Non-Material Breach, including all relevant
supporting documentation;
(b) the nature of the losses suffered or incurred or expected to be suffered or incurred by the
performing Party;
(c) a reference to the provisions of this Agreement in respect of which such losses have been suffered
or incurred or are expected to be suffered or incurred;
(d) the amount of losses suffered or incurred and, to the extent the losses have not yet been suffered
or incurred, a good faith estimate (to the extent reasonably possible, based on the information) of the
amount of losses that could be expected to be suffered or incurred;
(e) a reasonably detailed demand for the non-performing Party to take such actions or pay the
performing Party any amounts due or reasonably expected to be due to cure the Non-Material Breach (the
“Remedy”); and
(f) such other information as may be necessary for the non-performing Party to determine whether
any limitations under this Agreement may apply.
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9.5.2 Upon receiving any Claim Notice, the non-performing Party shall perform or pay the Remedy, as
applicable, as soon as reasonably practicable, but in any event no later than thirty (30) calendar days. If
such Remedy is not reasonably capable of being implemented within thirty (30) calendar days, the Parties
shall agree on a longer time to implement the Remedy. If the non-performing Party refuses to comply
with the Claim Notice, any disagreements will be resolved by the dispute resolution procedures in Section
7.
9.5.3 The Parties agree that a Non-Material Breach will not result in a right for either Party to terminate
this Agreement
9.6 Remedies for Material Breach of Either Party
9.6.1 Material Breach by the City. If the City is in Material Breach of this Agreement by its inability to
accept Influent Wastewater from Processor, the Processor may, but is not required to, terminate this
Agreement by providing the City one hundred eighty (180) days advance written notice of the Material
Breach, during which one hundred eighty (180) day period the City shall have the opportunity to cure
such Material Breach. If the City fails to cure Processor exercises its termination right, such termination
shall be effective upon the date that each of the following conditions is satisfied:
(a) Processor shall pay to the City a sum representing the total value of any Outstanding Debt, minus
the value of any insurance proceeds received or owed to the City or Lender arising from a System
casualty preceding the City’s Material Breach; and
(b) Processor and City shall execute any agreements or documents necessary to complete the
assignment and transfer of the Influent Wastewater to Processor.
9.6.2 Material Breach by Processor. If Processor is in Material Breach of this Agreement, the City may,
but is not required to, terminate this Agreement by providing Processor one hundred eighty (180) days
advance written notice of the Material Breach, during which one hundred eighty (180) day period
Processor shall have the opportunity to cure such Material Breach. If Processor fails to cure and the City
exercises its termination right, Processor shall owe to the City as direct damages, and not as a penalty:
(a) The greater of (x) the undiscounted value of Processor’s payments to the City for the remainder
of the Term (excluding Pass-Through Costs), as reasonably calculated by the City, in accordance with
Exhibit F, or (y) a proportionate share of the Outstanding Debt; and
(b) The total amount owed by the City to Burnham for impacts on PWRF, including RNG production
caused by the need to terminate this Agreement as a result of Processor’s Material Breach.
9.7 In the case of any actual or anticipated breach of this Agreement, each Party agrees to use good
faith efforts to take such commercially reasonable actions as necessary to expeditiously resolve the
underlying circumstances including without limitation cooperating with the other Party to obtain any new
or modified System Permits or other approvals necessary or appropriate in connection with the
ownership, occupation, possession or use of the System; provided, however, that in all circumstances
neither Party shall be required or be deemed to have waived any defenses it may have under any
applicable law or contract.
10. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants that it has full power and authority under the laws of the State of
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Washington to enter into this Agreement.
10.2 All covenants and conditions of this Agreement shall run with Processor’s land and shall bind
its successors and assigns, whether so expressed or not.
10.3 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTY
OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ALL
IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY
DISCLAIMED.
11. FORCE MAJEURE
In the event either Party is rendered unable, wholly or in part, to carry out its respective obligations under
this Agreement, except for any obligation to make payment, due to circumstances beyond its reasonable
control, including, without limitation, riot or other civil disturbances, flood, natural disaster, acts of God,
terrorist act, war or civil insurrection, an epidemic, pandemic or viral or communicable disease outbreak,
quarantine, national emergency or other unforeseeable circumstances beyond its reasonable control (a
“Force Majeure”), then written notice setting out the reason for non-performance shall be given to the
other Party by the Party claiming Force Majeure promptly following discovery thereof. Upon receipt of
such notice, the obligations of the affected Party shall be suspended during the period of the Force
Majeure and any deadline or date certain for performance shall be extended by a period equal to the
period of the Force Majeure. Every reasonable effort shall be made by the Parties to avoid delay and limit
any period during which performance under this Agreement might be suspended.
12. GOVERNING LAW AND DISPUTES
12.1 This Agreement shall be interpreted in accordance with the laws of the State of Washington
without giving effect to its choice of law principles. Venue for any court action under this Agreement
shall be the Washington state superior court for Franklin County.
12.2 Any disagreement between the City and Processor which cannot be resolved in accordance with
this Agreement shall be referred to the senior management of each Party who shall attempt to resolve the
dispute in good faith. To aid resolution by the Parties’ senior management, the City’s and Processor’s
representatives shall promptly prepare and exchange memoranda stating the issues in dispute and their
positions, summarizing the negotiations which have taken place and attaching relevant documents. If the
Parties’ senior management resolves the dispute, such resolution shall be reported in writing to and shall
be binding upon the Parties.
12.3 If, despite the good faith efforts described in Section 15.2, the Parties are unable to resolve a
dispute or claim arising out of or relating to this Agreement or its breach, termination, enforcement,
interpretation or validity, the Parties may seek to agree on a forum for mediation to be held at a mutually
agreeable site.
12.4 If, despite good faith efforts described in Section 15.2 and 15.3, the Parties are unable to resolve a
dispute or claim arising out of or relating to this Agreement or its breach, termination, enforcement,
interpretation or validity, (including the determination of the scope or applicability of this Agreement to
arbitrate), shall be determined by arbitration in the Tri-Cities, Washington before a single arbitrator who
is an experienced attorney in the discipline that is the subject of the dispute and whom shall be jointly
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selected by the City and Processor. The arbitration shall be administered by JAMS or JDR pursuant to its
Comprehensive Arbitration Rules and Procedures. The arbitrator shall issue a reasoned, written decision.
Judgment may be entered upon the arbitrator’s decision in any court of competent jurisdiction, and each
Party agrees to submit to the personal jurisdiction of any such court for the purposes of any such actions
or proceedings to enter or enforce such judgement.
12.5 Should either party employ an attorney to enforce any of the provisions of this Agreement, the
non-prevailing Party in any final judgment agrees to pay the other Party’s reasonable expenses, including
reasonable attorneys’ fees and expenses in or out of litigation and, if in litigation, trial, appellate,
bankruptcy or other proceedings, expended or incurred in connection therewith, as determined by a court
of competent jurisdiction.
13. MISCELLANEOUS
13.1 Amendment and Waiver. No amendment or waiver of any provision of this Agreement shall be
valid unless contained within a written executed by Processor and the City and which references the
specific section to be amended or waived. No other amendment or waiver shall have any effect, regardless
of its formality, consideration, detrimental reliance or conduct of one or more Parties. Any waiver of any
term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent
waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
13.2 Assignment. Either Party or assigns as applicable, may assign its rights under this Agreement
without the consent of the other Party; provided that such Party will remain responsible for each of its
obligations under the Agreement, the assignor shall promptly send written notice to the other Party.
13.3 Effective Date; Counterparts; E-Signatures. This Agreement shall take effect and be in force on
the later date of each Party’s signature, below. This Agreement may be executed by the Parties in any
number of counterparts, each of which shall be deemed an original instrument, but all of which together
shall constitute but one and the same agreement. A signature of a Party transmitted to the other Party by
facsimile, PDF or other electronic means shall constitute the original signature of such Party for all
purposes (“Electronic Signature”).
13.4 Merger. This Agreement, including any Exhibits, contains the total agreement of the Parties, and
all agreements oral or written entered into prior to or contemporaneously with the execution of this
Agreement are excluded. This Agreement shall be binding upon the Parties, their successors and assigns.
13.5 Notice. Any notices or other communications required or permitted hereunder shall be in writing
and sent to the appropriate addresses designated below (or to such other address or addresses as may
hereafter be furnished by one Party to the other Party in compliance with the terms hereof), by hand
delivery, by electronic email (if listed below), by UPS, FedEx, or DHL next-day service, or by registered
or certified mail, return receipt requested, postage prepaid.
If to City:
Attn: City Manager, City of Pasco
525 N 3rd Avenue
PO Box 293
Pasco, WA 99301
If to Processor:
With a copy to:With a copy to:
efurguson@kerrlawgroup.net
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13.6 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their
respective successors, Lenders, and permitted assigns and, and nothing herein, express or implied, is
intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
13.7 Severability. If any clause in this Agreement is deemed unenforceable or invalid, the balance of
the Agreement shall remain enforceable. [signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
PROCESSOR CITY OF PASCO, WASHINGTON
By:_________________________________ By:______________________________
Name:_______________________________ Name: Adam Lincoln
Title:________________________________ Title: City Manager
Date:________________________________ Date:_____________________________
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Exhibit A
System
The System is composed of the following primary components, as may be modified from time to time as
be necessary or convenient to treat Influent Wastewater and comply with System Permits: as may
Headworks & Grit Removal;
Equalization;
Anaerobic Reactors and Bypass Stations, including
a.Anaerobic Reactor System;
b.Bypass - Equalization to Aerobic Reactors; and
c.Bypass - Equalization to Pond Discharge Station.
Aerobic Treatment and Bypass Station, including
(a.) Aerobic Reactor System; and
(b) Bypass – Aerobic Treatment to Pond Discharge Station. Effluent Pump Station
Gas Processing; Multi-use Building;
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Exhibit B
CITY-OBLIGATIONS
The City will provide, the following wastewater treatment services to Processor with respect to the
System described in Exhibit A
1. Operation, Routine Maintenance, and Management of the System.
1.1. The City will be responsible for all operations and maintenance obligations required to
ensure operation of the System in accordance with the Agreement and an Ecology-approved
operations and maintenance manual.
1.2. The City will communicate with [Processor name] as is reasonable and necessary
regarding the City’s operation, routine maintenance, and management of the System.
2. Capital Improvements
2.1. The City will perform capital improvements and any maintenance or modifications.
2.2. Should Ecology or other applicable regulatory authority establish new effluent limits
under the Discharge Permit that potentially require modifications to the System, the City and
Processor shall cooperate to evaluate modification to the System. Processor is responsible for
paying for the costs of any such capital improvements as provided for in the Agreement and
Exhibit F.
3. State Waste Discharge Permit Compliance, Generally
The City is responsible for obtaining the State Waste Discharge Permit. Both the City and
Processor shall be responsible for Permit compliance for each Party’s respective services.
4. Performance Standards and Regulatory, Reporting, and Recordkeeping Requirements
4.1 The City’s responsibilities for performance standards and regulatory, reporting, and
recordkeeping requirements are solely and exclusively for the operation of the PWRF Systems.
All aspects of Processor facilities, including but not limited to implementation and enforcement
of the City’s pretreatment program, are the sole and exclusive responsibility of Processor .
4.2 For any monitoring and sampling requirements for Processor, including monitoring Influent
Wastewater prior to discharge to the PWRF, Processor will perform any laboratory analysis through an
accredited laboratory or as otherwise required by the Discharge Permit.
5. Metering; Wastewater Quality
5.1. City will install one or more meters as may be necessary to accurately measure the
amount and composition of Influent Wastewater delivered by Processor to the City for purposes
of billing Processor and other monitoring requirements as established in the Discharge Permit.
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5.2. The City will calibrate and maintain meter devices to ensure the accuracy of the
measurements is consistent with Prudent Industry Practices, the manufacturer’s recommendation,
and approved operation and maintenance manual procedures for the device and the waste stream.
The City will establish the calibration frequency for the Meter(s) that conforms to the frequency
recommended by the manufacturer.
5.3. Subject to reasonable advance notice, City will provide the Processor with access to the
Meter(s) during regular business hours for the purpose of inspecting or monitoring the quantity
and quality of Influent Wastewater.
5.4. Processor may request periodic testing of any Meter by providing written notice of such
request to the City. The City will conduct such testing; provided that the Processor may, at its
sole cost and expense, hire an independent third-party to conduct such testing. If, during any such
testing, the Meter is found to be within a five percent (5%) accuracy range, then the cost of such
test shall be borne by Processor. If the meter is inaccurate by more than five percent (5%), the
City shall at the City’s sole expense, cause the inaccuracy to be promptly corrected, and the
Parties agree that any amounts due or paid for any Services shall be adjusted by the same
percentage as the inaccuracy of the Meter, from the date of Processor name’s written request
through the date upon which the inaccuracy is corrected, as verified by an independent third-
party.
6. Payment of Permit Fees and Fines
6.1. The City is responsible for all State Waste Discharge Permit fees.
6.2. Processor is responsible for all City Permit fee and other rates and charges so long as
uniform for the same class of customers or service and facilities furnished. In classifying
customers served or service and facilities furnished by the PWRF, the City shall adhere to RCW
55, 67.020(2).
7. System Maintenance
7.1. Processor acknowledges that all City Obligations under this Agreement are subject to and
conditioned upon the City’s right and obligation to perform routine and periodic maintenance on
the PWRF systems and emergency maintenance as reasonably required from time to time.
7.2. The City shall provide Processor with advance notice of any routine and periodic maintenance
activities within ten (10) calendar days of the commencement of such routine and periodic
maintenance activities.
7.3.The City may perform emergency maintenance activities as reasonably required under the
circumstances. In the case of emergency maintenance activities, the City shall provide notice to
Processor as soon as practicable.
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Exhibit C
Processor Obligations
Processor shall supply Influent Wastewater in accordance with the following specifications:
Influent Characteristics to Wastewater Treatment System
[
Parameter Influent
Avg. Annual Daily Flow (MGD)TBD
Max. 28-Day Flow (MGD)TBD
BOD, Annual Avg. (mg/L)TBD
BOD, Annual Avg. Daily Load (lb/d)TBD
BOD, Load Max. Month (lb/d)TBD
TSS, Annual Avg. (mg/L)TBD
TSS, Annual Avg. Daily Load (lb/d)TBD
TSS, Load Max. 28-Day(lb/d)TBD
TN, Annual Avg. (mg/L)TBD
TN, Avg. Daily Load (lb/d) TBD
TN, Load Max. 28-Day (lb/d)TBD
Temperature (°F)TBD
Ph TBD
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Exhibit D
Pricing Schedule – Pretreatment Phase 3 System Costs Only
1. Base Treatment Fee: TBD
2. Adjusted Treatment Fee: TBD based on information from FCS Group
3. Annual Modifications to the Adjusted Treatment Fee
The Adjusted Treatment Fee will be subject to further modification as follows:
1- Commencing on COD, the City will modify the Adjusted Treatment Fee to reflect any percentage
adjustment in the Consumer Price Index measured from April 2022 to the month and year
immediately preceding the month and year in which COD occurs. This first modification of the
Adjusted Treatment Fee will be the Adjusted Treatment Fee calculated and invoiced by the City
through March 31 of the first calendar year occurring after the calendar year in which COD
occurs.
2- Commencing on April 1 of the first calendar year following the year in which COD occurs, and
occurring annually on April 1 of each calendar year through the Term, the City shall modify the
Adjusted Treatment Fee based on changes in the Consumer Price Index and/or increases in the
amount of Influent Wastewater or Non-Conforming Influent Wastewater accepted by the PWRF
system that occurred during the immediately preceding calendar year (e.g., a modified Adjusted
Treatment Fee will be calculated and take effect on April 1, 2025 to reflect circumstances
occurring from January 1, 2024 through December 31, 2024). The City will calculate such
annual modifications to Adjusted Treatment Fee as follows:
a. The then-current Adjusted Treatment Fee will be adjusted for any change in the
Consumer Price Index occurring from January 1 through December 31 of the prior
calendar year; provided, however, that on April 1 of the first calendar year occurring after
COD, such Consumer Price Index adjustment shall be measured from the month COD
occurred through December 31 of the prior year (e.g. if COD occurs Jun 1, 2024, the
adjustment will be measured from June 1, 2024 through December 31, 2024); and
b. If the System accepted more than [Processor Max annual flow] MG of Influent
Wastewater or Non-Conforming Influent Wastewater during the prior calendar year, the
Adjusted Treatment Fee will be increased by .03% per MG for each MG accepted above
[Processor Max annual flow] MG. There will be no adjustment for volume of wastewater
if the total volume of Influent Wastewater or Non-Conforming Influent Wastewater is
less than [Processor Max annual flow] MG.
Such annually modified Adjusted Treatment Fee shall remain fixed for the next twelve (12) months,
through March 31 of the subsequent year.
The City shall document any annual modifications to the Adjusted Treatment Fee and provide [Processor
name] a form summarizing the annual modification to the Adjusted Treatment Fee with the first invoice
issued after such modified Adjusted Treatment Fee goes into effect.
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4.Pass-Through Costs:
The following costs incurred by the City will be passed through to Processor for administrative costs, and
will be invoiced to Processor on a monthly basis:
o Electricity
o Purchased natural gas for system heating use
o Solid waste disposal (including anaerobic sludge and periodic digester scrapes and clean-
outs)
o Consumables (including replacement parts & associated rental equipment)
o Major Maintenance Expenses
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PWRF Pretreatment Proposed Cost Distribution
January 6, 2023
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Pasco Processing
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)435
Avg. Annual Daily Flow (MGD)1.19
Max. Month Flow (MGD)2.50
BOD, Annual Avg. (mg/L)3,018
BOD, Annual Avg. Daily Load (lb/d)30,000
BOD, Load Max. Month (lb/d)65,000
TSS, Annual Avg. (mg/L)1,600
TSS, Annual Avg. Daily Load (lb/d)15,910
TSS, Load Max Month (lb/d)42,500
TN, Annual Avg. (mg/L)64
TN, Avg. Daily Load (lb/d)670
FDS, Annual Avg. (mg/L)475
FDS, Avg. Daily Load (lb/d)4,700
pH (s.u.)5.0 – 11.0
Freeze Pack
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)25
Avg. Annual Daily Flow (MGD)0.07
Max. Month Flow (MGD)0.11
BOD, Annual Avg. (mg/L)236
BOD, Annual Avg. Daily Load (lb/d)135
BOD, Load Max. Month (lb/d)225
TSS, Annual Avg. (mg/L)236
TSS, Annual Avg. Daily Load (lb/d)140
TSS, Load Max Month (lb/d)225
TN, Annual Avg. (mg/L)70
TN, Avg. Daily Load (lb/d)40
FDS, Annual Avg. (mg/L)515
FDS, Avg. Daily Load (lb/d)300
pH (s.u.)5.0 – 11.0
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Twin City Foods
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)225
Avg. Annual Daily Flow (MGD)0.62
Max. Month Flow (MGD)1.80
BOD, Annual Avg. (mg/L)7,197
BOD, Annual Avg. Daily Load (lb/d)37,000
BOD, Load Max. Month (lb/d)105,000
TSS, Annual Avg. (mg/L)2,640
TSS, Annual Avg. Daily Load (lb/d)13,580
TSS, Load Max Month (lb/d)50,800
TN, Annual Avg. (mg/L)117
TN, Avg. Daily Load (lb/d)620
FDS, Annual Avg. (mg/L)515
FDS, Avg. Daily Load (lb/d)2,600
pH (s.u.)5.0 – 11.0
Reser’s
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)127
Avg. Annual Daily Flow (MGD)0.41
Max. Month Flow (MGD)0.41
BOD, Annual Avg. (mg/L)2,130
BOD, Annual Avg. Daily Load (lb/d)7,300
BOD, Load Max. Month (lb/d)10,200
TSS, Annual Avg. (mg/L)2,130
TSS, Annual Avg. Daily Load (lb/d)7,310
TSS, Load Max Month (lb/d)10,800
TN, Annual Avg. (mg/L)80
TN, Avg. Daily Load (lb/d)230
FDS, Annual Avg. (mg/L)730
FDS, Avg. Daily Load (lb/d)2,500
pH (s.u.)5.0 – 11.0
Page 95 of 238
Simplot
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)255
Avg. Annual Daily Flow (MGD)0.70
Max. Month Flow (MGD)1.25
BOD, Annual Avg. (mg/L)3,467
BOD, Annual Avg. Daily Load (lb/d)20,200
BOD, Load Max. Month (lb/d)70,000
TSS, Annual Avg. (mg/L)2,120
TSS, Annual Avg. Daily Load (lb/d)12,360
TSS, Load Max Month (lb/d)20,000
TN, Annual Avg. (mg/L)91
TN, Avg. Daily Load (lb/d)410
FDS, Annual Avg. (mg/L)530
FDS, Avg. Daily Load (lb/d)3,100
pH (s.u.)5.0 – 11.0
Grimmway
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)254
Processing Period* Avg. Daily Flow (MGD)1.19
Max. Month Flow (MGD)1.65
BOD, Annual Avg. (mg/L)2,700
BOD, Processing Period* Avg. Daily Load (lb/d)26,730
BOD, Load Max. Month (lb/d)37,150
TSS, Annual Avg. (mg/L)1,000
TSS, Annual Avg. Processing Period Daily Load (lb/d)9,900
TSS, Load Max Month (lb/d)13,770
TN, Annual Avg. (mg/L)21
TN, Avg. Daily Load (lb/d)120
TN, Processing Period* Avg. Daily Load (lb/d)210
FDS, Annual Avg. (mg/L)360
FDS, Avg. Daily Load (lb/d)2,100
FDS, Processing Period* Avg. Daily Load (lb/d)3,560
pH (s.u.)5.0 – 11.0
*Processing period used is June Through December, which includes start-
up and clean-up flow/loading
Page 96 of 238
Darigold WW
Projected Design Criteria
Parameter Influent
Total Annual Flow (MGD)256
Avg. Annual Daily Flow (MGD)0.70
Max. Month Flow (MGD)0.84
BOD, Annual Avg. (mg/L)3,009
BOD, Annual Avg. Daily Load (lb/d)17,600
BOD, Load Max. Month (lb/d)24,600
TSS, Annual Avg. (mg/L)397
TSS, Annual Avg. Daily Load (lb/d)2,330
TSS, Load Max Month (lb/d)2,790
TN, Annual Avg. (mg/L)197
TN, Avg. Daily Load (lb/d)1,150
FDS, Annual Avg. (mg/L)1,655
FDS, Avg. Daily Load (lb/d)9,700
pH (s.u.)5.0 – 11.0
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1
WASTEWATER TREATMENT AGREEMENT
Between
Burnham SEV Pasco LLC
And
The City of Pasco, Washington
Effective [●]
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TABLE OF CONTENTS
Page
-i-
1. Recitals ............................................................................................................................................1
2. Term.................................................................................................................................................2
3. Burnham Obligations.......................................................................................................................3
4. City Obligations...............................................................................................................................5
5. Payment for System and Services; Change Orders.........................................................................6
6. Non-Material and Material Breaches of this Agreement...............................................................11
7. Remedies; Cross-Defaults .............................................................................................................11
8. Title, Ownership, and Risk of Loss; Transfer of Environmental Attributes .................................15
9. Representations and Warranties ....................................................................................................16
10. Indemnification..............................................................................................................................16
11. Limitation of Liability...................................................................................................................19
12. Insurance........................................................................................................................................19
13. Force Majeure................................................................................................................................20
14. Confidentiality...............................................................................................................................20
15. Governing Law and Disputes........................................................................................................21
16. Miscellaneous................................................................................................................................22
Exhibit A.....................................................................................................................................................25
Exhibit B.....................................................................................................................................................26
Exhibit C.....................................................................................................................................................30
Exhibit D.....................................................................................................................................................32
Exhibit E.....................................................................................................................................................33
Exhibit F .....................................................................................................................................................38
Exhibit G.....................................................................................................................................................41
Exhibit H.....................................................................................................................................................42
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WASTEWATER TREATMENT AGREEMENT
This Wastewater Treatment Agreement (“Agreement”) is entered into [___________] (the “Effective
Date”) by and between Burnham SEV Pasco LLC, a Washington limited liability company
(“Burnham”), with offices at 1201 Wilson Blvd – 27th Floor, Arlington VA, 22209, and the City of
Pasco, Washington (the “City”), a municipality with offices at 525 N 3rd Ave., Pasco, WA 99301 (each a
“Party” and together, the “Parties”).
1. Recitals
1.1 The City owns and operates a wastewater utility, including a process wastewater reuse
facility (“PWRF”) that operates for the benefit of the City and large agricultural food processors
to pretreat, treat, and dispose of approximately one billion gallons of agricultural industrial
wastewater by land application on approximatively 1,854 acres of City-owned farmland. See
Washington State Discharge Permit No. ST0005369. The existing PWRF consists of a primary
treatment process (including two rotary drum screens, one modified clarifier, twelve (12) septic
tanks for solids collection from the clarifier, one screw press for solids removal from the rotary
drum screens system), one approximately five million gallon (“MG”) pond previously used as
solids storage, one approximately eight MG pond used as an equalization pond, one
approximately 35 MG pond for winter storage, and one 115 MG pond for winter storage, and an
irrigation system for land application of agricultural industrial wastewater; and
1.2 The City’s current PWRF system has reached its design life and capacity, such that
upgrades and expansion are necessary to accommodate new agricultural food processor
wastewater. To meet the Washington Department of Ecology’s (“Ecology”) permit requirements
to expand the PWRF’s capacity, the City sought a contractor capable of treating agricultural and
milk processing industrial wastewater and using the biogas produced from such treatment to
generate Renewable Natural Gas (“RNG”). Following a competitive selection process, the City
selected Burnham SEV Pasco LLC (“Burnham”) to develop, design, construct, and operate a
wastewater treatment and nitrogen reduction system (the “System,” as more particularly
described in Exhibit A) that integrates Burnham’s RNG production process. Burnham is to
finance, construct, own, and operate the System on City-owned property leased by Burnham; and
1.3 The City is in the process of preparing and submitting a new Washington State Waste
Discharge Permit (“Discharge Permit”) application to Ecology, to include the System and all
other components of the agricultural industrial wastewater treatment and disposal process. The
City will develop, operate and maintain other facilities, including its storage ponds (equalization
and winter storage), irrigation system, land application area, and all related assets (e.g.,
conveyance water pipes, pump stations, wells and appurtenances) (collectively, “City Facilities”)
and the City intends to be a joint permittee with Burnham under the Discharge Permit with roles
and responsibilities for its implementation as defined in this Agreement; and
1.4 The City has sought to utilize the provisions of RCW 70A.140, the Water Quality Joint
Development Act, for the purpose of providing an additional means by which to provide
financing, development, and operation of water pollution control facilities needed for
achievement of state and federal water pollution control requirements for the protection of the
state’s waters; and
1.5 The System and City Facilities will be supported from rates and fees paid to the City by
agricultural waste processors (provided, however, that the waste processor payments to City are
not a condition of any obligation between City and Burnham in this Agreement); and
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1.6 Pursuant to RCW 70A.140.040(9), prior to execution of this Agreement, the Parties were
required to submit this “proposed service agreement” to Ecology to review for consistency with
RCW 90.46 and RCW 90.48, as a condition precedent to the City’s authority to execute this
Agreement; and
1.7 A draft of this Agreement was submitted to Ecology on October 7, 2022, satisfying the
condition precedent to the City’s execution of this Agreement, and Ecology approved the draft
Agreement on November 7, 2022; and
1.8 Pursuant to RCW 70A.140.040 (10), the City held a public hearing on February 6, 2023,
and made written findings that it is in the public interest to enter into this Agreement and that this
Agreement is financially sound and advantageous compared to other methods; and
1.9 The Parties entered into the Anaerobic Digestion and Renewable Natural Gas Project
Work Acceleration Agreement on September 7, 2022, and the Wastewater Treatment, Anaerobic
Digestion and Renewable Natural Gas Project Second Work Acceleration Agreement on
December 8, 2022 (collectively, the “Work Acceleration Agreements”) allowing Burnham to
undertake certain engineering, legal, permitting, regulatory, financing, design, and other activities
to advance the System, including without limitation payments to Swinerton Builders, Inc.
(“Swinerton”), and which obligated City to reimburse Burnham up to $5,500,000 for such
activities; and
1.10 All capitalized terms in this Agreement shall have the meanings given to them in Exhibit
E (Definitions).
1.11 In consideration of the foregoing and for mutual and valuable consideration, the
sufficiency of which are acknowledged, the Parties agree as follows:
2. Term
2.1 This Agreement shall become effective upon the Effective Date and terminate thirty (30)
years after COD (the “Initial Term”), unless terminated in accordance with this Agreement or
extended as provided in Section 2.2.
2.2 Upon expiration of the Initial Term, this Agreement shall automatically extend for two
additional five (5)-year periods (each a “Renewal Term” and together with the Initial Term, the
“Term”), unless terminated by either Party by sending written notice of termination to the other
Party no later than one hundred and eighty (180) days before the end of the Initial Term or any
Renewal Term, as applicable.
2.3 At the end of the Term, unless as specified elsewhere in this Agreement, City has the
option to purchase all right, title, and interest in and to the System, on an “AS-IS” “WHERE IS”
basis, without any warranty or further liability to Burnham. In the event the City elects to exercise
this purchase option, (a) the procedures set forth in Section 5.5(a) shall be applied and (b) the
purchase price shall be equal to the appraised fair market value determined by considering (i)
Sections 5.5(b) and 5.5(e) and (ii) the cost approach for appraisals, which shall account for,
among other things, the decline in economic value of the System due to the passage of time. Each
Party agrees to cooperate with the other Party to take the necessary actions and execute the
necessary documents to effectuate such purchase and sale. Following such purchase and sale,
unless as specified elsewhere in this Agreement, neither Party shall owe any further liability or
obligation to the other Party.
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3. Burnham Obligations
3.1 In addition to any other obligations explicitly set forth herein, Burnham (or its agents,
contractors, and subcontractors, which for the purposes of this section shall be referred to as
“Burnham”) shall perform or comply with the following obligations (each a “Burnham
Obligation” and together the “Burnham Obligations”):
(a) Construction Agreement. Burnham shall maintain in full force and effect the
Progressive Design Build Agreement and/or shall enter into any other agreements
with service providers necessary to design, develop and construct the System.
Burnham shall use commercially reasonable efforts to have City named as a loss
payee under (i) the Property Insurance required under this Agreement, and (ii)
performance or surety bonds under the Progressive Design Build Agreement or
any such similar agreements;
(b) Notice to Proceed. Commencing on the Effective Date, Burnham shall make
commercially reasonable efforts to conduct all required diligence, obtain the
Burnham Permits in accordance with Exhibit G, and issue a Notice to Proceed
(“NTP”) for construction of the System within one hundred eighty (180)
calendar days of the Effective Date (“NTP Date”). In all cases, Burnham shall
issue its NTP within two hundred seventy (270) calendar days of the Effective
Date (“NTP Longstop Date”); provided, however, that the NTP Date and NTP
Longstop Date will be extended on a day-for-day basis upon the occurrence of
any Force Majeure or due to any City Caused Delay or Ecology Delay;
(i) If Burnham fails to issue the NTP on or before the NTP Longstop Date
each Party has the right, but not the obligation, to terminate this
Agreement upon ten (10) business days advance notice, with no further
liability owed or owing to the other Party; provided, however, that if City
seeks to terminate the Agreement under this Section 3.1(b)(i):
1) City must have obtained the City Permits at least sixty (60)
calendar days before the NTP Longstop Date and made the rights
and obligations of such City Permits reasonably available to
Burnham; and
2) City has complied, or if compliance is not yet possible City
stands ready to comply, with all applicable City Obligations as
set forth in Section 4.1.
(c) Commercial Operation. Commencing on NTP, Burnham shall make
commercially reasonable efforts to cause the System to reach Commercial
Operation within twenty-one (21) months of the NTP Date (“COD”). In all cases,
Burnham shall cause the System to reach Commercial Operation within twenty-
seven (27) months of the NTP Date (“COD Longstop Date”); provided,
however, that the COD and COD Longstop Date dates will be extended on a day-
for-day basis upon the occurrence of any Force Majeure or due to any City
Caused Delay or Ecology Delay. In no circumstances shall any monies accrued
but outstanding between the Parties delay Commercial Operation or COD.
Burnham shall notify City within ten (10) business days subsequent to the
System reaching COD, as confirmed by an independent third-party engineer. At
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the end of the Term, the System shall remain in Commercial Operation, but
subject to City control, unless the Parties agree otherwise;
(d) Services. Commencing on COD and throughout the Term, Burnham shall own
and operate the System and provide the City with the Services listed in Exhibit B
in a manner consistent with Prudent Industry Practices;
(e) Effluent Water. Commencing on COD and during the Term, Burnham shall own
and operate the System to discharge Effluent Water to City in accordance with
the specifications, terms, and conditions in Exhibit D and consistent with Prudent
Industry Practice;
(f) Burnham Permits. Commencing as of the Effective Date, Burnham shall apply
for, procure, and maintain throughout the Term, at its sole cost and expense, all
Permits reasonably required for the design, construction, operation, or
maintenance of the System, including without limitation the Burnham Permits set
forth in Exhibit G, except for any City Permits identified specifically on Exhibit
G; and
(g) Cooperation. Commencing on the Effective Date, Burnham will cooperate with
the City in connection with (1) promptly obtaining any System Permits; (2)
promptly providing information necessary for the design, construction, operation,
or maintenance of the System as reasonably requested by the City; and (3) any
other information or effort as reasonably requested from time to time by City to
fulfill each Party’s responsibilities under this Agreement.
(h) Pass-Through Costs. Burnham will make commercially reasonable efforts to
obtain prudent pricing for the Pass-Through Costs at set forth in Exhibit F.
(i) Gross Wen Process Performance Guarantees. Burnham will make commercially
reasonable efforts to obtain commercially reasonable performance guarantees for
the Gross Wen Process (the “Gross Wen Process Performance Guarantees”).
To the extent Burnham is entitled to pursue and receives financial benefits or
compensation from the Gross Wen Process Performance Guarantees, Burnham
will pass through such financial benefits or compensation to City, without
markup, and net of any costs incurred by Burnham associated with pursuing the
Gross Wen Process Performance Guarantees.
(j) Prevailing Wage. Burnham will satisfy the prevailing wage requirements in
RCW 39.12.020 for construction and operation of the System.
(k) Optional Performance Bond. At any time after the first anniversary of the
Effective Date, City may submit to Burnham a written notice for Burnham to run
a competitive bid process for the purposes of obtaining a Service Contract
Performance Bond. City and Burnham shall provide reasonable cooperation in
determining the key terms and conditions that such Service Contract Performance
Bond will include. Burnham shall have up to one hundred eighty (180) days to
solicit competitive bids from one or more vendors and provide them to City.
Burnham and City shall cooperate in good faith to determine whether a Service
Contract Performance Bond is necessary and available, and if so, which vendor
to select to provide such Service Contract Performance Bond. Should City
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require that Burnham procure a Service Contract Performance Bond, all costs and
fees associated with obtaining and maintaining such Service Contract
Performance Bond shall be passed through to City consistent with Exhibit F.
3.2 If Burnham’s parent company, Burnham Pasco HoldCo LLC, a Delaware limited liability
company with offices at 1201 Wilson Blvd – 27th Floor, Arlington VA, 22209 (“Parent”),
receives, directly or indirectly through one or more owners of equity issued by Parent in
consideration for or otherwise in respect of any U.S. federal income tax credit pursuant to section
48 of the Internal Revenue Code of 1986, as amended and restated, that is available in respect of
that portion of the System that constitutes energy property as such term is used in such section,
within one hundred eighty (180) days of receiving the cash proceeds from the sale of any tax
credit Parent or assignee, as applicable, shall agree with City on a payment schedule where City
will receive credit over the length of the Initial Term of $7,200 per month for each $1,000,000 in
such cash received for the sale of federal tax credits (rounded to the nearest million).
