HomeMy WebLinkAbout2023.04.03 Council Meeting Packet
AGENDA
City Council Regular Meeting
7:00 PM - Monday, April 3, 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 Councilmembers,
the item may be removed from the Consent Agenda to the Regular Agenda
and considered separately.
6 - 20 (a) Approval of Meeting Minutes for March 20th and 27th
To approve the minutes of the Pasco City Council Regular Meeting and
Regular Workshop held on March 20, 2023 and March 27, 2023
respectively.
21 - 22 (b) Bills and Communications
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To approve claims in the total amount of $8,154,646.82 ($6,878,800.40
in Check Nos. 254798-255073; $136,557.59 in Electronic Transfer
Nos. 839667-839746, 839759-839856, 839868-840090; $14,090.75 in
Check Nos. 54315-54323; $1,125,081.21 in Electronic Transfer Nos.
30188235-30188841; $116.87 in Electronic Transfer Nos. 918).
23 - 32 (c) Resolution No. 4329 - Easement Purchase for Zone 3 Water
Transmission Main Project
To approve Resolution No. 4329, authorizing the Interim City Manager
to execute the easement agreements for the Zone 3 Transmission
Main Project.
33 - 43 (d) Resolution No. 4330 - Project Acceptance - Wayfinding Signage &
Gateway Entrance
To approve Resolution No.4330, accepting work performed by Ray
Poland & Sons, Inc. for the Wayfinding Signage & Gateway Entrance
project.
44 - 65 (e) Resolution No. 4331 - Washington Opioid Settlements
(Walgreens, CVS, Walmart, Teva & Allergan)
To approve Resolution No. 4331, approving participation in
Washington Opioid Settlements with Walgreens, CVS, Walmart, Teva,
and Allergan; and further, authorize the City Manager to execute the
participation forms and allocation agreement.
66 - 73 (f) Approval of Tourism Promotion Area Reserve Fund Request
To approve the the 2023 Special Project Expenditures for the Tourism
Promotion Area (TPA) in the amount of $441,500 to be funded from
the TPA Reserve Balance.
74 - 79 (g) Resolution No. 4332 - First Amendment to WA ST Department of
Health - Drinking Water State Revolving Fund Loan West Pasco
Water Treatment Plant
To approve Resolution No. 4332, authorizing the Interim City Manager
to approve the amendment of the Drinking Water State Revolving Fund
Loan for the West Pasco Water Treatment Plant Expansion Phase 1
for an amended amount of $303,000.
(RC) MOTION: I move to approve the Consent Agenda as read.
5. PROCLAMATIONS AND ACKNOWLEDGEMENTS
6. PUBLIC COMMENTS - The public may address Council on any items unless
it relates to a scheduled Public Hearing. This item is provided to allow 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
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posing of questions with the expectation of an immediate 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
80 - 89 (b) General Fund Monthly Report - February 2023
8. HEARINGS AND COUNCIL ACTION ON ORDINANCES AND
RESOLUTIONS RELATING THERETO
90 - 98 (a) Public Hearing Continued and Ordinance No. 4646 for Jubilee
Foundation Right-of-Way Vacation (VAC 2022-009)
PUBLIC HEARING CONTINUED FROM FEBRUARY 6TH,
FEBRUARY 21ST, & SPECIAL MEETING HELD ON FEBRUARY
27TH
MOTION: I move to approve Ordinance No.4646, vacating rights -of-
way in Washington Addition to Pasco in the vicinity of East A Street
and East Helena Street in Pasco, and further, authorize publication by
summary only.
9. EXECUTIVE SESSION
(a) Discussion with Legal Counsel About Current or Potential
Litigation per RCW 42.30.110(1)(i) (20 minutes)
10. ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS
99 - 110 (a) *Ordinance No. 4647 & Resolution No. 4333 - Budget Amendment
& Solstice Lift Station & Forcemain Agreement
MOTION: I move to adopt Ordinance No. 4647, amending the 2023 -
2024 Capital Projects Budget (Ordinance No. 4620) by providing
supplement thereto; to provide additional appropriation in the City's
Sewer Fund and, further, authorize publication by summary only.
MOTION: I move to approve Resolution No. 4333, authorizing the City
Manager to execute a Utility Extension Agreement with Pahlisch
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Homes at Solstice, LLC for the procurement and installation of a Sewer
Lift Station and the associated Forcemain.
111 - 135 (b) Resolution No. 4334 - Process Water Reuse Facility (PWRF)
Processor Wastewater Treatment Agreement (WTA)
MOTION: I move to approve Resolution No. 4334, authorizing the
Interim City Manager to enter into the Process Water Reuse Facility
(PWRF) Industrial Wastewater Pretreatment Agreement with each
PWRF processor for the PWRF Pretreatment Improvements Phase 3
Project.
136 - 232 (c) Resolution No. 4335 - Burnham Wastewater Treatment Agreement
– Process Water Reuse Facility (PWRF) Pretreatment
Improvement Phase 3 Project
MOTION: I move to approve Resolution No. 4335, authorizing the
Interim City Manager to enter into the Wastewater Treatment
Agreement with Burnham for the PWRF Pretreatment Improvements
Phase 3 project.
11. UNFINISHED BUSINESS
12. NEW BUSINESS
13. MISCELLANEOUS DISCUSSION
14. EXECUTIVE SESSION
(a) Qualifications of an Applicant for Public Employment per RCW
42.30.110(1)(g) (20 minutes)
15. ADJOURNMENT
16. ADDITIONAL NOTES
(a) (RC) Roll Call Vote Required
* Item not previously discussed
Q Quasi-Judicial Matter
MF# “Master File #....”
233 - 234 (b) Adopted 2020-2021 Council Goals (Reference Only)
(c) REMINDERS
• Monday, April 3rd, 1:30 PM: Emergency Medical Services
Board Meeting – Fire Training Center, 1811 S. Ely,
Kennewick (COUNCILMEMBER PETE SERRANO, Rep.;
COUNCILMEMBER IRVING BROWN, Alt.)
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• Monday, April 10th, 11:45 AM: Pasco Chamber of
Commerce Membership Lunch Meeting – Pasco Red Lion
Hotel
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
provided upon request. Please provide two business day's notice
to the City Clerk to ensure availability.)
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AGENDA REPORT
FOR: City Council March 29, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Debra Barham, City Clerk
Executive
SUBJECT: Approval of Meeting Minutes for March 20th and 27th
I. REFERENCE(S):
03.20.2023 & 03.27.2023 Draft Council Minutes
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve the minutes of the Pasco City Council Regular Meeting and Regular
Workshop held on March 20, 2023 and March 27, 2023 respect ively.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
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MINUTES
City Council Regular Meeting
7:00 PM - Monday, March 20, 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; Brent Cook, Deputy 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
Approval of Meeting Minutes for March 6th, 8th and 13th
To approve the minutes of the Pasco City Council Regular Meeting held on March
6, 2023, Special Meeting held on March 8, 2023, and Workshop March 13, 2023.
Bills and Communications
To approve claims in the total amount of $6,892,909.54 ($4,989,855.30 in Check
Nos. 254451-254797; $767,185.14 in Electronic Transfer Nos. 839859-839865,
839867; $20,863.83 in Check Nos. 54300 -54314; $1,114,357.10 in Electronic
Transfer Nos. 30187622-30188234; $95.27 in Electronic Transfer Nos. 917;
$552.90 in Electronic Transfer Nos. 197-202)
Page 1 of 11Page 7 of 234
To approve bad debt write-off for accounts receivable including Utility Billing,
Ambulance, Cemetery, General Accounts, and Miscellaneous Accounts in the total
amount of $231,026.03 and, of that amount, authorize $13,724.62 to be turned over
for collection.
Ordinance No. 4644 & Resolution No. 4318 - Budget Amendment & Bid Award
for Court Street Overlay (Road 44 to Road 68) and Court Street Overlay -
Phase 2 Projects
To adopt Ordinance No. 4644, amending the 2023-2024 Biennial Capital Projects
Budget (Ordinance No. 4620) of the City of Pasco, Washington, by providing
supplement thereto; to provide additional appropriation in the City's Overlay Fund
for the Court Street Overlay – Road 44 to Road 68 and Court St. Overlay- Phase 2
Projects and, further authorize publication by summary only.
To approve Resolution No. 4318, awarding the construction contract for Bid No.
21304 and 21308, Court Street Overlay- Road 44 to Road 68 project and Court
Street Overlay - Phase 2 Projects to Central Washington Asphalt, Inc. o f Moses
Lake, Washington in the amount of $2,885,000, and further authorizes the Interim
City Manager to execute the contract documents.
Ordinance No. 4645 & Resolution No. 4319 - Budget Amendment & Bid Award
Wastewater Treatment Plant Improvements Phase 2A
To approve Ordinance No. 4645, amending the 2023-2024 Biennial Capital
Projects Budget (Ordinance No. 4620) of the City of Pasco, Washington, by
providing supplement thereto; to provide additional appropriation in the City’s
Wastewater Utility Fund and, further, authorize publication by summary only.
To approve Resolution No. 4319, awarding the Wastewater Treatment Plant
Improvements Phase 2A Project to Apollo, Inc. of Kennewick, Washington, in the
amount of $13,996,917.00, including Washington State Sales Tax, and further
authorize the Interim City Manager to execute the contract documents.
Resolution No. 4320 - Acceptance of 2023-2028 Parks, Recreation & Open
Space Master Plan
This item was moved to "Ordinances and Resolutions Not Relating to
Hearings" section for discussion.
Resolution No. 4321 - Project Acceptance: Sandifur Parkway Widening
To approve Resolution No. 4321, accepting work performed by Big D's
Construction, Inc. under contract for the Sandifur Parkway Widening (Rd 52 to Rd
60) Project.
Page 2 of 11Page 8 of 234
*Resolution No. 4322 - Setting a Public Hearing Date for Empire Bros
Construction Right-of-Way Vacation (VAC 2022-010)
To approve Resolution No. 4322, setting 7:00 P.M., Monday, April 17, 2023 as the
time and date to conduct a public hearing to consider the vacation of rights -of-way
in Washington Addition to Pasco in the vicinity of East Helena Street in Pasco, WA.
Mayor Pro Tem Maloney requested that Consent Agenda Item 4(e) Resolution No.
4320 - Acceptance of 2023-2038 Parks, Recreation and Open Space Master Plan,
be moved to ORDINANCES AND RESOLUTIONS NOT RELATING TO
HEARINGS, Section 9(d), for further discussion.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Campos to approve the Consent Agenda as amended.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
PROCLAMATIONS AND ACKNOWLEDGEMENTS
Proclaiming March 2023 as "Developmental Disabilities Awareness Month"
Mayor Barajas will read the proclamation proclaiming March 2023 as,
"Developmental Disabilities Awareness Month" in Pasco, Washington. She
presented the proclamation to Cindy O’Neill, Executive Director of the Arc of Tri -
Cities; Valerie Clark, Goodwill Industries; Paul Singer, Director of Tri-Cities
Residential Services.
Proclaiming March 2023 as "Women's History Month"
Mayor Barajas read the proclamation proclaiming March 2023 as, "Women's
History Month" in Pasco, Washington and then presented it to Angie Pacheco,
Domestic Violence Services of Benton and Franklin Counties Executive Director.
PUBLIC COMMENTS
Charles Grimm, Pasco resident, commented on the retail sales cannabis and
expressed support for the approval of Resolution No. 4327, issuing an advisory vote to
Pasco residents.
Lawanda Hatch, Pasco resident, expressed opposition to retail sales of cannabis.
John Rose, Pasco resident, expressed opposition to retail sale of cannabis.
Dana Crutchfield, Pasco resident, expressed opposition to retail sales of cannabis
within Pasco and distributed her written comments to City Clerk Barham.
Page 3 of 11Page 9 of 234
Eric Larsen, Glee Washington, expressed support for the retail sales of cannabis within
Pasco.
Anthony Contreras-Sanchez, Kennewick resident, expressed appreciation for the
Mayor proclaiming March as the "Developmental Disabilities Awareness Month.".
Carl Holder, Downtown Pasco business owner, commented on the retail sales of
cannabis and expressed support for Resolution No. 4328, to allow it within commercial
and industrial zoning districts.
Michael Grey, Franklin County resident, expressed support for Resolution No. 4328,
allowing the retail sales of cannabis within commercial and industrial zoning districts in
Pasco.
Luke Mehlenbacher, Pasco resident, expressed opposition to the retail sales of
cannabis within Pasco.
Terri Hendricks, Pasco resident, expressed support of Resolution No. 4328, allowing
the retail sales of cannabis within commercial and industrial zoning districts in Pasco.
Unidentified woman, expressed opposition to the retail sales of cannabis within Pasco
and supported the approval of Resolution No. 4327.
David Dillsworth, Pasco resident, expressed opposition to the retail sales of cannabis
in Pasco and distributed a petition opposing the retail sales of cannabis to City Clerk
Barham
Michelle Andres, Pasco resident, expressed opposition to the retail sales of cannabis
within Pasco.
Willy Wilson, Pasco resident, commented on March 6 and March 12 Council meetings
related to actions related to the retail sales of cannabis within Pasco.
Brian Moreno, Pasco resident, commented on a proposal he previously submitted to
Council to create an advisory board to the Tri-Cities Animal Control Authority.
Hector Toro, Pasco resident, read an article regarding federal legislation related
cannabis.
Valerie Landen, Director of Hearthfire Animal Rescue Team (HART), commented on
the Tri-Cities Animal Control Shelter.
Angela Zilar, West Richland resident, commented on the Tri -Cities Animal Control
Shelter and distributed "Duties and Responsibilities" from her previous contract with the
City of Pasco to City Clerk Barham.
Page 4 of 11Page 10 of 234
Mr. Martinez, Pasco resident, expressed opposition to retail sales of cannabis within
Pasco and support for Resolution No. 4327, issuing an advisory vote to Pasco
residents.
Donnie Pitzer, Yakima resident, expressed support of Resolution No. 4328, allowing
the retail sales of cannabis within commercial and industrial zoning districts in Pasco.
Roger Skaer, West Richland resident, expressed support of Resolution No. 4328,
allowing the retail sales of cannabis within commercial and industrial zoning districts in
Pasco.
David Ramarez, Pasco resident, expressed opposition to the retail sales of cannabis
within Pasco and supported the approval of Resolution No. 4327.
Robert Carosino, Pasco resident, expressed opposition to the PROS Master Plan as it
does not include a plan for new community waterfront park north of Chiawana Park
along the Columbia River. He noted that he submitted an email to Council earlier in the
day.
AMENDMENT TO AGENDA ORDER
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Serrano to move Unfinished Business Item No. 10(a) Resolutions Nos. 4327 &
4328, Related to Retail Sales of Cannabis before 8(a) Public Hearing - 2022
Comprehensive Plan Amendment Docket.
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
Resolutions Nos. 4327 & 4328, Related to the Retail Sales of Cannabis
Council and staff briefly discussed the issue and the proposed actions as presented
in the agenda report were clarified.
MOTION: Councilmember Milne moved, seconded by Councilmember Serrano
to approve Resolution No. 4327, requesting the City staff to draft a resolution
requesting the Franklin County Auditor to place a proposition for an advisory vote
on the next primary election asking voters whether the regulation of retail sales
of cannabis should be allowed or if the current ban on cannabis retail activities
should continue within the City of Pasco.
RESULT: Motion failed by Roll Call Vote 3-4
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AYES: Councilmember Brown, Councilmember Milne, and
Councilmember Serrano
NAYS: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Campos, and Councilmember Roach
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Campos to approve Resolution No. 4328, requesting the City staff to draft an
ordinance to amend PMC 25.10.020 and PMC 25.85, PMC 25.90, PMC 25.100,
PMC 25.120, PMC 25.115, and PMC 25.125 to allow the retail sale of cannabis
in the C-1, C-2, C-3, I-1, I-2, and I-3 Zone(s).
RESULT: Motion carried by Roll Call Vote 4-3
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Campos, and Councilmember Roach
NAYS: Councilmember Brown, Councilmember Milne, and
Councilmember Serrano
RECESS
Mayor Barajas called a five-minute recess at 8:23 PM.
HEARINGS AND COUNCIL ACTION ON ORDINANCES AND RESOLUTIONS
RELATING THERETO
Public Hearing - 2022 Comprehensive Plan Amendment Docket
Mayor Barajas provided instructions on the process for the propo sed 2022
Comprehensive Plan Amendment Docket and public hearing.
Mr. Gonzalez provided a brief overview of the considerations related to Comp Plan
Amendment Docket.
Mayor Barajas declared the Public Hearing open to consider the proposed 2022
Comprehensive Plan Amendment Docket and requested that Mr. Gonzalez
introduce the first Comp Plan Amendment.
Mr. Gonzalez reported on the CPA 2022-001 - Kidwell Medium Density Residential
to Mixed Residential/Commercial.
Rick Simon, the Consultant for Mr. and Mrs. Kidwell (CPA 2022-001), expressed
support for their Comp Plan amendment.
Mr. Gonzalez reported on the CPA 2022-002 - Jankelson/Tate Low Density
Residential to Mixed Residential/ Commercial.
Ms. Tate expressed support for her Comp Plan amendment.
Page 6 of 11Page 12 of 234
Mr. Gonzalez reported on the CPA 2022-003 - Broetje/New Heritage: Industrial to
Mixed Residential/Commercial. He stated that staff have expressed concern
regarding the proposed amendment and does not support it.
Mr. Broetje, applicant, expressed support for the Broetje/New Heritage (CPA 2022 -
003) Comp Plan amendment.
Ms. Roach and Mr. Broetje further discussed the proposed development and the
environmental impact statement within the application.
Mr. Serrano and Mr. Gonzalez discussed the recommendation of denial of the
Broetje/New Heritage Comp Plan amendment as cu rrently presented. Then Mr.
Serrano briefly discussed the proposed amendment with Mr. Broetje.
Mayor Barajas commented on this proposed Comp Plan amendment and a letter
regarding a truck route concern in the area where this property is located.
Mr. Milne and Mr. Broetje discussed the sound barrier wall between Amazon and
the proposed development.
Steven McFadden, Port of Pasco, commented on the need for affordable housing
in Pasco, as well as the need for compatibility within neighboring sites of thi s
proposed Comp Plan amendment zoned Industrial.
Laura Han, Local Bounty representative, commented on the proposed housing
development and expressed support of City staff's recommendation to deny the
Broetje/New Horizon (CPA 2022-003) Comp Plan amendment.
Ryan Brault, Pasco resident, commented on his time living in Tierra Vida
community and expressed support for the proposed Broetje/New Horizon Comp
Plan amendment.
Justin Baerlocher, JUB Engineers and consultant for Broetje/New Heritage (CPA
2022-003), discussed the timeline on the updates to the proposed Comp Plan
amendment related to the environmental impact statement for the property.
Mr. Brown, Mr. Campos, Ms. Roach and Mayor Pro Tem Maloney commented and
asked additional questions regarding the proposed amendment and
recommendation for denial.
Gracie Valle, Pasco resident, spoke about Tierra Vida community and stated that
she and her family were previous residents of another Broetje community. She
expressed support for the proposed Broetje/New Horizon Comp Plan amendment.
Federico Valle, Pasco resident, commented Tierra Vida community and stated that
he was a previous resident of another Broetje community. He expressed support
for the proposed Broetje/New Horizon Comp Plan amendment.
Page 7 of 11Page 13 of 234
Darrell Morris, JUB Engineers and consultant for the Broetje/New Heritage (CPA
2022-003), expressed support for this Comp Plan amendment.
Mayor Pro Tem Maloney asked for clarification on the environmental impact
statement and Mr. Gonzalez responded.
RECESS
Mayor Barajas declared a five-minute recess at 9:41 PM.
HEARINGS AND COUNCIL ACTION ON ORDINANCES AND RESOLUTIONS
RELATING THERETO CONTINUED
Public Hearing - 2022 Comprehensive Plan Amendment Docket Continued
Mayor Barajas amended the public hearing process for the Comprehensive Plan
Amendments. She requested that Mr. Gonzalez provide brief summaries for the
remaining proposed Comprehensive Plan Amendments and then the public would
have the opportunity to provide comments on any of those applications.
