EPHRATA CITY COUNCIL  MAYOR BRUCE REIM MAYOR PRO-TEM WILIAMICO: COINCILMIEMIEK: KATILEEN ALLSTOT. KATILENTARKR.  SARAII MCDONNI  TONY MORA.  AGENDA FOR January 18, 2023-  6:00PM  EXECUTIVE SESSION THECITY OF EPHRATACONDUCTS EXECUTIVESESSION IN ACCORDANCE WITH RCW  4230.110OFTHE OPEN PUBLICI MEETINGACT  1. Litigation or Potential Litigation (RCW 42.30.110(1)0) 2. Acquisition of Real Estate or Site Selection (RCW 42.30.110(1)(b)  7:00PM  REGULAR SESSION 1. Called to Order 2. Roll Call 3. Pledge of Allegiance 4. Recording of! Meeting: Yes 5. Additions or corrections to published. Agenda 6. Presentations: a. SCJ Alliance Comprehensive Plan Update  II  CONSENT AGENDA  1. Approval ofClaim Fund Bills and Checks Issued 2. Approval ofCouncil Minutes: December 22, 2022 3. Approval of Special Event Application(s): None  III STAFFCOMMITEL, & AGENCY REPORTS IV CLOSED RECORD DECISIONS CHAPTERS  BILLS: Mora. Coe. McDonnell    V  PUBLICHEARINGS  1. Ordinance 23-01 Desert Plains Major Subdivision Development Agreement  VI ORDINANCES & RESOLUTIONS  1. Ordinance 23-01 Desert Plains Major Subdivision Development Agreement  VII ITEMS FOR COUNCIL CONSIDERATION VIII ITEMS FORCOUNCILACTION  1. Financial Software Upgrade Recommendation 2. Professional Services Rate Increase - Marten Law 3. Engineering Contract Amendment Well #9 Site Evaluation 4. Nat Washington Way Overlay Project Consultant Agreement 5. Appointment ofCity Representative to GTA Board 6. Re-appointment ofJoe Varick to Civil Service Commission 7. Re-appointment Joe Dennis and Don Guillemette to Planning Commission  IX ADMINISTRATION REPORTS 1. Personnel Policy Update  BILLS: Mora, Coe, McDonnell    CITY COUNCIL MINUTES  December 21, 2022  City Council of the City of Ephrata, Grant County Washington met in regular session on December 21, 2022. The meeting was called to order at 7:00 p.m. by Mayor Members Present: Mayor Bruce Reim, Mayor Pro Tem William Coe, Council  Bruce Reim  members Kathleen Allstot, Kathleen Harris, Valli Millard, Sarah Interim City Administrator Kurt Adkinson, City Attorney Anna Franz, Public Works Director Bill Sangster, Community Relations Director Traci Bennett, Police Chief Erik Koch, City Clerk/Finance Director Leslie Trachsler and Deputy City Clerk  McDonnell, Matt Moore, and Tony Mora  Staff Present:  Carrie Lnenicka  Pledge of Allegiance was said.  Agenda: There were additions/correction to the agenda.  Presentations - Officer Joanna Navarro swearing in ceremony VIII, 3. Approve UV Procurement bid - Wastewater Treatment Facility VII, 4. Approval of City Administrator Job Description  Presentations:  Erik Koch sworn in as Chief of Police Joanna Navarro sworn in as Patrol Officer  Consent Agenda: Motion was made to approve consent agenda. (m/s Harris/Moore)  Motion carried.  Items on the consent agenda are as follows:  Claims# 95929 through #95990 in the amount of $182,536.89 Payroll claim#47473 in the amount of $345.87 Checks #86122022, 87122022, 88122022 and 89122022 in the amount of Voided checks #47345 and 94444 in the amount of ($537.87) Minutes of the December 7,2022, Council meeting  $3,821.63    Special Event Applications:  Thrill at Beezley Hills - April 29, 2023  Ordinance 22-15- - Amending 2022 Budget: This budget amendment addresses the legal obligation we have to adopt a budget that reflects all expenses known and unanticipated. The reflected increases are associated with the transfer of the second payment of the State Local Fiscal Recover Funds; increased cost for Professional Services; personnel costs associated with retirement benefits payouts; increased property insurance costs; and increased costs for supplies and equipment purchases. Motion to accept and approve Ordinance 22-15 Amending the 2022 Budget as amended Ordinance 22-16-1 Fee Schedule and Charges for City Services: The Council's philosophy has been to make small incremental increases to the City's fees and charges on ay yearly basis by the amount of CPI. All rates have been increased by 8.7% with the exception of water, sewer and garbage rates. Council directed staff to increase utility rates by only 5% of the CPI. Combined with loan obligations for engineering and design for a new water tower and pressure zone, and upgrades to the sewer collection and treatment facility, the following are the increases for utility rates:  (m/s Alsto/McDonnell) Motion carried.  Water-1 11% Sewer-1 7% Garbage - 5%  The Splashzone rates will increase 8.62%. Ephrata Parks Commission recommended that the rates increase by only minimum wage and not minimum wage plus CPI. The 2023 minimum wage rate increased to $15.75 per hour. The ERC rates have been moved from the Personnel Policy to the Fee Schedule which will allow staff to keep the rates current. Amendment to Exhibit A: Garbage rates, 65 gallon should be $26.15, not $27.65. Motion to accept and approve Ordinance 22-16-E Fee Schedule and Charges for City Services as amended on exhibit A (m/s McDonnel/Moore) Motion carried. Approve amended Policy 5010 "Use of Public Building": Staff is requesting ERC rates tol be moved from Policy 5010 to the Ephrata Municipal Code Chapter 3.35. This move will allow staff to review rates on a more consistent basis. This is to remove the fees from the policy that were approved to move to Ephrata Municipal Code and will reference the Motion to Approve amended Policy 5010 "Use of Public Building" (m/s Millard/Mora) Approve Nat Washington Overlay Project: The City has received TIB funding for Nat Washington Way Overlay Project-Phase 1.7 The project begins at the Railroad tracks and A Street SE and goes to 3rd Avenue SE, near Columbia Basin Hospital. The total project estimate is $625,705 with the City paying 10% matching funds, $62,571. This will come Motion to Accept Nat Washington Overlay Project and authorize administration to execute the contract with TIB (m/s Mora/Allstott) Motion carried.  move. Motion carried.  from the City's REET funds.    Approve UV Procurement bid - Wastewater Treatment Facility: The City received 2 bids for the UV Procurement. The overall design is not complete but the largest part is the UV channel. This bid is for materials to be delivered to site and ready for contractors when work begins. The engineer's estimate was $460,700 and the lowest bid is Motion to Accept UV Procurement bid- Wastewater Treatment Facility and authorize administration to execute the contract with Trojan (m/s Allstott/Harris) Motion carried. Approve. Job Description for City Administrator: The job description has been Motion to approve and accept job description for City Administrator (m/s Moore/Millard) Nick Downs signed up to speak. He wanted to give a handwritten letter to Police Chief Koch and Council member Millard. He acknowledged and commended Council member  $356,961.20.  modified by Council to be more marketable.  Motion carried.  Millard's vote against a 5% incentive for City employees.  Administration Report:  Personnel Policy update Staff has been working diligently with legal counsel on the personnel policy. The current personnel policy is severely outdated. Interim City Administrator Adkinson would like to have a study session with 2023 Council Bill Schedule: Schedule is included in this council packet and can Cancellation of Regular Meeting on January 4, 2023: There will be no agenda  Council to review the significant updates. bee emailed upon request.  items for the meeting on January 4th, 2023. Allstott/McDonnell) Motion carried.  Motion to cancel the regular meeting on January 4, 2023 (m/s  There being no further business meeting adjourned at 7:33 p.m.  Bruce Reim, Mayor  ATTEST:  Carrie Lnenicka, Deputy City Clerk    DATE: January 18, 2023 ITEM: Public Hearing  SUMMARY  1. Ordinance 23-01 - Desert Plains Major Subdivision Development Agreement  BUDGET IMPACTS 1. N/A    CITY OF EPHRATA STAFF REPORT Mayor and City Council Assistant City Attorney Annal Franz Community Development Director Ron Sell  To: From: Date: Proceeding Type: Subject:  January18, 2023 Public Hearing  Desert Plains Major Subdivision Development. Agreement  Legislative History:  Requested. Action:  Motion to Approve the Development Agreement presented by Staff  Staff Report Summary:  The proposed Development Agreement is for the Desert Plains Major Subdivision which was conditionally approved by the City Council on October 19, 2022, in Resolution 22-08. Resolution 22-08 established mitigation and other requirements as conditions of approval which are incorporated in the proposed Development Agreement. The Developer has requested the following items which staff do not recommend the City Council include in the approved Extension of Term (Section 7): The term Developer requests that the term for development Duplex (Section 9.B): The Developer requests the ability to convert up to 36 lots from single Delay of BNSF Buffer wall or fence (Section 14.F): The Developer requests that the BNSF buffer wall or fence construction be the responsibility of the individual lot owner to install at  Development Agreement:  oft the subdivision be extended to 10 years.  family dwellings to duplexes without public notice or public hearing.  the time of building permit.  Page: 1of4    Discussion/Analysis:  Background. This development agreement relates to the Desert Plains subdivision of 57 acres into 329 lots located North of Prairie Bluff Major Plat and 8th Ave NE. The council previously adopted Resolution 22-08 conditionally approving the Desert Plains subdivision including a requirement that the Developer enter into al Development Agreement to address the conditions Development Agreements. Development Agreements are authorized by state law (RCW 36.70B.170-210) to establish a contractual relationship between the City and the Developer regarding the development, uses, and mitigation of the development of a specific piece of property for the duration specified in the agreement. All subsequent development permits issued by the City must be consistent with the terms and conditions set forth in the Development Agreement. "Development standards" include permitted uses, residential densities; the amount and payment ofi impact fees imposed or agreed to in accordance with any applicable provisions of state law, any reimbursement provisions, other financial contributions by the property owner, inspection fees, or dedications; SEPA mitigation measures, conditions, and other SEPA requirements; phasing; and review procedures and standards. See RCW 36.70B.170(3). In establishing these development standards, they must be consistent with the City's applicable development regulations and comprehensive plan goals and poliçies. From the City perspective, the development agreement's terms and conditions should promote the public health, safety, and welfare of all Ephrata citizens. Because of the potential impact on members of the public, a public hearing is required before the approval of a development agreement. See RCW Term. In Washington State, the vested rights doctrine provides that the development ofa plat is considered only under the land use statutes and ordinances in effect at the time of the plat application's submission. Under the current context of Ephrata's development regulations, this means that because the Desert Plains application was received prior to the adoption of the moratorium and the upcoming comprehensive plan and development regulation update, the current version of the City's development code applies to the development of the Desert Plains subdivision and the City cannot impose future changes in the development code on this subdivision. These vested rights, however, do expire after a period of time uniess the subdivision isc completed and the final plat of all phases approved. State law and the Ephrata municipal code require that thei final plat be submitted for approval within 5 years of the date of the preliminary plat approval. See RCW 58.17.140 and EMC 18.04.705. The Ephrata municipal code allows for a one time one year extension if the applicant can show a good faith attempt to submit the final plat within the 5 year period. Additional one year extensions may be approved by the City upon the Developer satisfying the burden of proof to show unusual circumstances or situations which made iti impossible to file the final plat within the 6 year period. Ini the event ofai failure to submit remaining phases for final plat approval within the required period, the Developer would be required to submit a new application for subdivision under the then current development In response to the requests of the Developer for a longer development term, City staff recommend the 7 years approved in Resolution 22-08 with a one-time extension for up to 2 additional years. The Developer is requesting a 10-year term with an additional one-time  ofapproval as set forthi in Section: 3 of Resolution 22-08.  36.70B.200.  regulations.  Page2of4    extension for up to 2 additional years. Staff do not recommend granting Developer's request given that the development standards controlling this development are already significantly Duplex Approval. Developer's plat application, subsequent SEPA environmental analysis, and notice toi the public was for 329 single family units. Subsequent to the adoption of Resolution 22- 08, Developer requested the ability to convert single family units into duplex units on a one-to- one basis resulting in an increase in development density. The traffic impact study submitted by The procedure for alterations of a major subdivision are set forth in EMC 18.04.735. Minor alterations requested prior to final plat approval are approved with the consent of the Community Development Director and the Public Works Director. Major plat alterations requested prior to final plat approval require the consent of the city council after public notice and aj public hearingi is held. While the conversion of up to 36 lots to duplexes is within the traffic impact analysis showing no impact, the public was not provided the opportunity to comment on the increase in density. Therefore, staff recommend that the conversion of up to 36 lots to duplexes be considered a minor alteration request but subject to additional public notice and opportunity to comment and any conversion over that amount be considered: la major alteration. Developer requests that the conversion of up 36 lots to duplexes be a minor alternation with no additional public notice or opportunity to comment. Staff does not recommend approval of this request given the lack of public opportunity to comment on thei increase of density by converting BNSF Buffer. The portion of the subdivision adjacent to the BNSF railroad right of way requires a landscape buffer in accordance with EMC 19.07.040 including a fence or wall between the housing and the railroad tracks. Developer is requesting that the installation of the fence or wall be delayed from final plat approval until the individual homes are constructed. This request would result in piecemeal construction of the fence/wall and: shifts a substantial burden onto the City to monitor and enforce construction of the fence/wall as individual construction of lots occurs. The fence/wall is part of the subdivision improvements including streets, sidewalks, and utilities and should be installed within the same time frame at the cost of the developer. Staff Recommendation: Staff recommends Council approval of the Development Agreement  outdated.  the Developer analyzed the impacts of 365 dwelling units.  the proposed single family home development to duplexes.  presented by Staff Financial Implications: N/A Attachments A. B. C. D.  Desert Plains Development Agreement Resolution: 22-08 August 25, 2022S Staff Report Developer Requests  Page 3of4    Legal Review  The following documents are attached and subject to legal review:  Date Reviewedby Legal Counsel 12/22/2022  Type of Document Agreement  Title of Document Desert Plains Development. Agreement  Page4of4    ORDINANCENO.25-01  AN ORDINANCE OF THE CITY OF EPHRATA, WASHINGTON, TO APPROVE A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF EPHRATA AND THE PROPERTY OWNERS OF THE DESERT PLAINS  SUBDIVISION  THE CITY COUNCIL OF THE OF THE CITY OF EPHRATA DOES ORDAIN AS Section 1. The Development Agreement attached hereto as Exhibit A is approved and the Section 2. As provided in RCW 36.70B.190, the Development Agreement shall be recorded with the real property records of Grant County, Washington and shall be binding on the  FOLLOWS:  Mayor is authorized to sign the agreement.  parties and their successors and assigns. publication ofi its summary as provided by law.  Section 3. This ordinance shall be in full force and effect five days after its passage and PASSED by the City Council oft the City ofl Ephrata, Washington, this 18th day of. January,  2023.  Bruce Reim, Mayor  ATTEST:  Leslie Trachsler, City Clerk APPROVED ASTO FORM:  Katherine L. Kenison, City Attorney  PASSED the APPROVED the PUBLISHED the  day of day of day of  2023. 2023. 2023.    Resolution No. 22-08  A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EPHRATA, WASHINGTON, CONDITIONALLY APPROVING THE DESERT PLAINS PRELIMINARY PLAT, A MAJOR  SUBDIVISION  WHEREAS, Jeff and Lisa Fairchild ("Developer") have submitted an application to the City of Ephrata for the Desert Plains Subdivision Preliminary Major Plat, a 329 lot residential major subdivision on 57 acres in a Residential-2 zoning district located North of Prairie Bluff Major Plat and 8th Ave NE and approximately 1.5 miles northeast of Ephrata City Hall in a portion of the Southeast quarter of the Northeast Quarter South of the Railroad Right of Way and the Northeast Quarter of the Southeast Quarter of Section 10, Township 21 North, Range 25 East, WM, Grant WHEREAS, following a duly noticed open record public hearing held before the City of Ephrata Planning Commission on August 25, 2022, to consider the preliminary plat application for the Desert Plains Subdivision, as provided by Chapter 18.04 EMC, the Planning Commission received exhibits and testimony into evidence, and issued Findings of Fact, Conclusions of Law, and WHEREAS, the City Council held a closed record public hearing during the regularly scheduled Ephrata City Council Meeting on October 19, 2022, regarding the preliminary plat application for NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of Ephrata, Section 1. Findings of Fact. Based on the evidence presented at the public hearing, the Ephrata  County, Washington (Grant County Assessor's Parcel #13-0425-005); and  Recommendation to the City Council; and  the Desert Plains Subdivision; and Washington, as follows:  Planning Commission makes the following Findings of Fact:  1.1 The development is consistent with the Ephrata Comprehensive Plan and meets the requirements and intent of the Ephrata Municipal Code, hereinafter referred 1.2 Thej proposed subdivision does make adequate and appropriate provisions for the public health, safety, and general welfare, and for roads, streets, curbs, gutters, sidewalks, street lighting circuits, alleys, the extension of municipal utilities (sewer and potable water), irrigation water rights-of-way, public rights-of-way, public easements, drainage ways, other public ways, public access, and municipal improvements deemed necessary in conformance with Community Street and Utility Standards and City Design Standards in effect at the time ofp plat approval. 