For the purposes of this Section 3.2 only, Parent shall be a third-party beneficiary under this
agreement and City shall have the right to enforce this Section 3.2 against Parent directly. Except
as set forth in this Section 3.2, Parent has no rights, obligations, or liabilities and has made no
representations and warranties under this Agreement.
Section 3.2 AGREED AND ACCEPTED TO:
BURNHAM SEV PASCO LLC CITY OF PASCO, WASHINGTON BURNHAM PASCO HOLDCO
LLC
By:By:By:
Name:Chris Tynan Name:Adam Lincoln Name:Chris Tynan
Title:CEO Title:City Manager Title:CEO
Date:Date:Date:
4. City Obligations
4.1 In addition to any other obligations set forth herein, including any obligations in Exhibit
C, City shall comply with the following obligations (each a “City Obligation” and together the
“City Obligations”):
(a) Site. No later than February 22, 2023 (the “Site Delivery Date”), the City shall
execute a lease with Burnham in the form attached as Exhibit H granting
Burnham a sufficient leasehold and all appurtenant rights and privileges
necessary for Burnham to construct, operate, and maintain the System and
perform the Services more particularly described in Exhibit C (the “Site”);
(b) Facility Plan Approval; City Permits. No later than February 22, 2023, City shall
receive approval on the Facility Plan associated with the City Permits specified in
Exhibit G. Any delay in receiving approval on the Facility Plan beyond February
22, 2023 will be an “Ecology Delay.” City shall maintain throughout the Term,
at its sole cost and expense, all City Permits as set forth in Exhibit G;
(c) Cooperation. Commencing on the Effective Date, the City will cooperate with
Burnham in connection with (1) financing the System, including executing any
additional approvals, estoppels, consents, or other documents as reasonably
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requested with respect to this Agreement and obtaining title insurance for the site
lease contemplated in Exhibit H; (2) promptly obtaining any System Permits; (3)
promptly providing information necessary for the design, construction, operation,
or maintenance of the System; and (4) any other information or effort as
reasonably requested by Burnham from time to time to fulfill each Party’s
responsibilities under the Agreement;
(d) Influent Water. Commencing on COD and continuing throughout the Term, at
City’s sole cost and expense City shall provide Burnham with Influent Water in
accordance with the specifications in Exhibit C. If at any time Burnham becomes
aware that Influent Water delivered by the City is Non-Conforming Influent
Water, Burnham may, in its sole discretion, bypass such Non-Conforming
Influent Water to the City-owned Storage Pond (as described in Exhibit A) and
promptly provide City with notice of such bypass and the reason for same;
provided, however, that Burnham’s acceptance of Non-Conforming Influent
Water shall not relieve City of any responsibility or any costs, damages, or
liabilities associated with Non-Conforming Influent Water, and by acceptance
Burnham does not waive any other rights or remedies associated with City’s
delivery of Non-Conforming Influent Water.
(e) Payment. The City shall pay Burnham in accordance with Section 5; and
(f) Financing Cooperation. Commencing on the Effective Date, the City shall
cooperate with, and provide Burnham with information concerning, City’s water
and sewer utility, including without limitation operational and financial data
consistent with and substantially similar to City disclosures provided in
connection with City’s issuance of municipal bonds associated with such utility.
The City shall execute a continuing disclosure agreement or certificate in
connection with the Outstanding Debt that complies with Rule 15c2-12(b)(5)
adopted by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as the same may be amended from time to time, related to
its water and sewer utility, substantially similar to the disclosures the City
provides in connection with its issuance of municipal bonds in connection with
such utility.
(g) Nitrogen Management. To the extent that the Discharge Permit’s nitrogen or
associated constituent (e.g., nitrates) limits are exceeded resulting in any Claims
from Ecology or other third-parties, City shall submit a request to Burnham
under Section 5.4 for Modifications to the System reasonably sufficient to bring
nitrogen and associated constituent levels within Discharge Permit limits,
including without limitation installing more Revolving Algal Biofilm in the
Gross Wen Process, grow lights, or installing a moving bed biofilm reactor and
any related infrastructure.
4.2 If there are any changes in City’s ability to comply with the City Obligations in Exhibit
C, any material change in circumstances at the Site, or a Change of Law that necessitates a
change to the System or the services to be provided by Burnham in connection herewith
(individually or collectively, “Changed Circumstances”), and not as a result of any actions
taken by Burnham that interfere with City’s ability to comply with the City Obligations, City
shall be solely responsible for any increased costs incurred by Burnham to operate the System
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due to such Changed Circumstances. The Parties agree to negotiate any necessary Modifications
in accordance with Section 5.4 to accommodate any Changed Circumstances.
5. Payment for System and Services; Change Orders
5.1 Commencing on COD and continuing throughout the Term, City shall pay Burnham the
Adjusted Treatment Fee (as modified, if applicable), Pass-Through Costs and any applicable
adjustments as calculated and invoiced by Burnham on a monthly basis in accordance with
Exhibit F.
(a) Except in the case of Material Breach by Burnham, a Force Majeure lasting more
than six (6) months, or as explicitly specified in this Agreement, commencing on
COD City shall pay to Burnham the Adjusted Treatment Fee each month and
through the end of the Term notwithstanding any failure by City to deliver
Influent Water or failure or inability of Burnham to accept Influent Water or
deliver Effluent Water.
(b) The City acknowledges, covenants, represents, and warrants that all payments
made by the City to Burnham shall be deemed operations and maintenance costs
of the water/sewer utility pursuant to the Pasco Municipal Code, Section
13.10.010.
5.2 Within ten (10) business days after the end of each month after COD, Burnham will issue
to City an invoice in accordance with Exhibit F for the Adjusted Treatment Fee (as modified, if
applicable), Pass-Through Costs, and any applicable adjustments billed in the immediately
preceding month along with any documentation reasonably necessary to support amounts due by
the City. The City shall pay each Burnham invoice within thirty (30) calendar days after receipt;
provided, however, that City may, in good faith, dispute the correctness of any invoice, Adjusted
Treatment Fee, Pass-Through Costs, and any applicable adjustments or adjust any invoice for any
arithmetic or computational error upon written notice to the Burnham, stating the basis for the
dispute or adjustment; provided further, however, that City shall remain obligated to pay all
amounts when due except for those amounts disputed due to arithmetic or computational errors.
Payment will be made by check, cash or electronic funds transfer, or by another mutually
agreeable method(s), to the account determined by Burnham.
5.3 If City fails to pay any amount due to Burnham under this Agreement within five (5)
business days subsequent to the date such amount was due, then such unpaid amount shall bear
interest from the due date until paid in full at the rate of twelve percent (12%) per annum, or, if
less, the highest rate permitted by law (“Late Payment Rate”). If the due date of any payment
falls on a Sunday or bank holiday, the next business day following such date shall be the last day
on which payment can be made without assessment of interest and a late fee.
5.4 At any time during the Term, City may request additional services from Burnham or
request any alterations, additions, omissions, modifications, or changes in the scope, schedule,
sequence, methods, or performance of the System or Services (collectively, “Modifications”).
Burnham agrees to reasonably cooperate with City to evaluate and implement any reasonable
Modifications proposed by City; provided, however, that the Parties must agree to any such
Modifications using the following process:
(a) City shall submit a request for additional services in writing to Burnham;
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(b) Burnham shall submit a written change order to City setting forth the
Modifications and expected costs of such Modifications;
(c) City shall confirm its agreement to such Modifications and to pay all costs
associated with such Modifications, if any, by executing such change order and
returning it to Burnham;
(d) Following receipt of the City’s executed change order, Burnham shall modify
Exhibit F to reflect the costs of the agreed upon Modifications; and
(e) Any change order evidencing any such Modifications and the modified Exhibit F
will become a part of this Agreement and incorporated by reference.
(f) Any disputes over a change order or any associated Modification will be handled
in accordance with the dispute resolution procedures in Section 15.
5.5 City Option to Acquire System at Fair Market Value. At any time after the Effective
Date, the City shall have an option to purchase the System at Fair Market Value consistent with
the requirements of RCW 70A.140.040; provided, FMV shall be determined according to this
Agreement Section 5.5.
(a) The City shall exercise its option to purchase the System using the following
procedure:
(i) Following City Council authorization, the City shall send Burnham
notice of City’s intention to acquire the System for FMV together with
an appraisal of FMV prepared by an independent valuation consultant
experienced in the valuation of public utility systems. The consultant
shall use the methodology as described in 5.5(b) through Section 5.5(d).
(ii) Within ninety (90) days of the notice in Section 5.5(a)(i), City shall
finalize a plan with Lender(s) for City to either:
1) assume all Outstanding Debt; or
2) pay off of all Outstanding Debt, including without limitation
paying any associated breakage fees or costs associated with
such Outstanding Debt.
In either case, City shall share such plan with Burnham promptly after such plan is finalized.
(iii) In the event Burnham disagrees with FMV as determined by the City-
engaged consultant, within ninety (90) days of the notice in Section
5.5(a)(i), Burnham shall engage a nationally known and experienced
valuation consultant to calculate FMV for the System, using the
methodology as described in Section 5.5(a)(iv).
(iv) Within one hundred eighty (180) days of the notice in Section 5.5(a)(i),
Burnham shall deliver to City a report from the valuation consultant
calculating FMV for the System. City shall have thirty (30) days to
review the valuation report and agree on the FMV. If the FMV
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valuations are within ten percent (10%) of each other, then the FMV
shall be set at the average of the two valuation reports. If the valuation
reports are more than ten percent 10% apart, and the Parties are unable to
agree on a path forward, then the Parties shall mutually select and share
the costs of a third third-party valuation consultant. The third third-party
valuation consultant shall be provided both previous valuation reports.
The third valuation consultant shall then conduct a FMV valuation and
issue an opinion of FMV within thirty (30) days of being retained. That
opinion shall be binding and shall set the FMV.
(v) Within one hundred eighty (180) days of agreeing on or determining
FMV, City and Burnham shall execute all necessary and customary
documents to transfer the System to City in exchange for Burnham
receiving FMV.
(vi) The City may withdraw its notice of intention to purchase the System for
FMV at any time and for any reason. In that case, City may not exercise
its option to purchase the System for FMV for one (1) year, starting on
the date of withdrawal.
(b) Whether determined by Burnham, City, or any valuation consultant, FMV shall
be determined using the net present value method of valuation considering all
expected revenue and expenses over the life of the System, including all revenue
expected to be earned over the life of this Agreement:
(i) If the City chooses to assume the Outstanding Debt, the valuation of
Burnham’s equity interest will account for all future equity distributions
(including without limitation all costs, expenses, and debt service under
the Outstanding Debt) and these equity distributions will be discounted at
the City’s then-current cost of capital.
(ii) If the City chooses to pay off the Outstanding Debt, the amount
necessary to pay off the Outstanding Debt (including, without limitation,
all associated breakage fees and costs) will be added to the equity value
calculation in Section 5.5(b)(i).
(c) Further, the FMV valuation should account for each of the following, in addition
to any special considerations in Section 5.5(d):
(i) The amount that a willing and able buyer would offer, and a willing and
able seller would accept, for the purchase and sale of Burnham’s interest
in the System, in an arm’s length transaction, assuming:
1) Neither party is under economic compulsion or has special
bargaining power;
2) the buyer possesses all information in the possession of City
relating to the System, its condition, and the revenues and
expenses of Burnham;
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3) The event or circumstance that requires determination of fair
market value had not occurred and accordingly this Agreement
and Burnham’s ownership of the System would remain in effect
and Burnham would remain a going concern for the balance of
the Initial Term;
4) There exists no prior, known or reasonably foreseeable unusual
temporary event or circumstance specific to the System (e.g.,
damage, operating performance disruptions or destruction) or to
market and economic conditions, positive or negative. If such
event or circumstance consists of damage or destruction, FMV
will exclude (A) the estimated cost to repair and replace the
damage or destruction and (B) the loss of revenues during the
estimated time to repair and replace the damage or destruction,
and Burnham will retain the right to insurance coverage for loss
occasioned thereby;
5) There would occur no future unusual temporary event or
circumstance specific to the System (e.g., damage or destruction)
or to market and economic conditions, positive or negative, not
known or reasonably foreseeable at the time of valuation;
6) There would occur no future Change of Law not known or
reasonably foreseeable at the time of valuation;
7) There exists no adverse effect from a City Material Breach or
Non-Material Breach, and both Parties would generally continue
to perform their respective obligations under this Agreement for
the remainder of the Initial Term absent early termination; and
8) Short-term impairments to the value of the System such as
temporary damage or operating performance shortfalls are
reasonably rectified if within Burnham’s responsibility under the
Agreement.
(ii) Reimbursement to Burnham of any reasonable and documented costs
associated with demobilizing operations at the System.
(iii) Reimbursement to Burnham of any reasonable and documented costs
associated with demobilizing operations, terminating the site lease
contemplated in Section 4.1(a), or terminating contracts with third-party
contractors (including affiliates), including without limitation any costs
and liabilities associated with Burnham’s non-contractual liabilities and
indemnity obligations.
(iv) Any reimbursement to Burnham under Sections 5.5(c)(ii) and 5.5(c)(iii)
shall be the full and agreed reimbursement available to Burnham under
Chapter 8.26 RCW for any relocation assistance.
(v) Reimbursement to Burnham of any incremental tax liabilities incurred by
Burnham as a result of the exercise of City’s option.
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(d) Timing of City’s Exercise of Option and Calculation of FMV.
(i) If Burnham or City must determine FMV before COD, then it shall be
assumed that COD will occur on or before the COD Longstop Date and
that the System shall be operational through the Initial Term.
1) In that case, FMV shall account for the capital costs previously
expended and expected capital costs to achieve substantial
completion and COD under the then-current construction
schedule. If City and Burnham disagree on the cost to complete
estimates, Burnham may choose to complete the System before
selling the System to City, with the City’s cost of completion not
contemplated in FMV determination.
(ii) If Burnham or City must determine FMV before COD or within the first
three (3) years of the Initial Term, in addition to the considerations in
Section 5.5(b) through Section 5.5(d)(i), FMV must assume the System
will achieve full operational capacity as contemplated by the Agreement.
(iii) If Burnham or the City must determine FMV before Burnham or Parent
receives any tax credit contemplated in Section 3.2, the FMV valuation
will include the expected value of any tax credit reasonably expected to
be received over the life of the Agreement.
(e) If the City exercises its right to purchase the System at FMV, City shall be
required to assume the terms of the RNG Offtake Agreement and RNG
Interconnection Agreement, or enter into replacement agreements on materially
similar terms and conditions and for the same duration.
6. Non-Material and Material Breaches of this Agreement
6.1 Any breach under this Agreement by either Party that is not a Material Breach shall be a
“Non-Material Breach.”
6.2 The following circumstances shall constitute a “Material Breach” by the applicable non-
performing Party:
(a) Burnham’s failure to reach Commercial Operation within one hundred eighty
(180) calendar days of the COD Longstop Date; provided that, if Burnham fails
to reach COD by the COD Longstop Date, Burnham shall pay the City the Daily
Damage Rate for each day following the COD Longstop Date until COD is
reached or this Agreement is otherwise terminated in accordance with Section
7.4;
(b) The City’s failure to make any payment required under this Agreement and
invoiced by Burnham in accordance with Section 5 and Exhibit F; provided,
however, that Burnham shall provide written notice of such failure to the City
and the City shall have thirty (30) days to submit payment in full following such
notice;
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(c) Burnham’s failure to operate the System or perform the Services consistent with
Prudent Industry Practices that results in an Effluent Water Failure lasting more
than twelve (12) months; provided, however, that so long as Burnham has
provided the City with a written plan, consistent with Prudent Industry Practices
and approved by an independent engineer, for resolving such Effluent Water
Failure, such failure shall not be a Material Breach;
(d) Notwithstanding the provisions in Section 6.2(c) above, Burnham’s failure to
operate the System or perform the Services consistent with Prudent Industry
Practices that results in an Effluent Water Failure lasting more than twenty-four
(24) consecutive months;
(e) The City’s material relocation, alteration, addition, improvement, maintenance or
repair of the System made without Burnham’s written consent;
(f) In respect of either Party, the other Party’s material misrepresentation, fraud or
intentional misconduct in connection with this Agreement;
(g) In respect of either Party, an Insolvency Event for that Party;
7. Remedies; Cross-Defaults
7.1 Remedies for Non-Material Breach Due to Effluent Water Failure. Burnham’s failure
or inability to meet the Effluent Water specifications listed in Exhibit D (“Effluent Water
Failure”) shall be a Non-Material Breach of this Agreement, with the liability, costs, and
responsibility for remedying an Effluent Water Failure to be determined as follows:
(a) Upon either Party’s determination that an Effluent Water Failure has occurred,
such Party shall provide a reasonably detailed notice to the other Party explaining
the circumstances of such Effluent Water Failure no later than ten (10) days of
such determination. The Parties will immediately cooperate and take steps to
remedy such Effluent Water Failure consistent with Section 7.6.
(b) Burnham will be responsible and have sole discretion for performing all work on
the System reasonably required to remedy the Effluent Water Failure. The City
will bear all costs and liabilities associated with remedying the Effluent Water
Failure except as noted in 7.1(c), with any costs incurred separately by Burnham
invoiced to City as Pass–Through Costs or, if necessary, added to Exhibit F using
the change order process in Sections 5.4(a) through 5.4(f).
(c) Notwithstanding the above, if Burnham’s failure to operate the System or
perform the Services consistent with Prudent Industry Practices was the primary
cause of the Effluent Water Failure, Burnham shall bear all costs associated with
remedying the Effluent Water Failure. Notwithstanding the above, if the Effluent
Water Failure was caused by City’s delivery of Non-Conforming Influent Water,
such remedy shall be determined by Section 7.2(c).
7.2 Remedies for Non-Material Breaches of Certain City Obligations.
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(a) If City fails to timely deliver the Site by the Site Delivery Date in accordance
with Section 4.1(a), unless excused by a Force Majeure, such failure shall be a
City Caused Delay.
(b) If City fails to timely procure the Facility Plan approval under Section 4.1(b),
unless excused by a Force Majeure, such failure shall be a City Caused Delay.
(c) If the City fails to timely comply with the City Obligations in Sections 4.1(c)
through (f), and such failure results in a Project delay, such failure shall be a City
Caused Delay.
(d) If City fails to deliver Influent Water in accordance with Exhibit C and Section
4.1(d) or delivers Non-Conforming Influent Water, Burnham shall promptly
notify City of such failure and City shall be solely responsible for any and all
losses, damage to the System, or additional costs incurred by Burnham that were
caused by City’s failure or delivery of Non-Conforming Influent Water,
including without limitation any additional costs of treating, handling, storing,
and disposing of such Non-Conforming Influent Water or discharging Non-
Conforming Influent Water to the City-Owned Storage Pond.
(e) In the event of any damage to the System caused by City’s acts or omissions or
breach of this Agreement, City shall remain obligated to perform all of its
obligations under this Agreement and City shall reimburse Burnham for the
repair and restoration of the System to the same condition as existed immediately
before such damage occurred. Burnham shall promptly notify City of any
damage to the System caused by City’s acts or omissions.
(f) Such remedies in this Section 7.2 shall be non-exclusive, and every other right
and remedy be cumulative and in addition to every other right and remedy given
under this Agreement or existing at law, in equity, or otherwise now or after the
Effective Date, and the assertion or employment of any right or remedy under
this Agreement should not prevent the concurrent assertion of any other right or
remedy; provided, however, that any disagreements will be resolved by the
dispute resolution procedures in Section 15. Any notices required by this Section
7.2 will be provided under the terms and conditions in Section 7.3.
7.3 Remedies for Other Non-Material Breach by Either Party. As promptly as may be
reasonably practicable, and unless specified elsewhere in this Agreement no later than thirty (30)
business days after becoming aware of a Non-Material Breach, including without limitation Non-
Material Breaches specified in Section 7.1 and Section 7.2, the performing Party shall provide
written notice of the Non-Material Breach to the non-performing Party (“Claim Notice”). The
failure by the performing Party to give such prompt notice shall not constitute a waiver except to
the extent, if any, that the non-performing Party is materially prejudiced by such failure. Except
as specified elsewhere in this Agreement, any Claim Notice sent by the performing Party to the
non-performing Party shall set forth in reasonable detail, to the extent then known or available:
(a) the facts and circumstances giving rise to such Non-Material Breach, including
all relevant supporting documentation;
(b) the nature of the losses suffered or incurred or expected to be suffered or incurred
by the performing Party;
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(c) a reference to the provisions of this Agreement in respect of which such losses
have been suffered or incurred or are expected to be suffered or incurred;
(d) the actual amount of losses actually suffered or incurred and, to the extent the
losses have not yet been suffered or incurred, a good faith estimate (to the extent
reasonably possible, based on the information then known or available) of the
amount of losses that could be expected to be suffered or incurred;
(e) a reasonably detailed demand for the non-performing Party to take such actions
or pay the performing Party any amounts due or reasonably expected to be due to
cure the Non-Material Breach (the “Remedy”); and
(f) such other information as may be necessary for the non-performing Party to
determine whether any limitations under this Agreement may apply.
(g) Upon receiving any Claim Notice, the non-performing Party shall perform or pay
the Remedy, as applicable, as soon as reasonably practicable, but in any event no
later than thirty (30) calendar days. If such Remedy is not reasonably capable of
being implemented within thirty (30) calendar days, the Parties shall agree on a
longer time to implement the Remedy. If the non-performing Party refuses to
comply with the Claim Notice, any disagreements will be resolved by the dispute
resolution procedures in Section 15.
(h) The Parties agree that a Non-Material Breach will not result in a right for either
Party to terminate this Agreement
7.4 Remedies for Material Breach of Either Party
(a) Material Breach by Burnham. If Burnham is in Material Breach of this
Agreement, the City may, but is not required to, terminate this Agreement by
providing Burnham sixty (60) days advance written notice of termination due to
the Material Breach, during which sixty (60) day period Burnham shall have the
opportunity to cure such Material Breach. If Burnham fails to cure and City
exercises its termination right, prior to such termination, the City shall elect one
of the following:
(i) Assumption of Financing. Subject to Lender(s)’ consent, City shall
assume the Services under this Agreement and Burnham’s obligation to
pay the Outstanding Debt pursuant to an agreement between the City and
the Lender(s); or
(ii) Right of First Refusal. Before termination, Lender(s) may choose to
liquidate System assets, sell the System at fair market value, or continue
to operate the System pursuant to Section 16.5. If Lender(s) choose to
liquidate System assets or sell the System, the City shall have a right of
first refusal to purchase the System at Fair Market Value as determined
in Section 5.5(b) through 5.5(d).
The City and Burnham shall execute any agreements or documents necessary to
effectuate the City’s election of either of the above. If the City assumes the
Services under this Agreement, City covenants that it will assume the terms of
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the RNG Offtake Agreement and RNG Interconnection Agreement, or enter into
replacement agreements on materially similar terms and conditions and for the
same duration.
(b) Material Breach by City. If City is in Material Breach of this Agreement,
Burnham may, but is not required to, terminate this Agreement by providing City
sixty (60) days advance written notice of termination due to the Material Breach,
during which sixty (60) day period City shall have the opportunity to cure such
Material Breach. If City fails to cure and Burnham exercises its termination right,
City shall owe to Burnham as direct damages, and not as a penalty, the
undiscounted value of the City’s payments to Burnham for the remainder of the
Term (excluding Pass-Through Costs), as reasonably calculated by the Parties
using their respective third-party consultants, in accordance with Exhibit F, and
any breakage or early termination fees arising from the termination of the RNG
Offtake Agreement and RNG Interconnection Agreement.
7.5 Termination of City Lease. If the site lease contemplated in Section 4.1(a) and attached
as Exhibit H terminates, this Agreement shall terminate concurrently with the termination of the
site lease. If the site lease terminates due to Burnham’s material default under the site lease,
Burnham shall be considered in Material Breach of this Agreement, with all applicable remedies
available to the City under Section 7.4(a). If the site lease terminates due to City’s material
default under the site lease, City shall be considered in Material Breach of this Agreement, with
all applicable remedies available to Burnham under Section 7.4(b).
7.6 Liquidated Damages. The Parties acknowledge and agree that with respect to the
damages payable under Section 6.2(a), it would be impracticable to determine accurately the
extent of the loss that the City would have in such case, it is in the Parties’ interests to establish
certainty as to the damages payable, and such damages are in the nature of liquidated damages, do
not constitute a penalty, and are a genuine and reasonable pre-estimate of the damages likely to
be sustained by the City in such case.
7.7 Good Faith Efforts. In the case of any actual or anticipated breach of this Agreement,
each Party agrees to use good faith efforts to take such commercially reasonable actions as
necessary to expeditiously resolve the underlying circumstances including without limitation
cooperating with the other Party to obtain any new or modified System Permits or other approvals
necessary or appropriate in connection with the ownership, occupation, possession or use of the
System; provided, however, that in all circumstances neither Party shall be required or be deemed
to have waived any defenses it may have under any applicable law or contract.
8. Title, Ownership, and Risk of Loss; Transfer of Environmental Attributes
8.1 City acknowledges that the System at all times during the Term of this Agreement shall
be owned by Burnham and will at all times remain Burnham’s personal property (and not
fixtures), notwithstanding that such System or any part of such System may become attached to
the Site or any real property. City shall take no action that is inconsistent with Burnham’s
ownership of and title to the System and no provision of this Agreement shall be interpreted as
giving City any right to operate the System. Burnham may mark or identify the System with
labels, plates or other markings showing ownership. City shall not remove any such identifying
marks.
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8.2 The Parties agree that the transfer of custody of Influent Water to Burnham as
contemplated hereunder shall constitute a bailment and that no sale of personal property, waste,
or transfer of title to the Influent Water has occurred. City understands and agrees that, during the
period of bailment, the Influent Water will be processed and thereafter will be delivered as
Effluent Water in a different form than which it was delivered to Burnham.
8.3 Commencing on COD and continuing until the conveyance of the System to City that
will occur at the Term of this Agreement, City assumes the sole risk of condemnation of City’s
Site and any adverse effects arising from such condemnation.
8.4 City agrees to transfer all title and interest to all carbon credits, greenhouse gas offsets,
green tags, renewable energy credits, production tax credits, allowances or offsets for air
emissions, “M-RETs,” “RINs,” “LCFS” credits, or any other local, state, regional, federal, or
international environmental programs providing incentives or credits, or any other environmental
attributes, however entitled, associated with biogas, RNG, renewable transportation fuels, bio-
fertilizers, or other products generated by the anaerobic digestion, processing of organic
materials, or otherwise from the Influent Water or operation of the System (collectively,
“Environmental Attributes”), including without limitation the ability of the Influent Water, or
any portion thereof, to produce RNG and any credits, grants, or incentive payments derived
therefrom, to Burnham. Such title and interest transferred from City to Burnham shall include all
rights to generate, manage, advertise, claim, promote, and market for sale such Environmental
Attributes and RNG.
8.5 The City agrees to reasonably assist and cooperate with Burnham in securing
Environmental Attributes, and otherwise as may be reasonably necessary to carry out the
purposes of this Agreement, including from time to time submitting documentation or
certifications regarding the Influent Water or the System.
9. Representations and Warranties
9.1 Each Party represents and warrants that it has full power and authority under the laws of
the State of Washington to enter into this Agreement.
9.2 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO
WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR
IMPLIED. ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE HEREBY DISCLAIMED.
10. Indemnification
10.1 Indemnification by Burnham. Burnham agrees that it will indemnify, defend, and hold
harmless the City, and its employees, directors, officers, managers, members, and subcontractors
(as applicable in the circumstances), (the “City Indemnified Party”) from, against, and in all
respect of all liabilities, losses, lawsuits, penalties, claims, settlement payments, costs and
expenses, interest, awards, judgments, damages, fines or demands (including the costs, expenses
and reasonable attorneys’ fees on account thereof) (collectively “Claims”) incurred by the City
Indemnified Party to third parties arising out of or in connection with (or alleged to arise out of or
be in connection with):
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(a) any personal injury to, or death of, any person, or loss or damage to property
arising out of or in connection with the negligence or willful misconduct of
Burnham or any of its officers, members, employees, agents, representatives or
subcontractors in connection with its obligations or rights under this Agreement;
(b) any Burnham Material Breach or Burnham Non-Material Breach;
(c) Burnham’s acts or omissions under this Agreement that result in an Effluent
Water Failure and are the primary cause of a violation of the effluent limitations
in the City’s Waste Discharge Permit, through no fault or contributory negligence
of the City or any third party;
(d) any Burnham non-compliance with applicable law, including Environmental
Laws;
(e) any nuisance condition caused by Burnham’s acts or omissions under this
Agreement; and
(f) any other matter identified as requiring indemnification by Burnham under this
Agreement.
(g) Burnham shall not, however, be required to reimburse or indemnify any City
Indemnified Party for any Claim to the extent any Claim arises from:
(i) any City Material Breach or City Non-Material Breach;
(ii) the negligence or willful misconduct of any City Indemnified Party;
(iii) the City’s acts or omissions that cause a violation of the City’s Discharge
Permit (including the City’s supply of Non-Conforming Influent Water
or failure to otherwise supply Influent Water in accordance with Exhibit
C);
(iv) any Abnormal Substances;
(v) any Force Majeure event;
(vi) any act or omission of any City Indemnified Party responsible for or
contributing to the Claim; or
(vii) any matter for which the risk has been specifically allocated to the City
hereunder.
A City Indemnified Party shall promptly notify Burnham of the assertion of any claim against it for which
it is entitled to be indemnified hereunder, shall give Burnham the opportunity to defend such claim, and
shall not settle the claim without the approval of Burnham which approval shall be in Burnham’s sole
discretion. These indemnification provisions are for the protection of the City Indemnified Parties only
and shall not establish, of themselves, any liability to third parties. The provisions of this subsection 10.1
shall survive termination of this Agreement.
10.2 Indemnification by the City.
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(a) The City agrees that to the extent permitted by law, it will indemnify, defend, and
hold harmless Burnham, and its employees, directors, officers, managers,
members, shareholders, subsidiaries, and subcontractors (as applicable in the
circumstances), (the “Burnham Indemnified Parties”) from, against, and in all
respect of all Claims incurred by the Burnham Indemnified Party to third parties
arising out of or in connection with (or alleged to arise out of or be in connection
with):
(i) any personal injury to, or death of, any person, or loss or damage to
property arising out of the negligence or willful misconduct of City or
any of its officers, members, employees, agents, representatives or
subcontractors in connection with its obligations or rights under this
Agreement,
(ii) any City Material Breach or City Non-Material Breach;
(iii) the City’s acts or omissions that cause a violation of the City’s Discharge
Permit (including the City’s supply of Non-Conforming Influent Water
or failure to otherwise supply Influent Water in accordance with Exhibit
C or any other failure attributable to City Facilities), through no fault or
contributory negligence of Burnham or any third party;
(iv) any violation of the fixed dissolved solids effluent limit in the Discharge
Permit;
(v) any violation of the nitrogen and associated constituent (e.g., nitrates)
effluent limits in the Discharge Permit;
(vi) any Abnormal Substances;
(vii) any soil or groundwater contamination caused by the City’s application
of Effluent Water to the designated land treatment site via spray
irrigation, through no fault or contributory negligence of Burnham or any
third party;
(viii) any environmental defect on, under or in the Site on or before the
Effective Date of this Agreement or that otherwise arise out of or relate
to the City’s activities prior to the Effective Date of this Agreement;
(ix) any City non-compliance with applicable law, including Environmental
Laws;
(x) any nuisance condition caused by the City’s acts or omissions under this
Agreement; and
(xi) any other matter identified as requiring indemnification by City under
this Agreement.
(b) The City shall not, however, be required to reimburse or indemnify any Burnham
Indemnified Party for any Claim to the extent any such Claim is due to
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(i) any Burnham Material Breach or Burnham Non-Material Breach;
(ii) the negligence or willful misconduct of any Burnham Indemnified Party;
(iii) Burnham’s acts or omissions under this Agreement that result in an
Effluent Water Failure and are the primary cause of a violation of the
effluent limitations in the City’s Waste Discharge Permit; provided,
however, that the City shall continue to indemnify Burnham for any and
all violations of effluent limitations of fixed dissolved solids and nitrogen
and associated constituent (e.g., nitrates);
(iv) any Force Majeure event;
(v) any act or omission of any Burnham Indemnified Party responsible for or
contributing to the Claim; or
(vi) any matter for which the risk has been specifically allocated to Burnham
hereunder.
A Burnham Indemnified Party shall promptly notify the City of the assertion of any claim against
it for which it is entitled to be indemnified hereunder, shall give the City the opportunity to
defend such claim, and shall not settle the claim without the approval of the City which approval
shall be in the City’s sole discretion. These indemnification provisions are for the protection of
the Burnham Indemnified Parties only and shall not establish, of themselves, any liability to third
parties. The provisions of this subsection 10.2 shall survive termination of this Agreement.
10.3 Title 51, Revised Code of Washington Waiver. For the purposes of RCW 4.24.115, any
Claims by either Indemnified Party where there exists concurrent negligence of (i) the indemnitee
or the indemnitee’s agents or employees, and (ii) the indemnitor or the indemnitor’s agents or
employees, such Claims are valid and enforceable only to the extent of the indemnitor’s
negligence, except as specifically identified elsewhere in this Agreement. For purposes of the
indemnities provided pursuant to this Section 10, each Party specifically and expressly waives
any immunity that may be granted it under the Washington State Industrial Insurance Act, Title
51 RCW, and all other applicable Industrial Insurance/Worker’s Compensation Acts or their
equivalent. Further, the indemnification obligations under this Agreement shall not be limited in
any way by any limitations on the amount or type of damages, compensation, or benefits payable
to or for any third party under Worker’s Compensation Acts, Disability Benefits Acts, or other
Employee Benefit Acts; provided, this waiver of immunity under this Article extends only to
claims against one by the other Party hereto, and does not include, or extend to, any claims by
either Party’s employees directly against that Party. By initialing below, each Party certifies that
the waiver of immunity contained in this Section 10.3 was mutually negotiated.
BURNHAM SEV PASCO LLC CITY OF PASCO, WASHINGTON
By:__________________By:__________________
11. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY UNDER THIS AGREEMENT OR
ANY INDEMNITY OFFERED THEREUNDER FOR ANY SPECIAL, PUNITIVE, EXEMPLARY,
SPECULATIVE, INDIRECT, REMOTE OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST
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PROFITS OR DAMAGES BASED ON A MULTIPLE OF EARNINGS OR DIMINUTION IN VALUE
OR ANY SIMILAR DAMAGES.
12. Insurance
12.1 Burnham shall maintain, and require each of its subcontractors to maintain, during the
construction period before COD, and after COD, in full force and effect for the duration of the
Term, insurance with the following coverages and limits:
Coverage Policy Limits
(a) Worker’s Compensation Statutory requirements
(b) Employer’s Liability $2,000,000 each occurrence
(c) Comprehensive General Liability,
including bodily injury and property
damage
$2,000,000 each occurrence
(d) Auto Liability including bodily injury and
property damage
$1,000,000 each occurrence
(e) Property Insurance (inclusive of Builders
Risk during the construction period before
COD, and Physical Damage Coverage after
COD)
Replacement Cost
12.2 Burnham shall provide certificates of insurance evidencing such coverage at such times
as City may reasonably from time-to-time request.