Mr. Gonzalez reported on the following applications:
• CPA 2022-004 - Lavrentiev: Low Density Residential to Medium Density
Residential
• CPA 2022-006 - Olberding/Stromstad: Commercial to Mixed
Residential/Commercial
• CPA2022-007 - Mullen: Commercial to Mixed Residential/Commercial
• CPA2022-008 - Blake: Commercial to Mixed Residential/Commercial
• CPA2022-009 - Alford: Low Density Residential to Mixed
Residential/Commercial
• CPA2022-010 - McClory: Commercial to High Density Residential
• CPA2022-011 - Lavrentiev/Fetterolf: Commercial to Mixed
Residential/Commercial
• CPA2022-013 - City of Pasco: Establish Downtown Land Use/Overlay
• CPA2022-014 - City of Pasco: Broadmoor Master Plan
• CPA2022-015 - City of Pasco: Commercial to Mixed Use Residential &
Commercial, Ramgar Estates
• CPA2022-016 - City of Pasco: Commercial to Mixed Use Residential &
Commercial, West Court Street: 19th Ave-14th Ave.
• CPA2022-017 - City of Pasco: Industrial to Mixed Residential and
Commercial, S 10th Ave: W A St-W Washington St.
• CPA2022-018 - City of Pasco: Changes to the Future Land Use Map Table
Council interjected throughout the presentations providing comments and sought
clarification on specific applications.
Ms. Barajas called for public comment.
Page 8 of 11Page 14 of 234
Cortney Whiten, the consultant for Lavrentiev (CPA 2022 -004), expressed support
for that proposed Comp Plan Amendment.
Peter Harpster, the consultant for Olberding/Stromstad (CPA2022 -006), expressed
support for the proposed Comp Plan Amendment.
Charles Grimm, Pasco resident, commented on the City of Pasco's Broadmoor
Master Plan (CPA2022-014) and requested it be modified it to include a community
park along the Columbia River shoreline.
Following three calls for comments, and there being none, Mayor Barajas declared
the Public Hearing closed.
This item will come back to Council for a recommendation of final action at a future
meeting.
ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS
Request to Continue Resolution No. 4323 - Naming of New Park in Madison
Park Neighborhood and Resolution No. 4320 - Acceptance of 2023-2028
Parks, Recreation & Open Space Master Plan to a Future Meeting
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Milne
to continue Resolution No. 4323 - Naming of New Park in Madison Park
Neighborhood and Resolution No. 4320 - Acceptance of 2023-2028 Parks,
Recreation & Open Space Master Plan to a future Council Meeting.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Resolution No. 4326 - Award and Acceptance of the Musco Sports
Lighting/National Recreation & Park Association Youth Sport Equity Grant
Program, Memorandum of Understanding, and In-Kind Donation Agreement
Mr. Ratkai provided a brief report on the proposed grant, MOU and in-kind donation
for sports field lighting.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember
Campos to approve Resolution No. 4326, approving the acceptance of the
Musco Sports Lighting/National Recreation & Park Association Youth Sports
Equity Grant, Memorandum of Understanding, and In -Kind Donation Agreement.
RESULT: Motion carried unanimously 7-0
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AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
Resolutions Nos. 4324 & 4325 - Interagency Agreement & Rental Agreement
with Washington Criminal Justice Training Commission for the Basic Law
Enforcement Academy
Deputy Police Chief Cook provided a brief report on the proposed interagency
agreement and Rental Agreement for the Basic Law Enforcement Academy.
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Roach
to approve Resolution No. 4324, authorizing the City Manager to execute the
interagency agreement with the Washington State Criminal Justice Training
Commission to provide instruction and facilities for the purposes of hosting the
Basic Law Enforcement Academy (BLEA).
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
MOTION: Mayor Pro Tem Maloney moved, seconded by Councilmember Roach
to approve Resolution No. 4325, authorizing the City Manager to execute a
Delegated State Rental Agreement between the Washington State Criminal
Justice Training Commission and the City of Pasco.
RESULT: Motion carried unanimously 7-0
AYES: Mayor Barajas, Mayor Pro Tem Maloney,
Councilmember Brown, Councilmember Campos,
Councilmember Milne, Councilmember Roach, and
Councilmember Serrano
MISCELLANEOUS DISCUSSION
Ms. Roach suggested that the Council Meeting start earlier, prehaps at 6:00 PM.
EXECUTIVE SESSION (15 MINUTES)
Council adjourned into Executive Session with the City Attorney at 10:28 PM for 15
minutes to discuss performance of a Public Employee per RC W 42.30.110(1)(g)
and discussion with Legal Counsel About Current or Potential Litigation per RCW
42.30110(1)(i).
At 10:43 PM Mayor Barajas announced that the Executive Session would continue
for another 15 minutes.
Page 10 of 11Page 16 of 234
Mr. Lincoln and Mr. Worley joined the Executive Session at 10:46 PM.
Mayor Barajas called the meeting back to order at 11:00 PM.
ADJOURNMENT
There being no further business, the meeting was adjourned at 11:00 PM.
PASSED and APPROVED this ____ day of ________________, 20__.
APPROVED: ATTEST:
Blanche Barajas, Mayor Debra Barham, City Clerk
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MINUTES
City Council Workshop Meeting
7:00 PM - Monday, March 27, 2023
Pasco City Hall, Council Chambers & GoToWebinar
CALL TO ORDER
The workshop was called to order at 7:02 PM by Blanche Barajas, Mayor.
ROLL CALL
Councilmembers present: Blanche Barajas, Craig Maloney, Irving Brown, Joseph
Campos, David Milne, and Zahra Roach
Councilmembers absent: Pete Serrano
Staff present: Adam Lincoln, Interim City Manager; Angela Pashon, Assistant City
Manager; Darcy Buckley, Finance Director; Eric Ferguson, City Attorney; Zach
Ratkai, Administrative & Community Services Director; Bill Paramore, Police
Captain; 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.
VERBAL REPORTS FROM COUNCILMEMBERS
Ms. Roach commented on the March for Respect event held in Richland, WA that she
attended recently.
Mayor Pro Tem Maloney reported on the Pasco Public Facilities District Board meeting
he attended recently.
Mayor Barajas also commented on the March for Respect event.
ITEMS FOR DISCUSSION
Visit Tri-Cities 2022 Annual Report, 2023 Workplan, and Tourism Promotion
Area Reserve Fund Request
Page 1 of 3Page 18 of 234
Ms. Pashon introduced Kevin Lewis, President and CEO, Visit Tri-Cities, who
presented the 2022 Visit Tri-Cities Annual Report, the 2023 Workplan and the
funding request from the Tourism Promotion Area (TPA) Reserve.
Council and Mr. Lewis discussed the following:
• Suggestions for marketing the Tri-Cities area.
• Questions and responses regarding the $1.5 million TPA Re serve.
• The role of Visit Tri-Cities in promoting specific areas such as Downtown
Pasco.
• The status of the Sports Feasibility Study conducted a few years ago.
• Regional partnerships with other Cities such as Spokane, WA.
Downtown Pasco Development Authority (DPDA) Monthly Report February
2023
Mr. White introduced Jerry Martinez, Downtown Pasco Develop Authority (DPDA)
Executive Director.
Mr. Martinez introduced Brad Powell, owner of "Powell's Inferno," a business that
is run through the Pasco Specialty Kitchen. Mr. Powell expressed appreciation for
the PSK and also noted that some of the kitchen's equipment needs to be upgraded
and replaced.
Mr. Martinez further discussed the need for new equipment in the PSK. Next, he
provided his monthly report related to the DPDA monthly activities and business
items.
Council and Mr. Martinez continued discussion related to upcoming events and
Council provided expressions of appreciation for the direction that DPDA is moving
towards, as well as the progress that has already been made.
MISCELLANEOUS COUNCIL DISCUSSION
Ms. Pashon announced the newest four Utility Box Wraps that were recently completed
and shared photos of the boxes.
Mayor Pro Tem Maloney asked about opportunities available to individuals interested
in assisting the Tri-Cities Animal Control Authority's (TCACA) shelter.
Mr. Ratkai provided the plan for the TCACA, which includes opportunities to the public
to attend the TCACA meetings.
Ms. Roach stated that she was approached by a member from the "Saving our
Shoreline" or "SOS" group and the group has a request to meet with Council to discuss
developing a river shore park. She stated that she would provide the contact
information of a group member to staff.
Page 2 of 3Page 19 of 234
EXECUTIVE SESSION
Council adjourned into Executive Session at 8:05 PM for 20 minutes to discuss the
qualifications of an applicant for public employment per RCW 42.30.110(1)(g) and
discussion with legal counsel about current o r potential litigation per RCW
42.30.110(1)(i) with the City Attorney.
At 8:25 PM Mayor Barajas announced that the Executive Session would continue
for another 20 minutes.
At 8:45 PM Mayor Barajas announced that the Executive Session would continue
for another 10 minutes.
Mr. Lincoln, Mr. Worley and Ms. Pashon joined the Executive Session at 8:45 PM.
Ms. Pashon left the Executive Session at 8:48 PM.
At 8:55 PM Mayor Barajas announced the Executive Session would continue for
another 10 minutes.
Mayor Barajas called the meeting back to order at 9:06 PM.
ADJOURNMENT
There being no further business, the meeting was adjourned at 9:06 PM.
PASSED and APPROVED this __ day of ________________, 20__.
APPROVED: ATTEST:
Blanche Barajas, Mayor Debra Barham, City Clerk
Page 3 of 3Page 20 of 234
AGENDA REPORT
FOR: City Council March 30, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Darcy Buckley, Finance Director
Finance
SUBJECT: Bills and Communications
I. REFERENCE(S):
Accounts Payable 04.03.23
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve claims in the total amount of $8,154,646.82 ($6,878,800.40 in Check
Nos. 254798-255073; $136,557.59 in Electronic Transfer Nos. 839667-839746,
839759-839856, 839868-840090; $14,090.75 in Check Nos. 54315-54323;
$1,125,081.21 in Electronic Transfer Nos. 30188235-30188841; $116.87 in
Electronic Transfer Nos. 918).
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
Page 21 of 234
REPORTING PERIOD:
April 3, 2023
Claims Bank Payroll Bank Gen'l Bank Electronic Bank Combined
Check Numbers 254798-255073 54315-54323
Total Check Amount $6,878,800.40 $14,090.75 Total Checks 6,892,891.15$
Electronic Transfer Numbers 839667-839746 30188235-30188841 918
839759-839856
839868-840090
Total EFT Amount $136,557.59 $1,125,081.21 $116.87 $0.00 Total EFTs 1,261,755.67$
Grand Total 8,154,646.82$
Councilmember
100 841,958.03
110 94,345.33
120 0.00
130 8,792.20
140 0.00
142 0.00
144 0.00
145 3,673.35
150 25,842.62
155 0.00
160 3,702.80
165 2,251.37
166 0.00
168 22,271.20
170 1,117.40
180 1,639.90
182 0.00
185 398.37
188 0.00
189 0.00
190 4,428.27
191 27,083.34
192 0.00
194 16,294.19
195 0.83
196 HOTEL/MOTEL EXCISE TAX 13,847.20
245 0.00
367 909,109.55
410 4,927,760.59
510 34,985.66
511 0.00
515 0.00
516 63.50
520 0.00
600 POOLED INVESTMENT 0.00
619 0.00
630 0.00
690 1,215,081.12
GRAND TOTAL ALL FUNDS:8,154,646.82$
FLEX
PAYROLL CLEARING
OLD FIRE OPEB
PARKS
ECONOMIC DEVELOPMENT
STADIUM/CONVENTION CENTER
LID
GENERAL CAP PROJECT CONSTRUCTION
UTILITY, WATER/SEWER
EQUIPMENT RENTAL - OPERATING GOVERNMENTAL
EQUIPMENT RENTAL - OPERATING BUSINESS
EQUIPMENT RENTAL - REPLACEMENT GOVERNMENTAL
EQUIPMENT RENTAL - REPLACEMENT BUSINESS
MEDICAL/DENTAL/VISION INSURANCE
TRAC DEVELOPMENT & OPERATING
CEMETERY
ATHLETIC PROGRAMS
GOLF COURSE
ANIMAL CONTROL
SENIOR CENTER OPERATING
MULTI-MODAL FACILITY
SCHOOL IMPACT FEES
RIVERSHORE TRAIL & MARINA MAIN
SPECIAL ASSESSMENT LODGING
LITTER ABATEMENT
REVOLVING ABATEMENT
ARPA
Councilmember
SUMMARY OF CLAIMS BY FUND:
GENERAL FUND
STREET
ARTERIAL STREET
STREET OVERLAY
C.D. BLOCK GRANT
HOME CONSORTIUM GRANT
NSP GRANT
MARTIN LUTHER KING COMMUNITY CENTER
AMBULANCE SERVICE
March 16 - March 29, 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
4th day of April, 2023 that the merchandise or services hereinafter specified have been received and are approved for payment:
Page 22 of 234
AGENDA REPORT
FOR: City Council March 1, 2023
TO: Adam R. Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Steve Worley, Director
Public Works
SUBJECT: Resolution No. 4329 - Easement Purchase for Zone 3 Water
Transmission Main Project
I. REFERENCE(S):
Resolution
Perpetual Easement (Exhibit A)
Vicinity Map
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4329, authorizing the Interim City
Manager to execute the easement agreements for the Zone 3 Transmission
Main Project.
III. FISCAL IMPACT:
The negotiated perpetual easment cost is $157,000.00 for the Zone 3 Water
Transmission Main Project will be funded by the Water Utility fund (Fund 411).
IV. HISTORY AND FACTS BRIEF:
Design, permitting, and final cost estimates for this project were com pleted in
September/October 2022. The Transmission Main project consists of the
installation of a transmission main to deliver potable water from the West Pasco
Water Treatment Plant (WPWTP) to current and future users in Pressure Zone
3.
Four easements are required for this project. The two other privately owned
easements were acquired in August of 2022. The third is an agreement with
FCID to utilize their property and irrigation easement for construction of the water
main. The easement subject to this action is the final private easement needed
to connect the transmission main to an existing main located in the Broadmoor
Boulevard/Road 100 intersection.
Page 23 of 234
This transmission main is critical to providing adequate service to Zone 3
customers and supplying the existing and future storage reservoirs with potable
water. This project is a companion project to the West Pasco WTP Expansion
project (several phases) and the Zone 3 Water Storage Reservoir project.
V. DISCUSSION:
Construction and future maintenance of the potable water transmission main will
be performed within the easement on the subject property.
The permanent easement along the south-eastern edge of the property is 30-
feet wide and measures approximately one acre in size (see attached Vicini ty
Map).
The City, through its property acquisition consultant, prepared an appraisal in
April 2022 and presented an offer to the property owner. The property owner
provided a counter offer that far exceeded the original offer amount. Through
extensive negotiations, the parties reached a settlement, subject to Council
approval, in the amount of $157,000. All factors considered, the amount is
reasonable and is a prudent use of city resources to avoid delays and further
costs to the project should negotiations be exte nded. The cost of this easement
is within the project budget.
Staff recommends approval of the attached Resolution authorizing the Interim
City Manager to execute the easement documents for the Zone 3 Transmission
Main Project.
Page 24 of 234
Resolution – Transmission Main – WPWTP to Zone 3 - Easement Purchase - 1
RESOLUTION NO. ____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON, AUTHORIZING THE INTERIM CITY MANAGER TO SIGN
AND EXECUTE THE EASEMENT AGREEMENT FOR THE TRANSMISSION
MAIN – WPWTP TO ZONE 3 PROJECT.
WHEREAS, the City of Pasco desires to construct and install a potable water main as
described in the Transmission Main – West Pasco Water Treatment Plant (WPWTP) to Zone 3
Project; and
WHEREAS, the proposed improvements are partially located within the private property
requiring the acquisition of permanent utility easements; and
WHEREAS, the City of Pasco, through its consultants, have prepared an appraisal and
review appraisal to determine the estimated fair market value of the easements; and
WHEREAS, the property owner provided a counter offer far exceeding the assessed
value of the property; and
WHEREAS, through extensive negotiations the property owner and City reached an
agreement on the value of easement and settlement for a total of $157,000; and
WHEREAS, the City and its consultants consider this a reasonable value and a prudent
use of public resources to avoid further delays; and
WHEREAS, the City Council authorizes the City to proceed with the acquisition of the
designated easement via the execution of said easement documentation; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO:
that the Interim City Manager is hereby authorized to execute the perpetual utility
easement agreement, a copy of which is attached hereto and incorporated herein by reference as
EXHIBIT A.
BE IT FURTHER RESOLVED that this Resolution shall take effect and be in full force
immediately upon passage by the City Council.
Page 25 of 234
Resolution – Transmission Main – WPWTP to Zone 3 - Easement Purchase - 2
PASSED by the City Council of the City of Pasco, Washington, at a council meeting on
this 3rd day of April, 2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 26 of 234
EXHIBIT A
Page 27 of 234
Page 28 of 234
Page 29 of 234
Page 30 of 234
Page 31 of 234
TRANSMISSION MAIN - WPWTP TO ZONE 3
EASEMENT
Page 32 of 234
AGENDA REPORT
FOR: City Council March 29, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Steve Worley, Public Works Director
Public Works
SUBJECT: Resolution No. 4330 - Project Acceptance - Wayfinding Signage &
Gateway Entrance
I. REFERENCE(S):
Resolution
Presentation
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No.4330, accepting work performed by
Ray Poland & Sons, Inc. for the Wayfinding Signage & Gateway Entrance
project.
III. FISCAL IMPACT:
None.
IV. HISTORY AND FACTS BRIEF:
The project bid was awarded by the City Manager to Ray Poland & Sons, Inc. of
Kennewick, WA on April 11, 2022, in the amount of $273,927.21.
The project included fabricating and installation of monument signage at five
locations throughout the City. The work included earthwork, landscaping, and
placement of structural concrete. The project is now complete and was
constructed per project specifications. Final construction costs were
$268,956.30.
Formal acceptance of public works projects is required by State law and start the
45-day period within which an outside vendor, supplier or laborer would have an
opportunity to file a claim against this project pursuant to RCW 60.28.011 (2).
Upon completion of the 45-day lien filing period, retainage being held by the City
may be released upon receipts of the following:
Page 33 of 234
• An affidavit of no liens
• A release from the Department of Revenue that all taxes have been paid
• A release from any claims from the Department of Labor and Industries,
pursuant to RCW 60.28.051
V. DISCUSSION:
Staff recommends City Council's acceptance of the project as constructed.
Page 34 of 234
Resolution – Wayfinding Signage & Gateway Entrance Project Closeout - 1
RESOLUTION NO. ________
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
ACCEPTING WORK PERFORMED BY RAY POLAND & SONS, INC.
UNDER CONTRACT FOR THE WAYFINDING SIGNAGE & GATEWAY
ENTRANCE PROJECT.
WHEREAS, the work performed by Ray Poland & Sons, Inc. under contract for the
Wayfinding Signage & Gateway Entrance project, has been examined by City of Pasco staff and
has been found to be in apparent compliance with the applicable project specifications and
drawings; and
WHEREAS, it is the City Staff’s recommendation that the City of Pasco formally
accepts the contractor's work and the project as complete.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
That the City Council concurs with the Staff’s recommendation and thereby accepts the
work performed by Ray Poland & Sons, Inc. under contract for the Wayfinding Signage &
Gateway Entrance project, as being completed in apparent compliance with the project
specifications and drawings; and
Be It Further Resolved, that the City Clerk is hereby directed to notify the Washington
State Department of Revenue of this acceptance; and
Be It Further Resolved, that the final payment of retainage being withheld pursuant to
applicable laws, regulations and administrative determination shall be released upon satisfaction
of same and verification thereof by the Public Works Director and Finance Director.
PASSED by the City Council of the City of Pasco, Washington, this ___ day of April,
2023.
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 35 of 234
Pasco City Council Regular
Meeting
April 3, 2023Page 36 of 234
Wayfinding Signage & Gateway Entrance
Project #21-262
The project consisted of fabrication and
installation of monument signage at
various locations through-out the City:
➢Cable Bridge Park
➢20th Ave & Argent Rd Intersection
➢Oregon Ave & Cemetery Rd
Intersection
➢4th Ave and I-182 Intersection
➢28th Ave and Lewis St Intersection
Contractor: Ray Poland & Sons, Inc.