1.3 The development adequately mitigates impacts identified under Chapters 16 through 20ofthel EMC and in response to conditions from the Department ofFish and Wildlife, the Developer has addressed preservation of Shrub Steppe habitat  to as the "EMC".  Resolution 22-08  Page 1 of7    by offsetting a mitigation ratio of1:1.2 preservation ofa deed restricted property ofc quality habitat to mitigate the. 57 acre development as proposed. 1.4 The public interest will be served by the proposed subdivision and the dedications 1.5 The development does not lower the level of service of transportation and/or neighborhood park facilities below the minimum standards established within the 1.6 The Ephrata Planning Commission has determined that the proposed subdivision conforms to the General Purpose of the Comprehensive Plan and the Ephrata 1.7 The current comprehensive land use designation of the subject property under the Ephrata Comprehensive Plan is Urban Residential, Mixed Residential Density.  made therein.  Ephrata Comprehensive Plan.  Municipal Code.  1.8 The subject parcel is currently zoned Residential -2.  1.9 The lot sizes within the proposed subdivision are consistent with EMC Section 1.10 The proposed subdivision is compliant with all requirements as listed in Chapter 18.04 EMC. The subdivision proposal complies with all applicable health and zoning regulations and is consistent with the City's Comprehensive Plan. 1.11 The area, location, and features of land proposed for dedication under the subdivision proposal are a direct result of the development proposal, are reasonably needed to mitigate the efielsofthedevelopmen, and are proportional 1.12 Notice of the open public hearing on the subdivision proposal before the Ephrata Planning Commission was published in the Grant County Journal, the City of Ephrata's official newspaper of general circulation, on May 5, 2022, and was mailed to all property owners within 500 feet of the boundaries of the subject parcel on May 5, 2022, consistent with the applicable provisions of the EMC. Notices of the continuances of the public hearing were mailed to all property 1.13 SEPA review was completed on this subdivision proposal. A Determination of Mitigation Non-Significance (MDNS) was issued on this subdivision proposal on May 19, 2022; a revised MDNS was issued on August 16, 2022.  19.04.170.  tot the impacts created by the development.  owners and commenters.  Resolution 22-08  Page 2 of7    Section 2. Conclusions ofLaw. Based on the record before the City Council on the Desert Plains  Subdivision Preliminary Major Plat Proposal and the foregoing Findings of Fact, the 2.1 The subdivision proposal meets the applicable development standards under the 2.2 The: subdivision proposal is consistent with the Ephrata Comprehensive Land Use Plan and with the applicable zoning and health regulations of the EMC. 2.3 The subdivision proposal is in the best interests of the community and provides 2.4 The proposed subdivision makes adequate and appropriate provisions for the public health, safety, and general welfare, and for roads, streets, curbs, gutters, sidewalks, street lighting circuits, alleys, the extension of municipal utilities (sewer and potable water), irrigation water rights-of-way, public rights-of-way, public easements, drainage ways, otherp public ways, public access, and municipal improvements deemed necessary in conformance with Community Street and Utility Standards and City Design Standards in effect at the time of plat approval. The development is beneficial to the public health, safety, and welfare and is in 2.5 The public interest will be served by the proposed subdivision and the dedications  Ephrata City Council makes the following Conclusions ofLaw:  EMC.  for the orderly and efficient division of land.  the public interest.  made therein subject to the conditions of approval.  Section 3. The preliminary plat ofthel Desert Plains Subdivision is hereby approved by the Ephrata  Council subject to the following conditions of approval, which shall apply to the Developer and the Developer's heirs, successors in interest, and assigns: 3.1 The Developer will enter into a mutually agreed upon Development Agreement approved by City Council, to be executed prior to recording of the Preliminary Plat and within three (3) months of the approval of this Resolution, and shall include the conditions ofapproval as set forth herein. This agreement shall outline the mitigation requirements and development phasing over the development period specified in the Development Agreement. The agreement shall run with 3.2 Landscaping shall be installed adjacent to the sidewalk throughout the development, the Developer will submit a final landscape plan at the time of final 3.3 Properties along the BNSF railroad right of way will require landscape buffering, including an exterior perimeter fence or wall to mitigate noise and visual effects to the development. The developer will include a deed restriction on the properties affected that all required landscape improvements, including but not  the land.  platting in accordance with the approved preliminary plat.  Resolution 22-08  Page 3 of7    limited toj plants, irrigation, and hardscape (fences or walls), must be maintained 3.4 The City of Ephrata Public Works Department will conduct an onsite pre- construction conference with the Developer before written authorization to 3.4.1 During construction, any release of oil, hydraulic fluids, fuels, other petroleum products, paints, solvents, or other deleterious materials must be contained and removed in a manner that will prevent their discharge into water or soil. The cleanup of spills shall take precedence over other work  as a condition of lot ownership.  proceed will be issued.  on the site.  3.5 The developer is required to obtain all state, local and federal permits including  but not limited to the following required permits:  3.5.1 The Developer must apply for coverage under the Department of Ecology's Construction Stormwater General Permit at least 60 days prior to start of construction. Additionally, discharge from the dry wells must comply with the ground water quality requirement (non-endangerment standard) at the 3.5.2 City of Ephrata approval of Erosion, Sediment and Dust Control Plans integrated with Interim Stormwater Management Plans prepared in accordance with the Department of Ecology Stormwater Manual for the Eastern Washington as adopted and implemented by the City of Ephrata.  top of the ground water table.  3.5.3 City of Ephrata Mass Grading Permit; Building Permits  3.6 Since ground disturbance leads to weeds and dust, the portions of the site not proposed for development at this time shall remain undisturbed as much as possible. Disturbed areas that will not be built on, paved, or landscaped for more than 45 days shall be stabilized through long-term methods such as establishing dryland grasses or native shrub/steppe. The Developer shall ensure that 3.7 To facilitate orderly flow oftraffic, provide safe pedestrian facilities, and provide sufficient utility connections, the developer shall construct full-width street and utility improvements to Community Standards for all streets within the plat and shall connect the streets to existing improved City streets. Street construction should also be designed to connect the subdivision with the vacant property to the east oft the proposed development. These connections should create al block length not greater than 600 feet and a right of way width ofr no less than 60 feet. 3.8 The Washington State Department of Archaeological and Historic Preservation (DAHP) has determined the proposed subdivision to be an area characterized as  nuisances, such as weeds and dust, do not develop.  Resolution 22-08  Page 4 of7    moderate to high probability of encountering cultural resources. These resources would be destroyed by ground-disturbing activities. Identification during construction is not a recommended detection method because inadvertent discoveries often result in costly construction delays and damage to the resource. Therefore, a professional archaeological survey of the project area shall be conducted, and a report produced prior to ground disturbing activities. This report shall meet DAHP's Standards for Cultural Resource Reporting. Any conditions or mitigation measures recommended by this report shall become conditions of 3.9 After review of the proposed site by the Washington State Department of Fish and Wildlife (WDFW) it has been determined that the project site contains City ofE Ephrata Fish and Wildlife Habitat Conservation Areas, including shrub steppe habitat. WDFW designates shrub steppe habitat as a Washington State Priority Habitat. A site analysis and habitat assessment review have been conducted and ar mitigation/habitat management plan has been developed. To mitigate for the impacts to the moderate shrub steppe rating found on the site the proposed development, the Developer has identified 70 acres as an off-site mitigation site tor mitigate the 57 acre parcel to be developed. These sites are identified by the Grant County Auditor as Parcel Numbers 16-18260-16 and 16-18260-15. The land is adjacent to land owned and managed by the WDFW and surrounded by large areas of undeveloped shrub steppe habitat and has been determined to bea quality shrub steppe habitat which off sets the site to be developed. The habitat management plan will mitigate impacts of the proposed development at a ratio of 1:1.2 for the 70 acres of low to moderate quality shrub steppe located within the City of Ephrata, with 70 acres of moderate to high quality shrub steppe in an identified wildlife corridor/linkage area. The mitigation site will have a Native Growth Protection Deed Restriction (NGPDR) placed on it and be recorded and 'run with' the title oft the property. The NGPDR shall be secured by the Developer prior to any construction. The restrictions on the 70 acres of land include the  approval for this project.  following:  3.9.1 No structures of any kind allowed.  3.9.2 No driveways, wells, drain fields or other improvements.  3.9.3 Fencing will be minimized. approved grazing plan.  3.9.4. Any livestock grazing will not be allowed or restricted by a WDFW 3.9.5 Motorized vehicles will be restricted to the existing power line maintenance 3.10 A traffic impact analysis was submitted to the City on July 13, 2022. The city Engineer, Gray & Osborne Consulting Engineers, has provided comments in their  road.  Resolution 22-08  Page 5 of7    Letter Dated July 13, 2022, and determined that the following mitigation efforts 3.10.1 Compliance with Ephrata's Comprehensive Plan forecasting for a minimum of1 10 years and using an estimated growth rate of2%. 3.10.2 Verify the level of service standard used in the traffic impact analysis is measured equivalently to the City's standard ofa ratio of! hourly demand 3.10.3 Provide a letter to the City and City Engineer before any final plat is approved from the Fire Department approving the development access 3.10.4 Intersection alignment to the development on Ivy Street must be worked 3.10.5 The development is increasing traffic at existing city streets ofIvy, K, and Ls street. There is a nexus for improvements to these intersections and the developer shall mitigate with stop: signs and intersection improvements, if  are required:  volume versus hourly capacity.  points for emergency management purposes. out prior to recording the preliminary plat.  necessary, at final plat consideration.  3.11 The Developer resubmitted a road alignment exhibit on August 4, 2022, which did not address previous discussions relating to the alignment of Ivy Street NE. The Developer will be required to revise this exhibit to illustrate the access solely on the DPceperipep-ty.tENvAng turning radius, lot alignment, etc., or shall purchase land from neighboring properties to address the alignment prior to construction ofany phases identified by the City as requiring access through Ivy 3.12 The proposed subdivision shall meet all Community Street and Utility Standards and Improvement requirements as adopted by the City of Ephrata. 3.13 The subdivision proposal shall comply with all local, state, and federal rules, regulations, and laws pertaining to this proposed subdivision. 3.14 A street lighting plan as may be required by the City Engineer must be provided. The plan must be approved by the Grant County PUD and include certification that all street lighting fees have been paid or that arrangements acceptable to the city and the PUD have been made for the payment of the required fees.  Street NE.  Resolution 22-08  Page 6 of7    ADOPTED by the City Council of the City of Ephrata, Washington, this 19th day of  October, 2022.  B  Bruce Reim, Mayor  ATTEST:  Raao  Leslie Trachsler, City Clerk/Finance Director  Resolution 22-08  Page 7 of7    CITY OF EPHRATA Community Development Department 121 Alder Street Southwest  August 19, 2022  STAFF REPORT  TO: FROM: DATE:  Ephrata Planning Commission  Rachel Granrath, Contract Planner SCJ Alliance  August 25, 2022 Subdivision  REQUEST: Application #22-001: Public Hearing: Preliminary Major Plat for Desert Plains  A. Request  Applicant is proposing gasubdivision of 57 acres into 329 lots in the Residential-2 Zone. Ivy, K, and L streets NE will be extended northward and newi interior streets to serve the subdivision willl be constructed. The development will be completed inj phases over approximately 7 years with each phase consisting ofapproximately 40 lots. Various mitigation efforts have been determined as part of this development and outlined as conditions of approval with the SEPA Mitigated Determination ofNon-Significance (MDNS) and a proposed Development Agreement.  B. General Information Praject Location: Parcel Number: Legal Description & size: Location: Owner/Applicant: Zoniag: Comprehensive Plan Designation:  Grant County Assessor's Parcel #13-0425-005 SENES S OF RR R/W & NESE 10212 26, 57 acres North of Prairie Bluff Major Plat and 8* Ave NE and approximately 1.5 miles northeast of Ephrata City Hall. Jeffand Lisa Fairchild, PO Box 2756, Pasco WA 99302 Urban Residential Mixed Urban Density  Residential2 2(R-2)  Page 1 of11    Existing Land Use & Permit Undeveloped vacant land  History: Adjacent Properties  North: BNSF Railroad/ right ofv way East: Undeveloped vacant land South: Single family home subdivision West: Ranch home and undeveloped land Shrub steppe - see survey report and conditions High likely discovery site - Inadvertent discovery plan  Critical Areas Cultural Resources  required as conditions  Figure :: Vicinity Map- Project Site  Page 2 of11    Legend  Parcal Boundary Corporate! Limits Uiban GrowthArea Zone Designations AmportAgiculural Hilside Ovarlay Arpor Commeraial Arpon Enterprise Airpon industriali Arport Indusiriel2 XX Atport Unclasslied Commercia 1 XXX Commercial2  Commerclal3 Industiali 8X33 Industrial2 Open Space Recreation Residential XX3 Residential2 Residental3 Residental4 RuralResidential  Figure2 Zoning Map- Suhject Propern  Page 3of11    Legend  VEEE  Parcer Boundary Corporale Umits Urban GrowthArea UGA Designations (City Designation E Commercal E HighDensity Re ude tal Inside Cy Low Densiy Rei idental Medum DenstyResdenbal NO Desgnabon Open Space Recreaban Arport Faciibes  Employment Area Commercial EmploymentAves Manufactunng' Irdustral Pubkc Facitbes Urban Residenuar Hign Density Urban Residental Low Densiy Urban Residenlial Medum Denity Urban Residential Moted Uban Denity  LAYER  Figure3: Fiuture Land Use Map. Subject Property C.A Application and Public Hearing Notice  Application Milestone Application Submitted: SEPA Determination  Date 15and April 16  March 30, 2022, additional materials submitted April Mitigated Determination ofNon-Significance (MDNS) initial issued May 19, 2022/ revised August 16, 2022 Additional mitigated efforts required and submitted to  City August 5, 2022 April 25,2022 May 5, 2022  Determination of Completeness Notice of Application: Notice of Public Hearings:  issued:  May 5, 2022 (continued to a date certain at meetings)  Page 4 of11    Planning Commission Public D. Noticing and Comments  August 25, 2022  Hearing:  The following agencies were notified as part of the review process in accordance with Ephrata Municipal Code. Belowi is at table that summarizes the response date and nature ofeach comment.  Full comment letters are attached as Attachment5.  Ayencics Votilicd Ephrata Bullding Official  Response Date Naturcot omment No Comment Lot size clarification; park and open  space dedication versus cash in lieu - lack of facility in this part oft town.  Ephrata Engineering Department No Comment  Grant County Fire District Grant County Health District Grant County Public Utility Grant County Assessor Office Burlington Northern Railroad Ephrata School District WA State Dept. ofl Ecology WA State Dept. of Fish and Wildlife: Region Two  No Comment No Comment No Comment No Comment No Comment No Comment  District  May 18, 2022 Construction stormwater permit May 12,2022; Shrub steppe habitat, mitigation ratios,  and water rights subject to Ecology review and permitting management and deed restrictions inadvertent discovery, plan  July 8,2022 and August 4, 2022 No Comment No Comment No Comment No Comment No Comment  WA State Dept. of Archaeology May 18, 2022 Recommends a cultural resource  and Historic Preservation WA State Dept. of Transportation WA State Dept. ofNatural Resources WA Department of Commerce U.S. Bureau of Reclamation U.S. National Park Service Confederated Tribes of the Colville Reservation  Page 5of11    The city receives public comments both written and verbal on applications coming before hearing. The following table summarizes public comments, dates received, and nature oft the  comment. Puhlic ( mmments Donna Chase James Tillotson  Dale Reccived Naturcof ninent  July4,2022 July5,2022  Density of homes; traffic and access concerns; lack of green space; missing a crossing over BNSF railroad Not opposed to growth but has concerns on increased traffic; lot sizes and no parks proposed in subdivision Lack of green spaces and play areas; access to the school property and walking paths; access to development; is this a trailer park or mixed access; consistency with adjacent neighborhoods and designs; critical areas  Michael and Val Weaver June 7,2022  zoning?  