12.3 City shall maintain in full force and effect at all times during the term of this Agreement
insurance with the coverages and limits set forth below:
Coverage Policy Limits
(a) Worker’s Compensation Statutory requirements
(b) Employer’s Liability $1,000,000 each occurrence
(c) Comprehensive General Liability,
including bodily injury and property
damage
$1,000,000 each occurrence
(d) Auto Liability, including bodily injury and
property damage
$1,000,000 each occurrence
12.4 City shall provide certificates of insurance evidencing such coverage at such times as
Burnham may from time to time request. All coverage required by this Agreement shall include a
waiver of subrogation.
12.5 The Parties shall meet within sixty (60) days of the fifth (5th), tenth (10th), fifteenth
(15th), twentieth (20th), and twenty-fifth (25th) anniversaries of the Effective Date to review the
insurance requirements to ensure sufficient coverage under this Agreement. To the extent a Party
believes that any insurance coverage is insufficient, the Parties agree to negotiate in good faith to
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determines appropriate insurance coverage and, if necessary, will modify this Agreement
accordingly.
13. Force Majeure
13.1 In the event either Party is rendered unable, wholly or in part, to carry out its respective
obligations under this Agreement, except for any obligation to make payment, due to
circumstances beyond its reasonable control, including, without limitation, strike, riot, lockouts or
other disturbances, flood, natural disaster, acts of God, war or civil insurrection, an epidemic,
pandemic, quarantine, national emergency or other unforeseeable circumstances beyond its
reasonable control (a “Force Majeure”), then written notice setting out the reason for non-
performance shall be given to the other Party by the Party claiming Force Majeure promptly
following discovery thereof. Upon receipt of such notice, the obligations of the affected Party
shall be suspended during the period of the Force Majeure and any deadline or date certain for
performance shall be extended by a period equal to the period of the Force Majeure. Every
reasonable effort shall be made by the Parties to avoid delay and limit any period during which
performance under this Agreement might be suspended.
14. Confidentiality
14.1 Except as set forth herein, (i) neither Party will disclose Confidential Information of the
other Party to any third party, and (ii) each Party will use the other Party’s Confidential
Information only for purposes of the transactions contemplated by this Agreement; provided,
however, that a Party in possession of the other Party’s Confidential Information may disclose
Confidential Information as required to comply with orders of governmental entities that have
jurisdiction over it or as otherwise required by law.
14.2 Each Party agrees to (i) take reasonable steps to protect the other Party’s Confidential
Information (which steps will be required to be at least as protective as those that the receiving
Party takes to protect its own Confidential Information), (ii) notify the other Party promptly upon
discovery of any unauthorized use or disclosure of Confidential Information; and (iii) cooperate
with the other Party to help regain control of any Confidential Information that is the subject of
any such unauthorized use or disclosure and prevent further unauthorized use or disclosure of
such Confidential Information.
14.3 Each Party may disclose the other Party’s Confidential Information to its subcontractors,
agents, legal counsel, accountants, consultants, financing parties, or representatives to the extent
necessary in furtherance of this Agreement, and then only on a “need to know” basis in
connection with the transactions contemplated hereby and on a confidential basis.
14.4 This Agreement shall be considered a public document and will be available for
inspection and copying in accordance with the Public Records Act, chapter 42.56 of the Revised
Code of Washington (the “Act”). If Burnham considers any record, in whole or in part, provided
to City under this Agreement, whether in electronic or hard copy form, to be protected from
disclosure under the Act, Burnham shall make reasonable efforts to clearly identify each such
record with words such as “CONFIDENTIAL,” “PROPRIETARY” or “BUSINESS SECRET.” If
a request is made for disclosure of any Burnham Confidential Information, the City shall
promptly notify and provide Burnham with a copy of such request. In all cases, the City will
ultimately determine whether the requested material should be made available under the Act. If
City determines that the material is subject to disclosure, City will notify Burnham of its decision
and allow Burnham ten (10) business days to take whatever action it deems necessary to protect
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its interests. If Burnham fails or neglects to take such action within said period, City will release
the record(s) or portions thereof reasonably deemed by City to be subject to disclosure. City shall
not be liable to Burnham for inadvertently releasing records pursuant to a disclosure request not
clearly identified by Burnham as “CONFIDENTIAL,” “PROPRIETARY” or “BUSINESS
SECRET.”
15. Governing Law and Disputes
15.1 This Agreement shall be interpreted in accordance with the laws of the State of
Washington without giving effect to its choice of law principles.
15.2 Any disagreement between Burnham and City which cannot be resolved in accordance
with this Agreement shall be referred to the senior management of each Party who shall attempt
to resolve the dispute in good faith. To aid resolution by the Parties’ senior management,
Burnham’s and City’s representatives shall promptly prepare and exchange memoranda stating
the issues in dispute and their positions, summarizing the negotiations which have taken place
and attaching relevant documents. If the Parties’ senior management resolves the dispute, such
resolution shall be reported in writing to and shall be binding upon the Parties.
15.3 If, despite the good faith efforts described in Section 15.2, the Parties are unable to
resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination,
enforcement, interpretation or validity, the Parties may seek to agree on a forum for mediation to
be held at a mutually agreeable site.
15.4 If, despite good faith efforts described in Section 15.2 and 15.3, the Parties are unable to
resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination,
enforcement, interpretation or validity, (including the determination of the scope or applicability
of this Agreement to arbitrate), shall be determined by arbitration in Seattle, Washington before a
single arbitrator who is an experienced attorney in the discipline that is the subject of the dispute
and whom shall be jointly selected by Burnham and the City. The arbitration shall be
administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The
arbitrator shall issue a reasoned, written decision which will be binding on the Parties. Judgment
may be entered upon the arbitrator’s decision in any court of competent jurisdiction, and each
Party agrees to submit to the personal jurisdiction of any such court for the purposes of any such
actions or proceedings to enter or enforce such judgement.
15.5 Should either party employ an attorney to enforce any of the provisions of this
Agreement, the non-prevailing Party in any final judgment agrees to pay the other Party’s
reasonable expenses, including reasonable attorneys’ fees and expenses in or out of litigation and,
if in litigation, trial, appellate, bankruptcy or other proceedings, expended or incurred in
connection therewith, as determined by a court of competent jurisdiction.
15.6 The venue for any judicial proceedings relating to this Agreement shall be the Superior
Court for the State of Washington in Franklin County.
16. Miscellaneous
16.1 Amendment and Waiver. No amendment or waiver of any provision of this Agreement
shall be valid unless contained within a writing executed by City and Burnham and which
references the specific section to be amended or waived. No other amendment or waiver shall
have any effect, regardless of its formality, consideration, detrimental reliance or conduct of one
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or more Parties. Any waiver of any term or condition hereof shall not be construed as a waiver of
any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of
any other term or condition of this Agreement.
16.2 Assignment. Either Party, or its assigns as applicable, may assign its rights under this
Agreement with the prior consent of the other Party, not to be unreasonably withheld, conditioned
or delayed; provided that consent will not be required if Burnham is the assignor and assignment
is made to (i) an affiliate of the assigning Party, provided that such affiliate assumes in writing all
of the obligations of such assigning Party hereunder; (ii) any person or entity that acquires,
directly or indirectly, all or substantially all of the assets of the ultimate parent of such Party
(including as a result of a change of control transaction, whether by sale of stock, sale of assets,
merger, consolidation or otherwise); and (iii) if Burnham or Burnham’s lender is the assignor, the
assignee appoints an O&M operator with at least five (5) years of experience operating
wastewater treatment plants and demonstrating proficiency operating RNG equipment, or who
has a service plan to remotely monitor RNG equipment with experienced RNG technicians.
16.3 Collateral Assignment. Burnham may directly or indirectly collaterally assign, mortgage,
or pledge its interests in this Agreement for the purpose of financing the System without City’s
consent and the City agrees that it shall enter into agreements with the Lender(s) or bond trustee
for the Outstanding Debt or any other financing instruments for purposes of any such assignment.
16.4 Counterparts; E-Signatures. This Agreement may be executed by the Parties in any
number of counterparts, each of which shall be deemed an original instrument, but all of which
together shall constitute but one and the same agreement. A signature of a Party transmitted to the
other Party by facsimile, PDF or other electronic means shall constitute the original signature of
such Party for all purposes (“Electronic Signature”).
16.5 Lender Right to Cure. If Burnham incurs a Material Breach under this Agreement, the
City agrees and acknowledges that Lender(s) may, but do(es) not have the obligation to, (i)
acquire title to the System, (ii) cure all defaults and breaches that are capable of cure, and (iii)
assume any Burnham Obligation under this Agreement, in which case the City shall recognize
such Lender(s) as if such Lender(s) had been the original party to this Agreement. City further
agrees to make commercially reasonable efforts to negotiate amendments to this Agreement or
otherwise cooperate with the Lender(s) if Lender(s) assume any Burnham Obligations. Nothing in
this Section 16.4 will operate to infringe the City’s option to purchase the System for FMV under
Section 5.5.
16.6 Merger. This Agreement, including any Exhibits, contains the total agreement of the
Parties, and all agreements oral or written entered into prior to or contemporaneously with the
execution of this Agreement are excluded. This Agreement shall be binding upon the Parties,
their successors and assigns.
16.7 Notice. Any notices or other communications required or permitted hereunder shall be in
writing and sent to the appropriate addresses designated below (or to such other address or
addresses as may hereafter be furnished by one Party to the other Party in compliance with the
terms hereof), by hand delivery, by electronic email (if listed below), by UPS, FedEx, or DHL
next-day service, or by registered or certified mail, return receipt requested, postage prepaid.
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If to City:
City of Pasco
Adam Lincoln
City Manager
525 N 3rd Avenue
Pasco, WA 99301
If to Burnham:
Attn: General Counsel
Burnham SEV Pasco LLC
c/o Burnham RNG LLC
1201 Wilson Blvd – 27th Floor
Arlington VA 22209
With a copy to:With a copy to:
Eric Ferguson
eferguson@kerrlawgroup.net
legal@burnhamdev.com
16.8 No Third-Party Beneficiaries except Lender(s). This Agreement is solely for the benefit
of the Parties and their respective successors, Lender(s), and permitted assigns, and nothing
herein, express or implied, is intended to or shall confer upon any other person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement;
provided, however, that Burnham’s Lender(s) shall have only such third-party beneficiary rights
arising from Section 16.4 or as otherwise explicitly granted in the Agreement, and City and
Parent shall have such rights and obligations specifically enumerated in Section 3.2.
16.9 Severability. In the event that any clause in this Agreement is deemed unenforceable or
invalid, the balance of the Agreement shall remain enforceable.
16.10 No Presumption. The Parties agree that (i) this Agreement was negotiated fairly between
them at arm’s length and that the final terms of this Agreement are the product of the Parties’
negotiations, (ii) this Agreement shall be deemed to have been jointly and equally drafted by
them, and (iii) the provisions of this Agreement therefore are not to be construed against either
Party on the grounds that such Party drafted or was more responsible for drafting the provisions.
16.11 Eminent Domain. Nothing in this Agreement shall impact City’s ability to exercise its
eminent domain rights under Chapter 8.12 RWC; provided, however, that any damages or fair
market value determined under Chapter 8.12 RWC shall be calculated pursuant to Section 5.5(b)
through Section 5.5(e) of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
BURNHAM SEV PASCO LLC CITY OF PASCO, WASHINGTON
By:By:
Name:Chris Tynan Name:Adam Lincoln
Title CEO Title:City Manager
Date:Date:
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Exhibit A
BURNHAM-SUPPLIED SYSTEM
The System is composed of the following primary components. Modifications may be made in
accordance with Section 5.4 or revisions may be made to accommodate final design:
1. Headworks System: a system that accepts the Influent Water (pumped by others) and routes the
Influent Water to the next process.
2. Anaerobic Digester System and Bypass Stations:
a.Anaerobic Digester System: a system that holds multiple days of Influent Water at
conditions (i.e., temperature, limited oxygen) that produce biogas (mainly methane and
carbon dioxide, other trace gases). The reacted water is then routed to the next process or
bypass station. The biogas generated is routed to the gas processing system.
b.Bypass - Headworks System to Nitrogen Reduction System: a bypass system where
Influent Water is routed from the Headworks System directly to the Nitrogen Reduction
System. This system would be used during upset conditions (Anaerobic Digester System
/ supporting equipment), or during occurrences when the Influent Water volume exceeds
the specification.
c.Bypass - Headworks System to City-owned Storage Pond: a bypass system where Influent
Water is routed from the Headworks System directly to a City-owned Storage Pond. This
system would be used during upset conditions (Anaerobic Digester System / Nitrogen
Reduction System / supporting equipment), or during occurrences when the Influent
Water exceeds the specification.
3. Nitrogen Reduction System and Bypass Station
a.Nitrogen Reduction System: a system that is designed to improve levels of the Influent
Water characteristics to levels within the effluent specification limits. The reacted water
is then routed to the next process. Biosolids and sludge are created during this process.
b.Bypass – Nitrogen Reduction System to City-owned Storage Pond: a bypass system where
Effluent Water from the Anaerobic Digester System is routed from the discharge of the
Anaerobic Digester System around the Nitrogen Reduction System directly to the City-
owned Storage Pond. This system would be used during upset conditions (Nitrogen
Reduction System / supporting equipment), or during occurrences when the Influent
Water volume and/or characteristics are higher than the specification.
4. Gas Processing: a system that processes the biogas generated from the anaerobic reactors and
upgrades it to RNG (separating practically all of the methane from the biogas). RNG is then sent
to the compression, metering, and the interconnect to gas utility. During upset conditions the
biogas is sent to the flare for destruction.
5. Multi-use Building: a building designed to contain some of the headworks and grit removal
system process as well as Motor Control Center, Restrooms, Office, and Maintenance Shop.
6. Influent and Effluent Sampling:
a. Sampling of the Influent Water will be established at a location just prior to entering the
Headworks System.
b. Sampling of the Effluent Water will be established for each discharge source (Anaerobic
Digester System and the Nitrogen Reduction System) prior to entering the City-owned
Storage Pond or Irrigation Pump System.
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Exhibit B
BURNHAM OBLIGATIONS
Burnham will supply the following wastewater treatment services to the City with respect to the System
described in Exhibit A.
1. Operation, Routine Maintenance, and Management of the System.
1.1. Burnham will be responsible for all operations and maintenance obligations required to
ensure operation of the System in accordance with the Agreement and Ecology guidance,
including without limitation Ecology’s Information Manual for Treatment Plant Operators.
Burnham shall perform the following Services:
a) Day-to-day operations and monitoring for the System;
b) Staffing the System sufficient for the operation and maintenance of the System,
including with operators certified, as needed, at the appropriate level;
c) Performing scheduled routine, preventative, and ongoing maintenance as specified by
the equipment manufacturer and consistent with Prudent Industry Practices to ensure
the long-term operation of System infrastructure;
d) Performing routine maintenance, repairs, and replacements as needed on System
components;
e) Maintaining operations and routine maintenance records for the supplies needed for
System operation and routine maintenance; and
f) Ordering and payment for supplies and equipment for routine operations and
maintenance of the System. Burnham’s payment for supplies and equipment for
routine operations and maintenance of the System shall be in accordance with this
Agreement and, where appropriate, considered a Pass-Through Cost subject to the
terms in Exhibit F.
1.2. Burnham will communicate with the City as is reasonable and necessary regarding
Burnham’s operation, routine maintenance, and management of the System.
2. Capital Improvements; Major Maintenance; Modifications
2.1. Burnham will perform capital improvements, Major Maintenance and Modifications.
2.2. Annual Major Maintenance Budget. Beginning on April 1 following the first anniversary
of COD, and occurring annually on or before April 1 throughout the Term, Burnham will provide
the City with a projected annual maintenance budget through April 1 of the following year, and for
each of the next two (2) subsequent years, in accordance with Prudent Industry Practices. The City
may object to such budget solely for the purpose of disputing that the projected maintenance is not
in accordance with Prudent Industry Practice, within fifteen (15) business days. If the Parties are
unable to determine a resolution to any such objection, an independent third-party engineer shall
be consulted by the Parties to resolve such objection. If the Parties are unable to agree on a
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resolution after such consultation, the Parties shall follow the dispute resolution process set forth
in Section 15.
2.3. Should Ecology or other applicable regulatory authority establish new or different
effluent limits under the Discharge Permit that potentially require Modification(s) to the System,
the Parties shall cooperate to evaluate any required Modification(s) to the System. The City shall
be responsible for paying for the costs of any such Modifications as provided in Section 5.4 of the
Agreement and Exhibit F.
3. State Waste Discharge Permit Compliance, Generally
3.1. The City is responsible for obtaining the Discharge Permit. Both City and Burnham shall
be responsible for Permit compliance.
3.2. Relative roles and responsibilities for the City and Burnham to implement and comply
with the Permit are defined in the Agreement and this Exhibit B. Burnham’s responsibilities for
performance standards and regulatory, reporting, and recordkeeping requirements under the
Discharge Permit are limited to those set forth in Section 4 of this Exhibit B.
3.3. Burnham’s operations will be performed to comply with portions of the City’s Discharge
Permit relevant to the System and to prevent nuisance conditions.
3.4. Burnham will provide commercially reasonable and necessary support to the City for the
Discharge Permit application and renewal processes.
4. Performance Standards and Regulatory, Reporting, and Recordkeeping Requirements
4.1. Burnham’s responsibilities for performance standards and regulatory, reporting, and
recordkeeping requirements are solely and exclusively for the operation of the System. All aspects
of City Facilities, including but not limited to implementation and enforcement of the City’s
pretreatment program, are the sole and exclusive responsibility of the City and such City Facilities
are outside the scope of this Agreement and Burnham’s obligation to perform Services and operate
the System in accordance with the Agreement.
4.2. Burnham’s performance standard responsibilities are set forth in Section 3 of the
Agreement; specifically, Burnham shall provide Effluent Water to City in accordance with Exhibit
D; provided that Burnham’s responsibility for supplying Effluent Water in accordance with
Exhibit D is conditioned upon City supplying Influent Water in accordance with Exhibit C.
4.3. Burnham will be responsible for Influent Water and Effluent Water metering/monitoring
as more fully described in Section 5 of this Exhibit B;
4.4. For any monitoring and sampling requirements for the System, including monitoring
Influent Water to the System and Effluent Water from the System, Burnham will perform any
laboratory analysis through an accredited laboratory or as otherwise required by the Discharge
Permit.
4.5. The City will be responsible for all reporting to Ecology under the Discharge Permit,
including any reporting for non-compliance with the Permit. Burnham will be responsible for the
provision of any required monitoring and reporting data and information regarding the System to
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the City, including identifying and reporting to the City any non-compliance or bypasses within
the boundaries of the System.
4.6. Burnham will retain a copy of all monitoring reports for the System for a period of three
years or for the period of time expressly provided for in the State Waste Discharge Permit’s
records retention requirements.
4.7. Upon the publication of the draft Discharge Permit, the Parties agree to develop a
schedule with Burnham’s additional responsibilities for regulatory compliance and reporting and
recordkeeping requirements under the Discharge Permit. The Parties agree to amend this Exhibit B
to incorporate the schedule prior to issuance of the final Discharge Permit.
5. Metering; Water Quality
5.1. Burnham will install one or more meters as may be necessary to accurately measure the
amount and composition of Influent Water delivered by City to Burnham and the amount and
composition of Effluent Water delivered to City for purposes of billing City and other monitoring
requirements as established in the Discharge Permit.
5.2. Burnham will calibrate, and maintain Meter devices to ensure the accuracy of the
measurements is consistent with Prudent Industry Practices, the manufacturer’s recommendation,
and approved operation and maintenance manual procedures for the device and the waste stream.
Burnham will establish the calibration frequency for the Meter(s) in the operation and maintenance
manual that conforms to the frequency recommended by the manufacturer.
5.3. Subject to reasonable advance notice, Burnham will provide City with access to the
Meter(s) during regular business hours for the purpose of inspecting or monitoring the quantity
and quality of Influent Water or Effluent Water.
5.4. City may request periodic testing of any Meter by providing written notice of such
request to Burnham. Burnham will conduct such testing; provided that the City may, at its sole
cost and expense, hire an independent third-party to conduct such testing. If, during any such
testing, the Meter is found to be within a five percent (5%) accuracy range, then the cost of such
test shall be borne by the City. If the meter is inaccurate by more than five percent (5%), Burnham
shall at Burnham’s sole expense, cause the inaccuracy to be promptly corrected, and the Parties
agree that any amounts due or paid for any Services shall be adjusted by the same percentage as
the inaccuracy of the Meter, from the date of the City’s written request through the date upon
which the inaccuracy is corrected, as verified by an independent third-party.
6. Sludge Removal and Disposal
6.1. Burnham will be responsible for removing anaerobic sludge and grit from the System and
disposal of such sludge and any associated sludge disposal permits.
6.2. All sludge and grit removal and disposal related to City Facilities will be the sole and
exclusive responsibility of the City.
7. System Access and Inspections
7.1. Burnham shall provide Ecology access to conduct inspections of the System during
regular business hours to determine compliance with the Discharge Permit.
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7.2. Burnham shall provide the City access and the right to conduct inspections of the System
and its records during all hours at the City’s sole expense and risk following reasonable notice to
ensure that the System is being properly maintained in accordance with the Agreement and this
Exhibit B.
8. Payment of Permit Fees and Fines
8.1. The City is responsible for all Discharge Permit fees.
8.2. If Ecology assesses any fines or penalties under the Discharge Permit as a result of an
Effluent Water Failure caused primarily by Burnham, or Burnham’s failure to provide the City
with required reporting information regarding the performance of the System, Burnham shall
indemnify City under Section 10.1 of the Agreement.
9. System Maintenance
9.1. City acknowledges that each and all of Burnham’s Obligations under Section 3 of the
Agreement and this Exhibit B are subject to and conditioned upon Burnham’s right and obligation
to perform on the System routine and periodic maintenance, emergency maintenance, and any
maintenance necessary to correct anomalies or unanticipated conditions as reasonably required
from time to time. In such circumstances, Burnham may direct Influent Water to City-Owned
Storage Pond.
9.2. Burnham shall provide City with advance notice of any routine and periodic maintenance
activities that require the system to be offline within ten (10) calendar days of the commencement
of such routine and periodic maintenance activities.
9.3. Burnham may perform emergency maintenance activities as reasonably required under
the circumstances. In the case of emergency maintenance activities, Burnham shall provide notice
to City as soon as practicable.
10. Indemnification
Burnham’s sole and exclusive responsibility for wastewater treatment services to the City with respect to
the System is limited to the services in this Exhibit B. Consistent with the indemnification provisions in
Section 10 of the Agreement, the City will indemnify, defend, and hold harmless Burnham against any
Claims unrelated to Burnham’s services set forth in this Exhibit B.
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Exhibit C
CITY OBLIGATIONS
City shall supply the Site for the System, as more particularly described below:
Site Description:
That parcel of land being a portion of The South Half of the Northwest Quarter of Section 4, Township 9
North, Range 30 East, W.M., records of Franklin County, Washington, described as follows:
Beginning at the Southwest corner of said South Half;
thence North 03°06'31" East along the West line of said South Half, 119.99 feet to the True Point of
Beginning;
thence continuing North 03°06'31" East along said West line 1256.65 feet to the Northwest corner of said
South Half;
thence North 88°53'57" East along the North line of said South Half, 1305.39 feet;
thence South 00°02'45" West, 1131.07 feet;
thence South 88°53'39" West, 413.99 feet;
thence South 00°00'00" East, 120.00 feet;
thence South 88°45'20" West, 958.71 feet to the True Point of Beginning.
Also Known as Lot 1 of Record Survey recorded under Auditor's File No. 1969537.
Parcel No. 113090085
Access:
Burnham, including Burnham visitors, contractors, and service providers, shall have unencumbered
access to the Site and all associated easements and right-of-ways.
Utilities:
1.Power:
a. City to provide adequately sized underground raceway/conduit to Site boundary.
b. Burnham responsible to coordinate with utility provider to provide power through
City raceway to facility.
2.Communications:
a. City to provide adequately sized underground raceway/conduit to Site boundary.
b. Burnham responsible to coordinate with communications provider to provide
communications through City raceway to facility.
3.Potable Water: City to provide adequate water source (for use: domestic, fire, and process
w/in facility) at Site boundary.
4.Effluent Water Disposal: City to provide disposal with connection piping at Site boundary.
5.Influent Water Supply: City to provide supply with connection piping at Site boundary.
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City shall supply Influent Water with flows, constituent concentrations, and loads that are within ten
percent (10%) of the following values:
Influent Characteristics to Wastewater Treatment System
Parameter Influent
Avg. Annual Daily Flow (MGD)4.38
Max. 28-Day Flow (MGD)8.56
Max. Instantaneous Flow (GPM)9,200
BOD, Annual Avg. (mg/L)3,590
BOD, Annual Avg. Daily Load (lb/d)131,035
BOD, Load Max. 28-Day (lb/d)300,000
TSS, Annual Avg. (mg/L)2,140
TSS, Annual Avg. Daily Load (lb/d)78,170
TSS, Load Max. 28-Day(lb/d)227,885
TN, Annual Avg. (mg/L)114
TN, Annual Avg. Daily Load (lb/d)4,170
TN, Load Max. 28-Day (lb/d)8,140
Temperature Range (°F)50- 95
Ph 4-10
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Exhibit D
BURNHAM-SUPPLIED EFFLUENT WATER
The System is designed and intended to bypass Influent Water around portions of the process based on
the Influent Water characteristics as described below:
a) Influent Water flows above the Max. 28-Day Flow (MGD) and Max. Instantaneous Flow (GPM), as
stated in Exhibit C, will typically bypass the Anaerobic Digester System. When Influent Water flows
are below this threshold, Burnham will typically send materially all Influent Water through the
Anaerobic Digester System.
b) The Nitrogen Reduction System will typically be bypassed when Influent Water flows are above 4
MGD. When flows are below 4 MGD, Burnham will typically send materially all Effluent Water
from the Anaerobic Digester System to the Nitrogen Reduction System. When flows are above 4
MGD, a portion of the Effluent Water from the Anaerobic Digester System will bypass the Nitrogen
Reduction System and be returned directly to the City-owned Storage Pond.
Burnham shall supply Effluent Water in accordance with the following specifications, which in all cases
shall be conditioned upon City providing Burnham with Influent Water in accordance with the City’s
Obligations in Exhibit C and the conditions in this Exhibit D.
Anaerobic Digester System Effluent Discharge Quality Requirements
Parameter Design Value1
BOD. Avg. (mg/L)<350
1 Based on 28-day average, as measured on BVF reactor system effluent.
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Exhibit E
DEFINITIONS
“Abnormal Substances” means substances or materials (including viscous, toxic or hazardous
substances) that, based on the basis of design provided by City, (i) could not be reasonably anticipated by
Burnham as being in the Influent Water, (ii) are present in the Influent Water in a type, concentration or
loading that could not be reasonably anticipated by Burnham; or (iii) exceed the design capacity of the
System to adequately treat when operated in accordance with Prudent Industry Practices.
“Adjusted Treatment Fee” has the meaning given in Exhibit F.
“Base Treatment Fee” has the meaning given in Exhibit F.
“Burnham Indemnified Parties” has the meaning given in Section 10.2(a).
“Burnham Obligation(s)” has the meaning given in Section 3.1.
“Claim Notice” has the meaning given in Section 7.3.
“Change of Law” means after the Effective Date (i) the enactment, adoption, promulgation, modification
or repeal of any law or regulation applicable to the System or the production or sale of RNG; (ii) the
imposition of any material conditions on the issuance or renewal of any applicable Permit
(notwithstanding the general requirements contained in any applicable Permit at the time of application or
issue to comply with future laws, ordinances, codes, rules, regulations or similar legislation), or (iii) a
change by any governmental authority that establishes requirements affecting owning, supplying,
constructing, installing, operating or maintaining the System, or other performance of the obligations of
either Party hereunder.
“Changed Circumstances” has the meaning given in Section 4.2.
“City Caused Delay” means any Project delay arising from the City’s failure to comply with the terms
and conditions of this Agreement or any City act or failure to act that interferes with Burnham’s
obligations under this Agreement and results in a Project delay, excluding any material and clearly
identified delays caused by any third-party that is not under the reasonable control of City and excluding
any City act or failure to act pursuant to its generally applicable municipal responsibilities. Any City
Caused Delay shall extend the COD Longstop Date on a day-for-day basis until such City Caused Delay
is resolved, and the City shall be responsible for any and all reasonable, documented losses or additional
costs attributable to such City Caused Delay as set forth in Exhibit F.
“City Facilities” has the meaning given in the RECITALS.
“City Indemnified Parties” has the meaning given in Section 10.1.
“City Obligation(s)” has the meaning given in Section 4.1.
“City Permits” means the Permits that must be obtained and maintained by City as set forth in Exhibit G.
“Claims” has the meaning given in Section 10.1.
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“Commercial Operation” means the date that a Certificate of Substantial Completion or similar
certification is issued in accordance with the Progressive Design Build Agreement, as verified by a third-
party engineer.
“COD” means the actual date upon which the System reaches Commercial Operation.
“COD Longstop Date” has the meaning given in Section 3.1(c).
“Confidential Information” means any non-public information, know-how or trade secrets in any form
that is designated “confidential” or that a reasonable person should understand is confidential. The
following information does not constitute Confidential Information: (i) information that is or becomes
generally available to the public other than as a result of a disclosure by either Party in violation of this
Agreement, (ii) information that was already known by either Party on a non-confidential basis prior to
this Agreement, (iii) information that becomes available to either Party on a non-confidential basis from a
source other than the other Party if such source was not subject to any prohibition against disclosing the
information to such Party, (iv) information required to be disclosed pursuant to a valid public records
request under RCW 42.56; and (v) information that is independently developed by a Party without
violating its obligations under this Agreement.
“Consumer Price Index” means the United States Department of Labor’s Bureau of Labor Statistics
Consumer Price Index, All Urban Consumers, All Items, West Region, (1982-84 equals 100), or the
successor of such index.
“Daily Damage Rate” means $10,000 per day.
“Discharge Permit” has the meaning given in the RECITALS.
“Ecology” has the meaning given in the RECITALS.
“Ecology Delay” has the meaning given in Section 4.1(b).
“Effective Date” has the meaning given in the introduction to the Agreement.
“Effluent Water” means wastewater, as measured at the Pond Discharge Station from which the
wastewater from the Burnham Supplied Processes enter and is returned to the City as more particularly
described in Exhibit A, that meets the specifications in Exhibit D.
“Effluent Water Failure” has the meaning given in Section 7.1.
“Environmental Attributes” has the meaning given in Section 8.4.
“Environmental Laws” means (a) the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. 9601 et seq. (“CERCLA”); the Emergency Planning and Community Right to
Know Act, 42 U.S.C. 11001 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
(“RCRA”); the Safe Drinking Water Act, 42 U.S.C. 300f et seq.; the Toxic Substances Control Act, 15
U.S.C. 2601 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Sections 1251 et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. 2701 et seq.; the Clean Air Act, 42 U.S.C. 7401 et seq.; and the
Occupational Safety and Health Act, 29 U.S.C. 651 et seq.; and the regulations promulgated pursuant to
the above-listed federal statutes, as amended from time to time; and (b) counterpart state laws and
regulations of each item listed in subsection (a) above, as amended from time to time.
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“Facility Plan” is the facility plan and process water reuse facility engineering report approved by
Ecology.
“Fair Market Value” or “FMV” has the meaning given in Section 5.5.
“Gross Wen Capital Costs” means additional and incremental capital costs attributable specifically to
incorporating into the System the design, construction, and operation of the Gross Wen Process compared
to a sequencing batch reactor (SBR) system.
“Gross Wen Process Performance Guarantees” has the meaning given in Section 3.1(i).
“Gross Wen Process” means an algae-based nitrogen reduction process.
“Influent Water” means agricultural and milk processing industrial wastewater that does not contain
industrial wastewater in excess of applicable federal and state industrial pre-treatment standards, does not
contain Abnormal Substances, and otherwise meets the specifications in Exhibit C, as measured at the
point at which the Influent Water is delivered to Burnham as more particularly described in Exhibit A.
“Initial Term” has the meaning given in Section 2.1.
“Insolvency Event” means with respect to any Party, when: (a) the Party commences a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
such Party or any substantial part of its property, or consents or agrees to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or makes a general assignment for the benefit of creditors, or becomes or is
declared insolvent, or acknowledges, in writing, its inability to pay its debts as they become due, or takes
any corporate action in any jurisdiction to authorize any of the foregoing; (b) an involuntary case or other
proceeding is commenced against the Party seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of such person or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of ninety (90) days; or (c) an order for
relief has been entered against that Party under the United States federal, state or other bankruptcy laws of
any jurisdiction as now or hereafter in effect.
“Late Payment Rate” has the meaning given in Section 5.3.
“Lender(s)” means any third-party lender or financing party providing financing in connection with this
Agreement.
“Major Maintenance” means repairs and maintenance associated with maintaining System performance
consistent with the obligations of this Agreement and consistent with Prudent Industry Practice, including
without limitation maintenance, repair, renewal, capital expenditures, reconstruction or replacement of
any portion or component of the System, as applicable, of a type that is not normally included as ordinary
or routine maintenance and the total cost of such activities exceeds $25,000, as adjusted annually for any
change in the Consumer Price Index occurring from January 1 through December 31 of the prior calendar
year
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“Major Maintenance Expenses” means all costs, fees, obligations and other liabilities incurred by
Burnham associated with Major Maintenance or replenishing the Major Maintenance Reserve.
“Major Maintenance Reserve” means amounts required by Lender(s) to be held in a reserve fund to
cover the System’s major maintenance costs.
“Material Breach” has the meaning given in section 6.2.
“MG” means million gallon(s), as defined in the RECITALS.
“Modifications” has the meaning given in Section 5.4.
“Net Capital Costs” means actual costs incurred or payable by Burnham or its affiliates in connection
with the development, construction and completion of the System, excluding (i) working capital required
for System start-up and financing costs; (ii) costs attributable to any City Caused Delay or Ecology
Delay; (iii) Gross Wen Capital Costs; and (iv) Prevailing Wage Costs. Net Capital Costs will be reduced,
dollar-for-dollar, (x) by the amount of two million dollars ($2,000,000.00), and (y) for any payments City
makes to Burnham under the Work Acceleration Agreements.
“Net RNG Revenue” means all revenue received from the sale of RNG less any operating costs or other
costs associated with the sale of RNG (compression, consumables, electricity, marketing expenses, etc.).
“Non-Conforming Influent Water” means agricultural and milk processing industrial wastewater
delivered or directed by City to the System that fails to meet in any respect or for whatever reason the
specifications in Exhibit C.
“Non-Material Breach” has the meaning given in Section 6.1.
“Notice to Proceed” or “NTP” means the notice that Burnham has provided, in its sole discretion, to the
engineering and procurement contractor to begin procurement and commence construction activity at the
Site, a copy of which Burnham will promptly provide to the City.
“NTP Date” has the meaning given in Section 3.1(b).
“NTP Longstop Date” has the meaning given in Section 3.1(b).
“Outstanding Debt” means at the relevant time, the fully amortized aggregate of (without double-
counting): all outstanding principal, interest (including default interest to the extent that borrower incurs
default interest arising as a result of the City making any payment later than the date that such payment is
due under this Agreement, or incurred by borrower due to any other default by the City under this
Agreement), banking fees and premiums on financial insurance policies, agent and trustee fees, costs and
expenses and other amounts properly incurred owing or outstanding to the Lender(s) by Burnham under
or pursuant to its agreement with the Lender(s), including any prepayment costs, make-whole amounts
and breakage costs.
“Pass-Through Costs” has the meaning given in Exhibit F.
“Permits” means the permits, licenses, certificates, clearances, approvals, authorizations, variances, or
consents of any governmental authority, department, or agency, including all amendments thereto and
replacements thereof, that must be obtained and/or maintained for construction and operation System.
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“Prevailing Wage Costs” means the costs incurred by Burnham to comply with Section 3.1(j).