Awarded CN Cost: $273,927.21
Total CN Cost: $268,956.30*
*No Change OrdersPage 37 of 234
Wayfinding Signage & Gateway Entrance
Cable Bridge Park
Before After
Page 38 of 234
Wayfinding Signage & Gateway Entrance
20th Ave & Argent Rd Intersection
Before After
Page 39 of 234
Wayfinding Signage & Gateway Entrance
Oregon Ave & Cemetery Rd Intersection
Before After
Page 40 of 234
Wayfinding Signage & Gateway Entrance
4th Ave & I-182 Intersection
Before After
Page 41 of 234
Wayfinding Signage & Gateway Entrance
28th Ave & Lewis St Intersection
Before After
Page 42 of 234
Questions?Page 43 of 234
AGENDA REPORT
FOR: City Council March 30, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Eric Ferguson, City Attorney
City Attorney
SUBJECT: Resolution No. 4331 - Washington Opioid Settlements (Walgreens, CVS,
Walmart, Teva & Allergan)
I. REFERENCE(S):
Resolution
State Cover Letter
Settlement Participation Form CVS
Settlement Participation Form Teva
Settlement Participation Form Walgreens
Settlement Participation Form Walmart
Settlement Participation Form Allergan
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4331, approving participation in
Washington Opioid Settlements with Walgreens, CVS, Walmart, Teva, and
Allergan; and further, authorize the City Manager to execute the participation
forms and allocation agreement.
III. FISCAL IMPACT:
Under the recommended action, there is no negative fiscal impact either
directly or indirectly.
IV. HISTORY AND FACTS BRIEF:
Last year, the state of Washington and several Washington counties and cities
settled litigation that has been pending against the manufacturers and
distributors of opioids for several years. The total settlement (Manufacturers)
was $518 million, of which $215 million was allocated to local Washington
cities and counties. Each jurisdiction was awarded a portion of the settlement
using a formula based on historic opioid use statistics and population. The
Page 44 of 234
City's share of the settlement is approximately $740,000-$920,000 to be paid
out over 17 years.
Five new proposed national opioid settlements (“Settlements”) have been
reached with Teva, Allergan, CVS, Walgreens, and Walmart. These new
Settlements are in addition to the prior settlement, the City will need to sign
new settlement documents to join. The Washington Attorney General's Office is
encouraging counties and cities to join the settlements as non-participation
may stop finalization or substantially lessen the amount Washington receives,
the settlement deadline is April 18, 2023. The distribution settle will be paid out
over 15 years.
V. DISCUSSION:
propThe execute to Manager City the authorizes resolution osed the
Participation Forms required to the Settlements. By entering this agreement
Teva, Allergan, CVS, Walgreens, and Walmart admit no liability or wrongdoing
and the Participating Jurisdictions must agree to dismiss with prejudice the
current litigation against these Settlement Distributors forever barring the City’s
right to pursue an independent legal action against those distributors.
Staff resolution and legal counsel recommend approval of the proposed
authorizing the City of Pasco to join the Attorney General’s Distributors
Washington Settlement Agreement.
Page 45 of 234
Resolution –Washington Opioid Settlements with
(1) Walgreens, (2) CVS, (3) Walmart, (4) Teva, and (5) Allergan - 1
RESOLUTION NO.
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE INTERIM CITY MANAGER TO SIGN SETTLEMENT
PARTICIPATION FORMS FOR THE WASHINGTON OPIOID
SETTLEMENTS WITH (1) WALGREENS, (2) CVS, (3) WALMART, (4)
TEVA, AND (5) ALLERGAN ALONG WITH ANY OTHER DOCUMENTS
REQUIRED TO COMPLETE PARTICIPATION IN THE SETTLEMENT; AND
FURTHER AUTHORIZES THE INTERIM CITY MANAGER TO EXECUTE
THE ALLOCATION AGREEMENT AND PARTICIPATION FORMS.
WHEREAS, the people of the State of Washington and its communities have been
harmed by entities within the Pharmaceutical Supply Chain who manufacture, distribute, and
dispense prescription opioids; and
WHEREAS, certain Local Governments, through their elected representatives and
counsel, are engaged in litigation seeking to hold these entities within the Pharmaceutical Supply
Chain of prescription opioids accountable for the damage they have caused to the Local
Governments; and
WHEREAS, Local Governments and elected officials share a common desire to abate
and alleviate the impacts of harms caused by these entities within the Pharmaceutical Supply
Chain throughout the State of Washington, and strive to ensure that principles of equity and
equitable service delivery are factors considered in the allocation and use of Opioid Funds; and
WHEREAS, certain Local Governments engaged in litigation and other cities, such as
the City of Pasco and counties in Washington, wish to become “Participating Local
Governments” by agreeing on a form of allocation for Opioid Funds they receive from entities
within the Pharmaceutical Supply Chain; and
WHEREAS, the City Council of the City of Pasco is vested with the authority to sue and
be sued in courts and all proceedings and is also vested with authority to contract pursuant to
RCW 35A.11; and
WHEREAS, the City of Pasco entered into the One MOU on May 27, 2022, as a
Participating Local Government bound by the distribution allocation as described in Exhibit A
of the One MOU; and
WHEREAS, the Washington State Attorney General is involved in litigation with (1)
Walgreens, (2) CVS, (3) Walmart, (4) Teva, and (5) Allergan (“Settling Distributors”); and
WHEREAS, the Attorney General’s Distributors Washington Settlement Agreement has
added additional funds to the Global Settlement including the previously negotiated One MOU
with Keller Rohrback; and
Page 46 of 234
Resolution –Washington Opioid Settlements with
(1) Walgreens, (2) CVS, (3) Walmart, (4) Teva, and (5) Allergan - 2
WHEREAS, the total Washington Abatement Amount is $434,000,000; and
WHEREAS, by entering into the Attorney General’s negotiated Distributors Washington
Settlement Agreement, the Local Governments and State Government agree to split 50/50 the
Washington Abatement Amount with the Local Governments share being distributed in
accordance with the Allocation Agreement previously negotiated with Keller Rohrback in the
One MOU; and
WHEREAS, by entering into this Agreement, the Settling Distributors admit no fault or
wrong-doing and the Local Governments agree to dismiss with prejudice the current litigation
against them.
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
Washington Opioid Settlements with (1) Walgreens, (2) CVS, (3) Walmart, (4) Teva, and (5)
Allergan Agreement between Washington State, the Participating Local Jurisdictions and the
Settling Distributors; a copy of which is attached hereto and incorporated herein by reference as
Exhibit B; and
Be It Further Resolved that in order to fully execute this Agreement, the City Council of
the City of Pasco further resolves to authorize the Interim City Manager to sign all necessary
documents for that purpose including the Participation Forms, copies of which are attached
hereto and incorporated herein by reference as Exhibit C, and
Be It Further Resolved, that this Resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington this __ day of April,
2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 47 of 234
New National Opioids Settlements: Teva, Allergan, CVS, Walgreens, and Walmart
Opioids Implementation Administrator
opioidsparticipation@rubris.com
Ellensburg city, WA
Reference Number: CL-393436
TO LOCAL POLITICAL SUBDIVISIONS AND SPECIAL DISTRICTS:
YOU MUST TAKE ACTION IN ORDER TO PARTICIPATE IN FIVE NEW OPIOID
SETTLEMENTS
Deadline: April 18, 2023
Five new proposed national opioid settlements (“Settlements”) have been reached
with Teva, Allergan, CVS, Walgreens, and Walmart (“Settling Defendants”). These
new Settlements are in addition to the prior settlement with the opioid distributors,
and you will need to sign new settlement documents to join.
The Washington Attorney General’s Office strongly encourages you to join these
new Settlements. As with the opioid distributor settlement, half of the Washington
share of the settlement proceeds will be directed to Washington local governments
for you to make decisions on how to remediate the opioid crisis in your
communities.
The Settlements are contingent on a very high percentage of Washington cities and
counties joining the Settlements. If you do not join, the Settlements may not be
finalized. Even if enough cities and counties join so that the Settlements are
finalized, your refusal to join would still substantially lessen the amount Washington
receives. The deadline for joining the Settlements by signing the required
documents is Tuesday, April 18, 2023.
How to join the settlements
In the electronic envelope attached to this email, you will find the documents that
your local government needs to execute. Please sign these documents and return
them to the Implementation Manager:
Participation Forms for the (1) Teva, (2) Allergan, (3) CVS, (4) Walgreens, and
(5) Walmart settlements, which include a release of any claims. To join the
Settlements, you need to sign and submit each of these Participation Forms.
Allocation Agreement II. This is an agreement between the State and
Washington local governments to split the settlement proceeds for these five
Settlements, with 50% going to the State and 50% going to the local
governments. The local government share then will be split based on the One
Washington Memorandum of Understanding, which is attached to the
Allocation Agreement II.
DocuSign Envelope ID: 4481C543-1161-465A-B229-A1A19B5A96C1
Page 48 of 234
You can return the executed Participation Forms and Allocation Agreement II to the
Implementation Administrator in one of the following ways:
(1)Electronic Signature via DocuSign: Executing the Participation Forms and
Allocation Agreement II electronically through DocuSign will return the signed
forms to the Implementation Administrator and associate your forms with
your subdivision’s records. Electronic signature is the most efficient method
for returning the documents and is strongly encouraged.
(2)Manual Signature returned via DocuSign : DocuSign allows forms to be
downloaded, signed manually, then uploaded to DocuSign and returned
automatically to the Implementation Administrator. Please be sure to
complete all fields.
(3)Manual Signature returned via electronic mail : If your subdivision is unable to
use DocuSign, the signed Participation Forms and Allocation Agreement II
may be returned via electronic mail to opioidsparticipation@rubris.com.
Please include the name, state, and reference ID of your subdivision in the
body of the email and use the subject line Settlement Participation Forms –
[Subdivision Name, Subdivision State] – [Reference ID].
Detailed instructions on how to sign and return the Participation Forms, including
changing the authorized signer, can be found at
https://nationalopioidsettlement.com . You may also contact
opioidsparticipation@rubris.com .
The Participation Form for each settlement must be executed, without alteration,
and submitted on or before April 18, 2023, in order for your subdivision to be
considered for initial participation calculations and payment eligibility.
How to learn more about these settlements
This AGO press release has information on the five new Settlements and estimates
of Washington’s settlement share if the settlements are finalized, all eligible
Washington local governments join, and all conditions are met:
https://www.atg.wa.gov/news/news-releases/ag-ferguson-files-lawsuits-against-
three-national-pharmacy-chains-their-role.
Additionally, the AGO is coordinating with WSAC and AWC to host informational
meetings about the settlements in February 2023, and more information on those
meetings will follow.
You also may wish to consult with your own legal counsel.
If you have questions about this communication or the settlements, please contact
Jeff Rupert, the Division Chief for the AGO’s Complex Litigation Division, at 206-389-
2116 or Jeffrey.Rupert@atg.wa.gov . The AGO will be monitoring the sign-on
progress and encouraging all eligible local governments in Washington to join.
DocuSign Envelope ID: 4481C543-1161-465A-B229-A1A19B5A96C1
Page 49 of 234
Information and documents regarding the New National Opioid Settlements can be
found on the national settlement website at https://nationalopioidsettlement.com/.
What are the next steps after the April 18, 2023 deadline?
Based upon subdivision participation forms received on or before April 18 th, the
subdivision participation rate will be used to determine whether participation for
each deal is sufficient for the settlement to move forward and whether a state earns
its maximum potential payment under the settlement. If the settlement moves
forward, your release will become effective. If a settlement does not move forward,
that release will not become effective.
Any subdivision that does not participate cannot directly share in the settlement
funds, even if the subdivision’s state is settling and other participating subdivisions
are sharing in settlement funds. Any subdivision that does not participate may also
reduce the amount of money for programs to remediate the opioid crisis in its state.
Please note, a subdivision will not necessarily directly receive settlement funds by
participating; decisions on how settlement funds will be allocated within a state are
subject to intrastate agreements or state statutes.
If the Settlements are finalized, the payment terms and payment schedule for the
settlement proceeds is specified in each Settlement.
The sign-on period for subdivisions ends on April 18, 2023.
Thank you,
National Opioids Settlements Implementation Administrator
The Implementation Administrator is retained to provide the settlement notice
required by the respective settlement agreements referenced above and to manage
the collection of settlement participation forms for each settlement.
DocuSign Envelope ID: 4481C543-1161-465A-B229-A1A19B5A96C1
Page 50 of 234
EXHIBIT K
Subdivision and Special District Settlement Participation Form
Governmental Entity:State:
Authorized Signatory: /officialname_teva_allergan/
Address 1: /address1_teva_allergan/
Address 2: /address2_teva_allergan/
City, State, Zip: /cit_ta/ /state_ta/ /zi_ta/
Phone: /phone_teva_allergan/
Email: /email_teva_allergan/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in
consideration for the benefits provided to the Governmental Entity pursuant to the Agreement dated
November 22, 2022 (“Allergan Settlement”), and acting through the undersigned authorized official,
hereby elects to participate in the Allergan Settlement, release all Released Claims against all Released
Entities, and agrees as follows.
1.The Governmental Entity is aware of and has reviewed the Allergan Settlement, understands
that all terms in this Election and Release have the meanings defined therein, and agrees that
by this Election, the Governmental Entity elects to participate in the Allergan Settlement as
provided therein.
2.Following the execution of this Settlement Participation Form, the Governmental Entity shall
comply with Section III.B of the Allergan Settlement regarding Cessation of Litigation
Activities.
3.The Governmental Entity shall, within fourteen (14) days of the Reference Date and prior to
the filing of the Consent Judgment, file a request to dismiss with prejudice any Released
Claims that it has filed. With respect to any Released Claims pending in In re National
Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes the MDL
Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a
Stipulation of Dismissal With Prejudice substantially in the form found at
https://nationalopioidsettlement.com.
4.The Governmental Entity agrees to the terms of the Allergan Settlement pertaining to
Subdivisions and Special Districts as defined therein.
5.By agreeing to the terms of the Allergan Settlement and becoming a Releasor, the
Governmental Entity is entitled to the benefits provided therein, including, if applicable,
monetary payments beginning after the Effective Date.
6.The Governmental Entity agrees to use any monies it receives through the Allergan Settlement
solely for the purposes provided therein.
1
Page 51 of 234
7.The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s
state where the Consent Judgment is filed for purposes limited to that court’s role as provided
in, and for resolving disputes to the extent provided in, the Allergan Settlement.
8.The Governmental Entity has the right to enforce the Allergan Settlement as provided therein.
9.The Governmental Entity, as a Participating Subdivision or Participating Special District,
hereby becomes a Releasor for all purposes in the Allergan Settlement, including, but not
limited to, all provisions of Section V (Release), and along with all departments, agencies,
divisions, boards, commissions, Subdivisions, districts, instrumentalities of any kind and
attorneys, and any person in their official capacity whether elected or appointed to serve any of
the foregoing and any agency, person, or other entity claiming by or through any of the
foregoing, and any other entity identified in the definition of Releasor, provides for a release to
the fullest extent of its authority. As a Releasor, the Governmental Entity hereby absolutely,
unconditionally, and irrevocably covenants not to bring, file, or claim, or to cause, assist in
bringing, or permit to be brought, filed, or claimed, or to otherwise seek to establish liability
for any Released Claims against any Released Entity in any forum whatsoever. The releases
provided for in the Allergan Settlement are intended to be broad and shall be interpreted so as
to give the Released Entities the broadest possible bar against any liability relating in any way
to Released Claims and extend to the full extent of the power of the Governmental Entity to
release claims. The Allergan Settlement shall be a complete bar to any Released Claim.
10.The Governmental Entity hereby takes on all rights and obligations of a Participating
Subdivision or Participating Special District as set forth in the Allergan Settlement.
11.In connection with the releases provided for in the Allergan Settlement, each Governmental
Entity expressly waives, releases, and forever discharges any and all provisions, rights, and
benefits conferred by any law of any state or territory of the United States or other jurisdiction,
or principle of common law, which is similar, comparable, or equivalent to § 1542 of the
California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor
at the time of executing the release that, if known by him or her, would have
materially affected his or her settlement with the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows,
believes, or assumes to be true with respect to the Released Claims, but each Governmental
Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges,
upon the Effective Date, any and all Released Claims that may exist as of such date but which
Releasors do not know or suspect to exist, whether through ignorance, oversight, error,
negligence or through no fault whatsoever, and which, if known, would materially affect the
Governmental Entities’ decision to participate in the Allergan Settlement.
12.Nothing herein is intended to modify in any way the terms of the Allergan Settlement, to
which the Governmental Entity hereby agrees. To the extent this Settlement Participation
Form is interpreted differently from the Allergan Settlement in any respect, the Allergan
Settlement controls.
2
Page 52 of 234
I have all necessary power and authorization to execute this Settlement Participation Form on behalf
of the Governmental Entity.
Signature:/signer_1_teva_allergan/
Name:/name_1_teva_allergan/
Title:/title_1_teva_allergan/
Date:/date_1_teva_allergan/
3
Page 53 of 234
EXHIBIT K
Subdivision Participation and Release Form
Governmental Entity:State:
Authorized Signatory: /officialname_cvs/
Address 1: /address1_cvs/
Address 2: /address2_cvs/
City, State, Zip: /cit_cv/ /state_cv/ /zi_cv/
Phone: /phone_cvs/
Email: /email_cvs/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in
consideration for the benefits provided to the Governmental Entity pursuant to the Settlement
Agreement dated December 9, 2022 (“CVS Settlement”), and acting through the undersigned authorized
official, hereby elects to participate in the CVS Settlement, release all Released Claims against all
Released Entities, and agrees as follows.
1.The Governmental Entity is aware of and has reviewed the CVS Settlement, understands that all
terms in this Participation and Release Form have the meanings defined therein, and agrees that
by executing this Participation and Release Form, the Governmental Entity elects to participate
in the CVS Settlement and become a Participating Subdivision as provided therein.
2.The Governmental Entity shall promptly, and in any event no later than 14 days after the
Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any
Released Claims that it has filed. With respect to any Released Claims pending in In re
National Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes
the Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a
Stipulation of Dismissal with Prejudice substantially in the form found at
https://nationalopioidsettlement.com.
3.The Governmental Entity agrees to the terms of the CVS Settlement pertaining to Participating
Subdivisions as defined therein.
4.By agreeing to the terms of the CVS Settlement and becoming a Releasor, the Governmental
Entity is entitled to the benefits provided therein, including, if applicable, monetary payments
beginning after the Effective Date.
5.The Governmental Entity agrees to use any monies it receives through the CVS Settlement
solely for the purposes provided therein.
1
Page 54 of 234
6.The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s
state where the Consent Judgment is filed for purposes limited to that court’s role as provided in,
and for resolving disputes to the extent provided in, the CVS Settlement. The Governmental
Entity likewise agrees to arbitrate before the National Arbitration Panel as provided in, and for
resolving disputes to the extent otherwise provided in, the CVS Settlement.
7.The Governmental Entity has the right to enforce the CVS Settlement as provided therein.
8.The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all
purposes in the CVS Settlement, including without limitation all provisions of Section XI
(Release), and along with all departments, agencies, divisions, boards, commissions, districts,
instrumentalities of any kind and attorneys, and any person in their official capacity elected or
appointed to serve any of the foregoing and any agency, person, or other entity claiming by or
through any of the foregoing, and any other entity identified in the definition of Releasor,
provides for a release to the fullest extent of its authority. As a Releasor, the Governmental
Entity hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or
claim, or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to
establish liability for any Released Claims against any Released Entity in any forum
whatsoever. The releases provided for in the CVS Settlement are intended by the Parties to be
broad and shall be interpreted so as to give the Released Entities the broadest possible bar
against any liability relating in any way to Released Claims and extend to the full extent of the
power of the Governmental Entity to release claims. The CVS Settlement shall be a complete
bar to any Released Claim.
9.The Governmental Entity hereby takes on all rights and obligations of a Participating
Subdivision as set forth in the CVS Settlement.
10.In connection with the releases provided for in the CVS Settlement, each Governmental Entity
expressly waives, releases, and forever discharges any and all provisions, rights, and benefits
conferred by any law of any state or territory of the United States or other jurisdiction, or
principle of common law, which is similar, comparable, or equivalent to § 1542 of the
California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that
the creditor or releasing party does not know or suspect to exist in his or her
favor at the time of executing the release that, if known by him or her would
have materially affected his or her settlement with the debtor or released
party.