Kent Ziemer  May 19,2022 Traffic access; Water and sewer; pedestrian  E. Department Analysis  1. Applicable Code Analysis: Staff has provided an evaluation against EMC 17.01.150 (B) illustrating consistency with development regulations and the State Environmental  Policy Act (SEPA).  EMC 17.01.150(B)G unsisieney with development regulations aud SEPA  1.The type of land use permitted at the site, including uses that may be allowed under approval have been satisfied; acre, density ofresidential development in urban growth areas, or other measures of including public facilities and services or development regulations provide for funding oft these facilities as required by Chapter  The R-2 Zone is described as a variety of housing options for single family or  certain circumstances, if the criteria for their multifamily. Lots are a minimum of 2.Thel level of development, such as units per Density is appropriate given the city code 3.A Availability and adequacy of infrastructure, Adequate infrastructure and services are  5,000 sf each. and comprehensive plan  density;  inplace, this is consistent with the  identified in the comprehensive plan if the plan comprehensive plan  36.70A RCW; and development standards.  4.Characteristics of the development, such as The applicant has provided screening to  BNSF railroad with a fence. The city requested additional vegetation screening tob be maintained by the homeowner.  Page e6of11    5. In deciding whether a project is consistent, See conditions of approval  the determinations made pursuant to subsection (B) of this section shall be 6. Nothing in this section limits the city from asking more specific or related questions in subsections (B)(I) through (5) ofthis section. 2. Comprehensive Plan Consistency  controlling.  See conditions of approval  Applicable Comprehensive Goals and Policies: the following goals are appliçable Land Use Goal 4: To manage development of the community sO that the delivery of public facilities and serviçes will occur ina a fiscally responsible manner to support Land Use Goal 5: To encourage efficient use ofresources by discouraging the inappropriate conversion ofundeveloped land into sprawling, low density  to this development and associated conditions of approval.  development and redevelopment oft the city.  development.  Land Use Goal 7: To provide flexibility in mixing certain types of uses within an area ord development while minimizing negative impacts of potentially incompatible uses. Land Use Goal 8: To ensure that all development proposals and public policy are considered within the broad framework of the comprehensive plan. Housing Goal 4: To promote new residential development at densities that will allow Capital Facilities Goal 2:To ensure future development bears a fair share of facility improvement cost necessitated by the development in order to achieve and maintain the adopted Level of Serviçe (LOS) standards and measurable objectives standards. 3. State Environmental Policy Act (SEPA) Environmental Review: In açcordance with the Optional DNS process in WAC 197-11-355, the city issued a Mitigated Determination ofNon-Significance (MDNS) on May 19, 2022. However, this was issued prior to all comment windows ending, specifically for the Department of Fish and Wildlife relative to the critical habitat area of the shrub steppe. The City has since issued a revised MDNS on August 16, 2022. SEPA Attachments are included as 4. Approval Criteria Analysis: Per EMC 18.04.685 a proposed subdivision and dedication shall not be approved unless the City finds that the following are met:  cost savings and consolidation ofs services.  Attachment 4.  Page7of11    IMC IS.1H4.685 pprmalcrieris ens pl do Mproprate prmisians hve heen made (Da-n)  a. The publicl bealth, safety and general Criterion Met: As conditioned the preliminary  welfare of the community; b. Protection of environmentally sensitive lands and habitat;  plat addresses public health, safety and welfare. Criterion Met: In response to conditions from the Department ofFish and' Wildlife, the applicant has addressed preservation of Shrub Steppe habitat by offsetting a mitigation ratio of 1:1.2 preservation ofa deed restricted property ofquality habitat to mitigate the 57 acre development as proposed. Criterion Met: The applicant has submitted to pay a 'fee in lieu' rather than develop on site recreation and open spaçes. While there isa community concern relative to al lack of parks and open space in this area of the City, the applicant has met all current long range plans See comment for item C above. Criterion Met: The development does not include schools but has adequate sidewalk and transportation systems to achieve walkability and connections to such facilities. Criterion Met: Proper drainage facilities are planned and delineated on the development. See comment for item G above.  c. Open spaces;  and codes.  d. Community parks and recreation; f.Schools and school grounds;  e.N Neighborhood tot lots and play areas; See comment for item Cabove.  g. Drainageways; h.S Storm-water detention; pathways and other planning features that assure safe walking conditions within and between subdivisions and nelghborhoods for residents and students who walk to and from schools, parks, transit stops and other neighborhood services; and neighborhoods; k.1 Transit stops; I.Potable water supplies;  1.Connectivity of sidewalks, pedestrian See comment F above.  j.Connectivity ofstreets or roads, alleys, Criterion Met (as conditioned): As conditioned pedestrian accessways, and other public in this staffreport and MDNS, the ways within and between subdivisions transportation layout will adequately serve the  neighborhood and transition between existing land uses and neighborhoods. Specifically providing for future connections and re- analyzing the connection at Ivy. Criterion Met: There are adequate water services to serve the proposed development.  N/A  Page 8of11    m. Sanitary wastes; deemed necessary; and  Criterion Met: There are adequate sewer services to serve the proposed development adequate utilities and services.  n. Other public utilities and services, as Criterion Met: The development is served by  F. Conclusions & Recommendation  EMC 18.04.690 Decisions on preliminary plat states the following:  A. The Planning Commission after reviewing the application materials, maps and reports, si@frecommendation, oral and written testimony shall make a recommendation to approve, approve with conditions or deny the subdivision as presented. The Planning Commission shall direct the Community Development Department to prepare a written report setting, forth the recommendation of the Planning Commission including: findings, conclusions, decision, staff report, and testimony on the record from agencies and interested, parties in thej form ofar resolution. The decision oft the Planning Commission constitutes a recommendation lo the City Council. The Planning Commission isa recommending authority only for subdivision applications; the City Council renders the Staffi is recommending approval of the Desert Plains Preliminary Plat with the following 1. Development Agreement: The City and the Applicant will enter into a mutually agreed upon Development Agreement approved by City Council, to be executed priorto recording oft the Preliminary Plat, and shall include recommendations from Planning Commission at the duly noticed public hearing. This agreement shall outline the mitigation requirements and development phasing over the 7 year period. The agreement 2. Landscaping shall bei installed adjacent to the sidewalk throughout the development, the applicant will submit a final landscape plan at the time of final platting in accordance with 3. Properties along the BNSF railroad right of way will require landscape buffering, including an exterior perimeter fençe at a minimum, to mitigate noise and visual affects to the development. The developer will include a deed restriction on the properties affected that all required landscape improvements, including but not limited to plants, irrigation, 4. The City of Ephrata Public Works Department will conduct an onsite pre-construction conference with before written authorization to proceed will bei issued. a. During construction, any release of oil, hydraulic fluids, fuels, other petroleum products, paints, solvents, or other deleterious materials must be contained and removed in a manner that will prevent their discharge into water or soil. The cleanup of spills shall take precedence over other work on the site.  final decision.  conditions (outlined in the MDNS and this staff report):  shall run with the land.  the approved preliminary plat.  and hardscape (fences), must be maintained.  Page 9 ofil    5. The developer is required to obtain all state, local and federal permits including  but not limited to the following required permits:  a. The proponent must apply for coverage under the Department of Ecology's Construction Stormwater General Permit at least 60 days prior to start of construction. Additionally, discharge from the dry wells must comply with the ground water quality requirement (non-endangerment standard) at the top ofthe b. City of Ephrata approval of Erosion, Sediment and Dust Control Plans integrated with Interim Stormwater Management Plans prepared in accordance with the Department of Ecology Stormwater Manual for the Eastern Washington as adopted and implemented by the City of Ephrata. C. City of Ephrata Mass Grading Permit; Building Permits  ground water table.  6. Since ground disturbance leads to weeds and dust, the portions of the site not proposed for development at this time shall remain undisturbed as much as possible. Disturbed areas that will not be built on, paved, or landscaped for more than 45 days shall be stabilized through long-term methods such as establishing dryland grasses or native shrub/steppe. The proponent shall ensure that nuisances, such as weeds and dust, do not develop. 7. To facilitate orderly flow of traffic, provide safe pedestrian facilities, and provide sufficient utility connections, the developer shall construct full-width street and utility improvements to Community Standards for all streets within the plat and shall connect the streets to existing improved City streets. Street construction should also be designed to connect the subdivision with the vacant property to the east oft the proposed development. These connections should create a block length not greater than 600 feet and a right of 8. The Washington State Department of Archacological and Historic Preservation (DAHP) has determined the proposed subdivision to be an area characterized as moderate to high probability of encountering cultural resources. These resources would be destroyed by ground-disturbing activities. Identification during construction is not a recommended detectioni methodbecause inadvertent discoveries often result in costly construction delays and damage to the resource. Therefore, a professional archaeological: survey ofthe project area shall be conducted, and a report produced prior to ground disturbing activities. This 9. Afterreview ofthe proposed site by the Washington State Department ofFishand Wildlife (WDFW) it has been determined that the project site contains City of Ephrata Fish and Wildlife Habitat Conservation Areas, including shrub steppe habitat. WDFW designates shrub steppe habitat as a Washington State Priority Habitat. A site analysis and habitat assessment: review havel been conducted andamitigationhabitat. management; planhasbeen developed. Tomitigate aimpcphemasene eppentngoumcmIeeus proposed development, theproponent hasi identified 70 acres as an off-site mitigation site to mitigate the 57 acre parcel to be developed. These sites are identified byt theGrant County Auditor as] parcels #16- 18260-16 and #16-18260-15. The land is adjacent to land owned and managed by the WDFW and surrounded by large areas of undeveloped shrub steppe habitat and has been determined to be a quality shrub steppe habitat which off sets the site to be developed. The habitat management plan will mitigate impacts of the proposed  way width ofno less than 60 feet.  report shall meet DAHP's Standards for Culturall Resource Reporting.  Page 10of11    development at a ratio of 1:1.2 for the 70 acres of low to moderate quality shrub steppe located within the City ofEphrata, with 70 acres of moderate to high quality shrub steppe in an identified wildlife corridorlinkagearea, Themitigationsite wilhaveaNativeOrowth Protection Deed Restriction (NGPDR) placed on it and be recorded and 'run with' the title ofthe property. The restrictions on the 70 acres of land include the following: . No driveways, wells, drain fields or other improvements  a. No structures of any kind allowed Fencing will be minimized approved grazing plan maintenance road  d. Any livestock grazing will not be allowed or restricted by a WDFW Motorized vehicles will be restricted to the existing power line  I0.At traffic impact analysis was submitted to the City on. July 13, 2022. The city Engineer, Gray & Osbore Consulting Engineers, has provided comments in their Letter Dated July 13,2022, and determined that the following mitigation efforts are required: a. Compliance with Ephrata's Comprehensive Plan forecasting for a minimum of1 10 b. Verify the level ofservice standard used int the traffic impact analysis is measured equivalently to the City's standard ofar ratio of hourly demand volume versus Provide a letter to the City and City Engineer before any final plat is approved from the Fire Department approving the development access points for emergency d. Intersection alignment to the development on Ivy Street must be worked out prior The development is increasing traffic at existing city streets of Ivy, K, and L: street. There is a nexus for improvements to these intersections and the developer shall mitigate with stop signs and intersection improvements, ifnecessary, at final plat  years and using an estimated growth rate of2%.  hourly capacity. management purposes.  toi final approvals oft the preliminary plat.  consideration.  11,7 The applicant resubmitted a road alignment exhibit on August 4, 2022, which did not address previous discussions relating to the alignment of Ivy Street NE. The applicant will be required to revise this exhibit to illustrate the access soly on the applicant's property, reworking turning radius, lot alignment, etc. or shall purchase land from neighboring  properties to address the alignment.  G. Attachments  1. Attachment 1: Resolution 22-03 2. Attachment 2: Application Materials 3. Attachment 3: Reports and Exhibits 4. Attachment 4: SEPA MDNS 5. Attachment 5: Agency & Public Comments 6. Attachment 6: Noticing documents  Page 11 of11    DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EPHRATA AND JEFF & LISA FAIRCHILD,  FORTHE PRELIMINARY MAJOR PLAT OF THE DESERT PLAINS  DEVELOPMENT  THIS DEVELOPMENT AGREEMENT is made and entered into this and Jeff and Lisa Fairchild, husband and wife, hereinafter the "Developer."  day of January,  2023, by and between the City of Ephrata, a Washington State municipality, hereinafter the "City"  RECITALS  WHEREAS, the Washington State Legislature has authorized the execution of a development agreement between a local government and a person having ownership or control of real property within its jurisdiction, where appropriate to provide additional land use approval and mitigation certainty, especially for larger-scale developments intended to be constructed as a unified whole, WHEREAS, a development agreement must set forth the development standards and other provisions that shall apply to, govern, and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement (RCW 36.70B.170); WHEREAS, for the purposes of this development agreement, "development standards" includes, WHEREAS, a development agreement must be consistent with the applicable development regulations adopted by a local government planning under chapter 36.70A RCW (RCW WHEREAS, this Development Agreement by and between the City and Developer (hereinafter the "Development Agreement"), relates to the development known as the 'Desert Plains Development', which is described in Exhibit A (being Parcel #13-0425-005) (hereinafter the WHEREAS, the following events have occurred in the processing of the Developersapplication: a) A public hearing on the preliminary plat for the major subdivision was held by the Ephrata Planning Commission on August 25, 2022. The Planning Commission recommended approval subject to conditions as set forth in Planning Commission b)The City approved the preliminary plat application for the Desert Plains Subdivision on October 19, 2022, with modified conditions of approval as set forth in City Council  but over aj period of several to many years. RCW36.70B.170); and  and  but is not limited to, all of the standards listed in RCW 36.70B.170(3); and  36.70B.170(1)); and  "Property"); and  Resolution No. 22-02.  Resolution No. 22-08.    c) After a public hearing, by Ordinance No. 23-01, the City Council authorized the Mayor  tos sign this Development Agreement with the Developer; and  Now, therefore, the parties hereto agree as follows:  GENERAL PROVISIONS  Section 1. The Project. The Project is the development and use of the Property, consisting of 57 acres in the City of Ephrata. Permit #22-001 describes the project as aj preliminary major plat ofa single tax parcel, #13-0425-005 within the City of Ephrata, zoned Residential-2. Section 2. The Subject Property. The Project site is legally described in Exhibit A, attached Section 3. Definitions. As used int this Development Agreement, the following terms, phrases, and A. "Adopting Ordinance" means the Ordinance which approves this Development B. "Certificate of Occupancy" means either a certificate issued after inspections by the City authorizing a person(s) in possession of property to dwell or otherwise use a specified building or dwelling unit, or the final inspection ifa formal certificate is not issued. C."Council" means the duly elected legislative body governing the City of Ephrata. D. "Effective Date" means the effective date oft the Adopting Ordinance. E. "Existing Land Use Regulations" means the ordinances adopted by the City Council of Ephrata in effect on the Effective Date, including the adopting ordinances that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Subject Property, including, but not limited to the Comprehensive Plan, the City's Official Zoning Map and development standards, SEPA, Concurrency Ordinance, and all other ordinances, codes, rules and regulations of the City establishing subdivision standards, park regulations, and building standards, including without limitation Titles 16, 17,18, 19, and 21 ofthe Ephrata Municipal Code, in existence as ofthe effective Date; provided however, that all building permit applications shall be subject to the building codes in effect when a complete building permit application is submitted. Existing Land Use Regulations do not F. "Landowner" is the party who has acquired any portion of the Subject Property from the Developer who, unless otherwise released as provided in this Agreement, shall be subject to the applicable provisions oft this Agreement. The "Developer" is identified in Section 5 G. "Project" means the anticipated development of the Subject Property, as specified in Section 1 and as provided for in all associated permitslapprovals, and all incorporated  hereto, and incorporated herein by this reference.  