“Progressive Design Build Agreement” means the Progressive Design Build Agreement signed between
Burnham and Swinerton Builders, Inc. dated October 28, 2022 or any similar agreement signed by
Burnham to construct the System.
“Prudent Industry Practices” means any of the practices, methods and acts engaged in or approved by a
significant portion of the wastewater treatment industry for facilities of similar size and characteristics to
the System or any of the practices, methods or acts, which, in the exercise of reasonable judgment in the
light of the facts known or that should reasonably have been known at the time a decision is made, could
have been expected to accomplish the desired result at the lowest reasonable cost consistent with law,
regulation, permits, codes, standards, equipment manufacturer's recommendations, reliability, safety,
environmental protection, economy, and expedition.
“PWRF” has the meaning given in the RECITALS.
“Remedy” has the meaning given in Section 7.3(e)
“Renewable Natural Gas” or “RNG” means biomethane produced by the System that meets natural gas
pipeline-quality standards such that the biomethane may blend with, or substitute for, geologic natural
gas.
“Renewal Term” has the meaning given in Section 2.2.
“RNG Credit” has the meaning given in Exhibit F.
“RNG Interconnection Agreement” means that certain RNG Facilities Interconnect Agreement
anticipated to be executed between Burnham and Cascade Natural Gas Corporation.
“RNG Offtake Agreement” means that certain North American Energy Standard Board master
agreement, Transaction Confirmation, and Special Provisions, anticipated to be executed between
Burnham and Cascade Natural Gas Corporation.
“Service Contract Performance Bond” means a surety bond that guarantees that Burnham will perform
the Services under this Agreement.
“Services” means the services to be provided by Burnham, its subcontractors, agents, or assigns, under
this Agreement, as set forth in Exhibit B.
“Site” has the meaning given in Section 4.1(a).
“Site Delivery Date” has the meaning given in Section 4.1(a).
“System” means the Burnham-supplied wastewater treatment and RNG production facility and ancillary
components as set forth in Exhibit A.
“System Permits” means City Permits or Burnham Permits, as applicable.
“Term” has the meaning given in Section 2.2.
“Work Acceleration Agreements” has the meaning given in the Recitals.
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Exhibit F
PRICING SCHEDULE
Base Treatment Fee: $850,000 per month
Adjusted Treatment Fee:
1. Within thirty (30) calendar days of COD, Burnham shall provide the City with an invoice for the
first adjusted Base Treatment fee (the “Adjusted Treatment Fee”), which shall be calculated by
Burnham as follows, provided that the total amount of any increase in the Adjusted Treatment
Fee for items a, b, c(iii), and c(iv) below (and excluding c(i), c(ii), and d) may not exceed
$170,000 per month (the “Adjusted Treatment Fee Cap”):
a. If the Net Capital Cost exceeds $108,000,000, the Base Treatment Fee will be increased in
increments of $9,000 per month for each $1,000,000 of increased costs (rounded to the nearest
million).
b. If the Net Capital Cost is less than $108,000,000, the Base Treatment Fee will be decreased in
increments of $9,000 per month for each $1,000,000 of decreased costs (rounded to the nearest
million).
c. The Base Treatment Fee assumes that the System is financed with senior debt to cover 80% of
total necessary costs (“Loan-to-Value” or “LTV”) (this includes the Net Capital Cost, financing
costs, working capital, commissioning costs, etc.) at a total weighted-average cost of debt at
5.0%. For clarity, all debt calculations include only debt incurred by Burnham and do not include
any debt at any Burnham affiliates, including without limitation Burnham’s parent company.
i. For every 10 bps above a total weighted-average cost of debt of 5.0%, the Base
Treatment Fee will be increased by $5,250.
ii. For every 10 bps below a total weighted-average cost of debt of 5.0%, the Base
Treatment Fee will be decreased by $5,250.
iii. For every 1% increase in LTV, the Base Treatment Fee will be decreased by
$12,750.
iv. For every 1% decrease in LTV, the Base Treatment Fee will be increased by
$12,750.
d. The Base Treatment Fee will be increased by $9,000 per month for each $1,000,000
(rounded to the nearest million) of Gross Wen Capital Costs, Prevailing Wage Costs and
costs attributable to City Caused Delays or an Ecology Delay.
Annual Modifications to the Adjusted Treatment Fee
The Adjusted Treatment Fee will be subject to further modification as follows:
1. Commencing on COD, Burnham will modify the Adjusted Treatment Fee to reflect any
percentage adjustment in the Consumer Price Index measured from April 2022 to the month and
year immediately preceding the month and year in which COD occurs. This first modification of
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the Adjusted Treatment Fee will be the Adjusted Treatment Fee calculated and invoiced by
Burnham through March 31 of the first calendar year occurring after the calendar year in which
COD occurs.
2. Commencing on April 1 of the first calendar year following the year in which COD occurs, and
occurring annually on April 1 of each calendar year through the Term, Burnham shall modify the
Adjusted Treatment Fee based on changes in the Consumer Price Index and/or increases in the
amount of Influent Water or Non-Conforming Influent Water accepted by the System that
occurred during the immediately preceding calendar year (e.g., a modified Adjusted Treatment
Fee will be calculated and take effect on April 1, 2025 to reflect circumstances occurring from
January 1, 2024 through December 31, 2024). Burnham will calculate such annual modifications
to Adjusted Treatment Fee as follows:
a. The then-current Adjusted Treatment Fee will be adjusted for any change in the
Consumer Price Index occurring from January 1 through December 31 of the prior
calendar year; provided, however, that on April 1 of the first calendar year occurring after
COD, such Consumer Price Index adjustment shall be measured from the month COD
occurred through December 31 of the prior year (e.g., if COD occurs Jun 1, 2024, the
adjustment will be measured from June 1, 2024 through December 31, 2024); and
b. If the System accepted more than 1,600 MG of Influent Water or Non-Conforming
Influent Water during the prior calendar year, the Adjusted Treatment Fee will be
increased by .03% per MG for each MG accepted above 1,600 MG. There will be no
adjustment for volume of water if the total volume of Influent Water or Non-Conforming
Influent Water is less than 1,600 MG.
Such annually modified Adjusted Treatment Fee shall remain fixed for the next twelve (12) months,
through March 31 of the subsequent year.
Burnham shall document any annual modifications to the Adjusted Treatment Fee and provide City a
form summarizing the annual modification to the Adjusted Treatment Fee with the first invoice issued
after such modified Adjusted Treatment Fee goes into effect.
Pass-Through Costs:
The following costs incurred by Burnham will be passed through to City with a ten-percent (10%)
markup for administrative costs, and will be invoiced to the City on a monthly basis:
o Solid waste disposal (including anaerobic sludge; periodic digester scrapes and clean-outs
and any algae or biomass removed from the Gross Wen Process)
o Consumables (including replacement parts & associated rental equipment)
o Major Maintenance Expenses
The following costs incurred by Burnham will be passed through to City with no markup for
administrative costs, and will be invoiced to the City on a monthly basis:
o Electricity
o Purchased natural gas for system heating use
o All City state and local taxes with the exception of income taxes (e.g., sales tax, B&O
tax, property tax, as applicable)
o Rental payments made to City under the site lease
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o Any costs and fees associated with securing and maintaining a Service Contract
Performance Bond
RNG Credit. Burnham shall reduce or increase all invoiced amounts to City by the amount of any RNG
Credit, if any, available for the applicable invoiced month. The RNG Credit amount will be the amount
greater than or less than $350,000 (as adjusted for 50% of change in Consumer Price Index from April
2022) that Burnham earns in Net RNG Revenue in the previous month. If Burnham’s Net RNG Revenue
is greater than $350,000, the City’s invoiced amount will be reduced by the amount that the Net RNG
Revenue exceeds $350,000. If the Burnham’s Net RNG Revenue is less than $350,000, the City’s
invoiced amount will increase by the amount that the Net RNG Revenue is below $350,000.
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Exhibit G
SYSTEM PERMITS
City Permits
City will procure and maintain, as necessary, the following Permits for the System (the “City Permits”):
Permit Name Permit Type Agency
State Wastewater Discharge
Permit Water Ecology
Burnham Permits
Burnham will procure and maintain, as necessary, the following Permits for the System (the “Burnham
Permits”):
Permit Name Permit Type Agency
Notice of Construction Air Ecology
SEPA Review General Franklin Co.
Conditional Use (CUP)Use Franklin Co.
Industrial Storm Water Water Ecology
Solid Waste Permit (If
Necessary)Waste Ecology
Dam Safety (If Necessary)Water Ecology
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Exhibit H
FORM OF SITE LEASE
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Basic Terms Summary of the Lease Agreement between
Burnham SEV Pasco LLC and the City of Pasco dated [__]
The following table contains a summary of the basic terms of the Lease Agreement (“Basic Terms
Summary”) for indicative purposes only and is not intended to be binding on the parties thereto. The
provisions and terms summarized in the Basic Terms Summary are more specifically described and
defined in the Lease Agreement. In the event of any conflict or inconsistency between the Basic Terms
Summary and the Lease Agreement, the terms of the Lease Agreement will govern.
Lessor
Lessor’s Address
City of Pasco
525 N 3rd Avenue
Pasco, WA 99301
Lessee
Lessee’s Address
Burnham SEV Pasco LLC
1201 Wilson Blvd – 27th Floor
Arlington, VA 22209
Lessor Property The 82.95 acres of land owned by Lessor, as described in Exhibit B to the
Lease Agreement, which includes the land to be leased by Lessee.
Leased Property The 37.33 acres of land owned by Lessor, as described in Exhibit C to the
Lease Agreement, to be leased by Lessee.
Opening Term
Payment
Lessee will pay Lessor $25,200.00 annually during the Opening Term.
Initial Term
Payment
Lessee will pay Lessor $25,200.00 annually during the Initial Term and any
Renewal Term.
Opening Term The Opening Term will commence on the Agreement Date and continue until
the earlier to occur of (a) the COD and (b) the COD Longstop date, unless
terminated pursuant to the terms of this Lease Agreement. If COD does not
occur within one hundred eighty (180) days after the COD Longstop date (i.e.,
the COD does not occur), then this Lease Agreement shall terminate at the end
of the Opening Term.
Initial Term The Initial Term will commence on the COD and continue for thirty (30)
years.
Renewal Terms Term will automatically renew for two (2) additional five-year Renewal
Terms.
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this “Agreement”) is entered into by BURNHAM SEV PASCO LLC, a
Washington limited liability company (“Lessee”) and the CITY OF PASCO, a municipal corporation of
the State of Washington (“Lessor” and collectively with Lessee, the “Parties” or, as the context requires,
“Party”) and is effective as of the date this Agreement has been last signed by a Party (the “Agreement
Date”). In consideration of the mutual promises contained herein, the Parties, intending to be legally
bound, agree as follows:
RECITALS
This Agreement is made with reference to the following facts:
A. Lessor and Lessee intend to enter, or have entered, into the Wastewater Treatment
Agreement (the “WTA”) a copy of which is attached hereto as Exhibit E and incorporated herein by this
reference. Pursuant to the terms thereof, Lessor desires to contract with Lessee to develop, design,
construct, and operate, a wastewater treatment system (the “System”) in Pasco, Washington, as more
particularly described in the WTA; and
B. As a condition to Lessee’s agreement to enter into the WTA with Lessor, Lessor has
agreed to enter into this Agreement and, among other things, grant to Lessee sufficient leasehold and
appurtenant rights and privileges necessary for Lessee to construct, operate, and maintain the System,
upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and the WTA, the receipt and sufficiency
of which are hereby acknowledge, the parties hereby agree as follows:
ARTICLE 1 : Term
1.1 The initial term of this Agreement shall begin on the Agreement Date and shall continue
until the earlier to occur of (a) the COD and (b) the COD Longstop date, in each case unless this
Agreement is earlier terminated in accordance with its terms (such initial term is hereinafter referred to as
the “Opening Term”).
1.2 During the Opening Term, Lessee may, in its sole discretion, terminate this Agreement
(a) effective upon thirty (30) days’ notice to Lessor, (b) on the NTP Longstop Date in the event Lessee
does not issue NTP by the NTP Longstop Date, or (c) if the WTA is no longer in full force and effect
following the Effective Date of the WTA. If the COD does not occur within one hundred eighty (180)
days after the COD Longstop date (i.e., the COD does not occur), then this Agreement shall terminate at
the end of the Opening Term.
1.3 On the COD, an additional term of this Agreement shall commence and shall continue,
unless earlier terminated in accordance with the provisions of this Agreement, for a period of thirty (30)
years following the COD (the “Initial Term”).
1.4 The Initial Term shall automatically renew for two (2) additional five (5) year terms
(each such additional term, a “Renewal Term”) unless terminated by Lessee by written notice delivered to
Lessor at least one hundred and eighty (180) days prior to the expiration of the Initial Term or the then-
current Renewal Term, as applicable, consistent with the terms and conditions hereof.
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ARTICLE 2 : Lease; Easement
2.1 Lessor hereby grants to Lessee and Lessee hereby leases from Lessor, for the Term, an
exclusive and irrevocable right to access and use the Leased Property, together with the rights and
privileges appurtenant thereto, in accordance with this Agreement.
(a) Lessor hereby grants to Lessee and Lessee’s employees, members, managers,
affiliates, invitees, agents, contractors and subcontractors (collectively, “Representatives”) and those of
their affiliates (collectively, “Lessee Parties”), irrevocably for the duration of the Term, an access
easement and right of way over, across, under and through the Lessor Property, and (subject to Lessor’s
approval, not to be unreasonably withheld) any surrounding or nearby premises owned by Lessor, in order
for Lessee Parties to access the Leased Property and to build, maintain, and install any road,
improvements, equipment, fences, gates, signs, communication lines or facilities, pipelines, or anything
else reasonably necessary for the System Activities (as defined below) (collectively, “Lessee
Improvements”).
(b) Lessor shall provide the Lessee Parties with all access to the Leased Property
necessary to allow Lessee to perform all System Activities, including ingress and egress rights through
the Lessor Property, any third-party owned neighboring properties necessary to access the Lessor
Property, and within the Leased Property, for Lessee and the Lessee Parties to access the System and
Lessee Improvements. Without limiting the foregoing, to the extent Lessor has any beneficial easement
rights in favor of or necessary to access the Leased Property, Lessor shall provide that Lessee has the
right to utilize any such beneficial easements.
(c) Lessor shall use its commercially reasonable efforts to provide sufficient space
for: temporary storage and staging of equipment; parking of construction crew vehicles and temporary
construction trailers; rigging and material handling; and for all other facilities reasonably necessary
during the System Activities.
(d) Lessor and its authorized representatives shall at all times have access to and the
right to observe the installation work, subject to compliance with Lessee’s safety rules and Prudent
Industry Practices, but shall not interfere with the System Activities or handle any Lessee equipment or
the System without written authorization from Lessee.
2.2 Without limitation to Lessee’s other rights under this Agreement, Lessor agrees to use its
best efforts to cure any defect in, or objection Lessee provides in writing to Lessor regarding, any
Existing Lien or any other Lien encumbering or affecting the Leased Property or Lessee’s rights in
relation thereto.
ARTICLE 3 : Payment
3.1 Opening Term Payment. During the Opening Term, the rent payable by Lessee to Lessor
shall be $25,200.00 annually (“Term Payment”), subject to adjustments, if any, set forth below. The
Opening Term Payment shall be paid annually. The first payment of Opening Term Payment shall be paid
to Lessor within thirty (30) days after the Agreement Date. Each Opening Term Payment thereafter shall
be due annually within thirty (30) days of Lessor’s written notice to Lessee.
3.2 Initial Term Payment. During the Initial Term and any Renewal Term, the rent payable
by Lessee to Lessor shall be $25,200.00 annually (“Initial Term Payment” and collectively with the
Opening Term Payment, “Rent”). The Initial Term Payment shall be paid annually to Lessor with the first
such annual Initial Term Payment to be paid within thirty (30) days of Lessor’s written notice to Lessee,
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provided such notice occurs after the COD. Each subsequent payment shall be due annually within thirty
(30) days of Lessor’s Written Notice to Lessee during the Initial Term and any Renewal Term.
3.3 Additional Rent Terms. Lessor acknowledges and agrees that the Rent is the only rent or
fee Lessee shall be obligated to pay Lessor in connection with this Agreement. Rent shall be offset against
any amounts due and payable to Lessee pursuant to the WTA or otherwise paid by another method agreed
by the Parties in writing.
ARTICLE 4 : Taxes
4.1 Lessee shall pay all applicable personal property Taxes on the System and any applicable
leasehold excise Taxes in respect of the Leased Property. Lessee shall not be liable for any real property
Taxes during the Term levied against the Leased Property. Unless prohibited by Applicable Law, Lessee
shall not be responsible for any Taxes imposed on the income of the Lessor derived from the Leased
Property or otherwise.
4.2 If a Party fails to pay directly, or reimburse the other Party for, Taxes for which the first
Party is responsible under this Agreement, the other Party may in its sole discretion elect to pay the same
directly to the taxing authority and in such event shall be entitled to recover such amount from the first
Party with interest thereon at a rate equal to the lower of (a) one and a half percent (1.5%) per month or
(b) the highest rate permitted under Applicable Law. Lessee may offset against any amounts owing to
Lessor hereunder any Taxes paid by Lessee pursuant to this Section 4.2 for which Lessor is responsible.
ARTICLE 5 : System
5.1 System Activities. Lessor agrees to allow Lessee and the other Lessee Parties, throughout
the Term, to develop, engineer, design, construct, install, interconnect, operate, maintain, monitor, clean,
repair, replace, and remove the System in its entirety or any component thereof and engage in such other
activities as are for the benefit thereof or purpose incidental thereto (such development, construction and
other activities collectively, “System Activities”) on and from the Leased Property. Lessor acknowledges
that the System Activities will or may require, among other things, physical installation of the System on
the Leased Property, delivery of feedstock to the System, and transport of RNG from the Leased Property
by pipeline or vehicle, and Lessor consents to such physical installation, delivery, transport and any other
lawful activities relating to the System. Without limiting the foregoing, Lessee shall have the right to
alter, modify, relocate, or remove any structures as may exist on the Leased Property as of the Agreement
Date.
5.2 Permits and Incentives. Each Party shall obtain and maintain certain Permits as required
under the WTA. In the event the WTA terminates, each Party shall maintain such Permits as reasonably
required by Applicable Law.
5.3 Utilities and Water. Lessee shall be responsible for payment for any upgrades to existing
utility systems that Lessee deems necessary for the System Activities that do not constitute Major
Maintenance Expenses. Lessor shall cooperate in good faith with Lessee in Lessee’s efforts to obtain
utility services to and from the Leased Property including any necessary easements on adjacent property.
Lessor shall be responsible for Pass-Through Costs during the Term that are needed or used by Lessee.
Lessor shall permit Lessee to arrange for and install separate metering service on the Leased Property to
record and account for Lessee’s utility use. Lessor shall make available, at Lessor’s cost, potable water
and any other utilities as agreed to under the WTA to Lessee in sufficient quantities for the construction
and operation of the System.
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5.4 Ownership of System.
(a) Lessor acknowledges and agrees that, at all times during the Term, the System,
including all constituent elements or components thereof, (i) is exclusively owned by Lessee or Lessee’s
Affiliate, (ii) is and shall continue to be the personal property of Lessee and not Lessor, and is not and
shall not become or be deemed part of or fixtures to the Leased Property or the Lessor Property, and (iii)
shall be installed, operated, and maintained exclusively by Lessee or its Representatives in Lessee’s sole
discretion and not Lessor unless otherwise agreed by the Parties in writing. Unless otherwise agreed in
writing, Lessor shall not engage in any System Activities.
(b) Lessor consents to Lessee, in Lessee’s sole discretion, filing, on behalf of Lessor,
a disclaimer of the System as a fixture of the Lessor Property or the Leased Property in the office where
real estate records are customarily filed in the jurisdiction of the Lessor Property.
(c) Lessor acknowledges that Lessee is the owner of all Environmental and Tax
Attributes attributable to the System, along with any other products or services of any kind produced by
the System.
(d) At the end of the Term or in the case of Lessor exercising its buyout right under
Section 5.5 of the WTA, unless as specified elsewhere in this Agreement, Lessor has the option to
purchase for fair market value, using the procedures in Section 5.5 of the WTA, all right, title, and interest
in and to the System, on an “AS-IS” “WHERE IS” basis, without any warranty or further liability to
Lessee. Each Party further agrees to cooperate with the other Party to take the necessary actions and
execute the necessary documents to effectuate such purchase and sale. Following such transfer, unless
specified elsewhere in this Agreement including, but not limited to, in this Section 5.4(d), neither Party
shall owe any further liability or obligation to the other Party. The provisions of this Section 5.4(d) shall
survive the expiration or earlier termination of this Agreement.
ARTICLE 6 : Representations and Warranties
6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other
Party:
(a) Existence. Such Party is duly and validly formed, existing and in good standing
under the laws of the state of its formation or organization and has all requisite power and authority to
enter into and perform its obligations under this Agreement. Such Party is duly qualified or licensed to do
business in each jurisdiction where the failure to duly qualify or become licensed would adversely affect
such Party’s ability to perform its obligations under this Agreement.
(b) Authorization. The execution, delivery and performance by such Party of this
Agreement, and the consummation of the transactions contemplated by this Agreement, have been duly
and validly authorized by all necessary action on the part of such Party.
(c) Enforceability. This Agreement constitutes the legal, valid and binding
obligations of such Party enforceable against such Party in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws, now or hereafter in effect, relating to creditors' rights generally.
(d) Consents and Approvals. No consent or approval by, filing with or notice to any
Person (including third parties or Governmental Authorities) is required on the part of such Party or any
of its Affiliates for the valid execution and delivery of this Agreement and the performance of its
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obligations hereunder and thereunder, other than those that have been obtained and are in full force and
effect.
(e) No Violation. Such Party’s execution and delivery of this Agreement and
performance of its obligations hereunder and thereunder do not and will not (i) violate or conflict with the
organizational documents of such Party; (ii) violate or conflict with any law or any order of any court or
other Governmental Authority which is binding on (A) such Party or any Affiliate of such Party or (B)
assets of such Party or any Affiliate of such Party; or (iii) violate, result in a default under or result in the
termination, acceleration or mandatory prepayment of (with or without the giving of notice, the passage
of time or both) any obligation under any contract or indebtedness to which such Party or any Affiliate of
such Party is party or by which any such Party or any such Party’s assets are bound.
6.2 Lessor represents and warrants to Lessee:
(a) Lessor is the fee simple owner of, and has good and marketable title to, the
Lessor Property (including the Leased Property). Lessor’s ownership of the Lessor Property (including
the Leased Property) is subject to no Liens or exceptions to title other than Liens, if any, expressly
disclosed in writing by Lessor to Lessee prior to the Agreement Date. Lessor is the sole owner of the
Lessor Property (including the Leased Property) and has the unrestricted right and authority to execute
this Agreement and to grant to Lessee the rights granted hereunder.
(b) To the best of Lessor’s knowledge, (i) no underground tanks are now located or
at any time have been located within the Leased Property or any portion thereof, and (ii) there is no and
has never been any violation or alleged violation with respect to the Leased Property, or the presence,
generation, storage, disposal or release of Hazardous Substances in, on or under the Leased Property or
within two hundred (200) feet of the Leased Property, of any Environmental Law, including laws, rules or
regulations relating to Hazardous Substances.
(c) Lessor is not a party to any, and to Lessor’s knowledge, there are no pending or
threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or
regulatory investigations of any kind or nature whatsoever against Lessor (i) challenging the validity or
propriety of this Agreement, and/or transactions contemplated in this Agreement or (ii) which could
reasonably be expected to have a material adverse effect on the ownership or operation of the Lessor
Property or any part thereof or interest therein.
(d) To the best of Lessor’s knowledge, there are no currently existing options, rights
of refusal, sales contracts, mineral rights requiring substantial use of the surface or other rights in favor of
any third parties relating to the Lessor Property or any interest therein, which could interfere with the
development, construction, installation, maintenance or operation by Lessee of the System or that allow
any party other than Lessee to develop a renewable energy project or that could adversely affect Lessee’s
use of the Lessor Property or obtaining the benefits intended under this Agreement.
(e) The Parties acknowledge that a Record of Survey has been filed to cause the
Leased Property to be a separate and independent legal lot of record. Lessor agrees to indemnify, defend,
and hold harmless Lessee and all Lessee Parties from any costs or claims that may arise by reason of any
non-compliance with respect to zoning laws applicable to the Leased Property (including, without
limitation, (i) legal fees and court costs, and (ii) consequential or punitive damages).
ARTICLE 7 : Insurance
7.1 Insurance to be Maintained; Obligations with Respect Thereto
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(a) Lessee shall maintain comprehensive general liability insurance with respect to
the Leased Property and the Lessor Property of which the Leased Property is a part, in the amount of
$1,000,000 per occurrence and $2,000,000 in the aggregate per annum with responsible companies
qualified to do business in the state in which the Lessor Property is located and in good standing therein
insuring both Lessee and Lessor as additional insured against injury to persons or damage to property as
provided.
(b) Lessor shall maintain insurance coverage of such types and amounts as may be
customary, prudent, and reasonable in light of Lessor’s ownership of and activities conducted on the
Lessor Property, naming Lessee as additional insured.
(c) The Parties shall provide each other with certificates for such insurance at or
prior to the commencement of the Term, and thereafter within 30 (thirty) days prior to the expiration of
any such policies. All such insurance certificates shall provide that such policies shall not be cancelled
without at least 30 (thirty) days prior notice to each insured named therein.
7.2 Lessor and Lessee shall each maintain on their respective personal property on or about
the Lessor Property a policy of “all risk” property insurance, with vandalism and malicious mischief
endorsements, to the extent of at least 100 percent (100%) of full replacement value of its personal
property. Lessor and Lessee shall each maintain worker's compensation insurance to the extent required
by Applicable Law.
7.3 Lessee shall maintain workers’ compensation insurance as required by law.
ARTICLE 8 : Covenants
8.1 Lessee Covenants. Lessee shall not directly or indirectly cause, create, incur, assume or
allow to exist any Lien on or against the Lessor Property; the foregoing does not preclude the imposition
of a Lien on the System by Lessee’s Lender or as permitted under Article 14, provided that such Lien
shall not create any Lien on the real property of Lessor.
8.2 Lessor Covenants.
(a) Lessor shall not directly or indirectly cause, create, incur, or assume any Lien on,
affecting or with respect to the System (including any constituent element or component thereof) or any
interest therein. Lessor shall immediately notify Lessee of the existence of any such Lien, shall promptly
cause the same to be discharged and released of record without cost to Lessee, and shall indemnify Lessee
against all costs and expenses (including reasonable attorneys’ fees) incurred in discharging and releasing
any such Lien or that otherwise arose as a result of such Lien.
(b) Lessor and its authorized representatives and invitees shall not conduct activities
on, in or about the Leased Property or the Lessor Property in a manner that has any likelihood of causing
damage to, impairment of, or otherwise adversely affecting the System, or that are not in accordance with
the WTA or Lessee’s safety protocols with respect to the System, and Lessor shall not permit any other
lessee at the Lessor Property or any other person to do so. Lessor’s activities and any grant of rights
Lessor makes to any Person, whether located on the Lessor Property or elsewhere, shall not, currently or
prospectively, interfere with: the construction, installation, maintenance or operation of the System,
whether located on the Lessor Property or elsewhere; access over the Lessor Property to the Leased
Property or the System; any System Activities; or the undertaking of any other activities permitted under
this Agreement.
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(c) Lessor acknowledges that certain aspects inherent to the operation of the System
may result in some nuisance, such as visual impacts, possible increased noise levels, possible odor, and
other possible effects of renewable natural gas production and transportation. Without limiting the grant
of easements made in Article 2 of this Agreement, Lessor understands and has been informed by Lessee
that the System may result in some nuisance, and hereby accepts such nuisance, waives its right to object
to such nuisance, and agrees to indemnify and defend Lessee from any third party claims concerning such
nuisance, in each case provided that Lessee complies with its obligations in this Agreement.
(d) Lessor shall not violate any Environmental Law in connection with or related to
Lessor’s ownership or use of the Lessor Property, including without limitation any such violation which
may have occurred by Lessor, or Lessor’s employees, members, managers, affiliates, invitees, or agents
(collectively, “Lessor Parties”) or any other person prior to the Agreement Date. In conformance with the
requirements of Applicable Law, Lessor shall clean up, remove, remedy and repair any soil or ground
water contamination and damage caused by the release or disposal of any Hazardous Substances by
Lessor or any Lessor Party in, on, under, or about the Leased Property or within two hundred (200) feet of
the Leased Property.
(e) Lessor covenants that Lessee shall have quiet and peaceful possession of the
Leased Property and the rights granted by this Agreement for the entire Term without hindrance,
interruption, suit, trouble or interference of any kind by Lessor or any other Person claiming (whether at
law or in equity) by, through or under Lessor. Lessor covenants and agrees to and with Lessee:
(i) not to allow any Liens against the Leased Property during the Term other
than Liens expressly consented to by Lessee in writing or a Lessor Mortgage with respect to which a
nondisturbance agreement in a form approved by Lessee has been executed pursuant to Section 15.1
(collectively, “Permitted Liens”),
(ii) to promptly pay when due any and all obligations secured by Liens
against the Leased Property (including Permitted Liens),
(iii) not to allow any default to occur under obligations secured by Liens
against the Leased Property (including Permitted Liens), and
(iv) in accordance with Section 15.1, to obtain a nondisturbance agreement
from the holders of all Lessor Mortgages. In lieu of paying amounts secured by Liens that are not
Permitted Liens, Lessor may provide a bond or other adequate security in accordance with Applicable
Law and the reasonable requirements of Lessee.
(f) Lessor, in its ministerial role as a governmental agency, shall not enforce or
promulgate any law or other governmental regulation in a manner that unduly prejudices, preferences, or
burdens Lessee relative to other third parties subject to Lessor’s jurisdiction. Lessor shall not take any
action as a governmental agency that would cause Lessee to be in breach of this Agreement. For
avoidance of doubt, Lessor shall not change zoning laws or permit requirements in a manner that
discriminates against Lessee’s rights under this Agreement or the WTA.
ARTICLE 9 : Indemnification
9.1 Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the
other Party and the directors, officers, shareholders, partners, members, agents and employees of such
other Party, and the respective Affiliates of each thereof (each, an “Indemnified Party” and, collectively,
the “Indemnified Parties”), from and against all Claims resulting from (a) injury to or death of persons,
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and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions
of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees), (b)
violation of Applicable Law (including any Environmental Law) by the Indemnifying Party (or its
contractors, agents or employees), (c) a breach or default in the performance of any obligation to be
performed by the Indemnifying Party under the terms of this Agreement, (d) any other matter identified as
requiring indemnification, or (e) with respect to Lessee as the Indemnifying Party, the release or
threatened release of any Hazardous Substance at, on, above or below the Leased Property that has been
caused by Lessee or Lessee’s contractors, agents or employees following the Agreement Date, and with
respect to Lessor as the Indemnifying Party, the release, threatened release, removal, treatment, storage,
disposal, disposition, mitigation, or cleanup of any Hazardous Substance at, on, above or below the
Leased Property prior to the Agreement Date or, following the Agreement Date, the release or threatened
release of any Hazardous Substance at, on, above or below the Leased Property that has not been caused
by Lessee or Lessee’s contractors, agents or employees. Without limiting the foregoing, the
indemnification obligations set forth herein include Claims brought against any Indemnified Party by any
third party. Nothing in the foregoing shall require the Indemnifying Party to indemnify the Indemnified
Party for any Claims to the extent caused by or arising out of the Indemnified Party’s Event of Default,
the negligent acts or omissions of, or the willful misconduct of, the Indemnified Party, any Force Majeure
event, any act or omission of any Indemnified Party responsible for or contributing to the Claim, or any
matter for which the risk has been specifically allocated to a particular Party hereunder or under the
WTA.
9.2 Indemnification Procedures. A Lessee Indemnified Party shall promptly notify Lessor of
the assertion of any claim against it for which it is entitled to be indemnified hereunder, shall give the
Lessor the opportunity to defend such claim, and shall not settle the claim without the approval of the
Lessor which approval shall be in the Lessor’s sole discretion. These indemnification provisions are for
the protection of the Lessee Indemnified Parties only and shall not establish, of themselves, any liability
to third parties.
9.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY HAVE ANY
LIABILITY UNDER THIS AGREEMENT OR ANY INDEMNITY OFFERED THEREUNDER FOR
ANY SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE, INDIRECT, REMOTE, OR
CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST PROFITS OR DAMAGES BASED ON A
MULTIPLE OF EARNINGS OR DIMINUTION IN VALUE, OR ANY SIMILAR DAMAGES. FOR
THE AVOIDANCE OF DOUBT, THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES
SHALL INCLUDE THOSE ARISING UNDER STRICT LIABILITY.
9.4 Survival. The provisions of this Article 9 shall survive termination of this Agreement.
ARTICLE 10 : Condemnation
10.1 Contests. If, during the Term, any competent authority or entity for any public or quasi-
public purpose (“Condemnor”) seeks to take or condemn all or any portion of the Leased Property, Lessor
and Lessee shall use all reasonable and diligent efforts, each at its own expense, to contest such taking.
10.2 Termination Due To Condemnation. Except as otherwise set forth in the WTA, if at any
time during the Term, any Condemnor shall condemn all or any portion of the Leased Property, or the
System, so that the purposes of this Agreement are frustrated, then, at Lessee’s option, (a) this Agreement
shall be modified to revise the definition of Leased Premises to reflect such portion not condemned or (b)
this Agreement shall cease and terminate, in either event, upon the earlier of (i) the date that the
Condemnor takes physical possession of the Leased Property or the System, (ii) the date that Lessee is, in
its sole judgment, no longer able or permitted to operate the System on the Leased Property in a
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commercially viable manner, or (iii) the date title vests in the Condemnor. In the event Lessee elects to
terminate this Agreement, as provided in the foregoing sentence, Lessee shall continue to pay all amounts
payable hereunder to Lessor until the earlier of such dates, at which time Lessor and Lessee shall be
relieved of any and all further obligations and conditions to each other under this Agreement, except (A)
Lessor shall pay to Lessee a sum representing the total value of the Outstanding Debt, minus the value of
any insurance proceeds received or owed to Lessee or Lender arising from a System casualty preceding
the effective date of termination (and Lessor shall make such payment to Lessee on the effective date of
termination), and (B) the Parties shall be responsible for any indemnity obligations or other obligations
which by their terms survive the expiration or termination of the Agreement.
10.3 Distribution of Award. For any taking covered by this Article 10, all sums, including
damages and interest, awarded shall be paid and distributed to Lessee and Lessor in accordance with their
respective interests under this Agreement.
10.4 Notwithstanding the provision in Section 17.6 of this Agreement, unless Lessor is the
Condemnor, this Article 10 shall control in the event of a conflict between the terms in this Agreement
and the WTA. This Article 10 shall survive the expiration or earlier termination of this Agreement.
ARTICLE 11 : Events of Default, Remedies and Damages
11.1 Events of Default. Each of the following shall constitute an “Event of Default” by a Party
(the “Defaulting Party”):
(a) such Party’s material misrepresentation in connection with this Agreement,
fraud, or intentional misconduct;
(b) failure of such Party to pay any amount due and payable under this Agreement;
(c) failure of such Party to perform any material obligation (other than a payment
obligation) under this Agreement;
(d) an Insolvency Event occurs with respect to such Party;
(e) the occurrence of (i) a Material Breach of the WTA by a Defaulting Party, or
(ii) the WTA is terminated by reason of a breach by the Defaulting Party thereunder.
11.2 Remedies.
(a) Event of Default by Lessee.