A Releasor may hereafter discover facts other than or different from those which it knows,
believes, or assumes to be true with respect to the Released Claims, but each Governmental Entity
hereby expressly waives and fully, finally, and forever settles, releases and discharges, upon the
Effective Date, any and all Released Claims that may exist as of such date but which Releasors do
not know or suspect to exist, whether through ignorance, oversight, error, negligence or through no
fault whatsoever, and which, if known, would materially affect the Governmental Entities’
decision to participate in the CVS Settlement.
2
Page 55 of 234
11.Nothing herein is intended to modify in any way the terms of the CVS Settlement, to which
Governmental Entity hereby agrees. To the extent this Participation and Release Form is
interpreted differently from the CVS Settlement in any respect, the CVS Settlement controls.
I have all necessary power and authorization to execute this Participation and Release Form on
behalf of the Governmental Entity.
Signature:/signer_1_cvs/
Name:/name_1_cvs/
Title:/title_1_cvs/
Date:/date_1_cvs/
3
Page 56 of 234
Exhibit K
Subdivision and Special District Settlement Participation Form
Governmental Entity:State:
Authorized Signatory: /officialname_teva_allergan/
Address 1: /address1_teva_allergan/
Address 2: /address2_teva_allergan/
City, State, Zip: /cit_ta/ /state_ta/ /zi_ta/
Phone: /phone_teva_allergan/
Email: /email_teva_allergan/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in
consideration for the benefits provided to the Governmental Entity pursuant to the Agreement
dated November 22, 2022 (“Teva Settlement”), and acting through the undersigned authorized
official, hereby elects to participate in the Teva Settlement, release all Released Claims against all
Released Entities, and agrees as follows.
1.The Governmental Entity is aware of and has reviewed the Teva Settlement, understands that
all terms in this Election and Release have the meanings defined therein, and agrees that by
this Election, the Governmental Entity elects to participate in the Teva Settlement as provided
therein.
2.Following the execution of this Settlement Participation Form, the Governmental Entity shall
comply with Section III.B of the Teva Settlement regarding Cessation of Litigation Activities.
3.The Governmental Entity shall, within 14 days of the Reference Date and prior to the filing of
the Consent Judgment, file a request to dismiss with prejudice any Released Claims that it has
filed. With respect to any Released Claims pending in In re National Prescription Opiate
Litigation, MDL No. 2804, the Governmental Entity authorizes the Plaintiffs’ Executive
Committee to execute and file on behalf of the Governmental Entity a Stipulation of Dismissal
With Prejudice substantially in the form found at https://nationalopioidsettlement.com.
4.The Governmental Entity agrees to the terms of the Teva Settlement pertaining to
Subdivisions as defined therein.
5.By agreeing to the terms of the Teva Settlement and becoming a Releasor, the Governmental
Entity is entitled to the benefits provided therein, including, if applicable, monetary payments
beginning after the Effective Date.
6.The Governmental Entity agrees to use any monies it receives through the Teva Settlement
solely for the purposes provided therein.
7.The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s
state where the Consent Judgment is filed for purposes limited to that court’s role as provided
in, and for resolving disputes to the extent provided in, the Teva Settlement.
1
Page 57 of 234
8.The Governmental Entity has the right to enforce the Teva Settlement as provided therein.
9.The Governmental Entity, as a Participating Subdivision or Participating Special District,
hereby becomes a Releasor for all purposes in the Teva Settlement, including but not limited
to all provisions of Section V (Release), and along with all departments, agencies, divisions,
boards, commissions, districts, instrumentalities of any kind and attorneys, and any person in
their official capacity elected or appointed to serve any of the foregoing and any agency,
person, or other entity claiming by or through any of the foregoing, and any other entity
identified in the definition of Releasor, provides for a release to the fullest extent of its
authority. As a Releasor, the Governmental Entity hereby absolutely, unconditionally, and
irrevocably covenants not to bring, file, or claim, or to cause, assist or permit to be brought,
filed, or claimed, or to otherwise seek to establish liability for any Released Claims against
any Released Entity in any forum whatsoever. The releases provided for in the Teva
Settlement are intended by Released Entitles and the Governmental Entity to be broad and
shall be interpreted so as to give the Released Entities the broadest possible bar against any
liability relating in any way to Released Claims and extend to the full extent of the power of
the Governmental Entity to release claims. The Teva Settlement shall be a complete bar to
any Released Claim.
10.The Governmental Entity hereby takes on all rights and obligations of a Participating
Subdivision or Participating Special District as set forth in the Teva Settlement.
11.In connection with the releases provided for in the Teva Settlement, each Governmental Entity
expressly waives, releases, and forever discharges any and all provisions, rights, and benefits
conferred by any law of any state or territory of the United States or other jurisdiction, or
principle of common law, which is similar, comparable, or equivalent to § 1542 of the
California Civil Code, which reads:
General Release; extent. A general release does not extend to claims
that the creditor or releasing party does not know or suspect to exist in
his or her favor at the time of executing the release that, if known by
him or her, would have materially affected his or her settlement with
the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows,
believes, or assumes to be true with respect to the Released Claims, but each Governmental
Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges,
upon the Effective Date, any and all Released Claims that may exist as of such date but which
Releasors do not know or suspect to exist, whether through ignorance, oversight, error,
negligence or through no fault whatsoever, and which, if known, would materially affect the
Governmental Entities’ decision to participate in the Teva Settlement.
12.Nothing herein is intended to modify in any way the terms of the Teva Settlement, to which
Governmental Entity hereby agrees. To the extent this Election and Release is interpreted
differently from the Teva Settlement in any respect, the Teva Settlement controls.
2
Page 58 of 234
I have all necessary power and authorization to execute this Election and Release on behalf of the
Governmental Entity.
Signature:/signer_1_teva_allergan/
Name:/name_1_teva_allergan/
Title:/title_1_teva_allergan/
Date:/date_1_teva_allergan/
3
Page 59 of 234
EXHIBIT K
Subdivision Participation and Release Form
Governmental Entity: State:
Authorized Signatory: /officialname_walgreens/
Address 1: /address1_ walgreens/
Address 2: /address2_ walgreens/
City, State, Zip: /cit_wg/ /state_wg/ /zi_wg/
Phone: /phone_walgreens/
Email: /email_walgreens/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in
consideration for the benefits provided to the Governmental Entity pursuant to the Settlement
Agreement dated December 9, 2022 (“Walgreens Settlement”), and acting through the undersigned
authorized official, hereby elects to participate in the Walgreens Settlement, release all Released
Claims against all Released Entities, and agrees as follows.
1.The Governmental Entity is aware of and has reviewed the Walgreens Settlement, understands
that all terms in this Participation and Release Form have the meanings defined therein, and
agrees that by executing this Participation and Release Form, the Governmental Entity elects to
participate in the Walgreens Settlement and become a Participating Subdivision as provided
therein.
2.The Governmental Entity shall promptly, and in any event no later than 14 days after the
Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any
Released Claims that it has filed. With respect to any Released Claims pending in In re
National Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes
the Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a
Stipulation of Dismissal with Prejudice substantially in the form found at
https://nationalopioidsettlement.com.
3.The Governmental Entity agrees to the terms of the Walgreens Settlement pertaining to
Participating Subdivisions as defined therein.
4.By agreeing to the terms of the Walgreens Settlement and becoming a Releasor, the
Governmental Entity is entitled to the benefits provided therein, including, if applicable,
monetary payments beginning after the Effective Date.
5.The Governmental Entity agrees to use any monies it receives through the Walgreens
Settlement solely for the purposes provided therein.
1
Page 60 of 234
6.The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s
state where the Consent Judgment is filed for purposes limited to that court’s role as provided in,
and for resolving disputes to the extent provided in, the Walgreens Settlement. The
Governmental Entity likewise agrees to arbitrate before the National Arbitration Panel as
provided in, and for resolving disputes to the extent otherwise provided in, the Walgreens
Settlement.
7.The Governmental Entity has the right to enforce the Walgreens Settlement as provided therein.
8.The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all
purposes in the Walgreens Settlement, including without limitation all provisions of Section XI
(Release), and along with all departments, agencies, divisions, boards, commissions, districts,
instrumentalities of any kind and attorneys, and any person in their official capacity elected or
appointed to serve any of the foregoing and any agency, person, or other entity claiming by or
through any of the foregoing, and any other entity identified in the definition of Releasor,
provides for a release to the fullest extent of its authority. As a Releasor, the Governmental
Entity hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or
claim, or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to
establish liability for any Released Claims against any Released Entity in any forum
whatsoever. The releases provided for in the Walgreens Settlement are intended by the Parties
to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar
against any liability relating in any way to Released Claims and extend to the full extent of the
power of the Governmental Entity to release claims. The Walgreens Settlement shall be a
complete bar to any Released Claim.
9.The Governmental Entity hereby takes on all rights and obligations of a Participating
Subdivision as set forth in the Walgreens Settlement.
10.In connection with the releases provided for in the Walgreens Settlement, each Governmental
Entity expressly waives, releases, and forever discharges any and all provisions, rights, and
benefits conferred by any law of any state or territory of the United States or other jurisdiction,
or principle of common law, which is similar, comparable, or equivalent to § 1542 of the
California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor
at the time of executing the release that, if known by him or her would have
materially affected his or her settlement with the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows,
believes, or assumes to be true with respect to the Released Claims, but each Governmental
Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges,
upon the Effective Date, any and all Released Claims that may exist as of such date but which
Releasors do not know or suspect to exist, whether through ignorance, oversight, error,
negligence or through no fault whatsoever, and which, if known, would materially affect the
Governmental Entities’ decision to participate in the Walgreens Settlement.
2
Page 61 of 234
11.Nothing herein is intended to modify in any way the terms of the Walgreens Settlement, to
which Governmental Entity hereby agrees. To the extent this Participation and Release Form
is interpreted differently from the Walgreens Settlement in any respect, the Walgreens
Settlement controls.
I have all necessary power and authorization to execute this Participation and Release Form on
behalf of the Governmental Entity.
Signature:/signer_1_walgreens/
Name:/name_1_walgreens/
Title:/title_1_walgreens/
Date:/date_1_walgreens/
3
Page 62 of 234
EXHIBIT K
Subdivision Participation Form
Governmental Entity: State:
Authorized Official: /officialname_walmart/
Address 1: /address1_walmart/
Address 2: /address2_walmart/
City, State, Zip: /cit_wm/ /state_wm/ /zi_wm/
Phone: /phone_walmart/
Email: /email_walmart/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in
consideration for the benefits provided to the Governmental Entity pursuant to the Settlement
Agreement dated November 14, 2022 (“Walmart Settlement”), and acting through the undersigned
authorized official, hereby elects to participate in the Walmart Settlement, release all Released Claims
against all Released Entities, and agrees as follows.
1.The Governmental Entity is aware of and has reviewed the Walmart Settlement, understands
that all terms in this Election and Release have the meanings defined therein, and agrees that
by this Election, the Governmental Entity elects to participate in the Walmart Settlement and
become a Participating Subdivision as provided therein.
2.The Governmental Entity shall promptly, and in any event within 14 days of the Effective
Date and prior to the filing of the Consent Judgment, dismiss with prejudice any Released
Claims that it has filed. With respect to any Released Claims pending in In re National
Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes the
Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a
Stipulation of Dismissal With Prejudice substantially in the form found at
https://nationalopioidsettlement.com/.
3.The Governmental Entity agrees to the terms of the Walmart Settlement pertaining to
Subdivisions as defined therein.
4.By agreeing to the terms of the Walmart Settlement and becoming a Releasor, the
Governmental Entity is entitled to the benefits provided therein, including, if applicable,
monetary payments beginning after the Effective Date.
5.The Governmental Entity agrees to use any monies it receives through the Walmart
Settlement solely for the purposes provided therein.
1
Page 63 of 234
6.The Governmental Entity submits to the jurisdiction of the court in the Governmental
Entity’s state where the Consent Judgment is filed for purposes limited to that court’s role
as provided in, and for resolving disputes to the extent provided in, the Walmart
Settlement.
7.The Governmental Entity has the right to enforce the Walmart Settlement as provided
therein.
8.The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all
purposes in the Walmart Settlement, including but not limited to all provisions of Section X
(Release), and along with all departments, agencies, divisions, boards, commissions, districts,
instrumentalities of any kind and attorneys, and any person in their official capacity elected
or appointed to serve any of the foregoing and any agency, person, or other entity claiming
by or through any of the foregoing, and any other entity identified in the definition of
Releasor, provides for a release to the fullest extent of its authority. As a Releasor, the
Governmental Entity hereby absolutely, unconditionally, and irrevocably covenants not to
bring, file, or claim, or to cause, assist or permit to be brought, filed, or claimed, or to
otherwise seek to establish liability for any Released Claims against any Released Entity in
any forum whatsoever. The releases provided for in the Walmart Settlement are intended by
the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest
possible bar against any liability relating in any way to Released Claims and extend to the
full extent of the power of the Governmental Entity to release claims. The Walmart
Settlement shall be a complete bar to any Released Claim.
9.In connection with the releases provided for in the Walmart Settlement, each
Governmental Entity expressly waives, releases, and forever discharges any and all
provisions, rights, and benefits conferred by any law of any state or territory of the
United States or other jurisdiction, or principle of common law, which is similar,
comparable, or equivalent to § 1542 of the California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that the
creditor or releasing party does not know or suspect to exist in his or her favor at the
time of executing the release that, if known by him or her, would have materially
affected his or her settlement with the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows,
believes, or assumes to be true with respect to the Released Claims, but each Governmental
Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges,
upon the Effective Date, any and all Released Claims that may exist as of such date but which
Releasors do not know or suspect to exist, whether through ignorance, oversight, error,
negligence or through no fault whatsoever, and which, if known, would materially affect the
Governmental Entities’ decision to participate in the Walmart Settlement.
10.Nothing herein is intended to modify in any way the terms of the Walmart Settlement, to
which Governmental Entity hereby agrees. To the extent this Election and Release is
interpreted differently from the Walmart Settlement in any respect, the Walmart Settlement
controls.
2
Page 64 of 234
I have all necessary power and authorization to execute this Election and Release on behalf of the
Governmental Entity.
Signature:/signer_1_walmart/
Name:/name_1_walmart/
Title:/title_1_walmart/
Date:/date_1_walmart/
3
Page 65 of 234
AGENDA REPORT
FOR: City Council March 28, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Angela Pashon, Assistant City Manager
Executive
SUBJECT: Approval of Tourism Promotion Area Reserve Fund Request
I. REFERENCE(S):
Letter from Visit Tri-Cities dated March 6, 2023
2023 Work Plan
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve the the 2023 Special Project Expenditures for the
Tourism Promotion Area (TPA) in the amount of $441,500 to be funded from the
TPA Reserve Balance.
III. FISCAL IMPACT:
N/A
IV. HISTORY AND FACTS BRIEF:
The Tourism Promotion Area (TPA) was formed in late 2004 to generate and
administer the proceeds of a "per room night assessment" on hotels/motels in
the Tri-Cities, imposed by the hotels themselves.
The interlocal agreement (between Pasco, Kennewick and Richland) creating
the TPA requires the annual budget, and any expenditures from the TPA reserve
account, to first be approved by the City Councils.
At Council's Workshop held on March 27, 2023, Mr. Lewis, President & CEO of
Visit Tri-Cities presented the 2022 Annual Report. He also provided an outline
of the 2023 work plan, as well as a request for approval to spend from the
Tourism Promotion Area (TPA) Reserve Account.
V. DISCUSSION:
Page 66 of 234
The TPA "assessment" is remitted by the hotels to the State which, in turn,
distributes it to the City in which it was collected. The City is obligated to pass
the funds to the TPA for use, in accordance with the approved budget.
The TPA Commission has voted unanimously to request the transfer of an
additional $441,500 for special project expenditures for 2023 from the reserve
account for the following:
• Creative Production - $50,000
• Media Asset Curation and Management - $15,000
• Marketing FAMs - $23,000
• Wine Convention Booth Upgrade Contracting - $25,000
• Taste Washington Digital Campaign - $20,000
• Marketing Platforms - $7,500
• Staff Retention Incentives - $45,000
• Publish e-Proposal - $6,000
• State of Washington Tourism 2024 Conference - $25,000
• IRONMAN Event Support - $125,000
• S.P.O.R.T.S. Relationship Conference - $100,000
Total: $441,500
Council received a presentation by Kevin Lewis, President and CEO of Visit Tri-
Cities at the March 27, 2023 workshop meeting. Staff recommends approval of
the funding request.
Page 67 of 234
7130 W. Grandridge Blvd., Suite B Kennewick, WA 99336 509-735-8486 1-800-254-5824 www.VisitTRI-CITIES.com info@VisitTRI-CITIES.com
March 6, 2023
Mr. Adam Lincoln
City of Pasco
P.O. Box 293
Pasco, WA 99301
Dear Mr. Lincoln:
Thank you for the opportunity to present the Visit Tri-Cities 2022 Annual Report, 2023 Work Plan and to make a
request to utilize Tourism Promotion Area reserve funds to the Pasco City Council on Monday, March 27, 2023.
On behalf of the Tri-City Regional Hotel-Motel Commission, Visit Tri-Cities would like to request the transfer of
$441,500 from Tourism Promotion Area Reserve Account to be reinvested in additional tourism marketing
projects.
As a result of careful resource management and conservative budgeting, our TPA reserve account currently has
$914,892 in funds available for reinvestment. These funds are in addition to the minimum reserve requirement of
$500,000. The minimum balance was determined by the City Managers who participate at Commission meetings as
Ex-Officios. It is the Commission’s position that once the reserve account reaches $500,000, any additional funds
should actively be used to promote the Tri Cities as a destination, creating increased visitor spending in the
community. In addition, capital investments and funding for destination development are often included in reserve
requests. The projects under consideration this year accomplish these goals.
Earlier this year, the Commissioners of the Tri-City Regional Hotel-Motel Commission voted in favor of re-
investing $441,500 of the surplus revenues, for projects that include: high-end photo and video production, tourism
education, promotions to increase leisure travel stays, funds to secure new conventions and sports tournaments,
online platforms, digital marketing campaigns, workforce retention strategies, and media asset curation and
management to enhance destination marketing, education, and storytelling. A summary of the projects and the
associated expenditures is attached for your review.
Again, thank you for your consideration and support of the tourism industry. I am available for any questions or
comments you may have.
Sincerely,
Kevin Lewis
President and CEO
Enclosure
Page 68 of 234
2023 Proposed TPA Reserve Investments
Creative Production $50,000
The Visit Tri-Cities Creative Department is producing, directing, and editing multiple campaigns that
require ongoing acquisition and capturing of photo, video and digital assets. The funds for this budget
are for contracting with professional photographers and videographers, as well as licensing for
multimedia assets included in the production of digital assets. The produced assets will be used in
various marketing channels, including but not limited to Visit Tri-Cities social media, digital marketing
campaigns, print advertising campaigns, website content, online video content, partner content, and
more.
Media Asset Curation and Management $15,000
The Visit Tri-Cities Creative Department is establishing a creative asset management workflow, as well
as expanding its digital library of creative assets in the form of archival photography, videography,
audio, print media, and editorial for the purpose of destination marketing, education, and storytelling.
The funds for this project will be applied towards a part time, temporary internship tasked with
assessing, documenting, and managing the several terabytes of existing creative assets within the
Creative Department’s digital library, as well as curating new assets from community partners. Funds
will also be applied towards adding required storage for internal archival of new assets and building an
online platform for public access to produced content.
Marketing FAMs $23,000
The Visit Tri-Cities Marketing Department is hosting multiple members of traditional media (bloggers,
journalists, reporters, and travel writers), as well as social influencers, for in -person Familiarization
(FAM) visits from spring to fall. The guests on the FAM tour are selected by Visit Tri-Cities or vetted
through our public relations company or other third parties like the State of Washington Tourism. They
are chosen to cover a wide range of attractions and areas of interest based on Visit Tri -Cities’ marketing
strategy. They will enjoy an immersive experience of our rivers, restaurants, wine and other attractions
to develop storytelling content. Both traditional media and social influencers have already established
trust with a dedicated audience. Contracting with qualified, social influencers with a travel focus with
the capacity to tell an authentic story about their Tri-Cities visit will reinforce the VTC branded marketing
messages. The requested amount will cover costs for the visits.