words shall have the meanings and be interpreted as set forth in this Section.  Agreement, as required by RCW 36.70B.200.  include non-land use regulations, which include taxes and impact fees.  ofthis Agreement. exhibits.  Section 4. Exhibits. Exhibits to this Agreement are as follows: A. Exhibit A - Legal description of the Subject Property. B. Exhibit B - Road Plan with standards    C.E Exhibit C- Prospective Phasing D.E Exhibit D - Landscape and buffering plan with standards E.E Exhibit E - Habitat conservation covenant  Section 5. Parties to Development Agreement. The parties to this Agreement are: A. The "City" is the City of Ephrata, 121 Alder Street SW, Ephrata WA 98823 B. The "Developer" or "Owner"i is Jeff and Lisa Fairchild, PO Box 2756, Pasco WA99302 C. The "Landowner." From time to time, as provided in this Agreement, the Developer may sell or otherwise lawfully dispose ofaj portion ofthe Subject Property toal Landowner who, unless otherwise released, shall be subject to the applicable provisions of this Agreement Section 6. Project is a Private Undertaking. It is agreed among the parties that the Project is a private development, and that the City has no interest therein except as authorized in the exercise Section 7. Term of Agreement. This Agreement shall commence upon the effective date of the Adopting Ordinance approving this Agreement and shall continue in force for a period of seven (7): years, unless extended or terminated as provided herein. Developer may request a one-time extension for up to two (2) additional years provided the Developer submits a request for extension to the City at least sixty (60) days prior to the expiration of the initial seven (7) year term. Any such extension request shall be reviewed by the City Council after a public hearing on the request. Following the expiration of the term or extension thereof, or ifsooner terminated, this Agreement shall have no force and effect, subject however, to post-termination obligations of the Developer Section 8. Vested Rights of Developer. During the term of this Agreement, unless sooner terminated in accordance with the terms hereof, in developing the Subject Property consistent with thel Project described! herein, Developer: is assured, and the Cityagrees, that the development rights, obligations, terms and conditions specified in this Agreement, are fully vested in the Developer and may not be changed or modified by the City, except as may be expressly permitted by, and in accordance with, the terms and conditions of this Agreement, including the Exhibits hereto, oras expressly consented thereto by the Developer. More specifically, Existing Land Use Regulations Ift the Existing Land Use Regulations are amended during the term of this Agreement, Developer may, at Developer's exclusive option, submit a new or amended subdivision application to the City for review and approval in accordance with the Land Use Regulations in effect at the time the Section 9. Permitted Uses and Development Standards. The permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation and dediçation of land or payment of fees in lieu of dedication for public purposes, the construction, installation and extension of public improvements, development guidelines and standards for development of the Subject Property shall be those set forth in (a) this Agreement, (b) the City of Ephrata Municipal Code, (c) the Decision of the City Council, (d) the permits and  related to such portion of the Subject Property.  ofits governmental functions.  orl Landowner.  shall apply to the Project throughout the term of this Agreement.  new or amended subdivision application is determined to be complete.  approvals identified herein, and (e) all exhibits incorporated herein.  3    A. Current Standards: As of the Effective Date and based on the current zoning, R-2, for the Property, as outlined in Ephrata Municipal Code (EMC), the calculated density is as  set forth in Title 19.04.170 EMC and in the chart below:  Permitted Uses  Maximum Allowed Dwelling Units Per Acre (du/ac) 8 dus/ac 8d dus/ac 16 dus/ac  Site Acreage in Zone  Total Units Allowed in Zone  Single-family Duplex Multi-Family  57 ac 57 ac 57ac  456 456 912  Uses set forth in the chart are further defined as follows:  EMC 19.02.115 Defines a Duplex: Duplex means (1) detached residential building containing two (2) dwelling units totally separated from each other by a one (1) hour fire wall or floor, designed for occupancy by not more than two (2) EMC 19.02.116 Defines Dwelling, single-family: Single-family dwelling means ad detached residential dwelling unit, other than a mobile home, designed and EMC 19.02.125 Defines Dwelling, multi-family: Multi-family dwelling means a residential building designed for or occupied by three (3) or more families, with the number of families in residence not exceeding the number of dwelling units EMC 19.02.126 Defines a Dwelling Unit: Dwelling Unit means one (1)room, or rooms connected together, constituting a separate. Independent housekeeping establishment for owner occupancy, or rental or lease on a weekly, monthly or longer basis, and physically separated from any other rooms or dwelling units which may be in the same structure or on the same property, and containing  families.  occupied by one (1) family only.  provided.  independent cooking and sleeping facilities.  B. Current Maximum Residential Units. The parties agree that the number of residential units within thel Project on the Property shall not exceed 329 single family dwellings unless the Developer seeks approval of duplexes as provided in this section. Developer shall be 1. Developer may seek City approval to convert up to thirty-six (36) single family dwellings within the Project to duplex units. Such request shall be submitted prior to final plat approval and processed as a minor alteration approved with the consent ofthe  responsible for payment of costs associated with such requests.    Community Development Director and the Public Works Director, but subject to: i) public notice to all owners of property within the subdivision, i) public notice as was required by the subdivision application, and iii) a public hearing. Each approved duplex unit shall be equivalent to a single family dwelling for purposes ofthe 329: single family dwelling maximum noted above, and each duplex unit shall be comprised of two 2. Any cumulative request to convert more than thirty-six (36) single family dwellings within the Project to duplex units shall be processed as a major alteration subject to the consent oft the City Council after public notice and a public hearing is held. C. Road Standards. For purposes of this Agreement, any reference to a "public street" or "public road" shall mean streets dedicated to the City as part of the Project and shall not include private drives. The road standards for all public roads were submitted to the City with the complete subdivision application prior to the Effective Date. Copies of those diagrams and standards are also set forth in attached Exhibit "D", which is incorporated herein by this reference. Specifically, each public road segment within the Project has been identified and described in the plans on file and summarized in Exhibit "D". The City accepts and agrees with the road standards for the public roads identified in the plans on file with the City and summarized on Exhibit "D". Developer agrees to construct the public roads for the Project consistent with said road standards. Furthermore, the road standards (public and private) identified in this Agreement and within the subdivision application shall serve as the approved standards for the Project and these standards will supersede any code language that is in conflict with these standards unless mutually agreed to by the City Section 10. Minor Modifications. Minor modifications from the approved permits or the exhibits attached hereto may be approved in accordance with the provisions of the City's code and shall Section 11. Further Discretionary Actions. Developer acknowledges that the Existing Land Use Regulations contemplate the exercise of further discretionary powers by the City. These powers include, but are not limited to, review of additional permit applications under SEPA. Nothing in this Agreement shall be construed to limit the authority or the obligation ofthe City tol hold legally required public hearings, or to limit the discretion of the City and any ofi its officers or officials in Section 12. Financing of Public Facilities. At the request ofthe Developer, the City may pursue the use of a local improvement district and other similar project-related public financing mechanism for financing the construction, improvement or acquisition of public infrastructure, facilities, lands and improvements to serve the Subject Property, whether located within or outside the Subject Property. To the extent allowed by law, the City shall address any reimbursement mechanism to Developer for expenses incurred by Developer associated with the Project, subject  residences on the same lot.  and Developer.  not require an amendment to this Agreement.  complying with or applying Existing Land Use Regulations.  tothe City's ordinances and State law.    Section 13. Existing Land Use Fees and Impact Fees.  A. Land use fees adopted by the City by ordinance as of the Effective Date ofthis Agreement may be increased by the City from time to time, and applicable to permits and approvals for the Subject Property, as long as such fees apply to similar applications and projects in B. During the term of this Agreement, the only impact fees paid by Developer shall be as set Section 14. Improvements and Phasing of Development. The parties acknowledge that the most efficient and economic development of1 the Subject Property depends upon numerous factors, such asi market orientation and demand, interest rates, competition and similar factors, and that generally itwill be most economically beneficial to the ultimate purchasers of the Subject Property to have the rate of development determined by the Developer. However, the parties also acknowledge that because the Project will be phased, certain amenities associated with the Project must be available to all phases of the Project, in order to address health, safety, and welfare of the residents. The anticipated phasing of the Project is set forth in Exhibit "E" attached hereto and incorporated herein, which isi intended to be representative only. Phase or build-out ofthe Project will be subject A. Phasing or build-out of the Project shall be limited based on the timing of infrastructure B. No fewer than 101 residential lots shall be included in a single phase ofthe Project (i.e. final plat), except for the final phase or if deviations from this limitation are approved by the C. There is no limitation on the period of time that may elapse between phases subject to Section 7 above regarding the term oft this Agreement. There is no requirement that phases occur in a certain order, provided, however, that Phase I as set forth in Exhibit E shall be completed prior to any other Phase to allow for traffic access to the Project from Ivy, K, and L streets. Any reconfiguration of Phase I set forth in Exhibit E shall include access from Ivy, K, and L streets. Any phase shall make adequate provision for all necessary improvements toj provide for the health, safety, and welfare ofther residents, including street improvements, potable water and fire flow facilities, sewer facilities, and other utilities. D. Following approval ofthes subdivision application for the entire Project and the initial phase of the Project, each subsequent phase of the Project shall be administratively processed consistent with Article IV, Final Plats, Title 18, EMC (as of the Effective Date and not as amended), the SEPA mitigated determination of non-significance (see Section 14(I), and this Agreement unless the applicant proposes a substantive amendment outside of the original approval. "Substantive amendment' as used herein shall mean an amendment to the formal notes on an approved plat or conditions of approval of the plat or street alignment adjustments including access. "Minor amendments" shall be approved  the City.  forth in Section 16.B.  to the following conditions:  improvements set forth herein.  City Community Development Director.  6    administratively and include, for example, such matters as lot line reconfigurations and lot line eliminations (that do not increase the overall residential lot or unit count and comply E. Developer understands and agrees that each phasing proposal will be reviewed by the Public Works Department and the Fire Code Official to determine if a temporary emergency turn-around will need to be installed. Ifso, then a temporary easement(s) in the adjacent future tract for the constructed temporary turnaround will be part of the phased F. Properties along the BNSF railroad right ofway will require landscape bufferi in accordance with Ephrata Municipal Code 19.07.040, comprised ofa 10-foot-wide setback with fencing and landscaping. This strip shall be landscaped, fenced/walled, and maintained by the Landowners. A plat note shall identify the burdened properties and establish that such fencing/walls, landscaping, and maintenance are conditions of lot ownership. Developer may delay landscape installation until the homes are constructed to lessen the construction- related damage. The completion of the fence or wall is a requirement of final plat approval for each affected phase. Any incomplete sections will be subject to a performance bond posted by Developer with the City in an amount reasonably determined by the City Community Development Director. The setback width required for the buffer and any buildling/mprovement setback otherwise required by Existing Land use Regulations shall run concurrently. To clarify, ift the setback for structures or other improvements is ten feet, the Landowner shall be entitled to locate the improvement at the termination point of the buffer (10 feet from the lot line), and shall not be required to locate the improvement an G. The City of Ephrata Public Works Department will conduct an onsite pre-construction conference with the Developer before written authorization to proceed will be issued for 1.1 During construction, any release of oil, hydraulic fluids, fuels, other petroleum products, paints, solvents, or other deleterious materials must be contained and removed in a manner that will prevent their discharge into water or soil. The cleanup  with the Existing Land Use Regulations).  plat documents.  additional ten feet from that point. The buffer is depicted on Exhibit D.  each Phase.  ofspills shall take precedence over other work on the site.  H. The Developer is required to obtain all state, local and federal permits including but not 1. The Developer must apply for coverage (including any applicable exemptions) under the Department of Ecology's Construction Stormwater General Permit at least 60 days prior to start of construction of any phase. Additionally, discharge from the dry wells must comply with the ground water quality requirement (non-endangerment standard) 2. City of Ephrata approval of Erosion, Sediment and Dust Control Plans integrated with Interim Stormwater Management Plans prepared in accordance with the Department of Ecology Stormwater Manual for Eastern Washington as adopted and implemented by  limited to the following required permits:  at the top oft the ground water table.  7    the City of Ephrata.  3. City of Ephrata Mass Grading Permit; Building Permits  Developer has submitted an Environmental Checklist associated with this Agreement and the subdivision application for the Project, and the comment period associated therewith has expired. After consideration of all comments, the City's responsible official for the State Environmental Policy Act ("SEPA") issued a mitigated determination of non- significance ("MDNS") with respect to this Agreement and the subdivision application for the Project submitted simultaneously with this Agreement. This Agreement and associated MDNS shall be incorporated into and govern the SEPA review requirements for every building permit, development application, and phase of development within the Project. J. Since ground disturbance leads to weeds and dust, the portions oft the site not proposed for development at this time shall remain undisturbed as much as possible. Disturbed areas that will not be built on, paved, or landscaped for more than 45 days shall be stabilized through long-term methods such as establishing dryland grasses or native shrub/steppe. The Developer shall ensure that nuisances, such as weeds and dust that are not otherwise K. To facilitate orderly flow of traffic, provide safe pedestrian facilities, and provide sufficient utility connections, the Developer shall construct full-width street and utility improvements as noted in Section 9, C above. Street alignment and access as depicted in L. The City and Developer agree that sewer and water service for the Project will be solely provided by line extensions and that no off-site sewer or water improvements or analysis are required as a condition to the development of the Property consistent with this Agreement. Iftemporary maintenance access is required, a temporary easement(s) in the adjacent future tract for the constructed temporary access will be part oft the phased plat documents. Sewer and water connection fees and plant investment fees that are generally applicable to all customers served by the City shall be paid at the time ofbuilding permit M. As required, a sanitary sewer lift station shall discharge flow to the seweri improvements noted above with no further offsite or system analysis required. If temporary maintenance access is required, a temporary easement(s) in the adjacent future tract for the constructed temporary access will be part of the phased plat documents. N. The Washington State Department of Archaeological and Historic Preservation (DAHP) has determined the proposed subdivision to be an area characterized as moderate to high probability ofencountering cultural resources. A professional archacologicalsurvey ofthe project area was conducted. The report meets DAHP's Standards for Cultural Resource O.A At traffic impact analysis was submitted to the City on July 13, 2022. The city Engineer, Gray & Osborne Consulting Engineers, has provided comments in their Letter Dated July 13,2022, and determined that the following mitigation efforts are required:  ordinarily occurring, do not develop.  