(i) If Lessee is the Defaulting Party, Lessor may, but is not required to,
terminate this Agreement by providing Lessee sixty (60) days advance written notice of the Event of
Default, during which sixty (60) day period Lessee shall have the opportunity to cure such Event of
Default.
(ii) If Lessee fails to cure and Lessor exercises its termination right, such
termination shall be effective upon the date that Lessor and Lessee fully and finally execute any
agreements or documents necessary to effectuate the Lessor’s remedy under Section 7.4(a) of the WTA.
(iii) Subject to Section 11.5 of this Agreement, if Lessee is the Defaulting
Party, beyond any applicable notice and cure periods set forth in this Agreement, Lessor may seek any
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and all additional available remedies at law or in equity; provided, however, that the remedies provided
under the WTA and this Agreement are not meant to provide Lessor with double recovery.
(iv) Notwithstanding anything to the contrary set forth herein, Lessor may
not terminate this Agreement by reason of any Lessee default so long as the WTA is in effect.
(b) Event of Default by Lessor.
(i) If Lessor is the Defaulting Party for a non-monetary default, Lessee may,
but is not required to, terminate this Agreement by providing Lessee sixty (60) days advance written
notice of the Event of Default, during which sixty (60) day period Lessor shall have the opportunity to
cure the Event of Default (except for breaches predicated upon Lessor’s nonpayment, in which case a 30-
day cure notice and cure period shall apply). If Lessor fails to cure and Lessee exercises its termination
right, Lessor shall owe to Lessee as direct damages, and not as a penalty, the amounts identified in
Section 7.4(b) of the WTA.
(ii) Subject to Section 11.5 of this Agreement, if Lessor is the Defaulting
Party, beyond any applicable notice and cure periods set forth in this Agreement, Lessee may seek any
and all additional remedies at law or in equity; provided, however, that the remedies provided under the
WTA and this Agreement are not meant to provide Lessee with double recovery.
(c) Events under the WTA. Notwithstanding anything to the contrary in this Article
11, if either Party is in default per Section 11.1(e), then the Defaulting Party shall get the benefit of any
notice and cure period under the WTA or this Agreement, whichever is longer, but shall not get the
benefit of both cure periods.
11.3 Event of Default or Anticipated Breach. In the case of any Event of Default under or
anticipated breach of this Agreement, each Party agrees to use good faith efforts to take such
commercially reasonable actions as necessary to expeditiously resolve the underlying circumstance;
provided, however, that in all circumstances neither Party shall be required or be deemed to have waived
any defenses it may have under Applicable Law or contract.
11.4 Lender Right to Cure. If Lessor is the Defaulting Party under this Agreement, Lessor
agrees and acknowledges that Lender(s) may, but do(es) not have the obligation to, (i) acquire title to the
System, (ii) cure all defaults and breaches that are capable of cure, or (iii) assume any Lessee obligation
under this Agreement, in which case Lessor shall recognize such Lender(s) as if such Lender had been the
original party to this Agreement.
11.5 Dispute Procedures. Provided the WTA is in full force and effect, the Parties agree that
all disputes under this Agreement shall be governed by Section 6 and Section 7 of the WTA as if such
sections had been set forth herein.
ARTICLE 12 : Force Majeure
Except as otherwise set forth herein, in the event either Party is rendered unable, wholly or in part, to
carry out its respective obligations under this Agreement, except for any obligation to make payment, due
to circumstances beyond its reasonable control, including, without limitation, strike, riot, lockouts or
other disturbances, flood, natural disaster, acts of God, war or civil insurrection, an epidemic, pandemic
or viral or communicable disease outbreak, quarantine, national emergency or other unforeseeable
circumstances beyond its reasonable control (a “Force Majeure”), then written notice setting out the
reason for non-performance shall be given to the other Party by the Party claiming Force Majeure
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promptly following discovery thereof. Upon receipt of such notice, the obligations of the affected Party
shall be suspended during the period of the Force Majeure and any deadline or date certain for
performance shall be extended by a period equal to the period of the Force Majeure. Every reasonable
effort shall be made by the Parties to avoid delay and limit any period during which performance under
this Agreement might be suspended.
ARTICLE 13 : Dispute Resolution
13.1 This Agreement shall be interpreted in accordance with the laws of the State of
Washington without giving effect to its choice of law principles.
13.2 Any disagreement between Lessor and Lessee which cannot be resolved in accordance
with this Agreement shall be referred to the senior management of each Party who shall attempt to resolve
the dispute in good faith. To aid resolution by the Parties’ senior management, Lessor’s and Lessee’s
representatives shall promptly prepare and exchange memoranda stating the issues in dispute and their
positions, summarizing the negotiations which have taken place and attaching relevant documents. If the
Parties’ senior management resolves the dispute, such resolution shall be reported in writing to and shall
be binding upon the Parties.
13.3 If, despite the good faith efforts described in Section 13.2, the Parties are unable to
resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination,
enforcement, interpretation or validity, the Parties may seek to agree on a forum for mediation to be held
at a mutually agreeable site.
13.4 If, despite good faith efforts described in Section 13.2 and 13.3, the Parties are unable to
resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination,
enforcement, interpretation or validity, (including the determination of the scope or applicability of this
Agreement to arbitrate), shall be determined by arbitration in Seattle, Washington before a single
arbitrator who is an experienced attorney in the discipline that is the subject of the dispute and whom shall
be jointly selected by Lessor and Lessee. The arbitration shall be administered by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures. The arbitrator shall issue a reasoned, written decision
which will be binding on the Parties. Judgment may be entered upon the arbitrator’s decision in any court
of competent jurisdiction, and each Party agrees to submit to the personal jurisdiction of any such court
for the purposes of any such actions or proceedings to enter or enforce such judgement.
13.5 Should either Party employ an attorney to enforce any of the provisions of this
Agreement, the non-prevailing Party in any final judgment agrees to pay the other Party’s reasonable
expenses, including reasonable attorneys’ fees and expenses in or out of litigation and, if in litigation,
trial, appellate, bankruptcy or other proceedings, expended or incurred in connection therewith, as
determined by a court of competent jurisdiction.
13.6 The venue for any judicial proceedings relating to this Agreement shall be the Superior
Court for the State of Washington in Franklin County.
ARTICLE 14 : Financing
14.1 Lender. Notwithstanding any other provision, Lessee shall have the right to encumber its
interest in this Agreement, the System and any of Lessee’s other improvements located on the Leased
Property by mortgage, lease, deed of trust or similar instrument or instruments and by security agreement,
fixture filing and financing statements or similar instrument or instruments in favor of Lender. Lessor
represents and warrants as follows: (i) such encumbrance by Lessee will not violate any term or condition
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of any covenant or restriction affecting the Lessor Property or the Leased Property; (ii) there is no
existing Lien upon the Lessor Property or the Leased Property that could attach to the System an interest
adverse to or senior to Lessee’s Lenders’ security interest therein; and (iii) there exists no event or
condition which constitutes a default, or would, with the giving of notice or lapse of time, constitute a
default under the Agreement.
14.2 Rights of Lender.
(a) In the event of a foreclosure or seizure of Lessee’s rights or property or the
exercise of any other right under any security agreement granted by Lessee to a Lender, Lessor agrees to
permit such Lender to exercise any and all rights of Lessee hereunder.
(b) Lessor agrees to execute any consent to assignment reasonably requested by any
Lender to evidence and give effect to the provisions of this Article 14. Lessor shall be timely provided
with current addresses for all Lenders and their assignees. At Lessee’s request, Lessor shall amend this
Agreement to include any provision that may reasonably be requested by an existing or proposed Lender,
and shall execute such additional documents as may reasonably be required to evidence such Lender’s
rights hereunder.
(c) Further, Lessor shall, within thirty (30) days after receipt of written request from
Lessee or any existing or proposed Lender, execute and deliver thereto a certificate to the effect that
Lessor (i) recognizes a particular entity as a Lender under this Agreement and (ii) will accord to such
entity all the rights and privileges of a Lender hereunder, in addition to any estoppel or certificate required
under Section 17.4.
(d) All Lenders shall be deemed third party beneficiaries of the rights granted to
Lessee under this Agreement.
ARTICLE 15 : Subordination; Non-Disturbance
At Lessee's request, Lessor shall obtain from holders of any mortgage(s) now or subsequently
granted by Lessor and recorded against the Leased Property and to any renewals, modifications,
refinancings and extensions thereof (“Lessor Mortgages”), execution and delivery to Lessee of a
nondisturbance agreement, in recordable form with terms and conditions acceptable to Lessee, in its sole
discretion, under the terms of which the holder of the Lessor Mortgage covenants and agrees to and with
Lessee (i) not to disturb Lessee in its possession of the Leased Property or in the enjoyment of its rights
hereunder, and (ii) to notify Lessee of any defaults by Lessor in the performance of its obligations secured
by the Lessor Mortgage, and (iii) to provide Lessee a reasonable period of time after Lessee’s receipt of
notice of Lessor’s default to cure said default (which period shall be not less than forty-five (45) days in
the event of payment defaults and ninety (90) days in the event of non-payment defaults, and which
period shall be extended if default cannot reasonably be cured within such period, provided Lessee has
promptly commenced and is diligently performing actions to cure the default), before exercising any
rights to foreclose upon or otherwise take ownership of the Leased Property.
ARTICLE 16 : Recordation; Confidentiality
16.1 Memorandum of Lease and Easement. The Parties agree that this Agreement shall not be
recorded, but the Parties shall execute and record a memorandum of lease and easement agreement
(“Memorandum of Lease”) in recordable form substantially in the form of Exhibit D with the applicable
registry of deeds in the jurisdiction in which the Lessor Property is located, which Memorandum of Lease
shall contain a reference to the easements and covenants granted by Lessor to Lessee hereunder and shall
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otherwise be in form and content reasonably acceptable to Lessee. Recordation of the Memorandum of
Lease shall be at Lessee’s expense.
16.2 Confidentiality.
(a) Except as set forth herein, (i) neither Party will disclose Confidential Information
of the other Party to any third party, and (ii) each Party will use the other Party’s Confidential Information
only for purposes of the transactions contemplated by this Agreement; provided, however, that a Party in
possession of the other Party’s Confidential Information may disclose Confidential Information as
required to comply with orders of governmental entities that have jurisdiction over it or as otherwise
required by law.
(b) Each Party agrees to (i) take reasonable steps to protect the other Party’s
Confidential Information (which steps will be required to be at least as protective as those that the
receiving Party takes to protect its own Confidential Information), (ii) notify the other Party promptly
upon discovery of any unauthorized use or disclosure of Confidential Information; and (iii) cooperate
with the other Party to help regain control of any Confidential Information that is the subject of any such
unauthorized use or disclosure and prevent further unauthorized use or disclosure of such Confidential
Information.
(c) Each Party may disclose the other Party’s Confidential Information to its
subcontractors, agents, legal counsel, accountants, consultants, financing parties, or representatives to the
extent necessary in furtherance of this Agreement, and then only on a “need to know” basis in connection
with the transactions contemplated hereby and on a confidential basis. Without negating the foregoing,
Lessor agrees and acknowledges that Lessee may disclose this Agreement and all matters relevant to
Lessee’s rights and obligations hereunder (including, without limitation, correspondence with Lessor) to
Lessee’s Lender(s) for any financing related purpose, and that such disclosure shall not be in violation of
this Agreement.
(d) This Agreement shall be considered a public document and will be available for
inspection and copying in accordance with the Public Records Act, chapter 42.56 of the Revised Code of
Washington (the “Act”). If Lessee considers any record, in whole or in part, provided to Lessor under this
Agreement, whether in electronic or hard copy form, to be protected from disclosure under the Act,
Lessee shall make reasonable efforts to clearly identify each such record with words such as
“CONFIDENTIAL,” “PROPRIETARY” or “BUSINESS SECRET.” If a request is made for disclosure of
any Lessee Confidential Information, Lessor shall promptly notify and provide Lessee with a copy of
such request. In all cases, Lessor will ultimately determine whether the requested material should be made
available under the Act. If Lessor determines that the material is subject to disclosure, Lessor will notify
Lessee of its decision and allow Lessee ten (10) business days to take whatever action it deems necessary
to protect its interests. If Lessee fails or neglects to take such action within said period, Lessor will release
the record(s) or portions thereof reasonably deemed by Lessor to be subject to disclosure. Lessor shall not
be liable to Lessee for inadvertently releasing records pursuant to a disclosure request not clearly
identified by Lessee as “CONFIDENTIAL,” “PROPRIETARY” or “BUSINESS SECRET.”
ARTICLE 17 : Miscellaneous
17.1 Definitions. Capitalized terms used in this Agreement shall have the meaning set forth in
Exhibit A hereto or as otherwise defined herein.
17.2 Interpretation. Except where otherwise expressly provided or unless the context
otherwise necessarily requires, in this Agreement the following shall apply. Reference to a given section,
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exhibit, annex or schedule is a reference to a section, exhibit, annex or schedule of this Agreement, unless
otherwise specified, and all schedules, exhibits and annexes hereto are hereby made a part hereof and
incorporated herein by such reference. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof. The terms “this
Agreement”, “hereof”, “herein”, “hereto”, “hereunder” and “herewith” refer to this Agreement as a
whole. If the time for performing an obligation under this Agreement expires on a day that is not a
business day, the time shall be extended until that time on the next business day. With respect to the
determination of any period of time, the word “from” means “from and including” and the words “to” and
“until” each means “to but excluding”. The words “shall” and “will” have the same meaning. The words
“include,” “includes” or “including” and words of similar import shall be deemed to be followed by the
phrase “without limitation” and shall not be limited by any enumeration or otherwise; any pronoun or
pronouns used herein shall be deemed to include both the singular and the plural and to cover all genders;
the use of the words “or,” “either” and “any” shall not be exclusive. The provisions of this Section 17.2
shall survive any expiration or termination of this Agreement.
17.3 Governing Law; Remedies. This Agreement shall be governed by the laws of the State of
Washington, without regard to the conflicts of law rules of any jurisdiction.
17.4 Assignment.
(a) The burdens of the lease, easements and other covenants, rights and obligations
contained in this Agreement shall run with and against the Lessor Property and shall be a charge and
burden thereon for the duration of this Agreement. Lessor shall provide at least 30 days’ prior written
notice to Lessee of any sale, assignment or transfer (“Transfer”) of any of Lessor’s interest in the Lessor
Property (or any part thereof) or in this Agreement. In addition, any such Transfer shall be expressly
subject to this Agreement. Lessor shall notify Lessee of the closing of such Transfer, and if applicable, the
name and contact information of the successor to Lessor’s interest and payment instructions for Rent and
other amounts due under this Agreement; provided, that Lessor shall indemnify Lessee for losses arising
from Lessee’s payment of Rent or other amounts as so directed. Until such notice of closing is received,
Lessee shall have no duty to any successor to Lessor’s interest, and Lessee shall not be in default under
this Agreement if it continues to make all payments to the original Lessor before such notice is received.
Under no circumstances shall a Transfer by Lessor include the System.
(b) This Agreement shall be binding on and inure to the benefit of the Parties’
successors and permitted assignees.
(c) Lessee may assign, pledge as collateral (in accordance with Article 14, with
respect to a Lender), sell or transfer this Agreement or the System or any of Lessee’s rights or obligations
under this Agreement or rights in and to the System (a) to any Affiliate of Lessee or (b) to any Lender or
as part of any transaction Lessee or any Affiliate of Lessee may enter into with any Lender; Lessor hereby
consents to any such assignment, pledge, sale or transfer. Lessor acknowledges that Lessee or an Affiliate
of Lessee may obtain financing (including, without limitation, any form of debt, equity or lease financing)
or credit support from one or more Lenders in relation to the development, construction, ownership,
transfer, operation or maintenance of the System. Any Lender (or its wholly owned assignee or designee),
or any person acquiring the Lessee’s leasehold estate pursuant to foreclosure of a mortgage or a deed or
assignment in lieu of such foreclosure, may, upon acquiring the leasehold estate, upon prior written
approval of Lessor, which shall not be unreasonably withheld, conditioned or delayed, sell and assign the
leasehold estate on such terms and conditions as it may determine and thereafter be relieved of all
obligations under this Lease accruing from and after the date of such sale and assignment.
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(d) Both Parties agree in good faith to consider and to negotiate changes or additions
to this Agreement that may be requested by the Lenders. Lessor agrees to execute any consent, estoppel
or acknowledgement in form and substance requested by such Lenders (including those consents and
other documents pursuant to Article 14, in the case of a collateral pledge to a Lender); any such Lender
shall be deemed to be an intended third-party beneficiary of the provisions of this Agreement.
(e) Either Party, without charge, at any time and from time to time, within five (5)
business days after receipt of a written request by the other Party, shall deliver a written instrument, duly
executed, certifying to such requesting Party, or any other Person specified by such requesting Party
(including any Lender): (i) that this Agreement is unmodified and in full force and effect, or if there has
been any modification, that the same is in full force and effect as so modified, and identifying any such
modification; (ii) whether or not to the knowledge of any such Party there are then existing any offsets or
defenses in favor of such Party against enforcement of any of the terms, covenants and conditions of this
Agreement and, if so, specifying the same and also whether or not to the knowledge of such party the
other party has observed and performed all of the terms, covenants and conditions on its part to be
observed and performed, and if not, specifying the same; and (iii) such other information as may be
reasonably requested by the requesting Party. Any written instrument given hereunder may be relied upon
by the recipient of such instrument, except to the extent the recipient has actual knowledge of facts
contained in the certificate.
17.5 Material Change in Law. In the event of a Material Change in Law, the Parties shall, to
the extent necessary and possible, reform this Agreement to ensure compliance and conformity with such
Material Change in Law and to restore or retain the Parties’ original benefits and burdens under this
Agreement. For purposes of this Agreement, a “Material Change in Law” shall mean: (a) the adoption,
promulgation, change, repeal or modification after the Agreement Date of any laws, codes, regulations,
statutes or orders, (b) an interpretation or application by a Governmental Authority of a law which had not
been made, or which if made, was different than a prior interpretation of or application by such
Governmental Authority or another Governmental Authority, or (c) the imposition of any material
condition in connection with the issuance, renewal, extension, replacement or modification of any permits
after the Agreement Date that in the case of (a), (b) or (c): (i) establishes requirements for the
construction, financing, ownership, operation or maintenance of the System that are materially more
restrictive than the most restrictive requirements in effect as of the Agreement Date, and (ii) has a
material and adverse effect on the Lessee’s quiet enjoyment of and/or value obtained from the Leased
Property.
17.6 Entire Agreement. This Agreement and the WTA, including any exhibits, schedules or
annexes attached hereto and thereto, constitute the entire agreement and understanding between the
Parties with respect to Lessee’s leasehold interests and supersedes all prior written and oral agreements,
discussions, or representations between the Parties, including any non-disclosure agreements; provided
that in the case of any conflict or inconsistency between or among the terms of this Agreement and the
WTA, the terms of the WTA will govern provided that the WTA is in full force and effect.
17.7 Severability. If a court or other body of competent jurisdiction finds, or the Parties
mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such
provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and
the remainder of this Agreement will continue in full force and effect.
17.8 Modification, Waiver. No modification of or amendment to this Agreement, nor any
waiver of any rights under this Agreement, will be effective unless in a writing signed by the Parties.
Waiver by a Party of a breach of any provision of this Agreement will not operate as a waiver of any
other or subsequent breach.
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17.9 Notices. Unless otherwise expressly provided in this Agreement, any notice, request,
demand, waiver, consent, approval or other communication that is required or permitted under this
Agreement shall be in writing and shall be sent by personal delivery, facsimile transmission, electronic
mail, overnight courier, or regular, certified, or registered mail, return receipt requested, to the Lessee or
the Lessor, as applicable, at the address below, or to such other addresses as the Parties may specify from
time to time in writing. Notices and other communications shall be effective upon personal delivery,
receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five
(5) days after deposit in the mail. The Parties deem documents faxed, emailed or sent electronically as
PDF files or comparable electronic medium to the specified addresses to be original documents.
If to Lessee:
Burnham SEV Pasco LLC
1201 Wilson Blvd – 27th Floor
Arlington, VA 22209
With a copy to: legal@burnahmdev.com
If to Lessor:
City of Pasco
Adam Lincoln
City Manager
525 N 3rd Avenue
Pasco, WA 99301
With a copy to:
Eric Ferguson
eferguson@kerrlawgroup.net
17.10 Third Party Beneficiary. Except as otherwise provided in this Agreement, this Agreement
does not create or imply any rights of or obligations to Persons other than the Parties.
17.11 Survival. The provisions of this Agreement that should reasonably be considered to
survive termination of this Agreement shall survive any termination of this Agreement. For the avoidance
of doubt, surviving provisions shall include Article 1 (Term); Article 5 (System transfer) Article 9
(Indemnification); Article 11 (Events of Default, Remedies and Damages); Article 13 (Dispute
Resolution); Article 17 (Miscellaneous); and Exhibit A (Definitions).
17.12 Signatures. This Agreement may be signed in one or more counterparts, including by
PDF or comparable electronic medium, each of which shall be deemed an original, with the same force
and effectiveness as though executed in a single document.
[SIGNATURE PAGES FOLLOW]
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The Parties, through their duly authorized representatives below, have executed this Agreement
as of the Agreement Date.
LESSEE
BURNHAM SEV PASCO LLC,
a Washington limited liability company
By:
Name:Chris Tynan
Title:CEO
Date
STATE OF
COUNTY
OF
This record was acknowledged before me on ________________ by ________________ as
________________ of BURNHAM SEV PASCO LLC.
(Signature of notary public)
(Title of office)
My Commission Expires:
(Date)
(Stamp)
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LESSOR
CITY OF PASCO,
a Washington municipal corporation
By:
Name:
Title:
Date
STATE OF WASHINGTON
COUNTY
OF
FRANKLIN
This record was acknowledged before me on ________________ __, 20__ by
________________ as ________________ of the CITY OF PASCO.
(Signature of notary public)
(Title of office)
My Commission Expires:
(Date)
(Stamp)
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EXHIBIT A
DEFINITIONS
Capitalized terms not defined herein are as defined in the WTA. The following words and phrases shall
have the meanings set forth herein:
“Affiliate” means, with respect to a Person, any Person that directly or indirectly controls, is controlled
by, or is under common control with such Person;
“Applicable Law” means any applicable law, statute, code, rule, regulation, ordinance, decree, judgment,
directive, permit, license, registration, guideline, approval, ruling, injunction, decision or other
requirement of a Governmental Authority;
“Initial Term” is defined in Section 1.3;
“Initial Term Payment” is defined in Section 3.2;
“Condemnor” is defined in Section 10.1;
“Confidential Information” means any non-public information, know-how or trade secrets in any form
that is designated “confidential” or that a reasonable person should understand is confidential. The
following information does not constitute Confidential Information: (a) information that is or becomes
generally available to the public other than as a result of a disclosure by either Party in violation of this
Agreement, (b) information that was already known by either Party on a non-confidential basis prior to
this Agreement, (c) information that becomes available to either Party on a non-confidential basis from a
source other than the other Party if such source was not subject to any prohibition against disclosing the
information to such Party, and (d) information that is independently developed by a Party without
violating its obligations under this Agreement;
“Defaulting Party” is defined in Section 11.1;
“Agreement Date” is defined in the preamble to this Agreement;
“Environmental and Tax Attributes” means any and all benefits, emissions reductions, offsets,
allowances, carbon credits, portfolio credits, environmental credits, renewable energy credits or
certificates, emissions reduction credits, emissions allowances, green tags, rebates, subsidies, payments or
other credits or incentives that are attributable to the System or the production or processing of biogas or
renewable natural gas from the System or its displacement of conventional energy or fuel or avoidance of
emissions, including investment Tax credits, production Tax credits, depreciation benefits, deductions and
other Tax credits, Tax benefits, Tax incentives or Tax-related grants available under any Applicable Law
relating to the construction, ownership or operation of, or production of energy from, the System; for the
avoidance of doubt, “Environmental and Tax Attributes” includes credits generated for any state of
Federal Low Carbon Fuel Standard and Federal Renewable Identification Numbers (“RINs”) generated in
accordance with the Energy Policy Act of 2005;
“Environment” means soil, land, surface or subsurface strata, surface waters, groundwaters, drinking
water supply, sediments, and ambient air.
“Environmental Law” means all Applicable Laws, including, without limitation, laws relating to
consumer leasing and protection, pertaining to the environment, human health or safety, or natural
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resources, including, but not limited to, (a) releases of Hazardous Substances into the Environment; (b)
the presence, manufacture, generation, processing, distribution, use, sale, treatment, recycling, receipt,
storage, disposal, transport, arranging for transportation, treatment or disposal, or handling of any
Hazardous Substances; or (c) imposing liability with respect to any of the foregoing. To the extent that it
relates to the handling of and exposure to hazardous or toxic materials or similar substances, the term
“Environmental Law” includes: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Superfund Amendments and Reauthorization Act of
1986, the Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001 et seq.), the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), the Clean Air Act (42
U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33
U.S.C. §§ 1251 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking
Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the
Migratory Bird Treaty Act (16 U.S.C. §§ 703 et seq.), the Bald and Golden Eagle Protection Act (16
U.S.C. §§ 668 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. §§ 5101 et seq.), and the Occupational Safety and Health Act of 1970 (29
U.S.C. §§ 651 et seq.), the regulations promulgated pursuant to the above-listed federal statutes, and any
similar or analogous state and local statutes or regulations promulgated thereunder, as each of the
foregoing may be amended or supplemented from time to time in the future, in each case to the extent
applicable with respect to the property or operation to which application of the term “Environmental
Law” relates;
“Event of Default” is defined in Section 11.1;
“Force Majeure” is defined in Article 12;
“Governmental Authority” means any national, state or local government (whether domestic or foreign),
any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or
statutory instrumentality, authority, body, agency, bureau, commission, or entity, or any arbitrator with
authority to bind a party under Applicable Law;
“Hazardous Substance” means any (a) hazardous substance as defined by any Environmental Laws; (b)
any petroleum or petroleum product, oil or waste oil; (c) any hazardous material, toxic substance, toxic
pollutant, solid waste, municipal waste, industrial waste, hazardous waste, flammable material,
radioactive material, pollutant or contaminant or words of similar meaning and regulatory effect under
any applicable Environmental Laws; and (d) any other chemical, material, or substance (whether solid,
liquid or gaseous) exposure to which or whose discharge, emission, disposal or release is prohibited,
limited, or regulated under any applicable Environmental Laws. “Hazardous Substance” includes any
mixture or solution of the foregoing, and all derivatives or synthetic substitutes of the foregoing;
“Indemnified Party” and “Indemnified “Parties” are defined in Section 9.1;
“Indemnifying Party” is defined in Section 9.1;
“Opening Term” is defined in Section 1.1;
“Opening Term Payment” is defined in Section 3.1;
“Leased Property” means the portions of the Lessor Property identified in Exhibit C attached hereto;
“Lessee” is defined in the preamble to this Agreement;
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“Lessee Improvements” is defined in Section 2.1;
“Lessee Parties” is defined in Section 2.1;
“Lessor” is defined in the preamble to this Agreement;
“Lessor Mortgages” is defined in Article 15;
“Lessor Parties” is defined in Section 8.2;
“Lessor Property” means the real property, including all buildings and improvements, located in Franklin
County, Washington as more particularly described in Exhibit B hereto;
“Lien” means any lien, mortgage, security interest, charge, pledge or other encumbrance;
“Memorandum of Lease” is defined in Section 16.1;
“Party” and “Parties” are defined in the preamble to this Agreement;
“Permitted Liens” is defined in Section 8.2;
“Person” means any individual, corporation, partnership, limited partnership, proprietorship, association,
limited liability company, firm, trust, estate or other enterprise or entity;
“Renewal Term” is defined in Section 1.4;
“Rent” is defined in Section 3.2;
“System Activities” is defined in Section 5.1;
“Taxes” means any and all federal, state, local or foreign tax, fees, levies, assessments, duties, imposts,
tariffs or other charges of any kind imposed or authorized by a Governmental Authority;
“Term” means the term of this Agreement, including the Opening Term and the Initial Term, as may be
extended or renewed to the extent permitted under the provisions of this Agreement;
“Transfer” is defined in Section 17.4(a);
“Wastewater Treatment Agreement” or “WTA” means that certain Water Treatment Agreement attached
as Exhibit E to this Agreement.
“year” means a consecutive twelve-month period.
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EXHIBIT B
LESSOR PROPERTY
Description of Lessor Property
The Lessor Property includes Lot 1 and Lot 2 as depicted in the Record of Survey included in this Exhibit
B. Lot 2 is described below. Lot 1 is described in Exhibit C.
Lot 2
That parcel of land being a portion of the South Half of the Northwest Quarter of the of Section 4,
Township 9 North, Range 30 East, Willamette Meridian, Franklin County, Washington, described as
follows:
Beginning at the Southwest corner of said South Half;
Thence North 88°45’19” East along the South line of said South Half, 2636.99 feet to the
Southeast corner thereof;
Thence North 03°16’11” East along the East line of said South Half, 1370.29 feet to the
Northeast corner thereof;
Thence South 88°53’57” West along the North line of said South Half, 1334.97 feet;
Thence South 00°02’45” West, 1131.07 feet;
Thence South 88°53’39” West, 413.99 feet;
Thence South 00°00’00” East, 120.00 feet;
Thence South 88°45’20” West, 958.71 feet to the West line of said South Half;
Thence South 03°06’31” West along the West line of said South Half, 119.99 feet to the POINT
OF BEGINNING;
Containing 45.62 acres, more or less.
Together with and subject to easements, reservations, covenants and restrictions apparent or of record.
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EXHIBIT C
LEASED PROPERTY
Description of Leased Property
Lot 1
That parcel of land being a portion of The South Half of the Northwest Quarter of Section 4, Township 9
North, Range 30 East, W.M., records of Franklin County, Washington, described as follows:
Beginning at the Southwest corner of said South Half;
thence North 03°06'31" East along the West line of said South Half, 119.99 feet to the True Point of
Beginning;
thence continuing North 03°06'31" East along said West line 1256.65 feet to the Northwest corner of said
South Half;
thence North 88°53'57" East along the North line of said South Half, 1305.39 feet;
thence South 00°02'45" West, 1131.07 feet;
thence South 88°53'39" West, 413.99 feet;
thence South 00°00'00" East, 120.00 feet;
thence South 88°45'20" West, 958.71 feet to the True Point of Beginning.
Also Known as Lot 1 of Record Survey recorded under Auditor's File No. 1969537.
Parcel No. 113090085
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EXHIBIT D
Form of Memorandum of Lease
[Attachment]
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RECORDING REQUESTED BY AND
AFTER RECORDING MAIL TO:
Burnham SEV Pasco LLC
1201 Wilson Blvd – 27th Floor
Arlington, VA 22209
(Space Above for Recorder’s Use Only)
MEMORANDUM OF LEASE AND EASEMENT AGREEMENT
_____________, 20__
THIS MEMORANDUM OF LEASE AND EASEMENT AGREEMENT (this “Memorandum”) is
entered into as of [__], by and between Burnham SEV Pasco LLC (“Lessee”) and the City of Pasco
(“Lessor”) and refers to that certain Lease Agreement dated [__], entered into by and between Lessor and
Lessee (the “Agreement”). Capitalized terms used but not defined herein shall have the meanings
attributed to same in the Agreement.
1. Lessor has leased to Lessee the Leased Property described in Exhibit 1 attached hereto upon the
terms and conditions specified in the Agreement.
2. Lessor is the owner of that certain real property located in Franklin County, Washington, legally
described on Exhibit 2 attached hereto and incorporated herein by reference (the “Lessor Property”). The
Leased Property comprises a portion of the Lessor Property.
3. [The Agreement grants Lessee a non-exclusive easement and right of way over, across, under and
through the Lessor Property, and any surrounding or nearby premises owned by Lessor, for Lessee, its
employees, invitees, agents, contractors and subcontractors to access the Leased Property and to build,
maintain, and install, among other things, any road, improvements, equipment, fences, gates, signs,
communication lines or facilities as more specifically set forth in the Agreement.]2
4. The Opening Term of the Agreement commences on the Agreement Date and continues until the
earlier to occur of (a) the COD and (b) the COD Longstop date. If COD does not occur within one
hundred eighty (180) days after the COD Longstop date (i.e., the COD does not occur), then the
Agreement shall terminate at the end of the Opening Term. The Initial Term commences on the COD, and
continues for a period of thirty (30) years thereafter. The Agreement term automatically renews for two
(2) additional five-year Renewal Terms unless terminated by Lessee. The easement rights granted by
Lessor to Lessee pursuant to the Agreement are for a term coterminous with the Agreement.
5. The consideration given for the lease is indicated in the Agreement.
6. This Memorandum shall inure to the benefit of and be binding upon Lessor and Lessee and their
respective successors and permitted assigns; provided, however, that this Memorandum is solely for
public notice and recording purposes and shall not be construed to alter, modify, limit, expand, diminish
2 NTD: Open item. Parties to confirm location of easement(s)/license(s) including, but not limited to,
easement/license for ingress and egress (and maintenance terms).
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or supplement any of the terms or provisions of the Agreement or any of the rights granted to or
covenants made by Lessor or Lessee under the Agreement. In the event of any conflict between the terms
and provisions of this Memorandum and the terms and provisions of the Agreement, the terms and
provisions of the Agreement shall prevail. This Memorandum shall continue to constitute notice of the
Agreement, even if the Agreement is subsequently amended.
7. This Memorandum may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument. This
Memorandum may be transmitted via facsimile or other electronic means and a manual or electronic
signature of the undersigned transmitted via such means shall be deemed an original signature for all
purposes and have the same force and effect as a manually-signed original.
[SIGNATURE PAGES FOLLOW]
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LESSEE
BURNHAM SEV PASCO LLC,
a Washington limited liability company
By:
Name:
Title:
Date
STATE OF
COUNTY
OF
This record was acknowledged before me on ________________ __, 20__ by
________________ as ________________ of the BURNHAM SEV PASCO LLC.
(Signature of notary public)
(Title of office)
My Commission Expires:
(Date)
(Stamp)
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LESSOR
CITY OF PASCO,
a Washington municipal corporation
By:
Name:
Title:
Date
STATE OF
COUNTY
OF
This record was acknowledged before me on ________________ __, 20__ by
________________ as ________________ of the CITY OF PASCO.
(Signature of notary public)
(Title of office)
My Commission Expires:
(Date)
(Stamp)
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EXHIBIT 1
DESCRIPTION OF LEASED PROPERTY
That parcel of land being a portion of The South Half of the Northwest Quarter of Section 4, Township 9
North, Range 30 East, W.M., records of Franklin County, Washington, described as follows:
Beginning at the Southwest corner of said South Half;
thence North 03°06'31" East along the West line of said South Half, 119.99 feet to the True Point of
Beginning;
thence continuing North 03°06'31" East along said West line 1256.65 feet to the Northwest corner of said
South Half;
thence North 88°53'57" East along the North line of said South Half, 1305.39 feet;
thence South 00°02'45" West, 1131.07 feet;
thence South 88°53'39" West, 413.99 feet;
thence South 00°00'00" East, 120.00 feet;
thence South 88°45'20" West, 958.71 feet to the True Point of Beginning.
Also Known as Lot 1 of Record Survey recorded under Auditor's File No. 1969537.