• Group FAM Tour ($8,000): We are targeting up to 5 media writers for various publications (STEM,
cultural, outdoor rec, wine).
• STEM FAM Tours ($5,000): We target science and learning-oriented social influencers to produce
content on the STEM offerings in the area.
• DEI FAM Tours ($5,000): These FAMs are selected as a continuation of our Tri-IDEAs initiative,
and focus on DEI in travel for our key market segments.
• Continued tours/promotion with people we met at TBEX ($5 ,000): These are additional FAMs or
media relationship receptions with the goal of fostering relationships forged during TBEX. We
host past writers/influencers or other applicable parties either in the Tri -Cities to give destination
updates and maintain relations.
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Wine Convention Booth Upgrade Contracting $25,000
Visit Tri-Cities is working with a contractor to craft a new wine trade show booth, materials, and strategy
that will allow Visit Tri-Cities to have a stronger presence at the largest wine-related event in
Washington State, Taste Washington, in 2024. This event directly reaches one of our most important key
markets, which is wine-related tourism in Seattle, and a key goal is to bolster our overall strategy around
wine tourism here in the Heart of Washington Wine Country. Funding of the booth upgrade will give the
Tri-Cities more visibility and allow our booth to be comparable to our biggest competitors, especially
Walla Walla. A competitive presence at Taste Washington will also give us a better ability to connect
with wine writers to open possibilities of future FAMs. The expense of $25,000 covers but is not limited
to the contractor fee, cost to create the physical booth itself, and materials.
Taste Washington Digital Campaign $20,000
This digital campaign is an additional initiative that will go with our all -out wine booth upgrade in 2024
which will allow us to bolster our wine story before, during, and after Taste Washington, and make sure
that our efforts deliver a measurable return on investment. This digital campaign will focus on the
Seattle market that attends Taste Washington.
Marketing Platforms $7,500
The Visit Tri-Cities Marketing Department is implementing social and marketing solutions that integrate
social channels and digital content into a single platform to increase workload efficiency, comprehensive
analytics, enhance creative abilities, and create greater brand cohesion across our growing digital
presence. It will also allow for implementation of digital tools to benefit partners and visitors, creating
greater value to our community and intuitive experiences for those who explore our region.
Staff Retention Incentives $45,000
A current trend in the United States and elsewhere post-pandemic is a significant amount of movement
within the workforce. The job market is extremely competitive in the Tri-Cities and Visit Tri-Cities is not
insulated from the lure of new opportunity. Our organization has been impacted by this greater trend,
leading to significant staffing changes in recent months. We want to take proactive measures to ensure
that our experienced administrative and manager-level staff choose to remain at Visit Tri-Cities and feel
confident in their decision to do so. These are positions that are critical to our success in growing hotel
lodging revenue and achieving the Visit Tri-Cities mission. These proactive measures would also reduce
the impact caused by turnover, including loss of institutional knowledge and industry expertise, hiring
and onboarding costs, and the reduced ability of remaining staff to execute on existing projects and
advance the work we are doing to promote the Tri-Cities as a premier destination. Retention incentives
may include performance-based bonuses, a structured retention program and rewards to support and
retain talented employees with specialized skills, knowledge and experience.
Publish e-Proposal $6,000
Publish is an application that is fully integrated within the iDSS Cyclone CRM platform, currently utilized
by VTC for account management and lead distribution. Publish will provide the sales team the power to
create beautiful, brand-on, print-ready electronic proposals utilizing key iDSS data, free-form content
creation, and custom artwork. The application uses powerful page building tools and templates, helping
to streamline the proposal creation process from start to finish.
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State of Washington Tourism 2024 Conference $25,000
State of Washington Tourism (SWT), the official state tourism office, hosts an annual conference each
year where Washington’s tourism industry professionals can convene for professional development,
topical panel discussions, industry breakout session s and networking. SWT is seeking an enthusiastic
host destination for their 2023 and 2024 Conferences. Visit Tri-Cities will be submitting a bid to host the
2024 Conference. Destination host responsibilities include serving on the planning committee,
arranging area Familiarization (FAM) tours including transportation, arranging transportation for
speakers and attendees, and coordinating for local art, culture and attractions to be showcased during
the event. Hosting the conference in Tri-Cities gives us the opportunity to showcase our destination
while educating key tourism partners on the unique attractions and assets we offer, as well as building
on future opportunities for collaboration.
IRONMAN Event Support $125,000
Visit Tri-Cities is pursuing a bid to host a world-renowned IRONMAN event. As with most large
national/international sporting events there is a requirement for financial support from the organizers.
This financial support would only be incurred if the event is awarded to the destination. IRONMAN is one
of the world’s strongest brands, famous for being the premier triathlon series. An IRONMAN race
consists of a unique 2.4-mile swim, 112-mile bike, and 26.2-mile run. An IRONMAN 70.3 race consists of
a unique 1.2-mile swim, 56-mile bike, and 26.2-mile run. IRONMAN events typically attract more than
2,000 participants and over 5,000 spectators for each event and generate between $4 -7 million in
economic impact for host destinations.
S.P.O.R.T.S Relationship Conference $100,000
Visit Tri-Cities is preparing a bid to host the 2024 S.P.O.R.T.S Relationship Conference presented by
SportsEvents Media Group. S.P.O.R.T.S. is a national hosted -buyer, multi-day event that attracts sports
event planners and sports event suppliers to a single location to share educational and networking
opportunities. The event attracts an estimated 70-80 sports event planners who are directly responsible
for more than $24 million in sports-tourism-related spending. In fact, just one event booked by an
attendee at S.P.O.R.T.S. is estimated to generate an average of $261,000.00 in direct spending for the
destination. In addition to pre-set appointments between destinations and sports planners, the
conference provides general sessions, roundtables, workshops, and opportunities for destination
marketing organizations to collaborate.
$441,500
Page 71 of 234
THE FOLLOWING IS A SUMMARY OF VISIT TRI-CITIES ACTIVITIES TO SUPPORT TOURISM.
Work Plan 2023
STRATEGIC SALES & MARKETING
Convention & Group Sales
• Generate and submit 230 sales leads (Requests for Proposals) to
industry partners.
• Secure conventions, meetings and sporting events that will
attract 45,000 future overnight stays.
• Host familiarization tours for meeting planners and tournament
directors, escorting each on a scheduled set of appointments
specific to their event needs.
• Attend five industry events and trade shows such as Meeting
Planners International, Washington Society of Association
Executives, Society of Government Meeting Professionals,
National Tour Association, etc. to meet with decision makers and
promote the Tri-Cities as a destination of choice for conventions.
• Coordinate Spring Customer Appreciation Luncheon for up to 50
Washington State meeting Planners.
• Coordinate Fall Sales Blitz, featuring customer appreciation
events and appointments with meeting planners.
• Conduct Director of Sales meetings to support and coordinate
efforts with local tourism-related businesses.
Sports Sales & Development
• Research and attract new sporting events that fit the profile of
the existing venues.
• Work with athletic directors, sports venue directors and
community leaders to create attractive proposals for high
school athletic district and state-wide championships.
• Attend national trade shows including TEAMS, Sports ETA,
S.P.O.R.T.S Relationship Conference, and Esports Travel Summit.
Meet with sports event planners to promote the Tri-Cities as a
premier Northwest destination and secure signature events.
• Coordinate venue costs and accommodation pricing for
tournament and event directors.
• Secure hotel room blocks and complimentary rooms as needed
to secure events.
• Conduct Customer Appreciation Event for sports
event organizers.
Marketing
• Optimize and promote VisitTri-Cities.com, creating and updating
top landing pages, itineraries, and other visitor-focused content
to inspire travel and increase hotel nights.
• Strategically use user generated photos and video to inspire
consideration and act as calls to action throughout the website.
• Grow the email subscribers list to 12K through a lead magnet and
distribute monthly consumer newsletters to enhance top of mind
awareness and encourage wine, outdoor recreation, and
STEM visitation.
• Strategically direct $588,810 in targeted digital and print
advertising, promoting the Tri-Cities as a destination of choice.
• Generate 20 million impressions through targeted digital
campaigns in the in the Puget Sound and Spokane regions
and other key markets.
• Inspire consideration and grow social media following through
strategic social communications on Facebook (>30K followers),
Twitter (>8K followers) and Instagram (>15K followers).
• Optimize and grow YouTube channel to 1K subscribers,
promoting attractions of national & international interest.
• Create and distribute the official Visitor Guide and
complementary materials featuring local amenities.
• Develop multiple itineraries to assist with planning and to
promote tourism-related businesses in the Tri-Cities.
Media Outreach
• Direct the efforts of public relations firm to secure media
opportunities creating interest and a positive image for
the Tri-Cities.
• Conduct face-to-face meetings with writers representing key
publications/programs to promote story ideas about the
Tri-Cities region.
• Collaborate with and host qualified travel, lifestyle, wine, and
food writers secure positive stories about the destination.
• Host familiarization tours with journalists, influencers and media
reps, escorting each on a scheduled set of appointments specific
to their story needs.
• Work with tourism officials in primary destination/gateway cities
(Seattle/Portland) to create cooperative opportunities targeting
national and international travelers.
• Attend media conferences to promote the Tri-Cities region to
travel writers.
• Coordinate with State of Washington Tourism to amplify efforts in
promoting the state to domestic and international travelers.
Visitor Services
• Manage and operate the Tri-Cities Visitor Center, providing a
place for visitors and residents to gather information on local
attractions, services, and tourism-related businesses.
• Promote the Visitor Guide and other publications highlighting
the community, attractions, and activities to promote the
Tri-Cities as a preferred travel destination.
• Support and interact with estimated 5,000 written and telephone
requests for information on the Tri-Cities.
• Produce the Tri-Cities Calendar of Events.
• Offer a “Hot Dates” program to assist visitors in finding
accommodations during high-demand dates.
• Stock the Satellite Visitor Centers with visitor information
and brochures.
• Provide visitor services and maintain the interactive Tri-Cities
kiosk at the Tri-Cities Airport and Three Rivers Convention Center.
• Increase distribution and usage of a “wine map” highlighting
Mid-Columbia wineries.
• Coordinate the development of wine tourism itineraries with
suggested opportunities for overnight packages with hotels,
restaurants, transportation, cultural events, etc.
• Promote and market wine-related events to increase visitation.
Page 72 of 234
THE FOLLOWING IS A SUMMARY OF VISIT TRI-CITIES ACTIVITIES TO SUPPORT TOURISM.
Work Plan 2023
COLLABORATIVE DESTINATION DEVELOPMENT
• Coordinate and manage efforts of the Tri-Cities River Shore
Enhancement Council.
• Provide direction and guidance for recommendations outlined in
the Rivershore Master Plan II.
• Coordinate efforts of the Tri-Cities National Park Committee.
• Provide direction and guidance for recommendations outlined in
the Sports Facilities Market Analysis and Feasibility Study.
• Manage the cooperative efforts of the Wine Tourism Council
serving wineries, wine-related venues, hotels, restaurants and
transportation providers in Benton and Franklin counties.
• Support initiatives to expand or enhance critical convention
facilities and event venues.
• Engage in tourism related initiatives in the MyTri 2030 program to
help shape the future of our region.
• Work with TRIDEC and the Tri-City Regional Chamber of
Commerce to support business and economic
development initiatives.
• Participate and provide leadership in tourism industry
organizations such as Washington State Destination Marketing
Organization (WSDMO), State of Washington Tourism, Destination
Marketing Association (DMA West) and Destinations
International (DI).
• Collaborate with Federal and State Legislators on tourism
related priorities.
PROACTIVE COMMUNITY ENGAGEMENT
• Establish and maintain an engaging and meaningful membership
program to recognize, support and promote tourism related
businesses and the partner organizations that support the
mission and strategic pillars of our organization.
• Promote local tourism businesses and attractions through
VisitTri-Cities.com
• Develop and produce an Advertising Sales Guide to outline
opportunities and member benefits.
• Host the 2023 Annual Meeting to provide inspiration, education,
tourism reports and outlook to our stakeholders and partners.
• Provide key data to keep members up to date on industry
trends, opportunities and events through regular newsletter
communications.
• Promote local businesses to convention and sports participants
though the “Show Your Badge” program.
• Create member benefit programs to support tourism
employment, recruiting, and workforce development.
• Provide materials to local companies to enhance their
recruitment and employee relocation efforts.
• Conduct two hospitality, sales and customer service training/
educational events to assist our hospitality partners in staff
development.
• Manage the cooperative efforts of the Tri-Cities Sports Council
serving high school athletic directors, municipal recreation
departments, local sports clubs and sports officials.
• Secure volunteers for events taking place in the Tri-Cities.
INNOVATIVE ORGANIZATION
• Create and distribute marketing assets that convey the
uncommon pulse of positive energy that originates in the
people of our communities.
• Inspire visitation to support our hospitality partners, visitor
attractions and overall economic development goals.
• Collaborate with community leaders and help foster
development to enhance the destination and quality of life.
• Interact with civic organizations and share our organization’s
mission and purpose to create a shared community vision.
• Bring people together to generate optimism in our communities
and create a destination thriving with vitality and purpose.
• Communicate in a way that inspires others to celebrate what is
right with the area.
• Support workforce development through community grant
programs offering scholarships for training courses through
WSU Tri-Cities to ensure the success of the tourism and
hospitality industries.
• Manage the proceeds of tourism promotion assessments as
directed by the Commissioners of the Tri-City Hotel-Motel
Commission and city councils.
• Promote and manage the Tri-Cities “Excellence in Service”
program to inspire customer service region-wide.
• Foster Inclusivity, Diversity, Equity and Accessibility in the
organization and destination by understanding, living and
promoting the principles of our Tri-IDEAS initiative.
• Produce sustained and consistent tourism growth by preserving
our position as an employer of choice through energizing
work, professional growth and thoughtful adoption of effective
employee retention initiatives.
Page 73 of 234
AGENDA REPORT
FOR: City Council March 20, 2023
TO: Adam R Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Steve Worley, Public Works Director
Public Works
SUBJECT: Resolution No. 4332 - First Amendment to WA ST Department of Health
- Water Pasco West Loan State Revolving Water Drinking Fund
Treatment Plant
I. REFERENCE(S):
Resolution
DWSRF Contract Amendment
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4332, authorizing the Interim City
Manager to approve the amendment of the Drinking Water State Revolving Fund
Loan for the West Pasco Water Treatment Plant Expansion Phase 1 for an
amended amount of $303,000.
III. FISCAL IMPACT:
An additional $303,000 in Drinking Water State Revolving Fund (DWSRF)
Loan, at the same 1.75% interest rate, added to the previous loan amount for a
new total loan amount of $5,353,000.00.
IV. HISTORY AND FACTS BRIEF:
Design, permitting, and final cost estimates for this project were completed in
late 2021. Phase 1 project consists of the first set of improvements to expand
the production capacity of the West Pasco Water Treatment Plant (WPWTP)
from 6 million gallons per day (MGD) to 12 MGD, through the installation of
membrane treatment units and ancillary equipment, installation of a new process
residuals system involving a clarifier and new residuals pump station building,
SCADA system upgrades, and other plant improvements.
The improvements at this facility provide cost-effective resiliency for the City’s
water system as the main water treatment facility (Butterfield WTP) is aging and
Page 74 of 234
will be undergoing planned extensive improvements in the coming years.
Increasing treatment capacity at the WPWTP pro vides for additional supply to
meet our current and future potable water demands, as well as provide much -
needed supply redundancy for existing water customers. With the planned
improvements to the Butterfield plant on the near horizon, there is some urgency
for completing the Phase I and II improvements.
On February 22, 2022, Council awarded the WPWTP Improvements Phase 1
contract to Apollo, Inc. of Pasco, WA in the amount of $8,411,830.20.
Since Construction began, the project has required 10 minor change orders for
a total of $253,724.51, and one significant change order (CO No. 11) for
$405,827.56, which Council approved on January 17, 2023.
In response to these change orders, staff inquired of the Department of Health
(DOH) if any additional DWSRF loan funds were available. DOH was able to
add an additional $300,000 in loan funds along with a 10%, $3,000 fee for a total
loan increase of $303,000.
V. DISCUSSION:
Staff recommends Council approval of the Department of Health DWSRF low -
interest loan application amendment for the West Pasco Water Treatment Plant
improvement project.
Page 75 of 234
Resolution – Amendment No. 1 to WSDOF Loan for WPWTP Expansion - 1
RESOLUTION NO. _______
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE INTERIM CITY MANAGER TO SIGN AND EXECUTE
AMENDMENT NO. 1 TO THE WASHINGTON STATE DEPARTMENT OF
HEALTH (WSDOH) DRINKING WATER STATE REVOLVING FUND FOR
THE WEST PASCO WATER TREATMENT PLANT EXPANSION PHASE 1
PROJECT.
WHEREAS, the West Pasco Water Treatment Plant (WPWTP) Expansion Project is a
multi-phase project that will increase treatment capacity and improve resiliency and redundancy
of the potable water system for Pasco; and
WHEREAS, Phase 1 of the project includes necessary upgrades to the WPWTP,
including: additional membrane treatment units, filter–to-waste piping, new clarifier and
equipment for residuals handling and recycling, and telemetry and control system; and
WHEREAS, to help fund these improvements, the City applied for and received a $5
million dollar low-interest State Revolving Fund (SRF) loan from the Washington State
Department of Health (WSDOH); and
WHEREAS, the initial loan was approved by City Council on July 12, 2021, with
Resolution 4028; and
WHEREAS, this Amendment was pursued due to ongoing construction needs
associated with the change orders approved by City Council on January 17, 2023, with
Resolution No. 4300 and Ordinance No. 4635; and
WHEREAS, to make the WSDOH loan amendment funds available, execution of the
Amendment is required, a copy of which is attached hereto and incorporated herein by reference
as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO:
That the City Council does hereby approve of the WSDOH loan amendment, and the
Interim City Manager is hereby authorized to execute the amendment to the current Drinking
Water State Revolving Fund Loan; and to make minor substantive changes as necessary to
execute the Amendment.
Be It Further Resolved that this Resolution shall take effect and be in full force
immediately upon passage by the City Council.
Page 76 of 234
Resolution – Amendment No. 1 to WSDOF Loan for WPWTP Expansion - 2
PASSED by the City Council of the City of Pasco, Washington, at a council meeting on
this 3rd day of April, 2023.
________________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Page 77 of 234
DOH Amendment # 1
Contract #DWL26037-1 Page 1 of 2
Revision 11/17
CONTRACT AMENDMENT
1. NAME OF CONTRACTOR
City of Pasco
2. CONTRACT NUMBER
DOH Contract #DWL26037
1a. ADDRESS OF CONTRACTOR (STREET)
Po Box 293
2a. AMENDMENT NUMBER
1b. CITY, STATE, ZIP CODE
Pasco, WA 99301-0293
1
3. THIS ITEM APPLIES ONLY TO BILATERAL AMENDMENTS.
The Contract identified herein, including any previous amendments thereto, is hereby amended as set forth in Item 5
below by mutual consent of all parties hereto.
4. THIS ITEM APPLIES ONLY TO UNILATERAL AMENDMENTS.
The Contract identified herein, including any previous amendments thereto, is hereby unilaterally amended as set forth
in Item 5 below pursuant to that changes and modifications clause as contained therein.
5. DESCRIPTION OF AMENDMENT: The purpose of this amendment is to increase loan #DWL26037 by $303,000
($300,000 to cover cost over-runs and $3,000 for processing fee/loan fee).
5a. Consideration: This amendment increases the Contract Consideration by $303,000; therefore, the revised maximum
consideration of this contract and all amendments shall not exceed $5,353,000.00 in total.
Source of Funds for this Amendment: (FED) $300,000.00; (ST) $3,000.00; Total $303,000.00
Contractor agrees to comply with applicable rules and regulations associated with these federal funds.
5d. Period of Performance: remains unchanged through 10/01/2040.
5e. The Effective Date of this Amendment: is the Date of Execution.
6. All other terms and conditions of the original contract and any subsequent amendments thereto remain in full force and
effect.
7. This is a unilateral amendment. Signature of contractor is not required below.
Contractor hereby acknowledges and accepts the terms and conditions of this amendment. Signature is required below.