the preliminary plat shall not be modified.  application.  Reporting.    1. Compliance with Ephnata'sComprehemsive Plan forecasting for ai minimum of10years 2. Verify the level of service standard used in the traffic impact analysis is measured equivalently to the City's standard ofa ratio of hourly demand volume versus hourly 3. Provide al letter to the City and City Engineer before any final plati is approved from the Fire Department approving the development access points for emergency management 4. Intersection alignment to the development on Ivy Street must be worked out prior to 5. The development is increasing traffic at existing city streets of Ivy, K, and L street. There is a nexus for improvements to these intersections and the Developer shall mitigate with stop signs and intersection improvements, if necessary, at final plat  and using an estimated growth rate of2%.  capacity.  purposes.  final approvals oft the preliminary plat.  consideration.  P. Developer may delay installation of all landscaping adjacent to the sidewalks until the homes are constructed. Anyi incomplete landscape sections will be subject to a performance bond posted by Developer with the City in an amount reasonably determined by the City Community Development Director. A plat note shall establish landscaping installation and maintenance adjacent to the sidewalk as conditions of lot ownership. The landscape  standards are depicted on Exhibit D.  Section 15. Habitat Mitigation. After review of the proposed site by the Washington State Department ofFisha and Wildlife (WDFW) it has been determined that thej project site contains City ofEphrata Fish and Wildlife Habitat Conservation Areas, including shrub steppe habitat. WDFW designates shrub steppe habitat asa Washington State Priority Habitat. A site analysis and habitat assessment review have been conducted and a mitigation/habitat management plan has been developed. To mitigate for the impacts to the moderate shrub steppe rating found on the site the ppasaldnalgmaseDealprhasidemtifiaPo acres asanoff-sitei mitigation site to mitigate the 57 acre parcel to be developed. These sites are minadbyMeGmtCoumy Auditor as parcels #16- 1826.16amdH161826015. Thel landi is adjaçent to land owned andi managed by the WDFW andsurrounded byl lagearsasofundeveloped shrub steppel habitat and has been determined to be a quality shrub steppe habitat which off sets the site to be developed. Thehabitat management plan will mitigate impacts of the proposed development at ai ratio of 1:1.2 for the 70 acres of low to moderate quality shrub steppe located withint the City ofEphrata, with 70 acres ofmoderate to high quality shrub steppe in an identified wildlife corridor/inkage: area. Themitigation site willhavea Habitat Conservation Covenant set forth in Exhibit F placed on it and bei recorded and 'run with' the title ofthe! property prior to the approval ofany final plat. At no time should more than 70 acres of mitigation be required for the Project. The restrictions on the 70 acres of land include the  following:  1. No structures of any kind allowed 3. Fencing will be minimized  2. No driveways, wells, drain fields or other improvements  4. Any livestock grazing will not be allowed or restricted by a WDFW approved  9    grazing plan road  5. Motorized vehicles will be restricted to the existing power line maintenance  Section 16. Dedication of Public Lands. Except as otherwise provided herein, the Developer shall dedicate all public lands required in the permits/approvals within ninety (90) days of the Effective Date of this Agreement. Dedication shall be considered by the City in the following A. Road Rights-Of-Way. Within fifteen (15) days of submission of an application for final plat to the City for any phase of the development, the Developer agrees to dedicate any or B. Dedication of Parks & Recreation. The Developer agrees to pay cash in lieu for parks and open space dedication. Final approval ofany final plat by the City shall be contingent upon payment of the park development fee to the City in the amount of $1,800 per residential  schedule:  all road rights-of-way without expense to the City.  lot. Section 17. Default.  A. Subject to extensions oftime by mutual consent in writing, failure or delay by either party or Landowner not released from this Agreement, to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach ofany terms or conditions of this Agreement, the party alleging such default or breach shall give the other party or Landowner not less than thirty (30) days notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During this thirty (30) day period, the party or Landowner charged shall not be considered in B. After notice and expiration oft the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other party or Landowner to this. Agreement may, ati its option, institute legal proceedings pursuant to this Agreement. In addition, the City may decide to file an action to enforce the City's Codes, and to obtain penalties and costs as provided in the Ephrata Municipal Code for violations  default for purposes oft termination or institution of legal proceedings.  oft this Development Agreement and the Code.  Section 18. Termination. This Agreement shall expire and/or terminate as provided below: A. Nothing in this Agreement shall extend the expiration date of any permit or approval issued B. This Agreement shall terminate upon the expiration of the term identified in Section 7 or when the Subject Property has been fully developed, which ever first occurs, and all ofthe Developer's obligations in connection therewith are satisfied as determined by the City. Upon termination oft this Agreement, the City shall record a notice of such termination in a form satisfactory to the City Attorney that the Agreement has been terminated. This Agreement shall automatically terminate and be of no further force and effect as to any  by the City for any development.  10    single-family residence, any other residential dwelling unit or any nonresidential building and the lot or parcel upon which such residence or building is located, when it has been Section 19. Effect upon Termination on Developer Obligations. Termination ofthis Agreement as to the Developer of the Subject Property or any portion thereof shall not affect any of the Developer's obligations to comply with the City Comprehensive Plan and thet terms and conditions ora any applicable zoning code(s) or subdivision map or other land use entitlements approved with respect to the Subject Property, any other conditions of any other development specified in the Agreement to continue after the termination of this Agreement or obligations to pay assessments, Section 20. Effects upon Termination on City. Upon any termination of this Agreement as to the Developer of the Subject Property, or any portion thereof, the entitlements, conditions of development, limitations on fees, and all other terms and conditions of this Agreement shall no longer be vested hereby with respect to the property affected by such termination (provided that vesting of such entitlements, Conditions, or fees may then be established for such property Section 21. Assignment and Assumption. The Developer shall have the right to sell, assign, or transfer this Agreement with all its rights, title, and interests therein to any person, firm, or corporation at any time during the term of this Agreement. Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Subject Property, at Section 22. Covenants Running with the Land. The conditions and covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the land and the benefits and burdens shall bind and inure to the benefit of the parties or Landowner. The Developer, Landowner, and every purchaser, assignee, or transferee of an interest in the Subject Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect to the Subject Property, or such portion thereof, sold, assigned, or transferred to it. Any such purchaser, assignee, or transferee shall observe and fully perform all of the duties and obligations of a Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Subject Section 23. Amendment to Agreement; Effect of Agreement on Future Actions. This Agreement may be amended by mutual consent of all of the parties, provided that any such amendment shall follow the process established by law for the adoption of a development agreement (see, RCW 36.70B.200). However, nothing in this Agreement shall prevent the City Council from making any amendment to its Comprehensive Plan, Zoning Code, Official Zoning Map, or development regulations affecting the Subject Property during the term ofthis Agreement ifthe City Council deems such amendments necessary to the extent required by a serious threat to public health and safety. Nothing in this Development Agreement shall prevent the City Council from making any amendments of any type to the Comprehensive Plan, Zoning Code, Official  approved by the City for occupancy.  liens, fees or taxes.  pursuant to then-existing planning and: zoning laws).  least 30 days in advance of such action.  Property sold, assigned, or transferred toit.  11    Zoning Map, or development regulations relating to the Subject Property through the termination A. In the event the Subject Property or any part of the Subject Property is rezoned in accordance with this Section 23, then Developer shall have the option to divest the re-zoned Property (or any part thereof) from the rights and entitlements set forth in the applicable development approval and submit a new development application (for example, a unit lot subdivision) under the applicable zoning provisions then in effect. Notwithstanding the decision to submit a development application for any portion of the Property that is rezoned, the terms and conditions ofthis Agreement shall continue to apply.  date set forth in Section 7 above.  Section 24. Releases. Upon sale ofeach loti included ini the Project, Developer shall have no further obligations relating to the sold, assigned, or transferred property, unless Developer is still bound Section 25. Notices. Notices, demands, correspondence to the City and Developer shall be sufficiently given if dispatched by pre-paid first-class mail to the addresses of the parties as designated in Section 5. Notice to the City shall be to the attention ofboth the City Administrator and the City Attorney. Notices to subsequent Landowners shall be required to be given by the City only for those Landowners who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other of new addresses for such notices, Section 26. Reimbursement for Agreement Expenses of the City. Developer agrees to reimburse the City for actual expenses incurred over and above fees paid by Developer as an applicant incurred by City directly relating to this Agreement, including recording fees and publishing fees, andi reasonable staffand consultant costs not otherwise included within application fees. This development agreement shall not take effect until the fees provided for in this section, as well as any processing fees owed to the City for the Subject Property are paid to the City. Upon payment of all expenses, the Developer may request written acknowledgement of all fees. Such payment of all fees shall be paid, at the latest, within thirty (30) days from the City's presentation Section 27. Applicable Law and Attorneys' Fees. This Agreement shall be construed and enforced in accordance with the laws of the State ofWashington. Iflitigation is initiated to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party. Venue for any action shall lie in Grant County Superior Court or the U.S. District Court for the Eastern District of Washington. Section 28. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than aj party or al Landowner to challenge this Agreement or any provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer and/or Landowner(s). In such event, Developer and/or such Landowners shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited  by aj performance bond as set forth in this Agreement.  demands, or correspondence.  ofa written statement of charges to the Developer.  12    to, attorneys' fees and expenses of litigation, and damages awarded to the prevailing party or parties in such litigation. The Developer and/orI Landowner shall not settle any lawsuit without the consent oft the City. The City shall act in good faith and shall not unreasonably withhold consent Section 29. Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance ofa all material terms ofthis Development Agreement by any party in default hereof. Section 30. Severability. Ifany phrase, provision or section oft this Agreement is determined bya court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any statute of the State of Washington which became effective after the effective date of the ordinance adopting this Development Agreement, and either party in good faith determines that such provision or provisions are material to its entering into this Agreement, that party may elect to terminate this IN WITNESS WHEREOF, the parties hereto have caused this Development Agreement to be  to settle.  Agreement as to all ofi its obligations remaining unperformed.  executed as of the dates set forth below: OWNERDEVELOPER:  CITY OF EPHRATA  By.  By ATTEST: By,  Lisa Fairchild (50%)  Bruce Reim, Its Mayor  By  Jeff Fairchild (50%)  Leslie Trachsler, Finance Director  APPROVED ASTO FORM:  By.  Katherine L. Kenison, City Attorney  13    ACKNOWLEDGEMENT State of Washington  County  On this day personally appeared before me Lisa Fairchild to be known to be the individual described in and who executed the within foregoing instrument and acknowledge to me that she signed the: same as her free and voluntary act and deed for the uses and purposes therein mentioned.  Dated this  day of  2023.  NOTARY PUBLIC in and for the State of Washington  My Appointment Expires:  State ofWashington  County  On this day personally appeared before me Jeff Fairchild to be known to be the individual described in and who executed the within foregoing instrument and acknowledge to me that he signed the same as his free and voluntary act and deed for the uses and purposes therein mentioned.  Dated this  day of  2023.  NOTARY PUBLIC in and for the State of Washington  My Appointment Expires:  14    State of Washington Grant County  Icertify that Iknow or have satisfactory evidence that Bruce Reim signed this instrument, on oath stated that he was authorized to execute the instrument as Mayor for the City of Ephrata and acknowledged it to be the free and voluntary act ofsuch party for the uses and purposes mentioned  in this instrument. Dated this  day of  2023.  NOTARY PUBLIC in and for the State of Washington  My Appointment Expires:  15    Exhibit A - Legal Description  That portion of the Southeast quarter of the Northeast quarter and the Northeast quarter of the Southeast quarter of Section 10, Township 21 North, Range 26, E.W.M., Grant County Washington, lying Southerly of the Right of Way of Burlington Northern Railroad Company (formerly Great Northern Railway  Company).    Exhibit B- Road  ROAD SECTION (RESIDENTIAL STREET)  OVERVIEW    Exhibic- Phasing  Erlandsen  DESERT PLAINS SUBDIVISION PRELIMINARY PLAT PHASING PLAN    Exhibit D - Landscape and buffering  i  e  LOTLAND PLANYP)  GMIAsEER:ON  _BNSFE BUFFERPLAN  BNSF  ANDSCAPE PLA  e  NDSCAPEPLAN    Exhibit E - Desert Plains Conservation Covenent  When Recorded, Return to City of Ephrata 121 Alder Street SW Ephrata, WA 98812  HABITAT CONSERVATION COVENANT RUNNING WITH THELAND  GRANTOR: GRANTEE:  RYAN and CATHERINE HARRIS, husband and wife THE CITY OF EPHRATA, WASHINGTON  ADDITIONAL PARTY: JEFF and LISA FAIRCHILD, husband and wife  LEGAL DESCRIPTION ABBREVIATED): Complete legal description on Exhibit A.  ADDRESS:  ASSESSORSTAX PARCEL IDI NO(S).    HABITAT CONSERVATION COVENANT RUNNING WITH THE LAND This covenant ("Covenant") is executed in favor of the City of Ephrata ("Grantee") by Ryan and Catherine Harris, husband and wife ("Grantor"and" "Owner"), owner oft the real property described on Exhibit A (the "Property") for the benefit of. Jeff and Lisa Fairchild ("Developer") related to the Desert Plains Development on certain real property owned by Developer in the City of Ephrata, Grant County, Washington (the "Project Site"). The Grantor warrants that Grantor is the sole owner of the Property and there is no other party that has any right, title, or interest in or to the Developer acknowledges that the Project Site or a portion of the Project Site is located in a Fish and Wildlife Habitat Conservation Area Critical Area described in Ephrata Municipal Code( (EMC) Chapter 20.08 and is subject to the provisions of EMC Chapter 20.08. The City has approved an application for the Desert Plains Subdivision Preliminary Plat subject to certain conditions, many of which are memorialized in this Covenant. The Project Site for which the Subdivision Grantor, Ryan and Catherine Harris, are the fee simple owners of the Property, legally described  Property.  Preliminary Plat was approved is depicted in Exhibit B.  as:  [Legal Description]  commonly referred to as Grant County Assessor Parcel Nos. 161826016 and 161826015 (herein The Developer and Grantor have agreed that, for good and valuable consideration, Grantor would make the 70-acre portion of the Receiving Property as described and generally depicted in Exhibit A attached hereto, hereinafter referred to as the "Covenant Area", subject to the conservation- based covenants described in this Covenant as a condition of the Habitat Management Plan for the Project Site, Grant County Assessor Parcel No. 130425005, Grant County Washington. LIMITATION ON DEVELOPMENT AND LAND-DISTURBING ACTIVITIES:  "Receiving Property").  