Parcel No. 113090085
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EXHIBIT 2
DESCRIPTION OF THE LESSOR PROPERTY
The Lessor Property includes Lot 1 and Lot 2 as depicted in the Record of Survey included in this Exhibit
B. Lot 2 is described below. Lot 1 is described in Exhibit C.
Lot 2
That parcel of land being a portion of the South Half of the Northwest Quarter of the of Section 4,
Township 9 North, Range 30 East, Willamette Meridian, Franklin County, Washington, described as
follows:
Beginning at the Southwest corner of said South Half;
Thence North 88°45’19” East along the South line of said South Half, 2636.99 feet to the
Southeast corner thereof;
Thence North 03°16’11” East along the East line of said South Half, 1370.29 feet to the
Northeast corner thereof;
Thence South 88°53’57” West along the North line of said South Half, 1334.97 feet;
Thence South 00°02’45” West, 1131.07 feet;
Thence South 88°53’39” West, 413.99 feet;
Thence South 00°00’00” East, 120.00 feet;
Thence South 88°45’20” West, 958.71 feet to the West line of said South Half;
Thence South 03°06’31” West along the West line of said South Half, 119.99 feet to the POINT
OF BEGINNING;
Containing 45.62 acres, more or less.
Together with and subject to easements, reservations, covenants and restrictions apparent or of record.
Page 176 of 238
506180225.16
EXHIBIT E
Wastewater Treatment Agreement
[Attachment]
Page 177 of 238
AGENDA REPORT
FOR: City Council February 14, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Rick White, Director
Community & Economic Development
SUBJECT: Resolution No. 4312 - Incorporate the Pasco School District's 2022
Capital Facility Plan Update into the City's Comprehensive Land Use Plan
I. REFERENCE(S):
PSD 2022 Update of the Capital Facility Plan
Enrollment Figures
Proposed Resolution
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4312, incorporating the Pasco
School District's 2022 update of the Capital Facilities Plan into the City of Pasco's
Comprehensive Land Use Plan.
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
In March of 2012, City Council adopted Ordinance No. 4046, which established
school impact fees. An Interlocal Agreement for implementation and processing
of those fees was also approved by both the Pasco School District (District) and
the City. The terms of the Interlocal Agreement between the District and the City
require the City to review and consider biennial updates of the District’s CFP and
if appropriate, incorporate the updated CFP into the City's own capital facilities
element of the Comprehensive Plan.
The current impact fees established by Council through Ordinance No. 4046 are
$4,700 (of this amount, $17 is retained by the City for offsetting administrative
costs) per single family unit and $4,525 per multi-family unit.
City Council considered the District's 2022 CFP update at their January 23
Council Workshop.
Page 178 of 238
The District’s 2022 CFP includes several growth-related projects for which the
District will use impact fee revenue. In addition to the PSD's efforts for consistent
implementation of the school impact fee - the District uses the State
Environmental Policy Act to implement mitigation fees as applicable in areas
outside the City limits.
V. DISCUSSION:
The District requests the 2022 update to their CFP (adopted by the School Board
in November of 2022) to be used for the years 2022 through 2028.
The District's protocol for seeking school mitigation fees under SEPA outside the
City limits has been tested on several County subdivisions and City staff believe
that the District’s strategic use of SEPA will assist in guaranteeing that applicable
mitigation fees will be paid for most residential development within the District
but outside City limits.
The District is not seeking any change to the existing school impact fee.
Incorporation of the 2022 District CFP will allow the District to use the collected
impact fees for several new growth related projects as identified in their 2022
Capital Plan update.
Staff recommends approval of the proposed Resolution.
Page 179 of 238
Resolution – Incorporate PSD’s 2022 Capital Facility Plan Update into COP Comp Plan - 1
RESOLUTION NO. 4312
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
INCORPORATING THE PASCO SCHOOL DISTRICT’S 2022 UPDATE OF
THE CAPITAL FACILITIES PLAN INTO THE CITY OF PASCO
COMPREHENSIVE LAND USE PLAN.
WHEREAS, the City of Pasco is required by Washington State law to determine that
adequate provisions are made in each subdivision, short plat, and other division of property used
for residential purposes, including the adequacy of schools and playgrounds; and
WHEREAS, the Pasco School District (PSD), by letter of January 11, 2011, placed the
City on notice that due to escalating student population, it is unable to accommodate additional
students that are incident to new developments of residential housing and has by Resolution No.
809 adopted its PSD Capital Facilities Plan demonstrating the need for additional classrooms to
meet the anticipated demand of students residing within the new development areas of the City;
and
WHEREAS, in February 2012, the City amended the Comprehensive Land Use Plan of
Pasco by incorporating the PSD’s 2011-2017 Capital Facilities Plan into it; and
WHEREAS, in March 2012, the City adopted School Impact Fees through Ordinance No.
4046 reflective of the cost per student for new facilities as described in the PSD’s 2011-2017
Capital Facilities Plan; and
WHEREAS, the City and the PSD have adopted an Interlocal Agreement that requires the
PSD to submit an update of their Capital Facilities Plan every two years; and
WHEREAS, the Interlocal Agreement requires the City to consider the update of the
PSD’s Capital Facility Plan and if appropriate, incorporate the update into the City’s
Comprehensive Land Use Plan; and
WHEREAS, the City has reviewed the revised information contained in the 2022 update
of the PSD’s Capital Facilities Plan; and
WHEREAS, the City Council after due consideration of the PSD’s request that the City
continue to collect School Impact Fees as approved by Ordinance No. 4046.
NOW THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE
CITY OF PASCO:
That the City Council of the City of Pasco approves the incorporation of the 2022 Update
of the Pasco School District’s Capital Facilities Plan, a copy attached hereto as Exhibit A, into the
City of Pasco Comprehensive Land Use Plan.
Page 180 of 238
Resolution – Incorporate PSD’s 2022 Capital Facility Plan Update into COP Comp Plan - 2
Be It Further Resolved, that this Resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington, on this 21st day of
February, 2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 181 of 238
Pasco School District 2022-2028 CFP
Page 1 of 23
November 8, 2022
BOARD OF DIRECTORS
Scott Lehrman, President
Steven Christensen, Vice President
Jesse Campos, Member
Amy Phillips, Member
Steve Simmons, Member
PASCO SCHOOL DISTRICT NO. 1
2022-2028 CAPITAL FACILITIES PLAN
SUPERINTENDENT
Michelle Whitney
Adopted by the Pasco School Board of Directors
on November 8, 2022
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Pasco School District 2022-2028 CFP
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November 8, 2022
Section 6 Financing Plan ........................................ 13
Section 7 School Impact or Mitigation Fees .......... 14
Appendices
Appendix A—Charts & Supporting Data… ....... 15
Building Capacity ................................... 16
Building Condition Scores… .................. 17
Projected Enrollments ............................ 18
Needed Capacity ..................................... 19
Necessary Improvements & Costs… .... 20
Capital Facilities Financing Plan ............ 21
Appendix B—Impact Fee Calculations ............. 22
2022 Impact Fee… .................................. 23
TABLE OF CONTENTS
Section 1 Introduction ............................................... 3
Section 2 Program Standards ................................... 6
Section 3 Capital Facilities Inventory ....................... 8
Section 4 Enrollment Projections & Capacity ........ 11
Section 5 Capital Facilities Needs…………………..12
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November 8, 2022
SECTION 1
INTRODUCTION
A. Purpose of the 2022 Update to the Capital Facilities Plan
The Pasco School District (the “District”) in 2011 first adopted a Capital Facilities Plan (the
“2011 CFP”) in compliance with the Washington State Growth Management Act, Chapter
36.70A RCW (the “GMA”), and City of Pasco Ordinance 4046 (the “School Impact Fee
Ordinance”). The City of Pasco adopted the 2011 CFP on April 16, 2012, and adopted updates
to the CFP in 2014, 2016, and 2019.
Section 3.133.025 of the School Impact Fee Ordinance describes the elements that must be
addressed in the CFP. They include “the District’s standard of service, an inventory of facilities,
capacity by grade span, a six year enrollment forecast, facility needs and costs, a finance plan
and calculation of the school impact fees.” Once the CFP with these elements is adopted, the
Ordinance says “[t]he District shall file an update to its capital facility plan at least once every
two years.” And, “[a]t least once every two years, commencing on April 15, 2014, the City
Council shall review and consider the District submitted capital facilities plan update.” Following
the 2016 CFP, the District adopted an updated CFP in April 2018 and forwarded the 2018 CFP
update to the City of Pasco and Franklin County shortly thereafter. The City Council reviewed
but did not act on that update. The District subsequently submitted the 2019 CFP to the City
and the County, with the City subsequently adopting the 2019 CFP. Franklin County has yet to
adopt a version of the District’s Capital Facilities Plan. The global pandemic resulted in
extraordinary challenges for the District’s educational programming and planning. The District is
now, in the fall of 2022, able to reasonably plan for future growth-related needs and intends for
this 2022 CFP update to replace the 2019 CFP for all purposes, including the District’s
compliance with the above requirements in the School Impact Fee Ordinance. The 2022 CFP
update supplements and updates the core information in the 2011 CFP. The 2022 update also
includes an updated calculation for the District’s school impact fees.
B. Changes in the Pasco School District
The District now serves approximately 18,335 K-12 students (Chart 3 herein – average of headcount
enrollment for the 2021-22 school year, with October 1, 2022 enrollment tracking at 18,345
students), an increase of 555 students since 2016. Steady residential development within the
District’s boundaries continues. The latest demographics study prepared by the District (Chart 3
herein) projects that enrollment growth will continue at all grade levels over the six-year planning
period and beyond. Higher growth is projected at the K-5 and 9-12 levels, with 6-8 enrollment slightly
declining in the initial years of the planning period but thereafter returning to 2021 levels and
thereafter trending upward. Since the start of 2021 and through September 2022, the City of Pasco
approved the construction of 583 single family units and 22 multi-family units. There is also
continuing plat activity in the District’s boundaries within unincorporated Franklin County. The
District continues to review new residential development applications in Franklin County subject to
SEPA review. Additional SEPA-exempt residential development activity may also exist in Franklin
County.
Over the past 10 years, the District has engaged in community-driven capital planning
activities intended to construct all the improvements that are required to serve existing
needs (including those from recent residential growth) and forecasted growth. These
activities include:
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November 8, 2022
November 2013 bond: This bond was developed with several strategies to significantly reduce
the cost of the bond projects after the previous bond failed with a 48% yes vote in April 2011.
The Board engaged a community task force to provide recommendations regarding strategies
for handling enrollment growth. The task force considered multi-track/year-round options, and
recommended constructing additional elementary school capacity (vs. a middle school, which
would have been a more expensive project) and that the District use the additional elementary
capacity to house 6th grade students at the elementary level instead of the middle level.
• The three elementary schools approved in the 2013 bond opened in the 2014-2015
school year (one school) and the 2015-2016 school year (two schools). The added
capacity allowed the District to complete the plan to transition to a K-6 and 7-8
grade configuration in 2015-2016.
November 2017 bond: The District’s voters in November 2017 approved a $99.5 million
bond measure with a 60.07% yes vote (approval of a bond requires 60% yes votes) to fund
two new elementary schools, a new Middle School #4, and the replacement and expansion
of Stevens Middle School. The District’s Community Builders Group recommended these
projects for the bond, with the understanding that the additional middle level capacity would
cause the district to transition 6th grade back to the middle school. These projects are now
complete and the District has moved back to a K-5 and 6-8 grade model.
The Board of Directors has authorized a February 2023 bond proposal to its voters, which
will include, among other things, funding a new comprehensive high school #3, a small
innovative high school, modernized learning spaces for Career and Technical Education
(CTE) programs at Pasco and Chiawana High Schools, and land for growth.
The District has continued to engage in cost-saving measures in facilities planning, and will
continue to use cost-reduction strategies and District construction standards to save taxpayer
dollars. Pasco School District’s construction costs have normally been lower than other school
construction costs around the State of Washington. Examples of cost- reduction strategies
includes the following:
• Use property already owned by the district for school sites;
• Use the updated Pasco design that has been built multiple times for Pasco schools,
thereby saving A/E, construction and maintenance costs;
• Curie and Whittier Elementary Schools share one playground, reducing the amount
of land to be purchased;
• Build larger elementary schools to reduce the total number needed and create
efficiencies in operations;
• Build schools to serve at least 50 years; and
• Maintain school buildings well to ensure they last several decades;
• Seek alternative sources of facilities funding such as grants or private donations;
• Relocate portable classrooms to locations where enrollment is growing in lieu of
purchasing additional portable classrooms, wherever possible.
The voters of Washington State passed Initiative 1351 in 2014. The initiative imposes class
size values as recommended by the Legislature’s Quality Education Council (QEC). The class
size requirements have been implemented in part and delayed in part. Under the Supreme
Court’s McCleary decision, the Legislature is under court order to fully fund basic K-12
education, including the K-3 class size reductions. Initiative 1351 class sizes are reflected in
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Pasco School District 2022-2028 CFP
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November 8, 2022
Chart 1 and position the District for full legislative implementation.
The District implemented All-Day Kindergarten (ADK) in every elementary school in the 2015-
2016 school year. The District added portable classrooms to meet this requirement.
In Chart 2 in the Appendix, State scoring matrices show that Pasco School District is
effectively maintaining its schools as a community investment and asset, according to a third
party review. The schools’ adjusted maintenance score is significantly above its expected
score for the facility’s age, demonstrating effective maintenance by the district. These data
mean that they will last longer and be able to serve more students before needing to be
replaced.
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November 8, 2022
SECTION 2
DISTRICT EDUCATIONAL PROGRAM STANDARDS
The District’s core and special program needs, which are used to define the standard of service,
are addressed in the 2011 Capital Facilities Plan. The District has implemented K-3 class size
reduction and All Day Kindergarten and is positioned to implement I-1351’s targets for grades 4-
12. Below is the District’s adopted educational program standards (or standard of service).
A. Elementary Educational Program Standards
The state is required to provide funding for a student-to-teacher ratio of 17-1 in grades K-3 (15-1
for high poverty schools), consistent with QEC recommendations, Initiative 1351, and McCleary.
The class size of 15-17 impacts all elementary schools.
Elementary Class Size Requirements-Initiative 1351
Grades K-3 Enacted by the Legislature
Grades 4-12 Implementation Delayed
Grade
Levels
Initiative 1351
Class Sizes
District Contract
Class Sizes
High-Poverty Schools Non-High Poverty Schools
K-1 15 17 22
2-3 15 17 25
4-6 25 27
4 22
5 23
Capt. Gray Markham
Whittier McClintock
Robinson Livingston
Longfellow Angelou
Chess Columbia River
Emerson
Frost
Twain
Curie
Franklin
McGee
Three Rivers
B. Middle and High School Program Standards
Secondary (Middle and High) school class size standards also are projected to be reduced to
levels set by Initiative 1351 with recommendations to be mandated under McCleary as noted
below.
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Pasco School District 2022-2028 CFP
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November 8, 2022
Secondary Class Size Requirements-Initiative 1351
Grades K-3 Enacted by the Legislature
Grades 4-12 Implementation Delayed
Grade
Levels
Initiative 1351
Class Size
District Contract
Class Size
High-Poverty Schools Non-High Poverty Schools
6-8 23 25 30
9-12 23 25 30
Max
Stevens MS 150/day
Ochoa MS
McLoughlin MS
Reynolds MS
Pasco HS
Chiawana HS
New Horizons HS
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Pasco School District 2022-2028 CFP
Page 8 of 23
November 8, 2022
SECTION 3
CAPITAL FACILITIES INVENTORY
As described in the 2011 CFP, the District’s facilities inventory establishes a baseline for
determining the facilities necessary to accommodate future demand (student enrollment) at
acceptable levels of service. Three schools have been added and one school replaced and
expanded since the 2019 update to the CFP, resulting in an increase to the permanent
capacity calculation. New high school permanent capacity will be added through the 2028
planning period. The District will also move portables between schools and grade levels as
additional capacity is needed.
A. Capacity Calculation and Standard of Service
The District’s Board of Directors directed staff to conduct a comprehensive review of school
building capacity in 2017. The purpose of the review was to ensure consistent, reasonable
measures were being used to determine the capacity of each school building, and to provide a
safe and equitable standard of service for students throughout the school system.
Student safety has been a critical consideration for the District in determining this standard of
service. In 2014 and again in 2018, the District conducted a comprehensive safety review of
schools, including brick and mortar buildings and portable classrooms. It is the District’s goal to
house students in permanent facilities with controlled points of access, which can be best
accomplished by housing students in one contained brick and mortar building. Portable
classrooms will continue to be used as a temporary solution to provide student housing.
However, to achieve the desired standard of service to enhance student and staff safety,
portable classrooms should not be counted in the District’s permanent classroom inventory.
The state does not count portable classrooms when calculating a school district’s classroom
inventory for purposes of eligibility for state assistance for construction. In the 2011 CFP, the
District counted some portables into the permanent capacity calculation after consultation with
the City of Pasco. Based on the above considerations, however, the 2017 CFP update did not
include portable classrooms in calculating permanent capacity but still recognized the capacity
purpose. The 2019 CFP and this 2022 CFP update carry forward the 2017 CFP methodology.
B. Elementary Schools
The District currently has seventeen (17) elementary schools serving grades K-5 and providing
capacity to serve 8,898 students in permanent capacity. As of October 1, 2022, there were
8,106 elementary students enrolled.
Two new elementary schools, Columbia River Elementary School and Three Rivers
Elementary School, providing additional capacity for 1,288 elementary students, were
constructed and opened in the 2019 and 2020 school years, respectively.
As of the 2022 school year, there are 107 portable classrooms at the elementary schools
providing additional capacity to house 2,637 students.
The District purchased the former Pasco Senior Center and an adjacent vacant lot from the City
in 2016 for the purpose of the converting the building into an early learning facility. The District
pursued, and was granted, two capital appropriations from the state totaling $1.3 million dollars
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Pasco School District 2022-2028 CFP
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November 8, 2022
to help offset the costs. The Early Learning Center opened in January 2018, with designated
programs transitioned to the Center by September 2018. In addition, the District has leased the
former Kids World daycare facility on North 20th Avenue in Pasco to provide additional
classrooms for early learning. These projects have allowed the District to provide additional
capacity for K-5 students in elementary buildings by relocating early learning classes from the
elementary buildings to the new facilities.
C. Middle Schools
The District has four middle schools serving grades 6-8. The middle schools provide permanent
capacity to serve approximately 4,134 students. As of October 1, 2022, there were 4,216
students enrolled in those schools.
Middle School #4, Reynolds Middle School, and the replacement and expansion of Stevens
Middle School added permanent capacity for approximately 1,377 students in 2020 and 2021,
respectively.
As of the 2022 school year, there are 48 portable classrooms at the middle schools providing
additional capacity to house 1,094 students. Since 2011, the District added eighteen (18) new
portable classrooms as temporary capacity at the middle school level. The District plans to
add portable capacity at the middle school level during the six years of this CFP (either newly
purchased or relocated from the elementary grade level).
D. High Schools
There are two traditional high schools serving grades 9-12. There is permanent capacity in
those schools to serve 4,156 students. As of October 1, 2022 there were 6,023 students
enrolled. Pasco High School has additional capacity to serve students in 29 portable
classrooms and Chiawana High School has additional capacity to serves students in 32
portable classrooms.
New Horizons High School moved into a leased brick and mortar building on the Columbia
Basin College campus in 2017. The building capacity is 248. With New Horizons the
District has a total of 4,404 permanent capacity seats at the 9-12 level. The District
shares capacity at Delta, a STEM based high school with Kennewick and Richland School
Districts.
The District is currently planning, subject to future bond approval, for a third comprehensive high
school and a small innovative high school.
E. Support Facilities
Bus parking has been expanded into the District’s maintenance lay-down yard at the Port of
Pasco property (Building 210). The District leased additional space from the Port to replace the
lost lay-down yard capacity, and is also leasing additional warehouse space. The November
2017 bond provided funding for expansion of transportation and maintenance facilities, which
is expected to be complete in December 2022.
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November 8, 2022
F. Land Inventory
The District currently owns eleven unimproved parcels, totaling approximately ±180 acres.
The District acquired 82.17 acres (two parcels) in 2019 and a 13.00 acre lot was created
(from a larger lot) after the development of Columbia River Elementary and Reynolds Middle
School.
The District is planning to use property in the current inventory for the proposed new
comprehensive high school #3 and a small innovative high school if those projects are funded
as a part of the 2023 Bond.
Burns Road / 2,900 feet west of Broadmoor Blvd 115-180-042 72.50
NE of intersection of East Salt Lake & N. Utah Ave 113473091, 113474045, 113501023, 113501014, 113474054, 113501032 9.46
SE of intersection of East Salt Lake & N. Utah Ave 113501041 2.40
Burns Road & Road 60 114330046, 114330047 82.17
Road 90 / 750' north of Burns Road 115170072 13.00
TOTAL 179.53
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Pasco School District 2022-2028 CFP
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November 8, 2022
SECTION 4
STUDENT ENROLLMENT PROJECTIONS
AND CAPACITY BY GRADE SPAN
A. Projected Student Enrollment
Since 2016, the District received and reviewed four enrollment forecasts. For purposes of the
2022 CFP Update, the District is relying on the comprehensive forecast prepared internally by
the District. The forecast considers recent trends, including enrollment anomalies occurring
during the Covid-19 pandemic, data provided by MGT of America and demographer Paul
Dennis, and information related to known residential development data throughout the District’s
boundaries. See Appendix, Chart 3.
In October 2011, there were 15,707 students enrolled in grades K-12. In October 2018, there
were 18,432 students enrolled, which is an increase of 2,725 students. By 2028, the forecast
predicts there will be 19,574 students enrolled in grades K-12, which is an additional 1,142
students over 2018. These projections are down from recent years and reflect enrollment
anomalies from the pandemic and the subsequent period. The District plans to watch
enrollment closely and will update the CFP accordingly. The District recently added two new
elementary schools, which will continue to provide available K-5 capacity to serve new growth
within the planning period of this CFP, and will need to add permanent and temporary capacity
at the secondary level to serve secondary level needs (including growth needs).
B. Capacity by Grade Span
Current enrollment at each grade level is identified in Chart 1, which provides the actual
enrollment in District facilities as of October 1, 2022. Projected available student capacity
was derived by subtracting projected student 2028 enrollment (Chart 3) from total existing
October 2022 school capacity (Chart 1).
Enrollment in grades K-5 is expected to grow by approximately 299 students by 2028. Growth
at the K-5 level is expected to continue beyond the six year planning period.
Enrollment at the 6-8 level is projected to grow over the six year planning period and beyond,
with approximately 379 middle school students added by 2028. The construction of Reynolds
Middle School and the replacement/expansion of Stevens Middle School helped to provide
needed capacity to serve recent growth at the 6-8 level and also helped, with grade
reconfiguration, to relieve capacity constraints at the K-5 level. Portable additions will likely be
needed to address capacity needs at the 6-8 level.
Enrollment in grades 9-12 is forecasted for continued growth, adding nearly 551 students by
2028. The District has added capacity for additional students at New Horizons and Pasco High
School. However, the District will need to add capacity for at the high school level for purposes
of the six year planning period and beyond. The 2023 bond includes a planned new high school
#3 and a smaller innovative high school.
The current capacity in the existing schools and the capacity that is needed to serve forecast
growth through 2028 was revised based on class size reduction targets and construction
projects completed through the date of this CFP. Please see Chart 4 in the Appendix. Chart 4
does not consider capacity additions planned through 2028 and beyond.
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November 8, 2022
SECTION 5
CAPITAL FACILITIES NEEDS
To determine future facility needs, existing school program capacity was compared to
projected enrollment throughout the six-year forecast period. See Section 4.
In November 2017, the District’s voters passed a $99.5 million bond measure to help fund the
construction of two new elementary schools, a new middle school, the expansion and
replacement of Stevens Middle School, safety and health improvements at various schools, and
improvements to the District’s transportation and maintenance facilities. See Chart 5, Appendix.
The 2017 Bond projects are now mostly complete. The District is now planning for a future bond
measure to be presented to the voters in February 2023, to fund the construction of a new
comprehensive high school #3, a small innovative high school, modernized learning spaces for
Career and Technical Education (CTE) programs at Pasco and Chiawana High Schools, athletic
field upgrades, and property acquisition. Portable classrooms will be used to provide temporary
facilities while funding is secured to construct brick and mortar facilities. The new schools and
portable classrooms will provide the needed capacity identified in Section 4 above.
The District continues to have available capacity to serve growth at the K-5 level as a result of
the recent completion of the new Columbia River Elementary School and Three Rivers
Elementary School, funded by the 2017 Bond. The District is in early planning for a new
Elementary School #18 and capacity additions as a part of replacement of Livingston
Elementary School and McGee Elementary School.
In addition to building schools that add capacity for growth, the District will make other
improvements to serve students. The improvements will be constructed in phases and cannot
occur until bonds are approved by the voters. The District will continue with long term facilities
planning efforts using community recommendations to identify which projects should be
prioritized.
The District will continue to plan for needs beyond 2028. Chart 5 includes estimated permanent
improvements and capacity conditioned on future funding. Future updates to this CFP will
provide more specific information as to the District’s updated planning.
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November 8, 2022
SECTION 6
CAPITAL FACILITIES FINANCING PLAN
The District's ability to fund the planned improvements that will add capacity is dependent upon
the passage of bond elections at a 60% supermajority and receipt of State Construction
Assistance Program (SCAP) funds, also known as “state match” funds. Costs for improvements
that add capacity are used to calculate school impact fees. School impact fees, or SEPA
mitigation fees collected from some new development projects in unincorporated Franklin
County, will be used to pay for a portion of the improvements that add capacity. The majority of
the costs to construct the capacity improvements will be paid for with bonds and state match
funds. See Section 6 of the 2011 CFP for a complete discussion regarding the framework for
financing planned improvements.
To serve growth needs identified in this CFP, the District plans to construct new schools
consistent with the funding identified in this CFP. Charts 5 and 6 have detailed information on
the 2023 Bond projects, with the new comprehensive high school #3, innovative high school,
and CTE program improvements at PHS and CHS all being growth-related projects. The
District’s voters, through the 2017 Bond, front funded the recently constructed Columbia River
Elementary School and Three Rivers Elementary School. Both projects provide continuing
available capacity at the K-5 level to serve growth expected at the at grade level over the six
year planning period. The District may also add portables to serve interim growth needs.
In addition to construction of facilities to add capacity, the District also needs to acquire school
sites for future construction, and must make a variety of improvements that are needed at
existing facilities. A key Community Builders Group recommendation was to address capital
facilities needs related to safety and health.
The Capital Facilities Financing Plan in Chart 6 demonstrates how the District intends to fund
new construction and improvements to school facilities during the six year planning period
(and also includes financing information related to the recently completed elementary
schools).
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November 8, 2022
SECTION 7
SCHOOL IMPACT OR MITIGATION FEES
The District’s ability to fund the improvements that are needed to serve forecast growth depends
on new development contributing to the cost to build the schools that will serve the students that
live in new housing. The District is collecting school impact fees from development in the City
and will continue to seek mitigation fees from developers in Franklin County (and continue to
request that Franklin County adopt a GMA-based school impact fee ordinance). The District’s
desire and intent is that school mitigation is collected from all residential development within the
District in an equitable and comprehensive manner. The District files annual reports with the
City regarding the use of the school impact fees.
The District has calculated school impact fees using a standard school impact fee formula,
adopted by the City of Pasco and many other Washington cities and counties, that complies
with the Growth Management Act. The resulting figures are based on the District’s cost per
dwelling unit to construct schools needed to serve new development. A student factor (or
student generation rate) is used to identify the average cost per dwelling unit by measuring the
average number of students generated by each housing type (single-family dwellings and multi-
family dwellings). The District hires a consultant to update the student factor methodology
based upon the last six years of residential development data within the District, as required
by the City of Pasco School Impact Fee Ordinance. In this year’s CFP, the District is
continuing to use the student factor used in the 2019 CFP given that the pandemic
disrupted typical student enrollment and the District, like other school districts around the
State, has found tha t updated figures would not reflect accurately the number of students
residing within newly constructed dwelling units. The District will update the student factor
in the next update to the CFP. As required under the GMA, credits are applied in the formula
to account for State School Construction Assistance funds to be reimbursed to the District and
projected future property taxes to be paid by the dwelling unit. The costs of projects that do not
add capacity are not included in the impact fee calculations. Furthermore, impact fees will not
be used to address existing deficiencies.
The following projects are included in the impact fee calculation:
• New Elementary School capacity (based on the average cost of Elementary 16 and 17,
recently constructed and opened, providing remaining available capacity at the K-5 level to
serve growth); and
• New Comprehensive High School #3.
Please see Chart 6.
The calculated impact fee amounts (reduced by 25%), in Appendix B, are $7,421 for each single
family residence and $14,640 for each multi-family residence. However, the District is
requesting the City continue collecting the current amounts which are:
Single Family: $4,700
Multi Family: $4,525
The District began receiving impact fees from the City in 2012. Through July 2022, the District has
received approximately $21,274,183.00 in impact fee and mitigation fee revenue. Of that amount,
$1,250,000 was used to reduce the principal of the 2013 bond, $5,374,972 has been used for portable
classrooms (new and relocated), $4,899,155 has help fund property acquisitions, and $2,000,000 was
Page 195 of 238
Pasco School District 2022-2028 CFP
Page 15 of 23
November 8, 2022
used to reduce the principal of the 2017 bond. The District plans to use remaining revenue for growth-
related projects including portables, land acquisition, and reducing the cost of the 2017 Bond
projects. The District will use future impact fees and mitigation fees as allowed by law for growth-
related impacts identified in the CFP.
Page 196 of 238
Pasco School District 2022-2028 CFP
Page 16 of 23
November 8, 2022
CONCLUSION
The District continues to use a variety of strategies to plan, reduce costs, and mitigate the
effects of student enrollment growth. Receipt of impact fees remains critical to ensuring the
District can manage growth by providing sufficient student facilities. The forecast of steady
enrollment growth over the next six years underscores the need to use a variety of financing
measures, including the passage of bonds, expenditure from the General Fund, and impact
fees/SEPA mitigation fees to meet the needs of the community.
Page 197 of 238
Pasco School District Capital Facilities Plan Update
Appendix A
Page 15 of 23
October 2022
APPENDIX A
Charts with Supporting Data
Page 198 of 238
Pasco School District Capital Facilities Plan Update
Appendix A
Page 16 of 23
October 2022
Chart 1
Building Capacity
October 2022
Page 199 of 238
Pasco School District Capital Facilities Plan Update
Appendix A
Page 17 of 23
October 2022
Chart 2
Pasco School District Asset Preservation Program
2022 Building Condition Scores
OSPI 2020 2021 2022
Building
Age in
Years
Current
Draft Score
by Age
Adjusted
B.C.E.
Adjusted
B.C.E.
Adjusted
B.C.E.
Emerson 26 74 N/R 85.69 79.2
Frost 26 74 N/R 85.34 81.56
Franklin 9 95 N/R 98.42 97.34
McClintock 8 97 N/R 97.69 96.21
Curie 8 97 N/R 98.81 98.04
Chiawana High School 14 90 N/R 94.40 92.05
Delta High School 8 97 N/R 96.10 95.78
Three Rivers 3 100 N/R 100 100
Columbia River 2 100 N/R 100 100
Ray Reynolds Middle School 2 100 N/R 100 100
Stevens Middle School 1 100 N/R 100 100
“B.C.E.” is the Building Condition Evaluation score given by OSPI for those facilities in which
State School Construction Assistance Program (state match) dollars were used. The
Current Draft Score” is OSPI’s expected score for the age of the facility, given average use
and maintenance. Buildings were not reviewed (N/R) in 2019 due to COVID.
Pasco High School is no longer assigned a B.C.E. score for purposes of state reporting
because of the age of the facility. However, the district continues to monitor and score Pasco
High School for internal monitoring purposes.
Page 200 of 238
Pasco School District Capital Facilities Plan Update
Appendix A
Page 18 of 23
October 2022
Chart 3
Projected Enrollment
Pasco School District Baseline Growth Enrollment Forecast (2021-2040)0.75%1.50%1.75%
Grade 2021 2022 2023 2024 2025 2026 2027 2028 2029
K 1,266 1,394 1,312 1,322 1,332 1,342 1,352 1,362 1,372
1 1,316 1,292 1,378 1,388 1,399 1,409 1,420 1,430 1,441
2 1,383 1,327 1,292 1,302 1,311 1,321 1,331 1,341 1,351
3 1,377 1,381 1,340 1,350 1,360 1,370 1,381 1,391 1,401
4 1,385 1,388 1,377 1,387 1,398 1,408 1,419 1,429 1,440
5 1,441 1,389 1,398 1,408 1,419 1,430 1,440 1,451 1,462
6 1,505 1,416 1,375 1,396 1,417 1,438 1,459 1,481 1,503
7 1,505 1,505 1,398 1,419 1,440 1,462 1,484 1,506 1,529
8 1,478 1,493 1,492 1,514 1,537 1,560 1,584 1,607 1,631
9 1,476 1,500 1,516 1,543 1,570 1,597 1,625 1,653 1,682
10 1,427 1,468 1,511 1,537 1,564 1,592 1,620 1,648 1,677
11 1,328 1,418 1,455 1,480 1,506 1,533 1,560 1,587 1,615
12 1,468 1,392 1,546 1,573 1,601 1,629 1,657 1,686 1,716
Total 18,355 18,363 18,390 18,620 18,854 19,090 19,331 19,574 19,821
K-6 9,673 9,587 9,472 9,553 9,635 9,718 9,802 9,886 9,972
K-5 8,168 8,171 8,097 8,158 8,219 8,281 8,343 8,405 8,468
7-8 2,983 2,998 2,890 2,933 2,977 3,022 3,067 3,113 3,160
6-8 4,488 4,414 4,265 4,329 4,394 4,460 4,527 4,595 4,664
9-12 5,699 5,778 6,028 6,133 6,241 6,350 6,461 6,574 6,689
18,355 18,363 18,390 18,620 18,854 19,090 19,331 19,574 19,821
Actual Baseline Forecast
Page 201 of 238
Pasco School District Capital Facilities Plan Update
Appendix A
Page 19 of 23
October 2022
Chart 4
2028 Student Capacity and Future Need
Building
Capacity
2022
Total Capacity
(Permanent/Portable)
2022
Oct 22
Enrollment
Forecast
Enrollment
2028
Needed
Capacity
(Permanent)
2028
Elementary
(K-5)
8,898
11,534 8,106 8,405 ---
Middle (6-8) 4,134 5,229 4,216 4,595 461
High (9-
12) 4,403 5,775 6,023 6,574 2,171
“Building Capacity” is the number of classrooms multiplied by the weighted average I-1351
class size for non-high poverty schools, multiplied by a utilization factor to allow for planning
time and other uses.
“Forecast Enrollment 2028” is based on Chart 3.
“Needed Capacity” includes total (permanent/portable) capacity but does not include new
capacity planned for completion through 2028, portable additions/relocations, or grade
reconfiguration.
Page 202 of 238
Pasco School District Capital Facilities Plan Update
Appendix A
Page 20 of 23
October 2022
Chart 5
Necessary Facility Improvements, Added Capacity and Costs
2022 Update
2023 BOND PROJECT ESTIMATES
High School #3 2000 $185,363,000
Innovative High School 600 $37,500,000
CTE PHS/CHS 75 $12,000,000
Athletic Fields N/A $2,000,000
Land Acquisition N/A $10,000,000
Total 2023
Bond Project Estimates 2675 $246,863,000
ESTIMATED PERMANENT IMPROVEMENTS & CAPACITY CONDITIONED ON
FUTURE BOND AND STATE ASSISTANCE
Livingston Replacement 220 $42,000,000
Middle School #5 900 $61,985,000
New Elementary #18 620 $42,000,000
Land Acquisition (80 acres) N/A $12,000,000
McGee Replacement 220 $42,500,000
McLoughlin MS
Replacement
0 $70,000,000
Total Permanent Capacity 1,960 $270,485,000
TEMPORARY CAPACITY IMPROVEMENTS
Portable Classrooms 460 $3,250,000
Total 460 $3,250,000
TOTALS 5,095 $520,598,000
Page 203 of 238
Appendix A Page 21 of 23
October 2022
Chart 6
Capital Facilities Financing Plan
Project Estimates
2023 Bond Projects and Future Planning:
Project
Added
Capacity
Est.