8. CONTRACTOR SIGNATURE (also, please print/type your name)
DATE
9. DOH CONTRACTING OFFICER SIGNATURE
DATE
This document has been approved as to form only by the Assistant Attorney General.
Page 78 of 234
EXHIBIT A
Statement of Work
DOH Contract DWL26037
DOH Amendment # 1
Commerce Contract # DWL26037-1 Page 2 of 2
Revision 11/17
3. DECLARATIONS
3.1. BORROWER INFORMATION
Legal Name:
City of Pasco
Loan Number: DWL26037
Award Year: 2020
State Wide Vendor Number: 0007164-00
3.2. PROJECT INFORMATION (PROJECT)
Project Title: West Pasco Treatment Plant Improvements
Project Location: Pasco / Franklin County
Project State: Washington
Project Zip Code: 99031
Project Scope of Work (PROJECT): Attachment I, attached hereto and incorporated by reference.
3.3. CONTRACT COMMUNICATION
Communications regarding Contract performance is delegated by each party to its Contract Manager. Either party may
change its Contract Manager by express notice to the other party. Either party may identify on an as needed basis an
alternate Contract Manager to serve during the stated temporary absence of its primary Contract Manager. Notices
between the parties regarding Contract performance must be provided by written communication to the other party’s
Contract Manager. Written communication includes email but not voice mail. Notices are presumed received by the
other party’s Contract Manager upon evidence of delivery between the hours of 8:00 am to 5:00 pm except for state
holidays and weekends.
3.4. LOAN INFORMATION
Loan Amount: $303,000.00
Loan Fee (Included in loan amount): 1.0% $3,000.00
Principal Loan Forgiveness %: 0%
Loan Term: 10/1/2040
Interest Rate: 1.75%
Payment Month(s): October 1st <Annually>
Time of Performance:
Notice to Proceed:
48 months from Contract start date (date of last signature) to
Project Completion date.
18 months from Contract start date (date of last signature)
3.5. FUNDING INFORMATION
Total Funds from BORROWER: To be determined
Source(s) of Funds from Borrower, with assigned amounts per source: To be determined
Total State Funds: To be determined
Total Amount of Federal Award (as applicable): To be determined
Total Amount of Loan: $303,000.00
Federal Award Date: To be determined
Federal Award ID # (FAIN):
Amount of Federal Funds Obligated by this Action:
To be determined
N/A
3.6. SPECIAL TERMS AND CONDITIONS
N/A
Page 79 of 234
AGENDA REPORT
FOR: City Council March 29, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Darcy Buckley, Finance Director
Finance
SUBJECT: General Fund Monthly Report - February 2023
I. REFERENCE(S):
General Fund Report
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
N/A
III. FISCAL IMPACT:
N/A
IV. HISTORY AND FACTS BRIEF:
Attached is the General Fund financial update for February 2023.
The General Fund is a major fund of the City. It is the primary governmental fund
of the City and reflects all revenues and expenditures not accounted for in
another fund. The administration provides quarterly reports to Council for other
funds.
V. DISCUSSION:
Please view the attached report for details. Information Technology and Finance
Staff are collaborating to update the Financial Dashboard. Access and update is
anticipated with the next General Fund reporting period.
Page 80 of 234
February 2023
Monthly
General Fund
Report
Prepared by Darcy Buckley, Finance Director
Page 81 of 234
Permit Type 2022 Count 2022 Permit
Value 2023 Count 2023 Permit
Value
Commercial 52 $7,244,393 80 $6,713,390
Industrial 10 $3,518,509 10 $5,851,039
Mobile Homes 0 0 0 0
Residential 258 $16,188,426 237 $10,395,768
Total 320 $26,951,327 327 $22,960,197
Overview
The intent of this report is to provide an overview of activity in the City's General fund for the
month of February 2023.
General Fund Financial Report / Page 2
There are various economic
factors that reflect the
community's economic health
and subsequently impact the
vitality of the General Fund.
One such factor is permit
activity. It demonstrates not
only the growth and
attractiveness of the
community but also increased
revenue from building-related
sales tax activity.
The table above reflects year-to-date activity for the years 2022 and 2023. All permitted activity
in the City is included in these totals whether a small or larger scale improvement or new
construction. In comparing the totals through February of the two years, the total permit count is
slightly higher, but the value of the permits is lower by 14%.
In February 2023, the number of Single Family Dwelling Unit (SFDU) permits was eight with a
total permit value of $3,631,507. The average value of the SFDU was $267,791. The 2023 SFDU
count and value are significantly lower than through February of 2022. In February of 2022, the
totals were 24 SFDU permits with a value of $6.66M. Average home value of $277,656.
Commercial permit value for the month of February reflected a lower permit value as compared
to the month of February 2022. 2022 included two large projects, a multifamily project ($2.2M)
and a warehouse/storage permit ($2.67M). With these large exceptions removed commercial
activity was similar in value to February 2022.
Year to Date
Page 82 of 234
The sales tax rate applied to City of Pasco retail sales is 8.9%. January 2023
reflected the first month of tax collection of .2% to benefit the Pasco Public
Facilities District, a voter approved tax to support construction of an Aquatic
Center.
The City of Pasco receives a share of Regular and Optional sales tax (1%), Criminal
Justice (0.1%), and Public Safety (0.3%). Taxes that make up the majority of the
8.9% rate are distributed to the State and to Franklin County.
The City receives 85% of the 1% Regular and Optional sales tax. Criminal Justice
and Public Safety sales tax is distributed to the City by Franklin County based on
different distribution methods prescribed by State of Washington laws and
weighted by population.
Over the past many years the City has benefitted from construction sales tax
generated from major permitting activities, especially construction by large
commercial and industrial partners. These taxes are one-time in nature but the
City anticipates more of these large scale projects to help increase its sales tax
base for the next few years.
Sales tax is collected by businesses and most often reported to the State of
Washington Department of Revenue the month following collection. In turn, the
State distributes tax revenues to local jurisdictions, like the City, the following
month. This process creates a two-month time difference between sales and City
recognition. For February's distribution (Decembers Sales) the amount received
was $1,761,425 in Local Sales Tax. This figure is higher than the amount received
in 2021 by $356,216 and lower than the amount received in February 2022 by
$282,574. By category of sales tax, the primary driver for lower sales tax
collections is Construction with a decrease of $743,330 between the end of
February of each year. Higher than average inflation pressure has the potential to
negatively affect consumer spending. Finance staff will continue to monitor and
report sale tax revenue.
Sales Tax
General Fund Financial Report / Page 3 Page 83 of 234
General Fund Financial Report / Page 4
February Activity - Revenues
In the month of February, the City received revenues earned in the prior year as well as new, for year
2023, revenues. As a process of year end closing, accounting entries are made to close year end for
the prior year. Until year end closing is complete, a comparison between February of the current year
(2023) and February of the prior year (2022) is challenging because finalized figures are in process.
Below is a cash basis (reporting funds received in January of each year) comparison of revenues.
REVENUE SOURCE 2021 2022 2023
Taxes 4,912,559 6,862,571 6,502,706
Permits 544,259 475,052 453,490
Intergovernmental 828,752 166,654 271,754
Charges for Services 192,788 136,451 113,855
Fines & Penalties 139,913 129,792 173,424
Miscellaneous 27,781 90,833 128,560
Total $6,646,051 $7,860,354 $7,643,788
% Change 18%-3%
Page 84 of 234
Category of Revenue Biennial Budget YTD February
2023 Ending % Received
Taxes
Retail Sales Tax 44,450,700 0 0.0%
Utility Tax 24,204,918 1,185,784 4.90%
General Property Tax 25,863,203 70,291 0.27%
Retail Sales Tax - Public Safety & Criminal Justice 8,780,000 0 0.00%
Other Tax 2,392,852 241,786 10.10%
Licenses & Permits 7,481,532 453,289 6.06%
Intergovernmental 7,194,296 113,564 1.58%
Charges for Goods and Services 19,688,841 743,525 3.78%
Fine and Penalties 1,790,529 147,899 8.26%
Miscellaneous 1,828,814 185,642 10.15%
Debt Principal 113,201 0 0.00%
Transfers and Subsidy - Revenue 35,796,816 0 0.00%
Total 179,585,702 3,141,780 1.75%
Revenue - Year-to-Date
As of February month-end, two months of a twenty four month time frame has passed or eight and
one-third (8.33%) percent of the biennium. Revenues are not received in a linear fashion in many
categories. Sales tax for retails sales that occur in 2023 will be distributed to the City beginning in
March 2023. Property tax is received primarily in two large installments in May and November.
Both Utility Tax reported through February and the Charges for Good and Service categories reflect
lower values in February as year end closing has delayed some entry. The Miscellaneous category of
revenue reflects a one time receipt that will not recur later in the year.
General Fund Financial Report / Page 5
As noted on the previous page, revenue activity is adjusted to reflect year of earning. This treatment
is made to meet Generally Accepted Accounting Principles. Below are the results of Feburary
operations following the accounting entries.
Page 85 of 234
Category Name Biennial Budget Actual as of January
31, 2023 % Spent
Transfers and Subsidy - Expense 40,131,302 23,646 0.06%
Salaries and Wages 67,719,671 4,480,456 6.62%
Personnel Benefits 21,686,728 1,597,530 7.39%
Supplies 6,665,827 414,649 6.22%
Services 39,990,860 5,073,225 12.69%
Capital Outlays 3,595,460 409,918 11.40%
Debt Principal 8,202,300 0 0.0%
Debt Interest 1,952,408 600 0.03%
Total $189,884,556 $12,000,023 6.32%
Expense - Year-to-Date
As of February month-end, the elapsed time is approximately 8% of the biennium. As payroll
processing is spread over 26 pay periods annually, the elapsed time differs slightly from a
month-to-year comparison. For categories of expenditures, services and capital purchases are
the only categories where year-to-date spending is greater than elapsed time expectation.
Spending in both categories do not follow a linear purchase pattern. Service spending for
items like dues and subscriptions (43%), insurance premiums (124%) and service contracts
(65%) reflect one time charges for full year benefit. Inflationary impact may result in the need
for budget adjustment. However, any budgetary need will be assessed as the year progresses.
In the category of Transfers and Subsidy - Expense, funding is transferred and expense
recorded in concert with capital project activity. These transfers will increase when more
construction projects are undertaken as the year progresses. The Capital Outlays category are
reflective of budgeted tool and technology purchases.
General Fund Financial Report / Page 6 Page 86 of 234
General Fund Financial Report / Page 7
Capital
Projects
M A J O R P R O J E C T S I N P R O G R E S S
General Fund provides support for
capital projects on a regular basis. The
fund also retains all Limited Tax General
Obligation bonds proceeds and transfers
those proceeds to General Construction
Fund as needed per the accounting
standards.
Fire Station 85 - Design and site work for future Fire Station
85 site began in 2022. For 2023, completion of the Fire
Station is anticipated. Funding available from a LTGO bond
issued in 2019 plus an issuance of new debt financing in 2023
will support construction spending. The 2023 - 2024 biennial
budget includes $7 million budget for this project. Carryover
of available budget as of 12/31/2022 will complete the
budgetary authority for 2023 - 2024. As of the end of
February spending is $305,190.
In the month of Febrary planning and
preparation for construction of Fire
Station 85 continued. A long anticipated
project for the construction of a new
Animal Control Facility reflected
spending in the month of February.
Animal Control Facility - Funding for the facility is
shared between the three partner municpalities;
Pasco, Kennewick and Richland. The City of Pasco
issued a bond in 2019 to support construction. The
total project budget is $6.4M. Funds previously
Council Approved will be carryover into the 2023
-2024 Biennial Budget to provide budget authority.
Page 87 of 234
General Fund Financial Report / Page 8
Financial
Outlook
In preparing for the coming years' needs and sound planning, the City continues efforts to
identify long-term needs. The resulting analysis efforts will allow for options to consider
funding solutions. Part of this process in 2023 is the preparation of a General Fund Long -
Term Financial Planning model. The goal of this plan is to assess future community needs and
the related demands on the General Fund.
Also part of planning efforts, some of which began in 2022, are various studies related to fee
structure. The need for assessment is especially vital where growth is driving the City's
capital expenditures. Those studies include fire and traffic impact fees and capital expansion
or connection fees for City provided utilities.
As historically true, staff prioritizes efforts to apply for grant funding or low-interest
loans to support community benefiting projects. Successful grant funding and lower
interest loan instruments lessen costs to be passed on to tax and rate payers.
Activity through February does not provide much detail for analysis to forecast nor estimate
trends. Total revenue receipts, however, through the month of February 2023 were similar to
the same time frame of 2022. The month of February 2023 may reflect a slow in
development as evidenced by permitting activity. However, with warmer weather
construction may pick up. The delayed nature of sale tax revenue reporting presents a
challenge. Sales tax is a significant revenue source for the General Fund (Regular and
Optional Sales tax is 24.8% of budgeted biennial revenues). The continuation of inflationary
pressure remains a concern. Finance will monitor activity as the months progress in 2023.
Page 88 of 234
G E N E R A L F U N D F I N A N C I A L R E P O R T / P A G E 9
Top Boomtowns in America, SmartAsset
Page 89 of 234
AGENDA REPORT
FOR: City Council March 30, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Rick White, Director
Community & Economic Development
SUBJECT: Public Hearing Continued and Ordinance No. 4646 for Jubilee Foundation
Right-of-Way Vacation (VAC 2022-009)
I. REFERENCE(S):
Proposed Ordinance
Exhibit A
Overview Map
Vicinity Map
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
PUBLIC HEARING CONTINUED FROM FEBRUARY 6TH, FEBRUARY 21ST,
& SPECIAL MEETING HELD ON FEBRUARY 27TH
MOTION: I move to approve Ordinance No.4646, vacating rights-of-way in
Washington Addition to Pasco in the vicinity of East A Street and East Helena
Street in Pasco, 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 90 of 234
This hearing was continued from the February 21, 2023, Council regular
meeting.
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 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.
Since the last City Council meeting, held on February 27th, the Applicant has
submitted a revised Preliminary Plat application, addressing street connectivity
(PMC 21.15.010(1)), cul-de-sacs (PMC 21.15.070), and adverse effects upon
neighboring properties (PMC 12.40.070(1)-(4)). The Applicant also discussed
and reached agreement with neighboring property owners on the details of the
platting and associated dedication process.
During the plat approval process, the necessary dedication of appropriate
replacement rights-of-way will be a condition(s) of approval.
Page 91 of 234
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. __________
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 rights-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-thirds 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 and February 27, 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 April 3,
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 92 of 234
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 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 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 93 of 234
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 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.
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. Severability. If any section, subsection, sentence, clause, phrase or word
of this Ordinance should be held to the invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutionality thereof shall not affect the validity or
constitutionality of any other section, subsection, sentence, clause phrase or word of this
Ordinance.
Section 5. Corrections. Upon approval by the city attorney, the city clerk or the
code reviser are authorized to make necessary corrections to this Ordinance, including
scrivener’s errors or clerical mistakes; reference to other local, state, or federal laws, rules, or
regulations; or numbering or referencing of ordinances or their sections and subsections.
Section 6. Effective Date. This Ordinance shall take full force and effect five (5)
days after approval, passage and publication as required by law.
Page 94 of 234
Ordinance VAC 2022-009 – Jubilee Foundation LLC - 4
PASSED by the City Council of the City of Pasco, Washington this _____ day of April
2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Published: ____________________
Page 95 of 234
Item:WashingtonAdditionStreetsandAlleysROWVacation"ExhibitA"Applicant(s):JubileeFoundationc/oSteveBaumanFile#:VAC2022-009ROAD29E5ROAD30E(1/U839VJ.IH3HEHELEl<lASTEHELENACARIDADCFSITE4/CEREZACTMANZANITALNESTRELLADR03EDUJ2:-._.czLUI360Page 96 of 234
Item:WashingtonAdditionStreetsandAlleysROWVacationApplicant(s):JubileeFoundationc/0SteveBaumanFile#:VAC2022-009OverviewPage 97 of 234
Item:WashingtonAdditionStreetsandAlleysROWVacationVlclnltyApplicant(s):JubileeFoundationc/0SteveBaumanMapFile#;VAC2022-009Page 98 of 234
AGENDA REPORT
FOR: City Council March 30, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Rick White, Director
Community & Economic Development
SUBJECT: *Ordinance No. 4647 & Resolution No. 4333 - Budget Amendment &
Solstice Lift Station & Forcemain Agreement
I. REFERENCE(S):
Ordinance
Resolution
Agreement
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to adopt Ordinance No. 4647, amending the 2023-2024 Capital
Projects Budget (Ordinance No. 4620) by providing supplement thereto; to
provide additional appropriation in the City's Sewer Fund and, further, authorize
publication by summary only.
MOTION: I move to approve Resolution No. 4333, authorizing the City Manager
to execute a Utility Extension Agreement with Pahlisch Homes at Solstice, LLC
for the procurement and installation of a Sewer Lift Station and the associated
Forcemain.
III. FISCAL IMPACT:
The costs include the increased costs of procurement and installation of a Sewer
Lift Station and the forcemain associated with the increased capacity required to
provide regional service.
The City would be responsible for paying an amount not to exceed $515,054.57,
which represents the portion of the facility cost related to regional needs.
The expense would be paid from the sewer fund.
Page 99 of 234
IV. HISTORY AND FACTS BRIEF:
The City has an approved Sewer Comprehensive Plan update dated November
2022, which indicates that based on anticipated development in the Broadmoor
area the Broadmoor Regional Sewer Lift Station should be constructed.
Pahlisch Homes at Solstice LLC (Pahlisch Homes) is in the process of
developing the Solstice subdivision located on the South side of Burns Road to
the West of Dent Road.
During the platting process for the Solstice subdivision in late 2021 and early
2022, the City coordinated with Pahlisch Homes regarding the need for a lift
station to be constructed in order for development to occur, as the proposed
Solstice subdivision could not be served by the City's current sewer system.
Subsequently, the City and Pahlisch Homes developed a mutually agreeable
distribution of cost between locally required improvements (which would be the
responsibility of Pahlisch Homes), and regionally required improvements (which
would be the responsibility of the City).
Locally required improvements were calculated based on what the developer
would need for the exclusive service of their subdivision, whereas regionally
required improvements are above and beyond what the developer needed to
install for their specific subdivision for conformance with the Sewer
Comprehensive Plan. In this case, regional improvements consisted of
additional lift station capacity for future development.
The City agreed to pay for the upsized facility, increasing capacity from the
minimum locally required improvements to a size that would be adequate for
regional needs.
Pahlisch Homes has subsequently constructed the West Broadmoor Regional
Lift Station and forcemain in question. City Staff recommends compensating
Pahlisch Homes for the costs borne by the developer above and beyond those
required for their local improvements. The current strategy is to develop a
connection fee specific to this lift station, which would enable the City to recover
the entirety of regional costs initially paid by the City for the construction of the
West Broadmoor Regional Sewer Lift Station.
V. DISCUSSION:
Staff recommends adopting Ordinance for the Budget Amendment and the
Resolution authorizing the Interim City Manager to execute the cost-sharing
agreement with Pahlisch Homes for the regional cost associated with
procurement and installation of the Broadmoor Regional Sewer Lift Station.
Page 100 of 234
Ordinance – 2023 – 2024 Capital Budget Amendment - 1
ORDINANCE NO. ____
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON,
AMENDING THE 2023-2024 BIENNIAL CAPITAL PROJECTS BUDGET
(ORDINANCE NO. 4620) BY PROVIDING SUPPLEMENT THERETO; TO
PROVIDE ADDITIONAL APPROPRIATION IN THE CITY’S SEWER FUND.
WHEREAS, on December 7, 2020, the Pasco City Council approved Ordinance No.
4504, adopting the 2021-2022 Biennial Capital Projects Budget; and
WHEREAS, the 2021-2022 Biennial Capital Projects Budget included provision of
budget for the West Broadmoor Lift Station, and Pahlisch Homes at Solstice LLC agreed to
upsize a lift station and forcemain needed for their development so that the lift station could
serve as the West Broadmoor Lift Station, and the cost to upsize the lift station and forcemain
was $515,054.57; and
WHEREAS, current project costs exceed the originally anticipated costs, due to market
conditions; and
WHEREAS, the 2023-2024 Biennial Capital Projects Budget did not include provision
of budget for the West Broadmoor Lift Station.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO,
WASHINGTON DO ORDAIN AS FOLLOWS:
Section 1.Pursuant to RCW 35A.34.200 as follows:
Fund EXPENDITURE REVENUE
Sewer Fund $515.054.57 $0
Total $515.054.57 $0
Section 2.That the additions in appropriations and expenditures are hereby
declared to exist in the above funds for the said uses and purposes as shown above, and the
proper City officials are hereby authorized and directed to issue warrants and transfer funds in
accordance with the provision of the Ordinance.