PERMANENT CONDITIONS  Grantor understands and acknowledges the following:  The environmentally critical areas and any associated buffers (together referred to as the  "Covenant Area") on the Receiving Property are identified in Exhibit A.  Thej purpose oft this Covenant is:  To preserve and protect the native flora, fauna, soils, water table and drainage patterns, and  other conservation values of the Covenant Area;    To view the Covenant Area, ini its scenic and open condition; and in general, To assure that the Covenant Area, including its air space and subsurface, will be retained in perpetuity in its natural condition as provided herein and to prevent any use of the Covenant Area that will impair or interfere with its natural resource functions and values. Grantor intends that this Declaration will confine the use of the Covenant Area to such activities Any activity in or use of the Covenant Area inconsistent with the purpose of the Declaration by the Grantor; subsequent property owner(s); and the personal representatives, heirs, successors, and assigns of either the Grantor or subsequent property owner, is prohibited. Without limiting the generality of the foregoing, and except when an approved purpose under the following activities and uses are expressly prohibited in, on, over, or under the Covenant Area, subject to all of the A. Structures. The construction of man-made structures including but not limited to the construction, removal, placement, preservation, maintenance, alteration, or decoration of any buildings, driveways, wells, drain-fields, roads, utility lines, billboards, or other advertising. Fencing shall be minimized. This restriction does not include deer stands, bat boxes, bird nesting boxes, bird feeders and the placement of signs for safety purposes or B. Soils. The removal, excavation, disturbance, or dredging ofsoil, sand, gravel, or aggregate material ofany kind; or any change in the topography oft the land, including any discharges of dredged or fill material, ditching, extraction, drilling, driving of piles, mining, or C. Waste or Debris. The storage, dumping, depositing, abandoning, discharging, or releasing ofany gaseous, liquid, solid, or hazardous waste substance, yard waste, materials or debris ofwhatever nature on, in, over, or underground or into surface or ground water, except for pre-existing or approved project-related stormwater discharges and any maintenance  as are consistent with the purpose of this Covenant.  express terms and conditions below:  boundary demarcation.  excavation ofany kind.  associated with those stormwater discharges;  D. Non-Native Species. The planting or introduction ofnon-native species;  E. Herbicides, Insecticides and Pesticides. The use ofherbicides, insecticides, or pesticides, oro other chemicals, except for as may be necessary to control invasive species that threaten F. Removal of Vegetation. The mowing, cutting, pruning, or removal of vegetation of any kind; disturbance, destruction, or the collection of any trees, shrubs, or other vegetation,  the natural character oft the Covenant Area.  except for pruning, cutting or removal for:    1. Safety purposes; 3. Scientific or nature study;  2. Control of non-native species and noxious weeds; or  G. Agricultural Activities. Conversion of any portion of the Covenant Area for use of agriculture, horticulture, livestock production, or grazing activities unless a grazing plan is H. Recreational. Recreational use of ATVs, dirt bikes, motorcycles, off-road vehicles, or motor vehicle ofa fany kind is prohibited in the Covenant Area except for the existing power  approved by the Washington Department of Fish and Wildlife.  line maintenance road.  Land disturbing activities (such as construction, excavation, or grading) in the Covenant Area and Development and all associated land disturbing activity is restricted to the areas outside the The Covenant area shall not be considered for development credit in future subdivision or Grantor shall maintain permanent visible markers delineating the Covenant Area boundaries, if required. The locations of the required permanent markers are depicted on Exhibit A.  may not occur except as otherwise permitted by EMC Chapter 20.08.  Covenant Area.  development proposals for the Receiving Property.  RIGHTTOENTER  This Covenant shall not be interpreted to prohibit entry to, or the use and maintenance of, the  Covenant Area consistent with EMC Chapter 20.08.  VIOLATIONS  Ifthe City determines that a violation of this Covenant is occurring, has occurred, or is threatened, the City may demand corrective action sufficient to cure the violation, including without limitation, restoration or remediation of the Covenant Area and removal of any improvements not permitted by the City. The City reserves its existing rights at law and equity with respect to any violation of  this Covenant by the Owner. RECORDING  This Covenant shall be recorded in the real estate records of the Grant County Recorder's Office. This Covenant shall remain in effect inj perpetuity, shall run with the land regardless of ownership or use, and is binding upon all subsequent declarants their heirs, executors, administrators, successors, representatives, devisees, and assigns, as the case may be, as long as said party shall  RUNNING COVENANT  have any interest in any part of the Conservation Area.    AMENDMENTS  Noj portion ofthis Covenant nor the restrictions imposed on the Covenant Area as contained herein shall be modified, amended, or terminated by Grantor, subsequent owners of the Covenant Area, ort their respectivel heirs, executors, administrators, successors, representatives, devisees, or assigns without first obtaining the prior written consent and approval from the City ofEphrata Community  Development Department. SEVERABILITY  Ifany provision of this Covenant is held invalid, the remainder of the Covenant is not affected. If the application oft this Covenant to any person or circumstance is held invalid, the application of  the Covenant to other persons or circumstances is not affected.  GRANTOR  Ryan Harris Date: DEVELOPER  Catherine Harris Date:  Jeff Fairchild Date:  Lisa Fairchild Date:    STATE OF WASHINGTON COUNTY OF GRANT  / SS.  Icertify that I know or have satisfactory evidence that Ryan Harris is the person who appeared before me, and said person acknowledged that he signed this instrument and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument.  DATED:  2022.  Notary Type or Print Name residing at: My commission expires:  NOTARY PUBLIC for State of Washington,  STATE OF WASHINGTON COUNTY OF GRANT  ) SS. )  Icertify that Iknow or have satisfactory evidence that Catherine Harris is the person who appeared before me, and said person acknowledged that she signed this instrument and acknowledged it to be her free and voluntary act for the uses and purposes mentioned in the instrument.  DATED:  2022.  Notary" Type or Print Name residing at: My commission expires:  NOTARY PUBLIC for State of Washington,    STATE OF WASHINGTON COUNTY OF GRANT  SS.  Icertify that I know or have satisfactory evidence that Jeff Fairchild is the person who appeared before me, and said person acknowledged that he signed this instrument and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument.  DATED:  2022.  Notary Type or Print Name residing at: My commission expires:  NOTARY PUBLIC for State of Washington,  STATE OF WASHINGTON COUNTY OF GRANT  )  SS.  Icertify that I know or have satisfactory evidence that Lisa Fairchild is the person who appeared before me, and said person acknowledged that she signed this instrument and acknowledged it to be her free and voluntary act for the uses and purposes mentioned in the instrument.  DATED:  2022.  Notary" Type or Print Name residing at: My commission expires:  NOTARY PUBLIC for State of Washington,    8    SUMMARY OF DEVELOPER REQUESTS  The following changes to the City of Ephrata City Staff's version of the development agreement  are requested by the developer: 1. Section 7:  Asking for the Agreement to run 10 years and not the 71 listed: take a little over 8 years to complete the development. we do not think such a pace is feasible. 10 years allows for al better response to market conditions.  a. We expect to build at ai rate of about 40 homes per year. With 329 approved, it would b. To meet 7: years, we would need to complete about 501 homes per year. While optimistic, d. 10 years also allows for better flow and review by City staff by spreading out permit  reviews.  2. Section 12:  Asking for deletion of Paragraph A:  a. We don't see a need for this as the conditions of approval already outlined the required b. Based on conversations with City Staff no upgrades or modifications to existing system We think this is simplya a carry-over from a boilerplate agreement, and it only adds uncertainty/concem that future interpretations may result in broad and unanticipated costs being charged by the city, as items "related to" the agreement could be endless.  improvements, and this provision is very broad.  are required.  3. Section 14, F:  Asking for the option to defer fencing to bea a condition of occupancy.rather than it beinga a. This will allow for lot development (home, landscaping, etc.) to be installed without b. Ifthis isi installed it will likely not meet the wants/need of the lot owner and they will Ifinstalled' before plat, the developer will need to maintain, repair, and replace the fence that is located along BNSF right-of-way with limited access. d. Until lot development, there is very limited risk/safety from current conditions. Any incomplete sections of the fence can be covered by the bond noted in the agreement,  condition of plat approval:  damaging landscaping and/or the fence. remove and install to their wants/needs.  ifneeded.  Page 1 of2    4. Section 26: agreement:  Asking for a reduction of the costs requested by the City relating to drafting and review oft this a. The City made the development agreement a condition of plat approval - the developer did not ask for the agreement. But the Cityi is now requiring that the developer pay almost $10,000 in fees and costs to cover the City's drafting and review of the agreement. b. Thel EMC provision relied on by the City(17.05 - attached). allows such fees to apply at the application review stage, which was completed no later than October 18, 2022. The application has already been reviewed and, according to Resolution 22-08 entered October 18, 2022, the preliminary plat has been approved. Thel RCW relied on by the City (RCW3670B.1700)0), allows such fees so long as they are "consistent with applicable development regulations adopted by al local government." Here, we feel the fees are not consistent with EMC. d. None of the fees being requested by the City were published or discussed prior to negotiations over the development agreement, and developer was not aware oft the  amount until January 11,2023.  Page 2 of2    CHAPTER 17.05 APPLICATION FEES AND CHARGES  Sections:  17.05.010 APPLICATION FEES AND CHARGES 17.05.010 APPLICATION FEES AND CHARGES for establishing such fees, charges and rates.  (A) The council shall adopt a resolution setting forth the fees, charges and rates for the various development applications, permits, and approvals authorized pursuant to the EMC and shall update said resolution as is appropriate and/or necessary (B) In the review of a land use permit application, the City may determine that such review requires the retention of professional consultant services. In addition to any land use fees that an applicant is required to submit, the applicant shall also be responsible to reimburse the City for the cost of professional consultant services if the City determines such services are necessary to process and/or complete its review of the application submittal. These professional services may include, but shall not be limited to, planning, hearing examiner, engineering, traffic engineering, legal, financial and accounting, soils, mechanical and structural engineering, and electrical engineering, all contracted staff review expenses, publication costs and any consultant fees incurred to Additionally, the applicant shall be responsible for the costs of any independent inspector employed by the city to inspect installations of utilities to be delivered to the city upon completion as a condition of the platting process. The applicant is responsible for all costs for environmental impact study, traffic studies, soil studies, and other reports required for project evaluation. The City may also require the applicant to deposit an amount with the City, which is estimated, at the discretion of the Administrator, to be sufficient to cover anticipated costs of retaining professional consultant services to (C) Fees paid are for administrative costs incurred in processing the application and are therefore nonrefundable, whether the permit is issued or not. (D) Any application requiring the publication, mailing, and/or posting of notices or ordinances shall be required to reimburse the City for all such costs incurred (E) The fees shall be billed to the applicant on a monthly basis based upon the time taken by city staff, city consultants, and/or the city attorney to review the subject applications (the invoice shall note the time and related charges). Any required deposit shall be due at the time of application. The deposit shall be held by the city and billed against the final invoice submitted by the city's consultants. An administrative fee of10 percent shall also be added to cover the city's administrative costs of processing the applicant's invoices and billing expenses. If more than one application is required for ap project, the applicant shall pay all deposits and fees as indicated for each required Invoices shal! be due and payable immediately upon receipt by the applicant. If the planning director ascertains that invoices are not paid within 21 days of mailing, the application shall be deemed incomplete and all processing shall stop until the invoice is paid in full. If the planning director ascertains that a deposit balance is less than the required minimum deposit balance, and said minimum balance is not restored within 21 days of mailing, the application shall be deemed incomplete and all processing shall stop  be able to review and process the application or permit request.  ensure reimbursement to the City for such costs.  by the City.  application.  EPHRATA MUNICIPAL CODE  37  Land Development    until the minimum balance is restored. Where no deposit is required, the applicant will All invoices not paid within 30 days of the date of mailing shall be assessed a 12 percent APR (one percent per month) interest charge. If the final invoice exceeds the amount of the deposit, the applicant shall be responsible for paying the additional amount due. Permits or other approvals shall not be issued until the final invoice is paid in full. The city shall refund any funds left from the deposit after the final invoice is paid.  be billed for the overall costs not covered by any application fee.  (Ord. 09-06, 2009)  EPHRATA MUNICIPAL CODE  38  Land Development    DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EPHRATA AND JEFF & LISA FAIRCHILD, DEVELOPMENT  FOR THE PRELIMINARY MAJOR PLATOFTHE DESERT PLAINS  THIS DEVELOPMENT AGREEMENT is made and entered into this and Jeffa and Lisa Fairchild, husband and wife, hereinafter the "Developer."  day of January,  2023, by and between the City of Ephrata, a' Washington State municipality, hereinafter the "City"  RECITALS  WHEREAS, the Washington State Legislature has authorized the execution of a development agreement between a local government and a person having ownership or control ofreal property within its jurisdiction, where appropriate to provide additional land use approval and mitigation certainty, especially for larger-scale developments intended to be constructed as a unified whole, WHEREAS, a development agreement must set forth the development standards and other provisions that shall apply to, govern, and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement (RCW 36.70B.170); WHEREAS, for the purposes of this development agreement, "development standards" includes, WHEREAS, a development agreement must be consistent with the applicable development regulations adopted by a local government planning under chapter 36.70A RCW (RCW WHEREAS, this Development Agreement by and between the City and Developer (hereinafter the "Development Agreement"), relates to the development known as the 'Desert Plains Development', which is described in Exhibit A (being Parcel #13-0425-005) (hereinafter the WHEREAS, the following events have occurred in the processing of the Developer'sa application: a) A public hearing on the preliminary plat for the major subdivision was held by the Ephrata Planning Commission on August 25, 2022. The Planning Commission recommended approval subject to conditions as set forth in Planning Commission b) The City approved the preliminary plat application for the Desert Plains Subdivision on October 19, 2022, with modified conditions of approval as set forth in City Council  but over aj period of several to many years. (RCW 36.70B.170); and  and  but is not limited to, all of the standards listed in RCW3 36.70B.170(3); and  36.70B.170(1); and  "Property"); and  Resolution No. 22-02. Resolution No. 22-08.    