Cost
Source of Funding
Bonds State
Match
Impact/
Mitigation Fees
General
Fund
February 2023 Bond Projects and Other Improvements
High School #3 220 $185,000,000 $140,000,000 $45,000,000 Portion TBD
Innovative High School 600 $37,500,000 $37,500,000 $0 Portion TBD
CTE CHS/PHS 75 $12,000,000 $12,000,000* $0
Portion TBD
Athletic Fields $2,000,000 $2,000,000
Land Acquisition $10,000,000 $10,000,000 Portion TBD
Future Bond Projects (Subject to Future Planning & Board Approval)
Livingston Replacement 2,000 $42,000,000 $24,360,000 $17,640,000 Portion TBD
Middle School #5 900 $61,985,000 $61,985,000 $0
New Elementary #18 620 $42,000,000 $42,000,000 $0 Portion TBD
Land Acquisition (80 acres) $10,000,000 N/A N/A Portion TBD
McGee Replacement 220 $42,500,000 $24,650,000 $17,850,000 Portion TBD
McLoughlin MS Replacement 0 $70,000,000 $40,600,000 $29,400,000 Portion TBD
Portable Classrooms 460 $3,250,000 $3,250,000 $0 Portion TBD
2017 Bond Elementary School Projects (for information only;
relevant to impact fee calculation):
Project
Added
Capacity
Est.
Cost
Source of Funding
Bonds State
Match
Impact/
Mitigation Fees
General
Fund
Completed New Elementary Schools - 2017 Bond Projects
Elementary #16 620 $27,300,000 $18,700,000 $8,600,000 Portion TBD
Elementary #17 620 $28,500,000 $19,900,000 $8,600,000 Portion TBD
“State Match” refers to funds allocated by the State of Washington through the School
Construction Assistance Program administered by OSPI. This number is an estimate of state
matching funds and is subject to verification by OSPI.
*The “portion TBD” of impact fee revenue used to fund the growth-related capacity projects will
be determined based upon impact fee revenue received from new development. Impact fee
revenue may be able to offset debt service on the bonds and result in tax savings to the
existing community.
Pasco School District Capital Facilities Plan Update
Page 204 of 238
Pasco School District Capital Facilities Plan Update
Appendix B, Page 22 of 23
October 2022
APPENDIX B
IMPACT FEE CALCULATIONS
Page 205 of 238
Pasco School District Capital Facilities Plan Update
Appendix B, Page 23 of 23
October 2022
Page 206 of 238
PASCO SCHOOL DISTRICT ENROLLMENT HISTORY
Year Total K-5 6-8 9-12
2022 18,519 8,184 4,312 6,023
2021 18,509 8,155 4,443 5,911
2020 18,403 8,205 4,476 5,722
2019 18,795 8,722 4,506 5,567
2018 18,422 8,733 4,335 5,354
2017 18,095 8,734 4,140 5,221
2016 17,777 8,717 4,034 5,026
2015 17,352 8,628 3,820 4,904
2014 17,016 8,546 3,823 4,647
2013 16,614 8,476 3,646 4,492
Page 207 of 238
AGENDA REPORT
FOR: City Council February 16, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Zach Ratkai, Director
Administrative & Community Services
SUBJECT: *Resolution No. 4313 - Purchase and Sale Agreement for Real Property
(Rico ROW)
I. REFERENCE(S):
Resolution
Purchase and Sale Agreement
Addendum to Purchase and Sale Agreement
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4313, authorizing the purchase of
real property located at 3932 East Lewis Street, Pasco, Washington, for future
right-of-way.
III. FISCAL IMPACT:
Purchase Price $61,567 - Funded through the 194 Economic Development
Fund
IV. HISTORY AND FACTS BRIEF:
In order to provide connection and right -of-way to serve growing industrial
development in this area of Pasco, the City wishes to purchase this portio n of
right-of-way to complete the future construction of Road 40 East. A mutually
agreed on price had been negotiated with the property owner, John M. Rico,
d/b/a Rico Ag Services, LLC. Additional properties were purchased through
separate Purchase and Sale Agreements (PSA) to complete this right-of-way
connection.
V. DISCUSSION:
Staff is recommending approval of the Resolution and the PSA as negotiated.
Page 208 of 238
Resolution - PSA – ROW Property from Rico – 1
RESOLUTION NO. 4313
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE PURCHASE OF REAL PROPERTY LOCATED AT 3932
EAST LEWIS STREET, PASCO, WASHINGTON.
WHEREAS, owners of property located at 3932 East Lewis Street, Pasco, Washington,
have authorized sale of a portion of said property for the amount of sixty-one thousand, five
hundred and sixty-seven dollars ($61,567.00); and
WHEREAS, this purchase is strategic in planning for right-of-way acquisition for the
extension of Road 40 East; and
WHEREAS, the City has reviewed the Purchase and Sale Agreement and all associated
documents; and
WHEREAS, the City has appropriated funding for purchase in the amount of the listing
price.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
That the attached Purchase and Sale Agreement is satisfactory to the goals and budget for
the City of Pasco and the purchase of the subject property is advantageous to the City.
Be It Further Resolved that the Interim City Manager is hereby authorized to execute the
Purchase and Sale Agreement attached hereto as Exhibit A; and to make minor substantive
changes necessary to execute the Agreement.
Be It Further Resolved that this Resolution shall take effect and be in full force
immediately upon passage by the City Council.
PASSED by the City Council of the City of Pasco, Washington, on this 21st day of
February, 2023.
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 209 of 238
Commercial & Investment Real Estate
Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
Page |1 15
SPECIFIC TERMS
Reference Date: July 22, 2022
Offer Expiration Date: August 10, 2022 5:00pm
1.PROPERTY: The Property is legally described on Exhibit A. Address: right of way section from
3932 E. Lewis Place City of Pasco, Franklin County, Washington. Tax Parcel No(s): 113.730.035
Included Personal Property: X None; If on and used in connection with the Property, per
Section 25 (None, if not completed).
2.BUYER(S): City of Pasco
3.SELLER(S): John M. Rico
4.PURCHASE PRICE: $ 61,567
Payable as: X Cash; Financing (Form PS_FIN attached); Other
5.EARNEST MONEY: $ 5,000 Dollars; Held by Closing Agent
Form of Earnest Money: X Check; Wire Transfer; Note; Other
Earnest Money Due Date: X 5 days after Mutual Acceptance; days after satisfaction
of Feasibility Contingency; or
6.FEASIBILITY CONTINGENCY DATE: 60 days after Mutual Acceptance
7.CLOSING DATE: on or before tbd
8.CLOSING AGENT: Ticor Title | Patty Sweetwood
9.TITLE INSURANCE COMPANY: Ticor Title
10. DEED: X Statutory Warranty Deed; or Bargain and Sale Deed
11.POSSESSION: X on closing; Other:
12. SELLER CITIZENSHIP (FIRPTA): Seller is; X is not a foreign person for the purposes of US
income taxation.
13. BUYER’S DEFAULT: X Forfeiture of Earnest Money; Seller’s Election of Remedies
14. SELLER’S DEFAULT: X Recover Earnest Money or Specific Enforcement; Buyer’s Election of
Remedies
15. UNPAID UTILITIES: Buyer and Seller Don Not Waive (Form UA attached); X Waive
16. AGENCY DISCLOSURE: Selling Broker represents: X Buyer; Seller; both parties
Listing Broker represents: Seller; both parties
17.EXHIBITS AND ADDENDA. The following Exhibits and Addenda are made a part of this
Agreement:
Earnest Money Promissory Note Back-Up Addendum
Buyer Date Buyer Date
Seller Date Seller Date
DocuSign Envelope ID: 337F22B2-7DDD-4781-885D-FEACB1F22A68
11/9/2022
8/30/2022
Page 210 of 238
Commercial & Investment Real Estate
Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
Page |2 15
Blank Promissory Note Vacant Land Addendum
Blank Short Form Deed of Trust Financing Addendum
Blank Deed of Trust Rider Tenant Estoppel Certificate(s)
Utility Charges Addendum Defeasance Addendum
FIRPTA Certification Lead-Based Paint Disclosure
Assignment and Assumption X Exhibit A: Legal Description
Addendum/Amendment X Exhibit B: Additional Terms
18. IDENTIFICATION OF THE PARTIES. The following is the contact information for the parties
involved in this Agreement:
Buyer Seller
Contact: Zach Ratkai Contact: John M. Rico
Address: 523 N. 3rd Ave. Address: 15 W 45th Ave.
Pasco, WA 99301 Kennewick, WA 99337
Phone: 509.537.2078 Phone:
Email: ratkaiz@pasco-wa.gov Email: jmr1411@gmail.com
Selling Firm Listing Firm
Name: SVN | Retter & Company Name: NONE
Listing Broker: Rob Ellsworth Selling Broker:
Address: 329 N. Kellogg St. Address:
Kennewick, WA 99336
Phone: 509.430.2378 Phone:
Email: Rob@RobEllsworth.com Email:
Firm Lic. #: 20279 Firm Lic. #:
Broker Lic. #: 17790 Broker Lic. #:
Copy of Notices to Buyer to: Copy of Notices to Seller to:
Name: Name:
Company: Company:
Address: Address:
Phone: Phone:
Email: Email:
19. Purchase and Sale. Buyer agrees to buy and Seller agrees to sell the commercial real estate
identified in Section 1 as the Property and all improvements thereon. Unless expressly provided
otherwise in this Agreement or its Addenda, the Property shall include (i) all of Seller’s rights,
title and interest in the Property, (ii) all easements and rights appurtenant to the Property, (iii)
all buildings, fixtures, and improvements on the Property, (iv) all unexpired leases and
subleases; and (v) all included personal property.
20. Acceptance; Counteroffers. If this offer is not timely accepted, it shall lapse and the earnest
money shall be refunded to Buyer. If either party makes a future counteroffer, the other party
shall have until 5:00 p.m. on the day (if not filled in, the second day) following receipt to
accept the counteroffer, unless sooner withdrawn. If the counteroffer is not timely accepted or
countered, this Agreement shall lapse and the earnest money shall be refunded to Buyer. No
acceptance, offer or counteroffer from Buyer is effective until a signed copy is received by
Seller, the Listing Broker or the licensed office of the Listing Broker. No acceptance, offer or
counteroffer from Seller is effective until a signed copy is received by Buyer, the Selling Broker
Buyer Date Buyer Date
Seller Date Seller Date
DocuSign Envelope ID: 337F22B2-7DDD-4781-885D-FEACB1F22A68
11/9/2022
8/30/2022
Page 211 of 238
Commercial & Investment Real Estate
Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
Page |3 15
or the licensed office of the Selling Broker. "Mutual Acceptance" shall occur when the last
counteroffer is signed by the offeree, and the fully-signed counteroffer has been received by
the offeror, his or her broker, or the licensed office of the broker. If any party is not represented
by a broker, then notices must be delivered to that party and shall be effective when received
by that party.
21. Earnest Money. Selling Broker and Selling Firm are authorized to transfer Earnest Money to
Closing Agent as necessary. Selling Firm shall deposit any check to be held by Selling Firm
within 3 days after receipt or Mutual Acceptance, whichever occurs later. If the Earnest Money
is to be held by Selling Firm and is over $10,000, it shall be deposited to: the Selling Firm's
pooled trust account (with interest paid to the State Treasurer); or a separate interest
bearing trust account in Selling Firm's name, provided that Buyer completes an IRS Form W-9
(if not completed, separate interest bearing trust account). The interest, if any, shall be credited
at closing to Buyer. If this sale fails to close, whoever is entitled to the Earnest Money is
entitled to interest. Unless otherwise provided in this Agreement, the Earnest Money shall be
applicable to the Purchase Price.
22. Title Insurance.
a. Title Report. Seller authorizes Buyer, its Lender, Listing Broker, Selling Broker or Closing
Agent, at Seller’s expense, to apply for and deliver to Buyer a standard coverage owner’s
policy of title insurance from the Title Insurance Company. Buyer shall have the discretion to
apply for an extended coverage owner’s policy of title insurance and any endorsements,
provided that Buyer shall pay the increased costs associated with an extended policy
including the excess premium over that charged for a standard coverage policy, the cost of
any endorsements requested by Buyer, and the cost of any survey required by the title
insurer. If Seller previously received a preliminary commitment from a title insurer that Buyer
declines to use, Buyer shall pay any cancellation fee owing to the original title insurer.
Otherwise, the party applying for title insurance shall pay any title cancellation fee, in the
event such a fee is assessed.
b. Permitted Exceptions. Buyer shall notify Seller of any objectionable matters in the title
report or any supplemental report within the earlier of: (a) days (20 days if not completed)
after receipt of the preliminary commitment for title insurance; or (b) the Feasibility
Contingency Date. This Agreement shall terminate and Buyer shall receive a refund of the
earnest money, less any costs advanced or committed for Buyer, unless within five (5) days of
Buyer’s notice of such objections Seller shall give notice, in writing, of its intent to remove all
objectionable provisions before Closing. If Seller fails to give timely notice that it will clear all
disapproved objections, this Agreement shall automatically terminate and Buyer shall receive
a refund of the earnest money, less any costs advanced or committed for Buyer, unless Buyer
notifies Seller within three (3) days that Buyer waives any objections which Seller does not
agree to remove. If any new title matters are disclosed in a supplemental title report, then the
preceding termination, objection and waiver provisions shall apply to the new title matters
except that Buyer’s notice of objections must be delivered within three (3) days of receipt of
the supplemental report by Buyer and Seller’s response or Buyer’s waiver must be delivered
within two (2) days of Buyer’s notice of objections. The Closing Date shall be extended to the
extent necessary to permit time for these notices. Buyer shall not be required to object to any
mortgage or deed of trust liens, or the statutory lien for real property taxes, and the same
shall not be deemed to be Permitted Exceptions; provided, however, that the lien securing
any financing which Buyer has agreed to assume shall be a Permitted Exception. Except for
the foregoing, those provisions not objected to or for which Buyer waived its objections shall
be referred to collectively as the “Permitted Exceptions.” Seller shall reasonably cooperate
with Buyer and the title company to clear objectionable title matters and shall provide an
affidavit containing the information and reasonable covenants requested by the title
company. The title policy shall contain no exceptions other than the General Exclusions and
Exceptions common to such form of policy and the Permitted Exceptions.
Buyer Date Buyer Date
Seller Date Seller Date
DocuSign Envelope ID: 337F22B2-7DDD-4781-885D-FEACB1F22A68
11/9/2022
8/30/2022
Page 212 of 238
Commercial & Investment Real Estate
Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
Page |4 15
c. Title Policy. At Closing, Buyer shall receive an ALTA Form 2006 Owner’s Policy of Title
Insurance with standard or extended coverage (as specified by Buyer) dated as of the Closing
Date in the amount of the Purchase Price, insuring that fee simple title to the Property is
vested in Buyer, subject only to the Permitted Exceptions (“Title Policy”), provided that Buyer
acknowledges that obtaining extended coverage may be conditioned on the Title Company’s
receipt of a satisfactory survey paid for by Buyer. If Buyer elects extended coverage, then
Seller shall execute and deliver to the Title Company on or before Closing the such affidavits
and other documents as the Title Company reasonably and customarily requires to issue
extended coverage.
23. Feasibility Contingency. Buyer’s obligations under this Agreement are conditioned upon
Buyer's satisfaction, in Buyer’s sole discretion, concerning all aspects of the Property, including
its physical condition; the presence of or absence of any hazardous substances; the contracts
and leases affecting the Property; the potential financial performance of the Property; the
availability of government permits and approvals; and the feasibility of the Property for Buyer's
intended purpose. This Agreement shall terminate and Buyer shall receive a refund of the
earnest money unless Buyer gives notice that the Feasibility Contingency is satisfied to Seller
before 5:00pm on the Feasibility Contingency Date. If such notice is timely given, the feasibility
contingency shall be deemed to be satisfied and Buyer shall be deemed to have accepted and
waived any objection regarding any aspects of the Property as they exist on the Feasibility
Contingency Date.
a. Books, Records, Leases, Agreements. Within 3 days (3 days if not filled in) Seller shall
deliver to Buyer or post in an online database maintained by Seller or Listing Broker, to which
Buyer has been given unlimited access, true, correct and complete copies of all documents in
Seller’s possession or control relating to the ownership, operation, renovation or development
of the Property, excluding appraisals or other statements of value, and including the
following: statements for real estate taxes, assessments, and utilities for the last three years
and year to date; property management agreements and any other agreements with
professionals or consultants; leases or other agreements relating to occupancy of all or a
portion of the Property and a suite-by-suite schedule of tenants, rents, prepaid rents,
deposits and fees; plans, specifications, permits, applications, drawings, surveys, and studies;
maintenance records, accounting records and audit reports for the last three years and year
to date; any existing environmental reports; any existing surveys; any existing inspection
reports; and “Vendor Contracts” which shall include maintenance or service contracts, and
installments purchase contracts or leases of personal property or fixtures used in connection
with the Property. Buyer shall determine by the Feasibility Contingency Date: (i) whether Seller
will agree to terminate any objectionable Vendor Contracts; and (ii) whether Seller will agree
to pay any damages or penalties resulting from the termination of objectionable Vendor
Contracts. Buyer’s waiver of the Feasibility Contingency shall be deemed Buyer’s acceptance
of all Vendor Contracts which Seller has not agreed in writing to terminate. Buyer shall be
solely responsible for obtaining any required consents to such assumption and the payment
of any assumption fees. Seller shall cooperate with Buyer's efforts to receive any such
consents but shall not be required to incur any out-of-pocket expenses or liability in doing so.
Any information provided or to be provided by Seller with respect to the Property is solely for
Buyer’s convenience and Seller has not made any independent investigation or verification of
such information (other than that the documents are true, correct, and complete, as stated
above) and makes no representations as to the accuracy or completeness of such
information, except to the extent expressly provided otherwise in this Agreement. Seller shall
transfer the Vendor Contracts as provided in Section 25.
b. Access. Seller shall permit Buyer and its agents, at Buyer's sole expense and risk, to enter
the Property at reasonable times subject to the rights of and after legal notice to tenants, to
conduct inspections concerning the Property, including without limitation, the structural
condition of improvements, hazardous materials, pest infestation, soils conditions, sensitive
areas, wetlands, or other matters affecting the feasibility of the Property for Buyer’s intended
Buyer Date Buyer Date
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use. Buyer shall schedule any entry onto the Property with Seller in advance and shall comply
with Seller's reasonable requirements including those relating to security, confidentiality, and
disruption of Seller's tenants. Prior to entering the Property and while conducting any
inspections, Buyer shall, at no cost or expense to Seller: (a) procure and maintain commercial
general liability (occurrence) insurance in an amount no less than $2,000,000 on
commercially reasonable terms adequate to insure against all liability arising out of any entry
onto or inspections of the Property that lists Seller and Tenant as additional insureds; and (b)
deliver to Seller prior to entry upon the Property certificates of insurance for Buyer and any
applicable agents or representatives evidencing such required insurance. Buyer shall not
perform any invasive testing including environmental inspections beyond a phase I
assessment or contact the tenants or property management personnel without obtaining
Seller's prior written consent, which shall not be unreasonably withheld, conditioned or
delayed. Buyer shall restore the Property and all improvements to substantially the same
condition they were in prior to inspection. Buyer shall be solely responsible for all costs of its
inspections and feasibility analysis and has no authority to bind the Property for purposes of
statutory liens. Buyer agrees to indemnify and defend Seller from all liens, costs, claims, and
expenses, including attorneys' and experts' fees, arising from or relating to entry onto or
inspection of the Property by Buyer and its agents, which obligation shall survive closing.
Buyer may continue to enter the Property in accordance with the foregoing terms and
conditions after removal or satisfaction of the Feasibility Contingency only for the purpose of
leasing or to satisfy conditions of financing.
c. Buyer waives, to the fullest extent permissible by law, the right to receive a seller disclosure
statement (e.g. “Form 17”) if required by RCW 64.06 and its right to rescind this Agreement
pursuant thereto. However, if Seller would otherwise be required to provide Buyer with a Form
17, and if the answer to any of the questions in the section of the Form 17 entitled
“Environmental” would be “yes,” then Buyer does not waive the receipt of the “Environmental”
section of the Form 17 which shall be provided by Seller.
24. Conveyance. Title shall be conveyed subject only to the Permitted Exceptions. If this
Agreement is for conveyance of Seller’s vendee’s interest in a Real Estate Contract, the deed
shall include a contract vendee’s assignment sufficient to convey after-acquired title. At
Closing, Seller and Buyer shall execute and deliver to Closing Agent CBA Form PS-AS
Assignment and Assumption Agreement transferring all leases and Vendor Contracts assumed
by Buyer pursuant to Section 25(b) and all intangible property transferred pursuant to Section
25(b).
25. Personal Property.
a. If this sale includes the personal property located on and used in connection with the
Property, Seller will itemize such personal property in an Exhibit to be attached to this
Agreement within ten (10) days of Mutual Acceptance. The value assigned to any personal
property shall be $ (if not completed, the County-assessed value if available, and if not
available, the fair market value determined by an appraiser selected by the Listing Broker and
Selling Broker). Seller warrants title to, but not the condition of, the personal property and
shall convey it by bill of sale.
b. In addition to the leases and Vendor Contracts assumed by Buyer pursuant to Section 24
above, this sale includes all right, title and interest of Seller to the following intangible
property now or hereafter existing with respect to the Property including without limitation:
all rights-of-way, rights of ingress or egress or other interests in, on, or to, any land, highway,
street, road, or avenue, open or proposed, in, on, or across, in front of, abutting or adjoining
the Property; all rights to utilities serving the Property; all drawings, plans, specifications and
other architectural or engineering work product; all governmental permits, certificates,
licenses, authorizations and approvals; all rights, claims, causes of action, and warranties
under contracts with contractors, engineers, architects, consultants or other parties
Buyer Date Buyer Date
Seller Date Seller Date
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associated with the Property; all utility, security and other deposits and reserve accounts
made as security for the fulfillment of any of Seller's obligations; any name of or telephone
numbers for the Property and related trademarks, service marks or trade dress; and
guaranties, warranties or other assurances of performance received.
26. Seller’s Underlying Financing. Unless Buyer is assuming Seller’s underlying financing, Seller
shall be responsible for confirming the existing underlying financing is not subject to any "lock
out" or similar covenant which would prevent the lender's lien from being released at closing.
In addition, Seller shall provide Buyer notice prior to the Feasibility Contingency Date if Seller is
required to substitute securities for the Property as collateral for the underlying financing
(known as “defeasance”). If Seller provides this notice of defeasance to Buyer, then the parties
shall close the transaction in accordance with the process described in CBA Form PS_D or any
different process identified in Seller’s defeasance notice to Buyer.
27. Closing of Sale. Buyer and Seller shall deposit with Closing Agent by 12:00 p.m. on the
scheduled Closing Date all instruments and monies required to complete the purchase in
accordance with this Agreement. Upon receipt of such instruments and monies, Closing Agent
shall cause the deed to be recorded and shall pay to Seller, in immediately available funds, the
Purchase Price less any costs or other amounts to be paid by Seller at Closing. “Closing” shall
be deemed to have occurred when the deed is recorded and the sale proceeds are available to
Seller. Time is of the essence in the performance of this Agreement. Sale proceeds shall be
considered available to Seller, even if they cannot be disbursed to Seller until the next business
day after Closing. Notwithstanding the foregoing, if Seller informed Buyer before the Feasibility
Contingency Date that Seller’s underlying financing requires that it be defeased and may not
be paid off, then Closing shall be conducted in accordance with the three(3)-day closing
process described in CBA Form PS_D. This Agreement is intended to constitute escrow
instructions to Closing Agent. Buyer and Seller will provide any supplemental instructions
requested by Closing Agent provided the same are consistent with this Agreement.
28. Closing Costs and Prorations. Seller shall deliver an updated rent roll to Closing Agent not
later than two (2) days before the scheduled Closing Date in the form required by Section 23(a)
and any other information reasonably requested by Closing Agent to allow Closing Agent to
prepare a settlement statement for Closing. Seller certifies that the information contained in
the rent roll is correct as of the date submitted. Seller shall pay the premium for the owner's
standard coverage title policy. Buyer shall pay the excess premium attributable to any
extended coverage or endorsements requested by Buyer, and the cost of any survey required
in connection with the same. Seller and Buyer shall each pay one-half of the escrow fees. Any
real estate excise taxes shall be paid by the party who bears primary responsibility for
payment under the applicable statute or code. Real and personal property taxes and
assessments payable in the year of closing; collected rents on any existing tenancies;
expenses already incurred by Seller that relate to services to be provided to the Property after
the Closing Date; interest; utilities; and other operating expenses shall be pro- rated as of
Closing. Seller will be charged and credited for the amounts of all of the pro-rated items
relating to the period up to and including 11:59 pm Pacific Time on the day preceding the
Closing Date, and Buyer will be charged and credited for all of the pro-rated items relating to
the period on and after the Closing Date. If tenants pay any of the foregoing expenses directly,
then Closing Agent shall only pro rate those expenses paid by Seller. Buyer shall pay to Seller
at Closing an additional sum equal to any utility deposits or mortgage reserves for assumed
financing for which Buyer receives the benefit after Closing. Buyer shall pay all costs of
financing including the premium for the lender's title policy. If the Property was taxed under a
deferred classification prior to Closing, then Seller shall pay all taxes, interest, penalties,
deferred taxes or similar items which result from removal of the Property from the deferred
classification. At Closing, all refundable deposits on tenancies shall be credited to Buyer or
delivered to Buyer for deposit in a trust account if required by state or local law. Buyer shall
Buyer Date Buyer Date
Seller Date Seller Date
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pay any sales or use tax applicable to the transfer of personal property included in the sale.
29. Post-Closing Adjustments, Collections, and Payments. After Closing, Buyer and Seller shall
reconcile the actual amount of revenues or liabilities upon receipt or payment thereof to the
extent those items were prorated or credited at Closing based upon estimates. Any bills or
invoices received by Buyer after Closing which relate to services rendered or goods delivered
to the Seller or the Property prior to Closing shall be paid by Seller upon presentation of such
bill or invoice. At Buyer's option, Buyer may pay such bill or invoice and be reimbursed the
amount paid plus interest at the rate of 12% per annum beginning fifteen (15) days from the
date of Buyer's written demand to Seller for reimbursement until such reimbursement is made.
Notwithstanding the foregoing, if tenants pay certain expenses based on estimates subject to
a post-closing reconciliation to the actual amount of those expenses, then Buyer shall be
entitled to any surplus and shall be liable for any credit resulting from the reconciliation. Rents
collected from each tenant after Closing shall be applied first to rentals due most recently from
such tenant for the period after closing, and the balance shall be applied for the benefit of
Seller for delinquent rentals owed for a period prior to closing. The amounts applied for the
benefit of Seller shall be turned over by Buyer to Seller promptly after receipt. Seller shall be
entitled to pursue any lawful methods of collection of delinquent rents but shall have no right
to evict tenants after Closing. Any adjustment shall be made, if any, within 180 days of the
Closing Date, and if a party fails to request an adjustment by notice delivered to the other
party within the applicable period set forth above (such notice to specify in reasonable detail
the items within the Closing Statement that such party desires to adjust and the reasons for
such adjustment), then the allocations and prorations at Closing shall be binding and
conclusive against such party.
30. Operations Prior to Closing. Prior to Closing, Seller shall continue to operate the Property in
the ordinary course of its business and maintain the Property in the same or better condition
than as existing on the date of Mutual Acceptance but shall not be required to repair material
damage from casualty except as otherwise provided in this Agreement. After the Feasibility
Contingency Date, Seller shall not enter into or modify existing rental agreements or leases
(except that Seller may enter into, modify, extend, renew or terminate residential rental
agreements or residential leases for periods of 12 months or less in the ordinary course of its
business), service contracts, or other agreements affecting the Property which have terms
extending beyond Closing without obtaining Buyer's consent, which shall not be withheld
unreasonably.
31. Possession. Buyer shall accept possession subject to all tenancies disclosed to Buyer before
the Feasibility Contingency Date.
32. Seller’s Representations. Except as disclosed to or known by Buyer prior to the satisfaction
or waiver of the Feasibility Contingency, including in the books, records and documents made
available to Buyer, or in the title report or any supplemental report or documents referenced
therein, Seller represents to Buyer that, to the best of Seller's actual knowledge, each of the
following is true as of the date hereof: (a) Seller is authorized to enter into the Agreement, to
sell the Property, and to perform its obligations under the Agreement, and no further consent,
waiver, approval or authorization is required from any person or entity to execute and perform
under this Agreement; (b) The books, records, leases, agreements and other items delivered to
Buyer pursuant to this Agreement comprise all material documents in Seller's possession or
control regarding the operation and condition of the Property, are true, accurate and complete
to the best of Seller’s knowledge, and no other contracts or agreements exist that will be
binding on Buyer after Closing; (c) Seller has not received any written notices that the Property
or any business conducted thereon violate any applicable laws, regulations, codes and
ordinances; (d) Seller has all certificates of occupancy, permits, and other governmental
consents necessary to own and operate the Property for its current use; (e) There is no
Buyer Date Buyer Date
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pending or threatened litigation which would adversely affect the Property or Buyer's
ownership thereof after Closing; (f) There is no pending or threatened condemnation or similar
proceedings affecting the Property, and the Property is not within the boundaries of any
planned or authorized local improvement district; (g) Seller has paid (except to the extent
prorated at Closing) all local, state and federal taxes (other than real and personal property
taxes and assessments described in Section 28 above) attributable to the period prior to
closing which, if not paid, could constitute a lien on Property (including any personal property),
or for which Buyer may be held liable after Closing; (h) Seller is not aware of any concealed
material defects in the Property except as disclosed to Buyer before the Feasibility
Contingency Date; (i) There are no Hazardous Substances (as defined below) currently located
in, on, or under the Property in a manner or quantity that presently violates any Environmental
Law (as defined below); there are no underground storage tanks located on the Property; and
there is no pending or threatened investigation or remedial action by any governmental
agency regarding the release of Hazardous Substances or the violation of Environmental Law
at the Property; (j) Seller has not granted any options nor obligated itself in any matter
whatsoever to sell the Property or any portion thereof to any party other than Buyer; and (k)
Neither Seller nor any of its respective partners, members, shareholders or other equity
owners, is a person or entity with whom U.S. persons or entities are restricted from doing
business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department
of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons
List) or under any statute or executive order; and (l) the individual signing this Agreement on
behalf of Seller represents and warrants to Buyer that he or she has the authority to act on
behalf of and bind Seller. As used herein, the term "Hazardous Substances" shall mean any
substance or material now or hereafter defined or regulated as a hazardous substance,
hazardous waste, toxic substance, pollutant, or contaminant under any federal, state, or local
law, regulation, or ordinance governing any substance that could cause actual or suspected
harm to human health or the environment ("Environmental Law"). The term "Hazardous
Substances" specifically includes, but is not limited to, petroleum, petroleum by-products, and
asbestos.
If prior to Closing Seller or Buyer discovers any information which would cause any of the
representations above to be false if the representations were deemed made as of the date of
such discovery, then the party discovering the information shall promptly notify the other party
in writing and Buyer, as its sole remedy, may elect to terminate this Agreement by giving Seller
notice of such termination within five (5) days after Buyer first received actual notice (with the
Closing Date extended to accommodate such five (5) day period), and in such event, the
Earnest Money Deposit shall be returned to Buyer. Buyer shall give notice of termination within
five (5) days of discovering or receiving written notice of the new information. Nothing in this
paragraph shall prevent Buyer from pursuing its remedies against Seller if Seller had actual
knowledge of the newly discovered information such that a representation provided for above
was false.
33. As-Is. Except for the express representations and warranties in this Agreement, (a) Seller
makes no representations or warranties regarding the Property; (b) Seller hereby disclaims,
and Buyer hereby waives, any and all representations or warranties of any kind, express or
implied, concerning the Property or any portion thereof, as to its condition, value, compliance
with laws, status of permits or approvals, existence or absence of hazardous material on site,
suitability for Buyer’s intended use, occupancy rate or any other matter of similar or dissimilar
nature relating in any way to the Property, including the warranties of fitness for a particular
purpose, tenantability, habitability and use; (c) Buyer takes the Property “AS IS” and with all
faults; and (d) Buyer represents and warrants to Seller that Buyer has sufficient experience
and expertise such that it is reasonable for Buyer to rely on its own pre-closing inspections
and investigations.
Buyer Date Buyer Date
Seller Date Seller Date
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34. Buyer’s Representations. Buyer represents that Buyer is authorized to enter into the
Agreement; to buy the Property; to perform its obligations under the Agreement; and that
neither the execution and delivery of this Agreement nor the consummation of the transaction
contemplated hereby will: (a) conflict with or result in a breach of any law, regulation, writ,
injunction or decree of any court or governmental instrumentality applicable to Buyer; or (b)
constitute a breach of any agreement to which Buyer is a party or by which Buyer is bound.
The individual signing this Agreement on behalf of Buyer represents that he or she has the
authority to act on behalf of and bind Buyer.
35. Claims. Any claim or cause of action with respect to a breach of the representations and
warranties set forth herein shall survive for a period of nine (9) months from the Closing Date,
at which time such representations and warranties (and any cause of action resulting from a
breach thereof not then in litigation, including indemnification claims) shall terminate.
Notwithstanding anything to the contrary in this Agreement: (a) Buyer shall not make a claim
against Seller for damages for breach or default of any representation or warranty, unless the
amount of such claim is reasonably anticipated to exceed $25,000; and (b) under no
circumstances shall Seller be liable to Buyer on account of any breach of any representation or
warranty in the aggregate in excess of the amount equal to $250,000, except in the event of
Seller’s fraud or intentional misrepresentation with respect to any representation or warranty
regarding the environmental condition of the Property, in which case Buyer’s damages shall be
unlimited.
36. Condemnation and Casualty. Seller bears all risk of loss until Closing, and thereafter Buyer
bears all risk of loss. Buyer may terminate this Agreement and obtain a refund of the earnest
money if improvements on the Property are materially damaged or if condemnation
proceedings are commenced against all or a portion of the Property before Closing, to be
exercised by notice to Seller within ten (10) days after Seller’s notice to Buyer of the occurrence
of the damage or condemnation proceedings. Damage will be considered material if the cost of
repair exceeds the lesser of $100,000 or five percent (5%) of the Purchase Price. Alternatively,
Buyer may elect to proceed with closing, in which case, at Closing, Seller shall not be obligated
to repair any damage, and shall assign to Buyer all claims and right to proceeds under any
property insurance policy and shall credit to Buyer at Closing the amount of any deductible
provided for in the policy.
37. FIRPTA Tax Withholding at Closing. Closing Agent is instructed to prepare a certification (CBA
or NWMLS Form 22E, or equivalent) that Seller is not a “foreign person” within the meaning of
the Foreign Investment in Real Property Tax Act, and Seller shall sign it on or before Closing. If
Seller is a foreign person, and this transaction is not otherwise exempt from FIRPTA, Closing
Agent is instructed to withhold and pay the required amount to the Internal Revenue Service.