Section 3.Except as amended herein, Ordinance No. 4620 as previously adopted
heretofore shall remain unchanged.
Section 4. Severability. If any section, subsection, sentence, clause, phrase or word
of this ordinance should be held to the invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutionality thereof shall not affect the validity or
constitutionality of any other section, subsection, sentence, clause phrase or word of this
ordinance.
Page 101 of 234
Ordinance – 2023 – 2024 Capital Budget Amendment - 2
Section 5. Corrections. Upon approval by the city attorney, the city clerk or the
code reviser are authorized to make necessary corrections to this ordinance, including scrivener’s
errors or clerical mistakes; reference to other local, state, or federal laws, rules, or regulations; or
numbering or referencing of ordinances or their sections and subsections.
Section 6. Effective Date. This Ordinance, being an exercise of a power specifically
delegated to the City legislative body, is not subject to referendum, and 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, on this ___ day of April,
2023.
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Published: _____________________
Page 102 of 234
Resolution – Utility Extension Agreement - 1
RESOLUTION NO. _________
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A UTILITY
EXTENSION AGREEMENT WITH PAHLISCH HOMES AT SOLSTICE LLC
FOR THE PROCUREMENT AND INSTALLATION OF A SEWER LIFT
STATION AND THE ASSOCIATED FORCEMAIN.
WHEREAS, the City of Pasco, Washington (City), identified in the 2021
Comprehensive Sewer Plan Addendum dated November 2021, the West Broadmoor Lift Station
will be required in the western portion of the City’s Broadmoor area to facilitate further
development in the area otherwise not able to be served by City sewer; and
WHEREAS, Pahlisch Homes at Solstice LLC will need a sewer lift station to provide
sewer service for their development; and
WHEREAS, the City coordinated with Pahlisch Homes at Solstice LLC to develop a
proposed local cost proposed to be paid by the developer and a regional cost proposed to be paid
by the City for the West Broadmoor Lift Station; 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 to enter into a Utility Extension
Agreement with Pahlisch Homes at Solstice LLC for the procurement and installation of a sewer
lift station and the associated forcemain.
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
Utility Extension Agreement between the City of Pasco and Pahlisch Homes at Solstice LLC as
attached hereto and incorporated herein as Exhibit A; and
Be It Further Resolved that the Interim City Manager of the City of Pasco, Washington,
is hereby authorized, empowered, and directed to execute said Utility Extension Agreement on
behalf of the City of Pasco; and to make minor substantive changes as necessary to execute the
Agreement.
Page 103 of 234
Resolution – Utility Extension Agreement - 2
PASSED by the City Council of the City of Pasco, Washington, on this ___ day of April,
2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
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PAHLISCH HOMES AT SOLSTICE LLC Utility Extension Agreement - 1
FILED FOR RECORD AT REQUEST OF:
City of Pasco
WHEN RECORDED RETURN TO:
City of Pasco, Washington
525 North 3rd
Pasco WA 99301
______________________________________________________________________
Tax Parcel No. 126-160-357
Legal Description: SOLSTICE PHASE 1 TRACT I
UTILITY EXTENSION AGREEMENT
THIS UTILITY EXTENSION AGREEMENT entered into this ___ day of
__________, 2023, by and between PAHLISCH HOMES AT SOLSTICE LLC, and its
successors, hereinafter referred to as “Developer”, and the City of Pasco, Washington, a
Municipal Corporation, hereinafter referred to as “City.”
WHEREAS, the Developer owns or controls approximately 144.16
acres of property in the east half of Section 193, township 9 North, Range 29, East of
the City of Pasco and is in the process of developing a portion of such property; and
WHEREAS, the certain real property referred to above is situated within the
City limits as designated by Franklin County; and
WHEREAS, the Developer wishes to connect to City sewer; and
WHEREAS, the City, in exchange for the privilege to connect to City water and
sewer, is requesting that Developer construct a Regional Sewer Lift Station as well as
the domestic sewer line(s) “to and through” their parcel to current City standards; and
WHEREAS, once constructed, a Regional Sewer Lift Station will facilitate the
extension of City sewer service to other nearby parcels to the benefit of the City; and
WHEREAS, the City desires, by this Utility Extension Agreement, to
participate in the pro rata cost of the Regional Sewer Lift Station improvements to the
extent such shared costs benefit the City.
NOW, THEREFORE, and in consideration of the mutual terms and covenants
contained herein, the parties agree as follows:
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PAHLISCH HOMES AT SOLSTICE LLC Utility Extension Agreement - 2
1. Developer Obligations. Developer has or will:
A. Provide the complete design of the proposed infrastructure
improvements by a Professional Engineer registered to practice engineering in
the State of Washington. All work shall be in accordance with the current City
requirements, and standards and specifications, including any applicable or
referenced State and Federal requirements and standards. The engineering
design, construction plans and specifications shall be submitted to the City for
review and/or approval at the final stages of design.
B. From the design, as approved by the City, construct the
infrastructure improvements in accordance with applicable City, State, and
Federal standards and specification requirements.
C. Be responsible for all costs of the project which are anticipated to
be approximately $1,130,000.00, including but not limited to, expenses relating
to engineering, design, administration, legal, materials, labor, permits, reviews,
inspections and/or approvals from all applicable jurisdictions, and any other
project-related costs, subject to the reimbursement obligations of the City under
Paragraph 2(E).
D. Be responsible for providing the City with a cost estimate for all
items included in the terms of the Utility Extension Agreement.
E. Dedicate the infrastructure improvements and all appurtenances
thereto, to City at completion of the project, upon inspection and approval by the
City.
F. Execute all necessary documents, permits, agreements and
checklists necessary for the permitting, construction, and conveyance of the
infrastructure improvements described above and for the performance of this
Agreement.
G. Provide detailed invoices for the City in a usual and customary
format and with sufficient detail to enable the City to fulfill its reimbursement
obligations under Paragraph 2(E). The level of detail required for reimbursement
shall be at the sole discretion of the City.
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PAHLISCH HOMES AT SOLSTICE LLC Utility Extension Agreement - 3
2. City Obligations. City has or will:
A. Process in its usual course, Developer’s applications for plan
review and permits associated with the infrastructure improvements described in
this Agreement, in a timely manner.
B. Provide criteria to be met in order for the Developer to construct
the project in compliance with City of Pasco’s standards and specifications for
infrastructure improvements projects.
C. Provide timely reviews of the engineering design, construction
plans, and specifications at the time of final submittals.
D. Provide inspection services during the course of construction
consistent with the level of effort utilized on other capital and development
projects within the City, or as may be required to ensure the required quality of
the completed work.
E. Be responsible for direct reimbursement of certain costs
associated with the construction of the Regional Lift Station and infrastructure
improvements as part of the Solstice Subdivision. Costs have been evaluated by
the Public Works Director or his designee and reimbursements shall not exceed
$515,054.57, which is approximately 46% of the total project cost.
F. Upon satisfactory completion and inspection of the
improvements described above, accept the dedication of the infrastructure
improvements, and by City Council Resolution accept ownership thereof, and
maintenance and operation of the improvements thereafter.
3. Term. This Agreement shall be effective commencing on the ______
day of __________, 2023, and all improvements, conveyances, and obligations
of the parties with regard to the present agreement, shall be completed on or
before the ___ day of _____________, 2023.
4. Authority to Approve Agreement. The parties represent and warrant
that all steps necessary for the approval of this Agreement have been completed
by:
A. Pahlisch Homes at Solstice, LLC
B. City of Pasco
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PAHLISCH HOMES AT SOLSTICE LLC Utility Extension Agreement - 4
The officers signing below are authorized to do so and the execution of this
Utility Extension Agreement is valid and binding for all purposes.
5. General Provisions.
A. This Utility Extension Agreement constitutes the entire
agreement between the parties, and no prior oral or written agreement shall be
valid, and any modifications of this Agreement must be in writing signed by all
parties.
B. This Utility Extension Agreement shall be binding on the parties,
and their heirs, successors and assigns.
6. Dispute Resolution. In the event of a dispute between the parties
regarding the interpretation, breach, or enforcement of this Agreement, the parties shall
first meet in a good faith effort to resolve the dispute by themselves or with the
assistance of a mediator. The remaining dispute shall be resolved by arbitration
pursuant to RCW 7.04A, as amended, with all parties waiving the right of a jury trial
upon de novo review, with the substantially prevailing party being awarded its
reasonable attorney fees and costs against each other.
7. Mutual Cooperation and Further Agreements. The parties agree to
cooperate in good faith, with regard to each and every aspect required for the
completion of the construction of the infrastructure improvements which are the object
of this Agreement and the transfer of property, and to further sign all documents, deeds,
and permits that are reasonably necessary to accomplish the purposes of this
Agreement.
DATED this _____ day of_______________, 2023.
City of Pasco, Washington:
By: ________________________
Adam Lincoln, Interim City Manager
City Manager
City of Pasco
525 N. 3rd Avenue
Pasco, WA. 99301
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PAHLISCH HOMES AT SOLSTICE LLC Utility Extension Agreement - 5
STATE OF WASHINGTON )
: ss
COUNTY OF FRANKLIN )
On this day personally appeared before me DAVE ZABELL, City Manager of
the City of Pasco, Washington, described in and who executed the within and foregoing
instrument, and acknowledged that he signed the same as his free and voluntary act and
deed for the uses and purposes therein mentioned.
GIVEN under my hand and official seal this ___ day of ______________, 2023.
________________________________________
Notary Public in and for the State of Washington
Residing at _______________________________
My Commission Expires: ____________________
ATTEST:
____________________________
Debby Barham, City Clerk
APPROVED AS TO FORM:
________________________________
Kerr Ferguson Law, City Attorney
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PAHLISCH HOMES AT SOLSTICE LLC Utility Extension Agreement - 6
Developer:
By: __________________________________
Title: __________________________________
Address: __________________________________
__________________________________
STATE OF WASHINGTON )
: ss
COUNTY OF FRANKLIN )
On this day personally appeared before me _________________, to me known
to be the Developer, that executed the foregoing instrument and acknowledged the said
instrument to be the free and voluntary act of and deed of said limited liability
company, for the uses and purposes therein mentioned.
GIVEN under my hand and official seal this _____ day of _____________2023.
____________________________________________
NOTARY PUBLIC in and for the State of Washington
Residing at: __________________________________
My Commission Expires: _______________________
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AGENDA REPORT
FOR: City Council March 29, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Steve Worley, Director
Public Works
SUBJECT: Resolution No. 4334 - Process Water Reuse Facility (PWRF) Processor
Wastewater Treatment Agreement (WTA)
I. REFERENCE(S):
Resolution Approving the PWRF Processor Wastewater Treatment Agreement
(WTA)
Wastewater Treatment Agreement
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4334, authorizing the Interim City
Manager to enter into the Process Water Reuse Facility (PWRF) Industrial
Wastewater Pretreatment Agreement with each PWRF processor for the PWRF
Pretreatment Improvements Phase 3 Project.
III. FISCAL IMPACT:
Recent value engineering proposals and other potential cost saving efforts, have
reduced the estimated Phase 3 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.
Estimated Monthly Service Fee: $1,125,000 per month with provisions for
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.
Estimated Renewable Natural Gas (RNG) Revenue: ~$6 million per year, with
provisions for adjustment based on final RNG sales contract.
Potential Federal Income Tax Credit:
Page 111 of 234
$40 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 submitted $12 million requests for Congressional Directed Spending to
Senator Murray's office and Senator Cantwell's for the PWRF Phase 3 project.
Staff also sumitted a $12 milion request to Representative Newhouse's office
for the Community Project Funding program. Staff will continue 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.
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
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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 from 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 mode l to assist in
determining the proportionate fee to each Processor. The rate model has been
reviewed different evaluating Processor group with times several the
alternatives. Included in the attachments is the latest cost distribution for all four
phases of the PWRF Pretreatment project. Only the Phase 3 project is the
subject of the Processor WTA.
This item was discussed at the February 27, 2023, Council Workshop Meeting.
City individual discuss to processor four met staff Legal and with
changes/addition the s to the final WTA. Staff recommends approval of
Processor WTA in substantially the same form as presented and to make minor
substantive changes as necessary to execute the Agreements.
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Resolution – Pasco Processors Wastewater Treatment Agreement - 1
RESOLUTION NO. _______
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 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 with Burnham SEV, Burnham SEV 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, upon approval of the City Council and entering into an agreement with
Burnham SEV, the Processors agree to pay City a Base Treatment Fee and/or an Adjustment
Treatment Fee as described herein and shown in Exhibit A.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
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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 consistent with the intent of the City Council.
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, this ______ day of April
3, 2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ __________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
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1
FG: 100895287.5
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 1854 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 from rates and fees paid to the City by
processors, including Processor. This Agreement provides for Processor agreement to pay City for a Base
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2
FG: 100895287.5
Treatment 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
See Exhibit E
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 4.2.
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 Exhibit C, Processor
shall comply with the following obligations (each a “Processor Obligation” and together the “Processor
Obligations”):
5.1 Effluent Wastewater. Commencing on written notice from City and continuing throughout the
Term, Processor shall at its sole cost and expense deliver to City all Effluent Wastewater produced within
the City, in accordance with the specifications in Exhibit C.
If at any time City becomes aware that Effluent Wastewater delivered by Processor is Non-Conforming
Effluent Wastewater, after thirty (30) days written notice to Processor and a failure to cure by Processor,
City may, in its reasonable discretion, choose to refuse, accept or bypass such Non-Conforming Effluent
Wastewater; provided, however, that City’s acceptance of Non-Conforming Effluent Wastewater shall not
relieve Processor of any responsibility or any costs, damages, or liabilities associated with Non-
Conforming Effluent Wastewater, including but not limited to costs of alternative handling, treatment and
disposal. The City does not waive any other rights or remedies associated with Processor’s delivery of
Non-Conforming Effluent Wastewater.
5.2 Payment. Processor shall pay City in accordance with Section 7.
5.3 If there are any changes in Processor’s ability to comply with the Processor’s Obligations in
Exhibit C (not excused by a Force Majeure event), 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 reasonable costs incurred by City to operate the System due to such Changed Circumstances. The
Parties agree to negotiate in good faith any necessary Modifications in accordance with Section 7.3 to
accommodate any Changed Circumstances.
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FG: 100895287.5
6. CITY OBLIGATIONS
6.1 In addition to any other obligations set forth herein, including any obligations in Exhibit B, 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
in accordance with this Agreement and invoiced by City monthly in accordance with Exhibit D. 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 Effluent
Wastewater or temporary failure or inability of City to accept Influent Wastewater.
Processor shall pay each City invoice within thirty (30) calendar days after receipt; provided, however,
that Processor may, in good faith, dispute the correctness of any invoice, upon written notice to the City,
stating the basis for the dispute or adjustment; provided further, however, that Processor shall remain
obligated to pay all undisputed amounts when due. Payment will be made by check, cash, or electronic
funds transfer, or by another mutually agreeable method(s), to the account determined by the City.
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 in good faith 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:
a. The Processor’s failure to make any undisputed payment required under this Agreement and
invoiced by the City in accordance with Section 7; provided, however, that City shall provide
written notice of such failure to Processor and Processor shall have thirty (30) days to submit
payment in full (including any interest or penalties) following such notice;
b. An Effluent Wastewater failure (defined as wastewater not meeting requirements outlined in
Exhibit C ) , not excused by a Force Majeure event, of cause and sufficient duration to be a
Material Breach.
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FG: 100895287.5
c. The City’s failure to provide Processor the services outlined in Exhibit B for a period of one-
hundred eighty (180) days or more due to the System’s inability to provide such wastewater
treatment services.
d. In respect of either Party, the other Party’s material misrepresentation, fraud, or intentional
misconduct in connection with this Agreement.
e. 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 Processor’s
temporary failure or inability to meet the Effluent Wastewater specifications listed in Exhibit C
(“Effluent Wastewater Failure”) shall be a Non-Material Breach of this Agreement.
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 9.4.
Such remedies in this Section 0, or otherwise, shall be non-exclusive, and every other right and remedy
shall 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.
9.3 Notwithstanding the above, if the Effluent Wastewater Failure was caused by Processor’s
delivery of Non-Conforming Effluent 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 Effluent Wastewater in accordance with Exhibit C or delivers
Non-Conforming Effluent Wastewater, the City shall promptly notify Processor of such failure and
Processor shall be solely responsible for any and all losses and damage to the System, or additional
reasonable costs incurred by the City or its contractors that were caused by Processor ’s failure or delivery
of Non-Conforming Effluent Wastewater, including without limitation any additional reasonable costs of
treating, handling, storing, and disposing of such Non-Conforming Effluent Wastewater.
9.4.2 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.
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FG: 100895287.5
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.
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
12.
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 Effluent Wastewater from Processor at the System, the City shall provide for alternative treatment
and handling of the Processor Effluent wastewater on an emergency basis or otherwise.
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 (1) the undiscounted value of Processor’s payments to the City for the remainder
of the Term (), as reasonably calculated by the City, in accordance with Exhibit D, or (2) a
proportionate share of any Outstanding Debt; and
(b) A proportionate amount related to Processor of the total amount owed by the City to Burnham for
impacts on PWRF, caused by the need to terminate this Agreement as a result of Processor’s Material
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Breach. . Notwithstanding the foregoing, as required by applicable law, the City shall be required to
mitigate damages, and all damages mitigated shall be deducted from amounts owing by Processor.
9.7 Good Faith Effort to Resolve Disputes
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
10.1 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.
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
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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 9.7, 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 9.7 and 12.3, 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
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 writing 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”).
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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. Notice shall be effective upon receipt.
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
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.
13.8 Consequential Damages. Notwithstanding anything in this Agreement to the contrary, in no event
will either Party be liable for any indirect, punitive, special, or consequential damages relating to the
Agreement, including but not limited to lost profits, even if such Party has been advised of the possibility
of such damages.
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: Interim
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FG: 100895287.5
City Manager
Date:________________________________ Date:_____________________________
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FG: 100895287.5
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:
Headworks & Grit Removal: a system that accepts the Influent Wastewater (pumped by Processor),
removes grit and other inorganic material, and routes the Influent Water to the next process.
Equalization: a system that collects Influent Wastewater and meters it out in a controlled manner to the
next process.
Anaerobic Reactors and Bypass Stations, including:
a.Anaerobic Reactor System;
b.Bypass - Equalization to Aerobic Reactors; and
c.Bypass - Equalization to Pond Discharge Station.
Nitrogen Reduction System and Bypass Station, including:
(a.) Nitrogen Reduction System; and
(b) Bypass – Nitrogen Reduction System to Pond Discharge Station.
System 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.
2.1. 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.
2.2. The City will communicate with Processor as is reasonable and necessary regarding the City’s
operation, routine maintenance, and management of the System.
3. Capital Improvements
3.1. The City will perform capital improvements and any maintenance or modifications.
3.2. 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.
3.3. Should the proposed nitrogen reduction system not perform as required to meet City’s permit
with Ecology, the City will call upon the performance guarantees of Gross-Wen Technologies
and Burnham and have a Moving Bed Bio Reactor (MBBR) system of sufficient size installed at
no additional cost to Processor.
4. 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.
5. Performance Standards and Regulatory, Reporting, and Recordkeeping Requirements
5.1. 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 .
5.2. 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.
6. Metering; Wastewater Quality
6.1. 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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FG: 100895287.5
6.2. 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.
6.3. 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.
6.4. 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.
7. Payment of Permit Fees and Fines
7.1. The City is responsible for all State Waste Discharge Permit fees.
7.2. 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).
8. System Maintenance
8.1. 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.
8.2. 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.
8.3. 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 Effluent Wastewater in accordance with the following specifications:
Influent Characteristics to Wastewater Treatment System
[
Parameter Effluent
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.