c) After aj public hearing, by Ordinance No. 23-01, the City Council authorized the Mayor  to sign this Development Agreement with the Developer; and  Now, therefore, the parties hereto agree as follows:  GENERALPROVISIONS  Section 1. The Project. The Project is the development and use of the Property, consisting of 57 acres in the City ofEphrata. Permit #22-001 describes the project as a preliminary major plat ofa single tax parcel, #13-0425-005 within the City of Ephrata, zoned Residential-2. Section 2. The Subject Property. The Project site is legally described in Exhibit A, attached Section 3. Definitions. As usedi int this Development Agreement, the following terms, phrases, and A. "Adopting Ordinance" means the Ordinance which approves this Development B. "Certificate of Occupancy" means either a certificate issued after inspections by the City authorizing a person(s) in possession of property to dwell or otherwise use a specified building or dwelling unit, or the final inspection ifa formal certifiçate is not issued. C."Council" means the duly elected legislative body governing the City of Ephrata. D. "Effective Date" means the effective date of the Adopting Ordinance. E. "Existing Land Use Regulations" means the ordinances adopted by the City Council of Ephrata in effect on the Effective Date, including the adopting ordinances that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Subject Property, including, but not limited to the Comprehensive Plan, the City's Official Zoning Map and development standards, SEPA, Concurrency Ordinance, and all other ordinances, codes, rules and regulations of the City establishing subdivision standards, park regulations, and building standards, including without limitation Titles 16, 17,18, 19, and 21 ofthel Ephrata Municipal Code, ine existence as ofthe effective Date; provided however, that all building permit applications shall be subject to the building codes in effect when a complete building permit application is submitted. Existing Land Use Regulations do not F. "Landowner" is the party who has acquired any portion of the Subject Property from the Developer who, unless otherwise released as provided in this Agreement, shall be subject tot the applicable provisions of this Agreement. The "Developer" is identified in Section 5 G. "Project" means the anticipated development of the Subject Property, as specified in Section 1 and as provided for in all associated permits/approvals, and all incorporated  hereto, and incorporated herein by this reference.  words shall have the meanings and be interpreted as set forth in this Section.  Agreement, as required by RCW 36.70B.200.  include non-land use regulations, which include taxes and impact fees.  ofthis Agreement. exhibits.  Section 4. Exhibits. Exhibits to this Agreement are as follows: A. Exhibit A - Legal description of the Subject Property. B. Exhibit B - Road Plan with standards    C.E Exhibit C-1 Prospective Phasing D. Exhibit D - Landscape and buffering plan with standards E. Exhibit E- -Habitat conservation covenant  Section 5. Parties to Development Agreement. The parties to this Agreement are: A. The "City" is the City of Ephrata, 121 Alder Street SW, Ephrata WA! 98823 B. The "Developer" or "Owner" is Jeff and Lisa Fairchild, PO Box 2756, Pasco WA 99302 C. The "Landowner." From time to time, as provided in this Agreement, the Developer may sell or otherwise lawfully dispose ofaj portion ofthe Subject Property to al Landowner who, unless otherwise released, shall be subject to the applicable provisions of this Agreement Section 6. Project is al Private Undertaking. It is agreed among the parties that the Project is a private development, and that the City has no interest therein except as authorized in the exercise Section 7. Term of Agreement. This Agreement shall commence upon the effective date of the Adopting Ordinance approving this Agreement and shall continue in force for a period of seven ten_(107) years, unless extended or terminated as provided herein. Developer may request a one- time extension for up to two (2) additional years provided the Developer submits a request for extension to the City at least sixty (60) days prior to the expiration of the initial seven ten (107) year term. Any such extension request shall be reviewed by the City Council after aj public hearing on the request. Following the expiration of the term or extension thereof, or if sooner terminated, this Agreement shall have no force and effect, subject however, to post-termination obligations of Section 8. Vested Rights of Developer. During the term of this Agreement, unless sooner terminated in accordance with the terms hereof, in developing the Subject Property consistent with thel Project describedherein, Developer is assured, and the City agrees, that the development rights, obligations, terms and conditions specified in this Agreement, are fully vested in the Developer and may not be changed or modified by the City, except as may be expressly permitted by, and in accordance with, the terms and conditions of this Agreement, including the Exhibits hereto, or as expressly consented thereto by the Developer. More specifically, Existing Land Use Regulations Ifthe Existing Land Use Regulations are amended during the term of this Agreement, Developer may, at Developer's exclusive option, submit a new or amended subdivision application to the City for review and approval in accordance with the Land Use Regulations in effect at the time the Section 9. Permitted Uses and Development Standards. The permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation and dedication of land or payment of fees in lieu of dedication for public purposes, the construction, installation and extension of public improvements, development guidelines and standards for development of the Subject Property shall be those set forth in (a) this Agreement, (b) the City of Ephrata Municipal Code, (c) the Decision of the City Council, (d) the permits and  related to such portion of the Subject Property.  ofits governmental functions.  the Developer or Landowner.  shall apply to the Project throughout the term of this Agreement.  new or amended subdivision application is determined to be complete.  approvals identified herein, and (e) all exhibits incorporated herein.  3    A. Current Standards: As of the Effective Date and based on the current zoning, R-2, for the Property, as outlined in Ephrata Municipal Code (EMC), the calculated density is as  set forth in Title 19.04.170 EMC: and in the chart below:  Permitted Uses Single-family Duplex Multi-Family  Maximum Allowed Dwelling Units Per Acre (du/ac) 8dus/ac 8dus/ac 16d dus/ac  Site Acreage in Zone  Total Units Allowed in Zone 456 456 912  57ac 57ac 57ac  Uses set forth in the chart are further defined as follows:  EMC 19.02.115 Defines a Duplex: Duplex means (1) detached residential building containing two (2) dwelling units totally separated from each other by a one (1) hour fire wall or floor, designed for occupancy by not more than two (2) EMC 19.02.116 Defines Dwelling, single-family: Single-family dwelling means ad detached residential dwelling unit, other than a mobile home, designed and EMC 19.02.125 Defines Dwelling, multi-family: Multi-family dwelling means a residential building designed for or occupied by three (3)or more families, with the number of families in residence not exceeding the number of dwelling units EMC 19.02.126 Defines a Dwelling Unit: Dwelling Unit means one (1) room, or rooms connected together, constituting a separate. Independent housekeeping establishment for owner occupancy, or rental or lease on a weekly, monthly or longer basis, and physically separated from any other rooms or dwelling units which may be in the same structure or on the same property, and containing  families.  occupied by one (1) family only.  provided.  independent cooking and sleeping facilities.  B. Current Maximum Residential Units. The parties agree that the number of residential units within the Project on the Property shall not exceed. 329 single family dwellings unless the Developer seeks approval of duplexes as provided in this section. Developer shall be 1. Developer may seek City approval to convert up to thirty-six (36) single family dwellings within the Project to duplex units. Such request shall be submitted prior to final plat approval and processed as a minor alteration approved with the consent ofthe  responsible for payment of costs associated with such requests.    Community Development Director and the Public Works Director, but subject to: i) public notice to all owners of property within the subdivision, ii) public notice as was required by the subdlivisionapplication, and ini) aj public hearing. Each approved duplex unit shall be equivalent toas single family dwelling for purposes oft the 329: single family dwelling maximum noted above, and each duplex unit shall be comprised of two 2. Any cumulative request to convert more than thirty-six (36) single family dwellings within the Project to duplex units shall be processed as a major alteration subject to the consent of the City Council after public notice and aj public hearing is held. C.Road Standards. For purposes of this Agreement, any reference to a "public street" or "public road" shall mean streets dedicated to the City as part of the Project and shall not include private drives. The road standards for all public roads were submitted to the City with the complete subdivision application prior to the Effective Date. Copies of those diagrams and standards are also set forth in attached Exhibit "D", which is incorporated herein by this reference. Specifically, each public road segment within the Project has been identified and described in the plans on file and summarized in Exhibit "D". The City accepts and agrees with the road standards for the public roads identified in the plans on file with the City and summarized on! Exhibit "D". Developer agrees to construct the public roads for the Project consistent with said road standards. Furthermore, the road standards (public and private) identified in this Agreement and within the subdivision application shall serve as the approved standards for thel Project and these standards will supersede any code language that is in conflict with these standards unless mutually agreed to by the City Section 10. Minor Modifications. Minor modifications from the approved permits or the exhibits attached hereto may be approved in accordance with the provisions of the City's code and shall Section 11. Further Discretionary Actions. Developer acknowledges that the Existing Land Use Regulations contemplate the exercise of further discretionary powers by the City. These powers include, but are not limited to, review of additional permit applications under SEPA. Nothing in this Agreement shall be construed to limit the authority or the obligation of the City to hold legally required public hearings, or to limit the discretion of the City and any ofits officers or officials in  residences on the same lot.  and Developer.  not require an amendment to this Agreement.  complying with or applying Existing Land Use Regulations. Section 12. Financing of Public Facilities.  A Pevelper-seknowiges and agrees that it shall partieipate in the pre-rata share-of-the essafpahieimpowemesMseeaClyw sueh PaFiepatieshalse-medOPubNeN imprevemenis-thatare-oeatedon the Subjeet Pepanyferadpetesfs-gimeswstiolamd hatare-required-ererapprewalefthetnapltforemehsehsuseesivePMaeoFte-Prejet-PoM F-AEN TP Hi-ww eommen mumiepalede-sageipovemealee-cemseteNw    Feeenstruetion, OF e-w.- sewer Mine,ersterm-sewerline,publie Atthe request ofthe Developer, the City shall pursue the use ofal local improvement district and other similar project-related public financing mechanism for financing the construction, improvement or acquisition of public infrastructure, facilities, lands and improvements to serve the Subject Property, whether located within or outside the Subject Property. To the extent allowed by law, the City shall address any reimbursement mechanism to Developer for expenses incurred by Developer associated with the Project,  street eF publie-sidewalk, OF underground publie utilities  B.A.  subject to the City'sordinances and State law. Section 13. Existing Land Use Fees and Impact Fees.  A. Land use fees adopted by the City by ordinance as of the Effective Date oft this Agreement may be increased by the City from time to time, and applicable to permits and approvals for the Subject Property, as long as such fees apply to similar applications and projects in B. During the term of this Agreement, the only impact fees paid by Developer shall be as set Section 14. Improvements and Phasing of Development. The parties acknowledge that the most efficient and economic development oft the Subject Property depends upon numerous factors, such as market orientation and demand, interest rates, competition and similar factors, and that generally it will be most economically benefiçial to the ultimate purchasers of the Subject Property to have thei rate of development determined by the Developer. However, the parties also acknowledge that because the Project will be phased, certain amenities associated with the Project must be available to all phases of the Project, in order to address health, safety, and welfare of the residents. The anticipated phasing of the Project is set forth in Exhibit "E" attached hereto and inçorporated herein, which is intended to be representative only. Phase or build-out ofthe Project will be subject A. Phasing or build-out of the Project shall be limited based on the timing ofi infrastructure B. No fewer than 101 residential lots shall be included in a single phase of the Project (i.e. final plat), except for the final phase or if deviations from this limitation are approved by the C.T There is no limitation on the period of time that may elapse between phases subject to Section 7 above regarding the term ofthis Agreement. There is no requirement that phases occur in a certain order, provided, however, that Phase Ia as set forth in Exhibit E shall be completed prior to any other Phase to allow for traffic access to the Project from Ivy, K, and L streets. Any reconfiguration of Phase I set forth in Exhibit E shall include access from Ivy, K, and L streets. Any phase shall make adequate provision for all necessary  the City.  forth in Section 16.B.  to the following conditions:  improvements set forth herein.  City Community! Development Director.    improvements toj provide for the health, safety, and welfare ofthe residents, including street improvements, potable water and fire flow facilities, sewer facilities, and other utilities. D. Following approval ofthe subdivision application for the entire Project and the initial phase of the Project, each subsequent phase of the Project shall be administratively processed consistent with Article IV, Final Plats, Title 18, EMC (as of the Effective Date and not as amended), the SEPA mitigated determination of non-significance (see Section 14(I)), and this Agreement unless the appliçant proposes a substantive amendment outside of the original approval. "Substantive amendment' as used herein shall mean an amendment to the formal notes on an approved plat or conditions of approval of the plat or street alignment adjustments including access. "Minor amendments" shall be approved administratively and include, for example, such matters as lot line reconfigurations and lot line eliminations (that do not increase the overall residential lot or unit count and comply E. Developer understands and agrees that each phasing proposal will be reviewed by the Public Works Department and the Fire Code Official to determine if a temporary emergency turn-around will need tol be installed. Ifso, then a temporary easement(s) in the adjacent future tract for the constructed temporary turnaround will be part of the phased F. Properties along thel BNSF railroad right ofway will require landscapel buffer in accordance with Ephrata Municipal Code 19.07.040, comprised ofa 10-foot-wide setback with fencing and landscaping. This strip shall be landscaped, fenced/walled, and maintained by the Landowners. A plat note shall identify the burdened properties and establish that such fencing/walls, landscaping, and maintenance are conditions of lot ownership. Developer may delay landscape and fence installation until the homes are constructed to lessen the construction-related damage. FheompletomoFMeeeFwAPAegrememtoffine plat approval fer eaeh affeeted phase. Any incomplete sections will be subject to a performance bond posted by Developer with the City in an amount reasonably determined by the City Community Development Director. The setback width required for the buffer and any building/improvement setback otherwise required by Existing Land use Regulations shall run concurrently. To clarify, if the setback for structures or other improvements is ten feet, the Landowner shall be entitled to locate the improvement at the termination point ofthel buffer (10 feet from the lot line), and shall not be required to locate the improvement an additional ten feet from that point. The buffer is depicted on Exhibit G. The City of Ephrata Public Works Department will conduct an onsite pre-construction conference with the Developer before written authorization to proceed will be issued for 1. During construction, any release of oil, hydraulic fluids, fuels, other petroleum products, paints, solvents, or other deleterious materials must be contained and  with the Existing Land Use Regulations).  plat documents.  D.  each Phase.    removed in a manner that will prevent their discharge into water or soil. The cleanup H. The Developer is required to obtain all state, local and federal permits including but not 1. The Developer must apply for coverage (including any applicable exemptions) under the Department of Ecology's Construction Stormwater General Permit at least 60 days prior to start of construction of any phase. Additionally, discharge from the dry wells must comply with the ground water quality requirement non-ndangerment standard) 2. City of Ephrata approval of Erosion, Sediment and Dust Control Plans integrated with Interim Stormwater Management Plans prepared in accordance with the Department of Ecology Stormwater Manual for Eastern Washington as adopted and implemented by  ofspills shall take precedence over other work on the site.  limited to the following required permits:  at the top of the ground water table.  the City of Ephrata.  3. City of Ephrata Mass Grading Permit; Building Permits  Developer has submitted an Environmental Checklist associated with this Agreement and the subdivision application for the Project, and the comment period associated therewith has expired. After consideration of all comments, the City's responsible official for the State Environmental Policy Act ("SEPA") issued a mitigated determination of non- significance ("MDNS") with respect to this Agreement and the subdivision application for the Project submitted simultaneously with this Agreement. This Agreement and associated MDNS shall be incorporated into and govern the SEPA review requirements for every building permit, development application, and phase of development within the Project. J. Since ground disturbance leads to weeds and dust, the portions of the site not proposed for development at this time shall remain undisturbed as much as possible. Disturbed areas that will not be built on, paved, or landscaped for more than 45 days shall be stabilized through long-term methods such as establishing dryland grasses or native shrub/steppe. The Developer shall ensure that nuisances, such as weeds and dust that are not otherwise K. To facilitate orderly flow of traffic, provide safe pedestrian facilities, and provide sufficient utility connections, the Developer shall construct full-width street and utility improvements as noted in Section 9, Cabove. Street alignment and access as depictedi in L. The City and Developer agree that sewer and water service for the Project will be solely provided by line extensions and that no off-site sewer or water improvements or analysis are required as a condition to the development of the Property consistent with this Agreement. Iftemporary maintenance access is required, a temporary easement(s) in the adjacent future tract for the constructed temporary access will be part of the phased plat documents. Sewer and water connection fees and plant investment fees that are generally applicable to all customers served by the City shall bej paid at the time ofbuilding permit  ordinarily occurring, do not develop.  