38. Notices. Unless otherwise specified, any notice required or permitted in, or related to, this
Agreement (including revocations of offers and counteroffers) must be in writing. Notices to
Seller must be signed by at least one Buyer and must be delivered to Seller and Listing Broker
with a courtesy copy to any other party identified as a recipient of notices in Section 18. A
notice to Seller shall be deemed delivered only when received by Seller and Listing Broker, or
the licensed office of Listing Broker. Notices to Buyer must be signed by at least one Seller and
must be delivered to Buyer, with a copy to Selling Broker and with a courtesy copy to any other
party identified as a recipient of notices in Section 18. A notice to Buyer shall be deemed
delivered only when received by Buyer and Selling Broker, or the licensed office of Selling
Broker. Selling Broker and Listing Broker otherwise have no responsibility to advise parties of
receipt of a notice beyond either phoning the represented party or causing a copy of the notice
to be delivered to the party's address provided in this Agreement. Buyer and Seller shall keep
Selling Broker and Listing Broker advised of their whereabouts in order to receive prompt
notification of receipt of a notice. If any party is not represented by a licensee, then notices
Buyer Date Buyer Date
Seller Date Seller Date
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must be delivered to and shall be effective when received by that party at the address, fax
number, or email indicated in Section 18. Facsimile transmission of any notice or document
shall constitute delivery. E-mail transmission of any notice or document (or a direct link to such
notice or document) shall constitute delivery when: (i) the e-mail is sent to both Selling Broker
and Selling Firm or both Listing Broker and Listing Firm at the e-mail addresses specified on
page two of this Agreement; or (ii) Selling Broker or Listing Broker provide written
acknowledgment of receipt of the e-mail (an automatic e-mail reply does not constitute
written acknowledgment). At the request of either party, or the Closing Agent, the parties will
confirm facsimile or e-mail transmitted signatures by signing an original document.
39. Computation of Time. Unless otherwise specified in this Agreement, any period of time in this
Agreement shall mean Pacific Time and shall begin the day after the event starting the period
and shall expire at 5:00 p.m. of the last calendar day of the specified period of time, unless the
last day is a Saturday, Sunday or legal holiday as defined in RCW 1.16.050, in which case the
specified period of time shall expire on the next day that is not a Saturday, Sunday or legal
holiday. Any specified period of five (5) days or less shall not include Saturdays, Sundays or
legal holidays. Notwithstanding the foregoing, references to specific dates or times or number
of hours shall mean those dates, times or number of hours; provided, however, that if the
Closing Date falls on a Saturday, Sunday, or legal holiday as defined in RCW 1.16.050, or a date
when the county recording office is closed, then the Closing Date shall be the next regular
business day. If the parties agree upon and attach a legal description after this Agreement is
signed by the offeree and delivered to the offeror, then for the purposes of computing time,
mutual acceptance shall be deemed to be on the date of delivery of an accepted offer or
counteroffer to the offeror, rather than on the date the legal description is attached.
40. Assignment. Buyer’s rights and obligations under this Agreement are not assignable without
the prior written consent of Seller, which shall not be withheld unreasonably; provided,
however, Buyer may assign this Agreement without the consent of Seller, but with notice to
Seller, to any entity under common control and ownership of Buyer, provided no such
assignment shall relieve Buyer of its obligations hereunder. If the words "and/or assigns" or
similar words are used to identify Buyer in Section 2, then this Agreement may be assigned
with notice to Seller but without need for Seller's consent. The party identified as the initial
Buyer shall remain responsible for those obligations of Buyer stated in this Agreement
notwithstanding any assignment and, if this Agreement provides for Seller to finance a portion
of the purchase price, then the party identified as the initial Buyer shall guarantee payment of
Seller financing.
41. Default and Attorneys’ Fees.
a. Buyer's default. In the event Buyer fails, without legal excuse, to complete the purchase of
the Property, then the applicable provision as identified in Section 13 shall apply:
i. Forfeiture of Earnest Money. Seller may terminate this Agreement and keep that
portion of the earnest money that does not exceed five percent (5%) of the Purchase
Price as liquidated damages as the sole and exclusive remedy available to Seller for such
failure.
ii. Seller’s Election of Remedies. Seller may, at its option, (a) terminate this Agreement
and keep that portion of the earnest money that does not exceed five percent (5%) of the
Purchase Price as liquidated damages as the sole and exclusive remedy available to Seller
for such failure, (b) bring suit against Buyer for Seller's actual damages, (c) bring suit to
specifically enforce this Agreement and recover any incidental damages, or (d) pursue any
other rights or remedies available at law or equity.
b. Seller's default. In the event Seller fails, without legal excuse, to complete the sale of the
Property, then the applicable provision as identified in Section 14 shall apply:
Buyer Date Buyer Date
Seller Date Seller Date
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i. Recover Earnest Money or Specific Enforcement. As Buyer’s sole remedy, Buyer may
either (a) terminate this Agreement and recover all earnest money or fees paid by Buyer
whether or not the same are identified as refundable or applicable to the purchase price;
or (b) bring suit to specifically enforce this Agreement and recover incidental damages,
provided, however, Buyer must file suit within sixty (60) days from the Closing Date or
from the date Seller has provided notice to Buyer that Seller will not proceed with closing,
whichever is earlier.
ii. Buyer’s Election of Remedies. Buyer may, at its option, (a) bring suit against Seller for
Buyer's actual damages, (b) bring suit to specifically enforce this Agreement and recover
any incidental damages, or (c) pursue any other rights or remedies available at law or
equity.
c. Neither Buyer nor Seller may recover consequential damages such as lost profits. If Buyer
or Seller institutes suit against the other concerning this Agreement, the prevailing party is
entitled to reasonable attorneys' fees and costs. In the event of trial, the amount of the
attorneys’ fees shall be fixed by the court. The venue of any suit shall be the county in which
the Property is located, and this Agreement shall be governed by the laws of the State of
Washington without regard to its principles of conflicts of laws.
42. MiscellaneousProvisions.
a. Complete Agreement. This Agreement and any addenda and exhibits thereto state the
entire understanding of Buyer and Seller regarding the sale of the Property. There are no
verbal or other written agreements which modify or affect the Agreement, and no
modification of this Agreement shall be effective unless agreed in writing and signed by the
parties.
b. Counterpart Signatures. This Agreement may be signed in counterpart, each signed
counterpart shall be deemed an original, and all counterparts together shall constitute one
and the same agreement.
c. Electronic Delivery and Signatures. Electronic delivery of documents (e.g., transmission by
facsimile or email) including signed offers or counteroffers and notices shall be legally
sufficient to bind the party the same as delivery of an original. At the request of either party,
or the Closing Agent, the parties will replace electronically delivered offers or counteroffers
with original documents. The parties acknowledge that a signature in electronic form has the
same legal effect as a handwritten signature.
d. Section 1031 Like-Kind Exchange. If either Buyer or Seller intends for this transaction to be
a part of a Section 1031 like-kind exchange, then the other party agrees to cooperate in the
completion of the like- kind exchange so long as the cooperating party incurs no additional
liability in doing so, and so long as any expenses (including attorneys’ fees and costs) incurred
by the cooperating party that are related only to the exchange are paid or reimbursed to the
cooperating party at or prior to Closing. Notwithstanding this provision, no party shall be
obligated to extend closing as part of its agreement to facilitate completion of a like-kind
exchanged. In addition, notwithstanding Section 40 above, any party completing a Section
1031 like-kind exchange may assign this Agreement to its qualified intermediary or any entity
set up for the purposes of completing a reverse exchange.
43. Information Transfer. In the event this Agreement is terminated, Buyer agrees to deliver to
Seller within ten (10) days of Seller's written request copies of all materials received from Seller
and any non-privileged plans, studies, reports, inspections, appraisals, surveys, drawings,
permits, applications or other development work product relating to the Property in Buyer's
possession or control as of the date this Agreement is terminated.
Buyer Date Buyer Date
Seller Date Seller Date
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Commercial & Investment Real Estate
Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
Page |12 15
44. Confidentiality. Until and unless closing has been consummated, Buyer and Seller shall
follow reasonable measures to prevent unnecessary disclosure of information obtained in
connection with the negotiation and performance of this Agreement. Neither party shall use or
knowingly permit the use of any such information in any manner detrimental to the other
party.
45. Agency Disclosure. Selling Firm, Selling Firm’s Designated Broker, Selling Broker’s Branch
Manager (if any) and Selling Broker’s Managing Broker (if any) represent the same party that
Selling Broker represents. Listing Firm, Listing Firm’s Designated Broker, Listing Broker’s
Branch Manager (if any), and Listing Broker’s Managing Broker (if any) represent the same
party that the Listing Broker represents. If Selling Broker and Listing Broker are different
persons affiliated with the same Firm, then both Buyer and Seller confirm their consent to the
Brokers’ Designated Broker, Branch Manager (if any), and Managing Broker (if any) representing
both parties as a dual agent. If Selling Broker and Listing Broker are the same person
representing both parties, then both Buyer and Seller confirm their consent to that person and
his/her Designated Broker, Branch Manager (if any), and Managing Broker (if any) representing
both parties as dual agents. All parties acknowledge receipt of the pamphlet entitled “The Law
of Real Estate Agency.”
46. Seller’s Acceptance and Brokerage Agreement. Seller agrees to sell the Property on the
terms and conditions herein, and further agrees to pay a commission in a total amount
computed in accordance with the listing or commission agreement. If there is no written listing
or commission agreement, Seller agrees to pay a commission of 0 % of the sales price or
$ . The commission shall be apportioned between Listing Firm and Selling Firm as specified
in the listing or any co-brokerage agreement. If there is no listing or written co-brokerage
agreement, then Listing Firm shall pay to Selling Firm a commission of % of the sales price
or $ . Seller assigns to Listing Firm and Selling Firm a portion of the sales proceeds equal to
the commission. If the earnest money is retained as liquidated damages, any costs advanced
or committed by Listing Firm or Selling Firm for Buyer or Seller shall be reimbursed or paid
therefrom, and the balance shall be paid one-half to Seller and one-half to Listing Firm and
Selling Firm according to the listing agreement and any co-brokerage agreement. Seller and
Buyer hereby consent to Listing Firm and Selling Firm receiving compensation from more than
one party and irrevocably instruct the Closing Agent to disburse the commission(s) directly to
the Firm(s). In any action by Listing Firm or Selling Firm to enforce this Section, the prevailing
party is entitled to reasonable attorneys' fees and expenses. Neither Listing Firm nor Selling
Firm are receiving compensation from more than one party to this transaction unless disclosed
on an attached addendum, in which case Buyer and Seller consent to such compensation. The
Property described in attached Exhibit A is commercial real estate. Notwithstanding Section 44
above, the pages containing this Section, the parties' signatures and an attachment describing
the Property may be recorded.
47.Listing Broker and Selling Broker Disclosure. EXCEPT AS OTHERWISE DISCLOSED IN WRITING
TO BUYER OR SELLER, THE SELLING BROKER, LISTING BROKER, AND FIRMS HAVE NOT MADE
ANY REPRESENTATIONS OR WARRANTIES OR CONDUCTED ANY INDEPENDENT INVESTIGATION
CONCERNING THE LEGAL EFFECT OF THIS AGREEMENT, BUYER'S OR SELLER'S FINANCIAL
STRENGTH, BOOKS, RECORDS, REPORTS, STUDIES, OR OPERATING STATEMENTS; THE
CONDITION OF THE PROPERTY OR ITS IMPROVEMENTS; THE FITNESS OF THE PROPERTY FOR
BUYER’S INTENDED USE; OR OTHER MATTERS RELATING TO THE PROPERTY, INCLUDING
WITHOUT LIMITATION, THE PROPERTY'S ZONING, BOUNDARIES, AREA, COMPLIANCE WITH
APPLICABLE LAWS (INCLUDING LAWS REGARDING ACCESSIBILITY FOR DISABLED PERSONS),
OR HAZARDOUS OR TOXIC MATERIALS INCLUDING MOLD OR OTHER ALLERGENS. SELLER AND
BUYER ARE EACH ADVISED TO ENGAGE QUALIFIED EXPERTS TO ASSIST WITH THESE DUE
DILIGENCE AND FEASIBILITY MATTERS, AND ARE FURTHER ADVISED TO SEEK INDEPENDENT
LEGAL AND TAX ADVICE RELATED TO THIS AGREEMENT.
Buyer Date Buyer Date
Seller Date Seller Date
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Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
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IN WITNESS WHEREOF, the parties have signed this Agreement intending to be bound.
Buyer City of Pasco Seller John M. Rico
Printed Name and Type of Entity Printed Name and Type of Entity
Buyer Seller
Signature and Title Signature and Title
Date Date
Buyer Seller
Printed Name and Type of Entity Printed Name and Type of Entity
Buyer Seller
Signature and Title Signature and Title
Date Date
Buyer Date Buyer Date
Seller Date Seller Date
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Commercial & Investment Real Estate
Purchase & Sale Agreement
Commercial Brokers Association
ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
Page |14 15
EXHIBIT A *
[Legal Description]
Purchase is for a 7,821 Right of Way from Franklin County Parcel: TRACT A, 27-9-30,
PTN NE4SW4 DAF; BEG SE COR SD SUBDIV; TH NLY ALG E LN 373.4' TO S R/W LN PSH
#3; TH NWLY ALG SD R/W LN 150'; TH SLY AND P/W E LN 200'; TH WLY & P/W S LN
303';TH SLY & P/W W LN 279' TO S LN SD SUBDIV; TH E ALG S LN TO POB, LESS PTN
PSH#3
As shown below (dark area)
*To ensure accuracy in the legal description, consider substituting the legal description contained in the preliminary
commitment for title insurance or a copy of the Property’s last vesting deed for this page. Do not neglect to label the
substitution “Exhibit A.” You should avoid transcribing the legal description because any error in transcription may
render the legal description inaccurate and this Agreement unenforceable.
Buyer Date Buyer Date
Seller Date Seller Date
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ALL RIGHTS RESERVED
CBA Form PS-1A | Purchase & Sale Agreement
Rev. 7/2020
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EXHIBIT B
[Additional Terms]
1.Offer of acceptance is subject to final approval of all terms by Pasco City Council
2.This purchase is for a Right of Way as defined and shown in the Ex. A and not the actual
purchase of the land. The Right of Way document will be drafted by the city for mutual
acceptance and execution.
3.The city will provide a Right-of-Way use permit that will allow Seller to continue using the
acquired property until such time as any extension of the roadway occurs
4.The city will, prior to development of the proposed roadway extension, extend both water and
sewer service stubs to Seller’s property up to the R/W line for future connection.
5.The seller is concerned that the existing chain link mesh may be too stretched or warped. It is
important to the seller to have the stringers/supports that are correct and appropriate. The
city will remove and replace to the new R/W line with new chain link fence with posts. It is
believed that the gate will just be relocated and can be reused.
6.The city will install a Type 1 commercial approach at a maximum width of 45’ at the time the
city does make this road extension.
7.The Buyer will cover all closing costs associated with this transaction.
Buyer Date Buyer Date
Seller Date Seller Date
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ADDENDUM TO THE AGREEMENT
BETWEEN THE CITY OF PASCO AND
JOHN M.RICO,D/B/A RICO AG SERVICES,LLC
RELATING TO PURCHASE AND SALE OF PROPERTY
THIS ADDENDUM is made and entered into this l6th day of J anua ,20_2;_,by
and between the Buyer,CITY OF PASCO,a municipal corporation of the State of Washington
(hereinafter referred to as the “City”),and the Seller,JOHN M.RICO,D/B/A RICO AG
SERVICES,LLC,(hereinafter referred to as “Seller”),as an addendum to the Purchase and Sale
Agreement between the parties for the purchase and sale for Right-Of-Way purposes of a portion
of the property located at 3932 E.Lewis Place,Pasco,WA 99301,legally described below,
executed on the 22nd day of July,2022.
W I T N E S S E T H:
WHEREAS,the parties hereto have heretofore contracted for the purchase and sale of a
portion of the property located at 3932 E.Lewis Place,Pasco,WA 99301,and each party
appreciates that contracting for such purchase and sale provides advantages to both parties,and
WHEREAS,the parties intend that the property to be conveyed to the City of Pasco for
right—of-waypurposes,and the parties intend that such clari?cation of purpose as well as an
updated legal description should be re?ected in an Addendum as provided hereinbelow.
NOW THEREFORE in consideration of their mutual covenants,conditions and promises,
the PARTIES HERETO HEREBY AGREE as follows:
ITEM ONE REVISION TO SECTION 1:That Section 1 of the Purchase and Sale
Agreement is amended to read as follows:
1.PROPERTY:The property is legally described as set forth hereinbelow.Address:
A portion of the property located at 3932 E.Lewis Place,Pasco,Franklin
County,Washington.
Tax Parcel Number:113.730.035 (portion).
The Purpose of this Purchase and Sale Agreement is for the City of Pasco to
acquire the subject property for Right-of-Way purposes.
Legal Description
That portion of the hereinafter described Parcel ‘A’lying Easterly of the following
described line:
Commencing at the Southeast corner of said Parcel ‘A’,
Thence North 89°37 ’25”West along the South line of said Parcel ‘A’30.00 feet to
the Point of Beginning of said line;
Purchase and Sale Agreement Addendum 1
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‘N
up
II
DocuSign Envelope ID:28C54E4B-GE82-42B2-8983-2DE466D62931
Thence North 0°05’4l”East parallel with the East line of said Parcel ‘A’22.33
feet to the point of curvature of a curve concave to the Southwest and having a
radius of 370.00 feet;
Thence Northwesterly along said curve consuming a central angle of 43°57’l5”
an arc length of 283.84 feet to the North line of said Parcel ‘A’and terminus of
said line;
Situate in Franklin County,State of Washington.
Parcel ‘A’
That portion of the Northeast quarter of the Southwest quarter of Section 27,
Township 9 North,Range 30 East,W.M.,described as follows:
Beginning at the Southeast comer of said subdivision;
Thence Northerly along the East line thereof 373.4 feet to the South right of way
line of State Highway No.3;
Thence Northwesterly along said right of way line 150.00 feet;
Thence Southerly and parallel with the East line thereof 200 feet;
Thence Westerly and parallel to the South line thereof 303 feet;
Thence Southerly and parallel with the West line thereof 279 feet,more or less to
the South line of said subdivision;
Thence Easterly along said South line to the Point of Beginning;
EXCEPT that portion conveyed to State of Washington by deed recorded under
Auditor’s File Number 259062.
The said real property is depicted as follows:
Purchase and Sale Agreement Addendum
Page 226 of 238
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SUBDIVISION LINEPERROS1-553
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S cm NEF°j:‘D PARCEL 'A'
W .,I .
sw I/4,sec.27.PARCEL N0.OWNERSHIP EXISTING AREA R TO BE ACQUIRED EASEMENT TO BE ACQUIRED REMAININGAREA
T.9N..R.30E.,w.M.113730035 RICO I05 722:SF‘7a2I:SF N A 96.9011 SF
5‘'-‘5»PE""05 ‘-555 ‘AREA PER FRANKLINCOUNTY AssEssoR
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Purchase and Sale Agreement Addendum
The original Exhibit “A”to the Purchase and Sale Agreement (legal description)
is amended in conformity herewith.
ITEM TWO REMAINING TERMS UNCHANGED:That all other provisions of the
Purchase and Sale Agreement between the parties referenced above shall remain unchanged,and
in full force and effect.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
day and year ?rst above written.
SELLER
Docusigned by:
MumM.Kim
AE58B24CD165457...
John M.Rico,d/b/a Rico Ag Services,LLC
1/16/202 3
Date:
CITY OF PASCO
Adam Lincoln
Interim City Manager
Docusigned by:
2594C8BED8644BB...
Docu$ign Envelope ID:28C54E4B-
Page 227 of 238
Attest:
Kerr Ferguson L ,LC
City Attorn
Debra Barham,CMC
City Clerk
Approved as to form:
Purchase and Sale Agreement Addendum
DocuSign Envelope ID:28C54E4B-6E82-42B2-8983-
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AGENDA REPORT
FOR: City Council February 14, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 2/21/23
FROM: Eric Ferguson, City Attorney
Executive
SUBJECT: Consideration of Potential Rescission of Resolution No. 4303
I. REFERENCE(S):
Resolution No. 4303
City - Wide Buffer Map
City - Commercial - Industrial Zones Map
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to rescind the motion approving Resolution No. 4303 - Retail
Cannabis with Conditional Use Permit in I-1 I-2 and I-3 Zones approved by
Council at the January 17, 2023 meeting.
III. FISCAL IMPACT:
N/A
IV. HISTORY AND FACTS BRIEF:
In July of 2014, City Council adopted Ordinance No. 4166, which prohibited
production, processing and retail sales of cannabis within the City limits. The
prohibition also extended to medical cannabis collective dispensaries; although in
2015, State law was enacted that allowed qualifying patients to grow up to sixteen
cannabis plants depending on circumstances related to the patient.
City Council subsequently adopted Ordinance No. 4304, regarding specific
nuisance violations for growing and storage of cannabis and establishing specific
penalties for violations. Nuisance complaints indicate that both indoor and outdoor
growing operations are occurring and presenting a variety of adverse impacts
including odor, construction of illegal fences and theft.
Page 229 of 238
As retail sales of cannabis has to a degree been a lingering question in the
community, the City Council in 2021 directed that the question of whether or not to
allow retail sales of cannabis in the City be added to the National Community
Survey which City conducts on a biennial basis. The results of the 2021 National
Citizen Survey indicated an evenly divided public on this issue.
At the Council workshop of October 11, 2022, a consensus of Council decided to
move forward with a regulatory process aimed at repealing aspects of the current
prohibition for retail cannabis sales.
Further discussion occurred at the January 9, 2023 Council Workshop meeting.
Staff presented proposed Resolutions for identifying which code provisions the
Council would like Staff to draft to facilitate retails sales of cannabis.
A number of issues were discussed at the January 9th Workshop meeting -
including the need for the Hearing Examiner to process applications for retail
cannabis through the special permit process; restricting retail sales to the C-2; C-
3 and Industrial Zones; further restricting retail sales to t hose same zones north of
Interstate 182; reducing the state buffering distance mandates from parks in
certain circumstances and limiting the total number of retail locations in Pasco to
two (2).
It was also noted that current data indicate that there are three approved retail
cannabis licenses in Pasco with 1 at large license available for Franklin County.
Due to the many variables and the time required to draft an ordinance for Council
review, Staff brought forward seven (7) draft resolutions back to Council at their
January 17, 2023, Meeting for consideration that were iterations of the discussion
points from the previous Council Workshop. The seven (7) draft
resolutions/motions was limited to only 3 factors—Commercial Zones (C-2 and C-
3), Industrial Zones (I-1, I-2, and I-3) as well as the conditional use process:
MOTION A: I move to approve Resolution No. 4303, directing the City staff
to draft an ordinance to amend PMC 25.10.020 and PMC 25.90, PMC 25.100,
PMC 25.115, PMC 25.120, and PMC 25.125 to allow the retail sale of
cannabis in the C-2; C-3; I-1; I-2 and I-3 Zoning Districts.
MOTION B: I move to approve Resolution No. 4303, directing the City staff
to draft an ordinance to amend PMC 25.10.020 and PMC 25.115, PMC
25.120, AND PMC 25.125 to allow the retail sale of cannabis by process of a
conditional use permit in the I-1; I-2 and I-3 Zoning Districts.
MOTION C: I move to approve Resolution No. 4303, directing the City staff
to draft an ordinance to amend PMC 25.10.020 and PMC 25.115, PMC
Page 230 of 238
25.120, and PMC 25.125 to allow the retail sale of cannabis as a permitted
use in the I-1; I-2 and I-3 Zoning Districts.
MOTION D: I move to approve Resolution No. 4303, directing the City staff
to draft an ordinance to amend PMC 25.10.020 and PMC 25.90, PMC 25.100,
PMC 25.115, PMC 25.120, and PMC 25.125 to allow the retail sale of
cannabis as a conditional use in the C-2; C-3; I-1; I-2 and I-3 Zoning Districts.
MOTION E: I move to approve Resolution No. 4303, directing the City staff to
draft an ordinance to amend PMC 25.10.020 and PMC 25.90 and PMC
25.100 to allow the retail sale of cannabis as a permitted use in the C -2 and
C-3 Zoning Districts.
MOTION F: I move to approve Resolution No. 4303, directing the City staff to
draft an ordinance to amend PMC 25.10.020 and PMC 25.90 and PMC
25.100 to allow the retail sale of cannabis as a conditional use in the C-2 and
C-3 Zoning Districts.
MOTION G: I move to approve Resolution No. 4303, directing the City staff
to draft an ordinance to amend PMC 25.10.020 and PMC 25.__, PMC 25.__,
PMC 25__, PMC 25.__, PMC 25.__, PMC 25.__ to allow the retail sale of
cannabis as a conditional use in the _____________ Zoning Districts.
After discussion, Council voted on, "MOTION A: I move to approve Resolution No.
4303, directing the City staff to draft an ordinance to amend PMC 25.10.020 and
PMC 25.90, PMC 25.100, PMC 25.115, PMC 25.120, and PMC 25.125 to allow
the retail sale of cannabis in the C-2; C-3; I-1; I-2 and I-3 Zoning Districts" and the
motion was defeated by a 3-4 Roll Call vote with Blanche Barajas, Irving Brown,
David Milne and Pete Serrano opposed.
Then after additional discussion, Council voted on, "MOTION B: I move to approve
Resolution No. 4303, directing the City staff to draft an ordinance to amend PMC
25.10.020 and PMC 25.115, PMC 25.120, AND PMC 25.125 to allow the retail
sale of cannabis by process of a conditional use permit in the I-1; I-2 and I-3 Zoning
Districts." and the motion was approved by a 4-3 Roll Call vote with Craig Maloney,
Joseph Campos and Zahra Roach opposed.
V. DISCUSSION:
At the February 6, 2023 Council meeting, during the Miscellaneous Discussion
section of the meeting, Council and staff discussed Resolution No. 4303 and the
Mayor made a motion to rescind the motion to approve that resolution, but
because there was no prior notice of the action, Robert’s Rules of Order requires
Page 231 of 238
a 2/3rds majority to prevail. After the roll call vote, only a 4 -3 simple majority
was obtained so the motion failed. Subsequently, a motion to have the
consideration of a motion to rescind the motion approving Resolution 4303 be
placed on a future Council Agenda was made, and passed by the required
majority vote of 4-3. Since notice of consideration of a motion to rescind the
motion to approve Resolution 4303 is now properly given, a motion to rescind
the motion approving Resolution 4303 will only require a simply majority vote.
Page 232 of 238
RESOLUTION NO. 4303
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON
DIRECTING THE CITY STAFF TO DRAFT AN ORDINANCE TO AMEND
PMC 25.10.020 AND PMC 25.115,PMC 25.120,AND PMC 25.125 TO ALLOW
THE RETAIL SALE OF CANNABIS BY PROCESS OF A CONDITIONAL USE
PERMIT IN THE I-1, I-2 AND I-3 ZONE(S).
WHEREAS, after an extensive public outreach process and discussion at multiple
meetings, the City Council has asked the City Staff to prepare an ordinance for consideration that
would allow the City of Pasco to lift the ban on retail sales of cannabis and allow retail sales in
certain zones; and
WHEREAS, State Initiative 502 ("I-502"), approved by voters of Washington State in
November of 2012, provides a framework for licensing and regulating the retail sale and use of
cannabis purchased from state licensed businesses; and
WHEREAS, under State Initiative 502 ("I-502"), the Washington State Liquor Cannabis
Board is tasked with the responsibility to adopt regulations governing the licensing and operation
of cannabis producers, processors, and retailers, the Board has set these regulations; and
WHEREAS, the City intends to develop appropriate zoning and land use regulations to
accommodate the retail sale of cannabis that do not conflict with Washington State Law; and
WHEREAS, the City has considered and evaluated amendments to City regulations
regarding the retail uses of cannabis and cannabis retail facilities and wishes to direct staff to return
with an ordinance only allowing the sale of cannabis by process of a conditional use permit in I-1,
I-2 and I-3 zone(s).
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON,DO RESOLVE AS FOLLOWS:
That the City Council hereby requests that the City Staff draft an ordinance for
consideration amending Pasco Municipal Code 25.10.020, and further, amend PMC 25.115, PMC
25.120 and PMC 25.125 for the sale of cannabis by process of a conditional use permit to be placed
within the I-1, I-2 and I-3 zoning district(s).
Be It Further Resolved that this Resolution shall take effect immediately.
Resolution—Cannabis/CUP I-1, I-2 and I-3 Zoning District(s)
Page 233 of 238
PASSED by the City Council of the City of Pasco, Washington this 17th day of January,
2023.
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
r
Debra Barham, CMC Kerr F son Law, PLLC
City Clerk Ci ttorneys
Resolution—Cannabis/CUP I-1,I-2 and I-3 Zoning District(s)
Page 234 of 238
CITY LIMITSCITY L I M I T S
CITY LIMITSFANNINGRDUS 395 SDENT RDROAD 100US 395 NUS 12 EI-182 WROAD 68ROAD 68 N
KOHLER RDE A STN 4TH A
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IRISLN SOREGONAVEUS 12 WCLARK RDSHORELI N E RD HARRISRDI-182 ENCAP ITO LAVE
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TAYLORFLATSRDUS 395 NPASCO KAHLOTUS RDI-182 WE FOSTER WELLS RDI-182 EMarijuana Restricted ZonesAs of August 2022••City Limits 2022SchoolsParksParks 1,000-Foot BufferSchools 1,000-Foot BufferPage 235 of 238
EFOSFER-WEl:|:SRDNzwmmwmaAsofSeptember2022896¢GI.-ARKIRID3H0Z4.4.HmdHI&1a.1C«I.COC2..C&7..CBURNS-RDFl—:72—xv:amymm20229.¢m._:ov_ZoningselectionPage 236 of 238
QUALITY OF LIFE
Promote a high-quality of life through quality programs, services and appropriate investment and re-
investment in community infrastructure including, but not limited to:
• Completion of Transportation System Master Plan and design standard updates to promote greater
neighborhood cohesion in new and re-developed neighborhoods through design elements, e.g.;
connectivity, walkability, aesthetics, sustainability, and community gathering spaces.
• Completion of the Parks, Recreation and Open Space Plan and development of an implementation
strategy to enhance such services equitably across the community. • Completion of the Housing Action and Implementation Plan with a focus on a variety of housing to address
the needs of the growing population.
FINANCIAL SUSTAINABILITY
Enhance the long-term viability, value, and service levels of services and programs, including, but not
limited to:
• Adopting policies and strategic investment standards to assure consistency of long-range planning to include
update of impact fees, area fees to specific infrastructure, and SEPA mitigation measures related to new
development, e.g.; schools, traffic, parks, and fire.
COMMUNITY TRANSPORTATION NETWORK
Promote a highly functional multi-modal transportation system including, but not limited to:
• Application of the adopted Transportation System Master Plan including development of policies, regulations,
programs, and projects that provide for greater connectivity, strategic investment, mobility, multi -modal
systems, accessibility, efficiency, and safety.
COMMUNITY SAFETY
Promote proactive approaches for the strategic investment of infrastructure, staffing, and equipment
including, but not limited to:
• Adoption and develop implementation strategies for Comprehensive Fire Master Plan aimed at maintaining the
current Washington State Rating Bureau Class 3 community rating.
• Collaboration with regional partners to influence strategies to reduce incidences of homeless by leveraging
existing resources such as the newly implemented 0.1% mental health sales tax, use of resource navigator
programs, and other efforts. • Development of an implementation strategy for the Comprehensive Police Master Plan to support future service
levels of the department to assure sustainability, public safety, officer safety, crime control, and compliance
with legislative mandates.
ECONOMIC VITALITY
Promote and encourage economic vitality including, but not limited to:
• Implementation of the Comprehensive Land Use Plan through related actions including zoning code changes,
phased sign code update, and development regulations and standards.
• Completion of Area Master Plans and environmental analysis complementing the Comprehensive Land Use
Plan such as Downtown and Broadmoor Master Plans.
• Development of an Economic Development Plan, including revitalization efforts.
COMMUNITY IDENTITY
Identify opportunities to enhance community identity, cohesion, and image including, but not limited to:
• Development of a Community Engagement Plan to evaluate strategies, technologies, and other opportunities
to further inclusivity, community engagement, and inter-agency and constituent coordination efforts.
• Support of the Arts and Culture Commission in promoting unity and the celebration of diversity through art
and culture programs, recognition of significant events or occurrences, and participation/sponsorship of events
within the community.
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CALIDAD DE VIDA
Promover una calidad de vida alta a través de programas de calidad, servicios, inversiones y reinversiones
apropiadas en la infraestructura de la comunidad incluyendo, pero no limitado a:
• Terminar el Plan de Transportación para promover más cohesión entre nuestras vecindades actuales y re-desarrolladas
a través de elementos de diseño, p.ej. conectividad, transitabilidad, sostenibilidad estética, y espacios para reuniones
comunitarias.
• Terminar el Plan de los Parques, la Recreación, y los Espacios Vacíos y el desarrollo de una estrategia de
implementación para mejorar tales servicios justamente a lo largo de la comunidad.
• Terminar el Plan de Acción e Implementación de Viviendas con un enfoque en una variedad de viviendas para tratar las
necesidades del aumento en la población.
SOSTENIBIILIDAD FINANCIERA
Mejorar la viabilidad a largo plazo, el valor, y los niveles de los servicios y los programas, incluyendo, pero no
limitado a:
• Adoptar las políticas y los estándares de inversión estratégica para asegurar consistencia en la planificación a largo
plazo para incluir la actualización de las tarifas de impacto, las tarifas en áreas de infraestructura específica, y las
medidas de mitigación SEPA relacionadas con el nuevo desarrollo, p.ej. escuelas, tráfico, parques, e incendios.
RED DE TRANSPORTACION COMUNITARIA
Promover un sistema de transportación multimodal en alta operación incluyendo, pero no limitado a:
• Aplicar el Plan de Transportación que fue adoptado, incluyendo el desarrollo de las políticas, las reglas, los programas,
y los proyectos que proporcionan más conectividad, inversión estratégica, movilidad, sistemas multimodales,
accesibilidad, eficiencia, y seguridad.
SEGURIDAD COMUNITARIA
Promover métodos proactivos para la inversión estratégica en la infraestructura, el personal, y el equipo
incluyendo, pero no limitado a:
• Adoptar y desarrollar estrategias de implementación para el Plan Comprehensivo para Incendios. Con el propósito de
mantener la clasificación comunitaria actual en la tercera Clase del Departamento de Clasificación del Estado de
Washington.
• Colaborar con socios regionales para influenciar estrategias que reduzcan los incidentes de personas sin hogar al
hacer uso de los recursos actuales como el impuesto de ventas de 0.1% implementado recientemente para la salud
mental, el uso de programas para navegar los recursos, y otros esfuerzos.
• Desarrollar una estrategia de implementación para el Plan Comprehensivo de la Policía para apoyar los niveles futuros
de servicio del departamento para asegurar la sostenibilidad, la seguridad pública, la seguridad de los policías, el
control de crímenes, y el cumplimiento con los mandatos legislativos.
VITALIDAD ECONOMICA
Promover y fomentar vitalidad económica incluyendo, pero no limitado a:
• Implementar el Plan Comprehensivo del Uso de Terreno a través de acciones relacionadas, incluyendo cambios de los
códigos de zonificación, actualización en las etapas de los códigos de las señales, y el desarrollo de las reglas y los
estándares.
• Terminar los Planes de las Áreas y un análisis ambiental el cual complementa al plan integral de uso de la tierra como a
los Planes del Centro y de Broadmoor.
• Desarrollar un Plan de Desarrollo Económico, el cual incluya esfuerzos de revitalización.
IDENTIDAD COMUNITARIA
Identificar oportunidades para mejorar la identidad comunitaria, la cohesión, y la imagen incluyendo, pero no
limitado a:
• Desarrollar un Plan de Participación de la Comunidad para evaluar las estrategias, las tecnologías, y otras
oportunidades para promover la inclusividad, la participación de la comunidad, y los esfuerzos interdepartamentales y de
coordinación de los constituyentes.
• Apoyar a la Comisión de las Artes y Cultura al promover la unidad y la celebración de la diversidad a través de
programas de arte y cultura, reconocer eventos o acontecimientos significantes, y participar/patrocinar eventos dentro
de la comunidad.
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