4.Pass-Through Costs:
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FG: 100895287.5
The following costs incurred by the City will be passed through to Processor for administrative costs, and
will be invoiced to Processor monthly:
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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Exhibit E
Definitions
“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.
“Adjusted Treatment Fee” has the meaning given in Exhibit D.
“Base Treatment Fee” has the meaning given in Error! Reference source not found..
“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.
“Changed Circumstances” has the meaning given in Section 5.3.
“City Facilities” has the meaning given in Agreement Section 2.3.
“City Obligation(s)” has the meaning given in Section 6.
“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.
“COD” means the actual date upon which the System reaches Commercial Operation.
“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.
“Discharge Permit” has the meaning given in Agreement Section 2.3.
“Ecology” means the Washington State Department of Ecology.
“Effective Date” has the meaning given in Agreement Section 13.3.
“Effluent Wastewater” means agricultural or dairy industrial wastewater, as measured at the point
Processor wastewater is discharged from Processor’s plant to the PWRF, that meets the specifications in
Exhibit C.
“Effluent Wastewater Failure” has the meaning given in Section 9.1.
“Influent Wastewater” means the combination of 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
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FG: 100895287.5
Exhibit C, as measured at the point at which the Processor Effluent Wastewater is delivered to the PWRF
as more particularly described in Exhibit A1.
“Initial Term” has the meaning given in Section 3.38.
“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.
.
“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.
“Material Breach” has the meaning given in section 8.2.
“MG” means million gallon(s).
“Modifications” has the meaning given in Section 7.3.
“Non-Conforming Effluent 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 Exhibit C.
“Non-Material Breach” has the meaning given in Section 8.1.
“Pass-Through Costs” has the meaning given in Exhibit D .
“Permits” means the permits, clearances, approvals, authorizations, variances, or consents of the City,
including all amendments thereto and replacements thereof, that must be obtained and/or maintained for
Processor’s discharge of Effluent Wastewater to the System.
“Processors” means the collective of all food product Processors that discharge their industrial
wastewater to the PWRF, including Processor.
1 NTD: monitoring locations for influent and effluent return(s).
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FG: 100895287.5
“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.
“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.
“PWRF” has the meaning given in Agreement Section 2.1.
“Remedy” has the meaning given in Section 9.5.
“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 Section4.2.
“Services” means the services to be provided by the City, its subcontractors, agents, or assigns, under this
Agreement, as set forth in Exhibit B.
“System” means the City- and Burnham-supplied industrial wastewater treatment and RNG production
facility and ancillary components as set forth in Exhibit A.
“Term” has the meaning given in Section 4.
“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.
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Exhibit B
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AGENDA REPORT
FOR: City Council March 29, 2023
TO: Adam Lincoln, Interim City Manager City Council Regular
Meeting: 4/3/23
FROM: Steve Worley, Director
Public Works
SUBJECT: Resolution No. 4335 - Burnham Wastewater Treatment Agreement –
Process Water Reuse Facility (PWRF) Pretreatment Improvement Phase
3 Project
I. REFERENCE(S):
Resolution approving the Burnham Wastewater Treatment Agreement (WTA)
Wastewater Treatment Agreement
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 4335, authorizing the Interim City
Manager to enter into the Wastewater Treatment Agreement with Burnham for
the PWRF Pretreatment Improvements Phase 3 project.
III. FISCAL IMPACT:
The current estimated Phase 3 cost is $122 million. The payment of this cost
by the PWRF Processors will be offset based on revenues generated through
the sale of renewable natural gas (RNG) and a 30% investment tax credit for
the RNG-related facilities.
Estimated Monthly Service Fee: $1,125,000 per month with provisions for
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.
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:
$40 million with provisions for adjustments based on final credit. (Available to
reduce principal amount).
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Community Economic Revitalization Board (CERB):
$5 million low-interest loan for the Phase 3 project.
Potential Federal or State Grants:
Staff submitted $12 million requests for Congressional Directed Spending to
Senator Murray's office and Senator Cantwell's for the PWRF Phase 3 project.
Staff also sumitted a $12 milion request to Representative Newhouse's office
for the Community Project Funding program. Staff will continue to pursu e
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 agricultural food Processors. The system includes the
Process Water Reuse Facility (PWRF). The PWRF requires improvements to
sufficiently treat current Processor wastewater such that they continue to meet
Ecology permitted limits. The PWRF is currently at or near capacity and requires
expansion to enable new Processors to use the facility or existing Processors to
expand their operations.
Upgrades to the PWRF pretreatment system will significantly improve treatment
capacity for the benefit of all existing and future agricultural (and dairy)
Processors, customers, and the local community. The PWRF improvements also
have a positive impact on the Municipal Wastewater Treatment plant by allowing
for the redirection of all agricultural and dairy industrial wastewater away from
the WWTP. This frees up much-needed capacity at WWTP allowing for
increased residential and 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 60% through the design phase.
On January 10, 2022, staff provided Council with a presentation on proposed
updates to the Process Water Reuse Facility (PWRF) with the pot ential to
include a Renewable Natural Gas (RNG) option that will help reduce costs to the
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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 at 70% design and is
ready to move forward with final design and construction managed by Burnham
SEV.
V. DISCUSSION:
This final draft WTA outlines the terms and conditions for the design,
construction, operation, maintenance, and payment of the proposed PWRF
Pretreatment Phase 3 project and industrial wastewater treatment services. This
Phase 3 project includes facilities that will treat the PWRF Processor industrial
wastewater using a low-rate anaerobic digester (LRAD), a biological nitrogen
removal system (Rotating Algal Biofilm (RAB)), and a renewable natural gas
(RNG) system.
The RNG will be sold by Burnham on the volunteer RNG market. Revenue from
the sale of RNG will be used to pay a portion of the capital cost, thus reducing
the fees paid by the PWRF Processors.
This item was presented to Council at the February 6, 2023, Regular Council
meeting. The City met with Burnham to modify the agreement after recieving
comments from processors.
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Resolution – Burnham SEV Pasco, LLC Wastewater Treatment Agr. - 1
RESOLUTION NO. _______
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
ENTERING WRITTEN FINDINGS AND AUTHORIZING THE INTERIM
CITY MANAGER TO ENTER INTO THE WASTEWATER TREATMENT
AGREEMENT WITH BURNHAM 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 new agricultural food processor
wastewater; and
WHEREAS, Burnham SEV, a renewable natural gas (RNG) Project Developer, was
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 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 with Burnham, 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
WHEREAS, this Agreement was submitted to the Department of Ecology on September
15, 2022, satisfying the condition precedent to the City’s execution of this Agreement and is in
substantially the same form as was reviewed by the Department of Ecology; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
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Resolution – Burnham SEV Pasco, LLC Wastewater Treatment Agr. - 2
Section 1. Findings.
After a public hearing on February 6, 2023 was held, the below findings are hereby
adopted by the City Council:
A. The City of Pasco has determined that it is in the public interest to enter into the
service agreement with Burnham SEV Pasco, LLC;
B. The service agreement includes project performance bonds or other security by
the service provider which in the judgment of the public body are sufficient to
secure adequate performance by the service provider;
C. That the service agreement includes a provision for an option by which a public
body may acquire at fair market value facilities dedicated to such services;
D. That the service agreement is financially sound and advantageous compared to
other methods.
Section 2. Delegation of Authority.
That the Interim City Manager is hereby authorized to execute the Wastewater Treatment
Agreement with Burnham SEV Pasco, LLC for the PWRF Pretreatment Improvements Phase 3
Project, a copy of which is attached hereto and incorporated herein by reference as Exhibit A; in
substantially the same form and to make substantive changes as necessary to execute the
Agreement consistent with the intent of the City Council.
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, this ____ day of April,
2023.
_____________________________
Blanche Barajas
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ __________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
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506528698.4
WASTEWATER TREATMENT AGREEMENT
Between
Burnham SEV Pasco LLC
And
The City of Pasco, Washington
Effective April 10, 2023
Page 141 of 234
506528698.4
TABLE OF CONTENTS
Page
-i-
1. Recitals...............................................................................................................................1
2. Term ...................................................................................................................................3
3. Burnham Obligations..........................................................................................................3
4. City Obligations..................................................................................................................6
5. Payment for System and Services; Change Orders............................................................8
6. Non-Material and Material Breaches of this Agreement .................................................14
7. Remedies; Cross-Defaults................................................................................................14
8. Title, Ownership, and Risk of Loss; Transfer of Environmental Attributes....................19
9. Representations and Warranties.......................................................................................20
10. Indemnification.................................................................................................................20
11. Limitation of Liability......................................................................................................24
12. Insurance...........................................................................................................................24
13. Force Majeure...................................................................................................................25
14. Confidentiality..................................................................................................................26
15. Governing Law and Disputes...........................................................................................27
16. Miscellaneous...................................................................................................................27
Exhibit A ......................................................................................................................................32
Exhibit B.......................................................................................................................................34
Exhibit C.......................................................................................................................................39
Exhibit D ......................................................................................................................................41
Exhibit E.......................................................................................................................................42
Exhibit F.......................................................................................................................................48
Exhibit G ......................................................................................................................................51
Exhibit H ......................................................................................................................................52
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1
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
pumps/pipes 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 existing and new
agricultural food and dairy 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, design,
construct, own, operate, and maintain 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
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2
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 and dairy 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
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 findings1 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, the Wastewater
Treatment, Anaerobic Digestion and Renewable Natural Gas Project Second
Work Acceleration Agreement on December 8, 2022, and the Wastewater
Treatment, Anaerobic Digestion and Renewable Natural Gas Project Third Work
Acceleration Agreement on February 9, 2023 (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 $7,500,000
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:
1 [NTD: Need to update this date]
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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.
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 by May 29,
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2023. (“NTP Date”). In all cases, Burnham shall issue its NTP within
ninety (90) calendar days of the NTP 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:
(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 by December 31, 2024 (“COD”). In all cases, Burnham shall
cause the System to reach Commercial Operation by June 30, 2025
(“COD Longstop Date”); provided, however, that the COD and COD
Longstop Date dates will be (x) extended on a day-for-day basis upon the
occurrence of any Force Majeure or due to any City Caused Delay or
Ecology Delay, (y) and extended per the conditions of Section 7.1(b)(iii).
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 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;
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(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
throughout the Term of this Agreement to obtain prudent pricing for the
Pass-Through Costs at set forth in Exhibit F.
(i) Gross Wen Nitrogen Reduction Process Performance Guarantees.
Burnham will obtain performance guarantees for the Gross Wen Process
(the “Gross Wen Process Performance Guarantees”). To the extent
circumstances arise that entitle Burnham to pursue its rights, including
without limitation compensation, from the Gross Wen Process
Performance Guarantees, Burnham will use commercially reasonable
efforts to first pursue the repair, replacement, or modification of the Gross
Wen Process under the Gross Wen Process Performance Guarantees to
meet the performance criteria. If such repair, replacement, or modification
is not possible, Burnham shall pass through all liquidated damages
received due to a breach of the Gross Wen Process Performance
Guarantee, net of collection costs, directly to the City. In addition,
Burnham shall match any liquidated damages paid to the City under this
clause on a dollar-for-dollar basis, up to a maximum of $1.67 million...
(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.2 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
2 [NTD: This was removed in last turn by S. Worley. Seems perhaps it was important to Eric or
some of the processors?]
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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 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 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”), shall use best efforts to obtain and receive, 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 equal to, at City’s option, either (i) 90% of such cash
received for the sale of federal tax credits, or (ii) $7,200 per month for each
$1,000,000 of 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 five (5) business days after the Effective Date (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
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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 April 15, 2023, City
shall receive approval on the Facility Plan associated with the Project. Any
delay in receiving approval on the Facility Plan beyond April 15, 2023
will be an “Ecology Delay;” provided, however, that Burnham in its
reasonable discretion may waive this City Obligation upon sufficient proof
that Ecology intends to approve the Facility Plan by May 5, 2023. 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 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 from food and dairy processors in accordance with the
specifications in Exhibit C. If at any time Burnham becomes aware that
Influent Water delivered by the City or processors 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 or processor’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
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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 the Discharge Permit’s nitrogen or
associated constituent (e.g., nitrates) limits are exceeded resulting in any
Notices of Violations from Ecology or Claims from other third-parties and
all remedies of the Gross Wen Performance Guarantees have been
provided, 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 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 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 Commercial Operation 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) If the System is able to accommodate Darigold Operations at any time
before the COD Longstop, City shall pay to Burnham 30% of the Adjusted
Treatment Fee each month until the System reaches Commercial
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Operation, after which City shall pay Burnham in accordance with Section
5.1(a).
(c) 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 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. To the extent any disputed amounts are resolved in the City’s favor, such
previously disputed amounts will be credited or invoiced to City on the following
month’s invoice from Burnham. 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;
(b) Burnham shall submit a written change order to City setting forth the
Modifications and expected costs of such Modifications;
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(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).
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(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 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):
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(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;
(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.
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(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.
(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.
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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;
(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;
(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) In respect of either Party, the other Party’s material misrepresentation,
fraud or intentional misconduct in connection with this Agreement;
(f) In respect of either Party, an Insolvency Event for that Party;
7. Remedies; Cross-Defaults
7.1 Remedies for Non-Material Breaches of Certain Burnham Obligations.
(a) 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:
(i) 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.
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The Parties will immediately cooperate and take steps to remedy
such Effluent Water Failure consistent with Section 7.6.
(ii) Burnham will be responsible and have sole discretion for
performing all work on the System reasonably required to remedy
the Effluent Water Failure and bear all liabilities associated with
such work. The City will bear all costs 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).
(iii) 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 and liabilities 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).
(iv) If Burnham fails to deliver Effluent Water in accordance with
Exhibit D 3.1(e)or delivers Non-Conforming Effluent Water, City
shall promptly notify Burnham of such failure and Burnham shall
be solely responsible for any and all losses, damages to City
Facilities, or additional costs incurred by City that were caused by
Burnham’s failure or delivery of Non-Conforming Effluent Water,
including without limitation any additional costs of treating,
handling, storing, and disposing of such Non-Conforming Effluent
Water or discharging Non-Conforming Effluent Water to the City-
Owned Storage Pond.
(b) Burnham’s failure to reach Commercial Operation by COD shall be a
Non-Material Breach of this Agreement, with the liability, costs, and
responsibility for such failure to be determined as follows:
(i) if Burnham fails to reach Commercial Operation by the COD,
Burnham shall pay to City the COD Delay Damages for each day
following the COD until Commercial Operation is reached or the
COD Longstop Date is reached, whichever is earlier;
(ii) if Burnham fails to reach Commercial Operation by the COD
Longstop Date, Burnham shall pay to City the COD Longstop
Delay Damages for each day following the COD Longstop Date
until Commercial Operation is reached or this Agreement is
otherwise terminated in accordance with Section 6.2(a) and
Section 7.4.
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(iii) Notwithstanding anything else in this Agreement, if Darigold
Operations are achieved before COD, then COD shall be extended
to March 31, 2025 and the COD Longstop Date shall be extended
to September 30, 2025. If Darigold Operations are achieved
between COD and the COD Longstop Date, then the COD
Longstop Date shall be extended to September 30, 2025.
(c) In the event of any damage to the City’s Facilities caused by Burnham’s
acts or omissions or breach of this Agreement, Burnham shall remain
obligated to perform all of its obligations under this Agreement and
Burnham shall reimburse City for the repair and restoration of the City’s
Facilities to the same condition as existed immediately before such
damage occurred. City shall promptly notify Burnham of any damage to
the City’s Facilities caused by City’s acts or omissions.157.3
7.2 Remedies for Non-Material Breaches of Certain City Obligations.
(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 4.1(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.
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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;
(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
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(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 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
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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 7.1(b), it would be impracticable to determine
accurately the extent of the loss the City would have in such case. Therefore, it is
in the Parties’ interests to establish certainty as to the damages payable. 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. All markings and identifications of the
System shall include “in partnership with the City of Pasco”. Neither City nor
Burnham shall not remove any such identifying marks.
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.
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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, 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. The City shall retain the benefit of all environmental and commercial rights
associated with sale of algae. To the extent any emission or other environmental
credits, certificates, or similar benefits exist that are not necessary for the
production and sale of RNG, and the allocation of such benefits cannot be readily
determined pursuant to this Section 8.4, the benefits shall be shared equally
between City and Burnham.
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
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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):
(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.
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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.
(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
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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
(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)
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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 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
Replacement Cost
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Damage Coverage after COD)
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 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.
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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 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
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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 judgment.
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
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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.
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
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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.
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.
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[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: [more detailed description needed – similar to later sections]
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 or treatment
capacities.
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.
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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 Major Maintenance budget
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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 Major 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 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 and processors supplying Influent
Water in accordance with Exhibit C.
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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 approved by the
City 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 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
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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.
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 and the volume of Influent Water
shall be metered and have the ability to be sampled for laboratory testing.
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.
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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 rights-of-way. Access to the
site is exclusive, subject to certain easements and other access rights granted in favor of City as
identified in the site lease.
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.
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3.Potable Water: City to provide adequate water source (for use: domestic, fire, and
process w/in facility) at Site boundary. Burnham responsible to coordinate with the
City to provide potable water through City waterline to Project.
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.
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
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 Value3
BOD. Avg. (mg/L)<350
The System is designed and intended to bypass Influent Water around portions of the process
based on the System capacities and 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 directed to the City-owned
Storage Pond.
3 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.
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“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.
“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).
“COD Delay Damages” means $5,000 per day.
“COD Longstop Delay Damages” means $10,000 per day.
“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.
“Darigold Operations” means that, to Burnham and City’s reasonable satisfaction, the System
is able to accept and treat Influent Water from Darigold Inc. before reaching Commercial
Operation.
“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.
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“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.
“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 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 all 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, whether owned or under the control City or processors.
“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
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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
“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, and (ii) costs attributable to any
City Caused Delay or Ecology Delay;. Net Capital Costs will be reduced by the amount of two
million dollars ($2,000,000.00).
“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.
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“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.
“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.
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“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.
“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: [$1,125,000]4 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, and d below (and excluding e) may not exceed
$170,000 per month (the “Adjusted Treatment Fee Cap”):
a. If the Net Capital Cost exceeds $132,000,000, 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 $132,000,000, 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 at a
total weighted-average cost of debt at 6.5%. 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 basis points (bps) above a total weighted-average cost of debt of
6.5%, the Base Treatment Fee will be increased by $5,250.
ii. For every 10 bps below a total weighted-average cost of debt of 6.5%, the
Base Treatment Fee will be decreased by $5,250.
d. The Base Treatment Fee will be decreased by $9,000 per month for each $1,000,000
(rounded to the nearest million) for any payments City makes to Burnham under the
Work Acceleration Agreements.
e. The Base Treatment Fee will be increased by $9,000 per month for each $1,000,000
(rounded to the nearest million) of costs attributable to City Caused Delays or an
Ecology Delay.
4 NTD: Subject to fully executing agreement by April 10.
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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 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:
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○Solid waste disposal (including anaerobic sludge; periodic digester scrapes and
clean-outs and any algae or biomass removed from the Gross Wen Process)
○Consumables (including replacement parts & associated rental equipment)
○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:
○Electricity
○Purchased natural gas for system heating use
○All City, state, and local taxes with the exception of income taxes (e.g., sales tax,
B&O tax, property tax, as applicable)
○Rental payments made to City under the site lease
○Any costs and fees associated with securing and maintaining a Service Contract
Performance Bond
RNG Credit. Burnham includes in the Base Treatment Fee an RNG credit of $350,000 per
month. Burnham shall reduce or increase all invoiced amounts to City by the changed amount of
any RNG Credit, if any, available for the applicable invoiced month. The RNG Credit changed
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”).
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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.
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.
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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, 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
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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.
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
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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 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
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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
(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.
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(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.
(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
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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
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resulting from (a) injury to or death of persons, 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
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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 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;
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(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 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.
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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 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,
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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 judgment.
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 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
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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 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.
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(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, 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
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“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
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thereafter be relieved of all obligations under this Lease accruing from and after the date of such
sale and assignment.
(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
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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.
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
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.
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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).
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;
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“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 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;
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“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;
“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;
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“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.
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,
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506528698.4
limit, expand, diminish 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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506528698.4
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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506528698.4
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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506528698.4
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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506528698.4
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.
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506528698.4
EXHIBIT E
Wastewater Treatment Agreement
[Attachment]
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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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