the preliminary plat shall not be modified.  application.    M. As required, a sanitary sewer lift station shall discharge flow to the sewer improvements noted above with no further offsite or system analysis required. If temporary maintenance access is required, a temporary easement(s) in the adjacent future tract for the constructed temporary access will be part of the phased plat documents. N. The Washington State Department of Archaeological and Historic Preservation (DAHP) has determined the proposed subdivision to be an area characterized as moderate to high probability ofencountering cultural resources. Aj professional archaeologicalsurvey ofthe project area was conducted. The report meets DAHP's Standards for Cultural Resource O. A traffic impact analysis was submitted to the City on July 13, 2022. The city Engineer, Gray & Osborne Consulting Engineers, has provided comments in their Letter Dated July 13,2022, and determined that the following mitigation efforts are required: 1. Compliance with Ephrata's Comprehensive Plan forecasting for a minimum of 10years 2. Verify the level of service standard used in the traffic impact analysis is measured equivalently to the City's standard ofa ratio of hourly demand volume versus hourly 3. Provide. al letter to the City and City Engineer before any final plati is approved from the Fire Department approving the development access points for emergency management 4. Intersection alignment to the development on Ivy Street must be worked out prior to 5. The development is increasing traffic at existing city streets of Ivy, K, and L street. There is a nexus for improvements to these intersections and the Developer shall mitigate with stop signs and intersection improvements, if necessary, at final plat P. Developer may delay installation of all landscaping adjacent to the sidewalks until the homes are constructed. Any incomplete landscape sections will be subject toa a performance bond posted by Developer with the City in an amount reasonably determined by the City Community Development Director. A plat note: shall establish landscaping installation and maintenance adjacent to the sidewalk as conditions of lot ownership. The landscape Section 15. Habitat Mitigation. After review of the proposed site by the Washington State Department ofFish and' Wildlife (WDFW) it has been determined that the project site contains City ofEphrata Fish and Wildlife Habitat Conservation Areas, including shrub steppe habitat. WDFW designates shrub steppel habitat asa Washington State Priority Habitat. A site analysis and habitat assessment review have been conducted and a mitigation/habitat management plan has been developed. To mitigate for the impacts to the moderate shrub steppe rating found on the site the prpaldnclpmazeDanlphasidemtiniain. acresasanoff-site: mitigation site to mitigate  Reporting.  and using an estimated growth rate of2%.  capacity. purposes.  final approvals of the preliminary plat.  consideration.  standards are depicted on Exhibit D.  9    the 57 acre parcel to be developed. These sites are identifiedb byt the Grant County Auditor as parcels #16- 1820-16amdn161B2805 Thel landi is adjacent tol land owned andi managed by the WDFW andsurrounded byl lageareasofundeveloped shrub steppel habitat and has been determined to be a quality shrub steppe habitat which off sets the site to be developed. Thehabitat management plan will mitigate impacts of the proposed development at a ratio of1:1.2 for the 70 acres of low to moderate quality shrub steppe located within the City ofEphrata, with 70 acres ofmoderate tol high quality shrub steppe in an identified wildlife corridor/linkage: area. The mitigation site willhavea Habitat Conservation Covenant set forth in Exhibit Fi placed on it and be recorded and 'run with' the title oftheproperty prior to the approval ofa any final plat. At no time should more than 70 acres of mitigation be required for the Project. The restrictions on the 70 acres of land include the  following:  1. No structures of any kind allowed 3. Fencing will be minimized grazing plan road  2. No driveways, wells, drain fields or other improvements  4. Any livestock grazing will not be allowed or restricted by a WDFW approved 5. Motorized vehicles will be restricted to the existing power line maintenance  Section 16. Dedication of Public Lands. Except as otherwise provided herein, the Developer shall dedicate all public lands required in the permits'approvals within ninety (90) days of the Effective Date of this Agreement. Dedication shall be considered by the City in the following A. Road Rights-Of-Way. Within fifteen (15) days of submission of an application for final plat to the City for any phase of the development, the Developer agrees to dedicate any or B. Dedication of Parks & Recreation. The Developer agrees to pay cash in lieu for parks and open space dedication. Final approval of any final plat by the City shall be contingent upon payment of the park development fee to the City in the amount of $1,800 per residential  schedule:  all road rights-of-way without expense to the City.  lot. Section 17. Default.  A. Subject to extensions of time by mutual consent in writing, failure or delay by either party or Landowner not released from this Agreement, to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach ofa any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party or Landowner not less than thirty (30) days notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During this thirty (30) day period, the party or Landowner charged shall not be considered in B. After notice and expiration of the thirty (30) day period, ifs such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other party or Landowner tot this Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition, the City may decide to file an action to enforce the City's Codes,  default for purposes of termination or institution of legal proceedings.  10    and to obtain penalties and costs as provided in the Ephrata Municipal Code for violations Section 18. Termination. This Agreement shall expire and/or terminate as provided below: A. Nothing in this Agreement shall extend the expiration date ofany permit or approval issued B. This Agreement shall terminate upon the expiration of the term identified in Section 7 or when the Subject Property has been fully developed, which ever first occurs, and all ofthe Developer's obligations in connection therewith are satisfied as determined by the City. Upon termination of this Agreement, the City shall record a notice of such termination in af form satisfactory to the City Attorney that the Agreement has been terminated. This Agreement shall automatically terminate and be of no further force and effect as to any single-family residence, any other residential dwelling unit or any nonresidential building and the lot or parcel upon which such residence or building is located, when it has been Section 19. Effect upon Termination on Developer Obligations. Termination ofthis Agreement as to the Developer of the Subject Property or any portion thereof shall not affect any of the Developer's obligations to comply with the City Comprehensive Plan and the terms and conditions or any applicable zoning code(s) or subdivision map or other land use entitlements approved with respect to the Subject Property, any other conditions of any other development specified in the Agreement to continue after the termination of this Agreement or obligations to pay assessments, Section 20. Effects upon Termination on City. Upon any termination of this Agreement as to the Developer of the Subject Property, or any portion thereof, the entitlements, conditions of development, limitations on fees, and all other terms and conditions of this Agreement shall no longer be vested hereby with respect to the property affected by such termination (provided that vesting of such entitlements, Conditions, or fees may then be established for such property Section 21. Assignment and Assumption. The Developer shall have the right to sell, assign, or transfer this Agreement with all its rights, title, and interests therein to any person, firm, or corporation at any time during the term oft this Agreement. Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Subject Property, at Section 22. Covenants Running with the Land. The conditions and covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the land and the benefits and burdens shall bind and inure to the benefit of the parties or Landowner. The Developer, Landowner, and every purchaser, assignee, or transferee of an interest in the Subject Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect to the Subject Property, or such portion thereof, sold, assigned, or transferred to it.. Any such purchaser, assignee,  ofthis Development Agreement and the Code.  by the City for any development.  approved by the City for occupancy.  liens, fees or taxes.  pursuant to then-existing planning and zoning laws).  least 30 days in advance ofsuch action.  11    or transferee shall observe and fully perform all of the duties and obligations ofa Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Subject Section 23. Amendment to Agreement; Effect of Agreement on Future Actions. This Agreement may be amended by mutual consent of all of the parties, provided that any such amendment shall follow the process established by law for the adoption of a development agreement (see, RCW 36.70B.200). However, nothing in this Agreement shall prevent the City Council from making any amendment to its Comprehensive Plan, Zoning Code, Official Zoning Map, or development regulations affecting the Subject Property during the term of this Agreement ift the City Council deems such amendments necessary to the extent required by a serious threat to public health and safety. Nothing in this Development Agreement shall prevent the City Council from making any amendments of any type to the Comprehensive Plan, Zoning Code, Official Zoning Map, or development regulations relating to the Subject Property through the termination A. In the event the Subject Property or any part of the Subject Property is rezoned in accordance with this Section 23, thenl Developer shall have the option to divest the re-zoned Property (or any part thereof) from the rights and entitlements set forth in the applicable development approval and submit ai new development application (for example, a unit lot subdivision) under the applicable zoning provisions then in effect. Notwithstanding the decision to submit a development application for any portion of the Property that is rezoned, the terms and conditions oft this Agreement shall continue to apply.  Property sold, assigned, or transferred to it.  date set forth in Section 7 above.  Section 24. Releases. Upon sale ofeach loti included in the Project, Developer shall have no further obligations relating to the sold, assigned, or transferred property, unless Developer is still bound Section 25. Notices. Notices, demands, correspondence to the City and Developer shall be sufficiently given if dispatched by pre-paid first-class mail to the addresses of the parties as designated in Section 5. Notice to the City shall be to the attention of1 both the City Administrator and the City Attorney. Notices to subsequent Landowners shall be required to be given by the City only for those Landowners who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other of new addresses for such notices, Section 26. Reimbursement for Agreement Expenses of the City. Developer agrees to reimburse the City for actual expenses incurred over and above fees paid by Developer as an applicant incurred by City direetly relating te this Agreement, including recerding fees-and publishing fees, and Feasenable slaffand-eonsulant eestsfor the recording oft this Agreement and the publishing of notice for the public hearing on this agreement, which fees were not otherwise included within application fees. This development agreement shall not take effect until the fees provided fori in this doswdwwyPes feesewedt te the City for the SubjeetProperty are paid to the City. Upon payment of all expenses, the Developer may request written  by a performance bond as set forth in this Agreement.  demands, or correspondence.  12    acknowledgement of all fees. Such payment ofall fees shall be paid, at the latest, within thirty (30) days from the City'sp presentation ofa written statement of charges to the Developer. Section 27. Applicable Law and Attorneys' Fees. This Agreement shall be construed and enforced in accordance with the laws ofthe State ofWashington. Iflitigation is initiated to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party. Venue for any action shall lie in Grant County Superior Court or the U.S. District Court for the Eastern District of Washington. Section 28. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than aj party or al Landowner to challenge this Agreement ora any provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer and/or Landowner(s). In such event, Developer and/or such Landowners shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to, attorneys' fees and expenses of litigation, and damages awarded to the prevailing party or parties ins such litigation. The Developer and/or Landowner shall not settle any lawsuit without the consent of the City. The City shall act in good faith and shall not unreasonably withhold consent Section 29. Specific Performance. Thej parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance ofall material terms of this Development Agreement by any party in default hereof. Section 30. Severability. If any phrase, provision or section ofthis Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any statute of the State of Washington which became effective after the effective date of the ordinançe adopting this Development Agreement, and either party in good faith determines that such provision or provisions are material to its entering into this Agreement, that party may elect to terminate this IN WITNESS WHEREOF, the parties hereto have caused this Development Agreement to be  to settle.  Agreement as to all ofi its obligations remaining unperformed.  executed as of the dates set forth below:  13    OWNERDEVELOPER:  CITY OF EPHRATA  By.  By. ATTEST: By,  Lisa Fairchild (50%)  Bruce Reim, Its Mayor  By.  Jeff Fairchild (50%)  Leslie Trachsler, Finance Director  APPROVED AS TOF FORM:  By  Katherine L. Kenison, City Attorney    ACKNOWLEDGEMENT State of Washington  County  On this day personally appeared before me Lisa Fairchild to be known to be the individual described in and who executed the within foregoing instrument and acknowledge to me that she signed the same as her free and voluntary act and deed for the uses and purposes therein mentioned.  Dated this  day of  2023.  NOTARY PUBLIC in and for the State of Washington  My Appointment Expires:  State of Washington  County  On this day personally appeared before me Jeff Fairchild to be known to be the individual described in and who executed the within foregoing instrument and acknowledge to me that he signed thes same as! his free and voluntary act and deed for the uses and purposes therein mentioned.  Dated this  day of.  2023.  NOTARY PUBLIC in and for the State of Washington  My Appointment Expires:  15    State of Washington Grant County  Icertify that IL know or have satisfactory evidence that Bruce Reim signed this instrument, on oath stated that he was authorized to execute the instrument as Mayor for the City of Ephrata and acknowledged it to be the free and voluntary act ofsuch party for the uses and purposes mentioned  in thisi instrument. Dated this  day of  2023.  NOTARY PUBLIC in and for the State of Washington  My Appointment Expires:  16    Exhibit A - Legal Description    Exhibit B - Road Plan with Standards  18    Exhibit C- Prospective Phasing  19    Exhibit D - Landscape and Buffering Plan with Standards  20    Exhibit E - Habitat Conservation Covenant  21    DATE: January 18, 2023 ITEM: Ordinances & Resolutions  SUMMARY BUDGETIMPACTS  1. Ordinance 23-01 - Desert Plains Major Subdivision Development Agreement  1. None  RECOMMENDATION Staff recommends acceptance and approval.  ENABLING ACTIONS Motion to. Authorize, Confirm, or Approve and. Accept All Items.  Ifyou have any questions, concerns, or require additional information; please contact me  prior to the meeting.    ORDINANCE NO. .23-01  AN ORDINANCE OF THE CITY OF EPHRATA, WASHINGTON, TO APPROVE A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF EPHRATA AND THE PROPERTY OWNERS OF THE DESERT PLAINS  SUBDIVISION  THE CITY COUNCIL OF THE OF THE CITY OF EPHRATA DOES ORDAIN AS Section 1. The Development Agreement attached hereto as Exhibit A is approved and the Section 2. As provided in RCW 36.70B.190, the Development Agreement shall be recorded with the real property records of Grant County, Washington and shall be binding on the  FOLLOWS:  Mayor is authorized to sign the agreement.  parties and their successors and assigns. publication ofi its summary as provided by law.  Section 3. This ordinance shall be in full force and effect five days after its passage and PASSED by the City Council of the City ofE Ephrata, Washington, this 18th day of January,  2023.  Bruce Reim, Mayor  ATTEST:  Leslie Trachsler, City Clerk APPROVED ASTO: FORM:  Katherine L. Kenison, City Attorney  PASSED the APPROVED the PUBLISHED the  day of day of day of  2023. 2023. 2023.    DATE: January 18, 2023 ITEM: Items for Council Action  SUMMARY  1. Financial Software Upgrade Recommendation 2. Professional Services Rate Increase Marten Law 3. Engineering Contract Amendment Well #9 Site Evaluation 4. Nat Washington Way Overlay Project Consultant Agreement 1. $142,798 year one; $43,228 annual maintenance cost  BUDGET IMPACTS  2. $250,000- - $300,000; budgeted 3. Not to exceed $6,800 4. $70,000  Staffrecommends açceptançe and approval of all Items.  ENABLING ACTIONS  Motion to Authorize, Confirm, or Approve and. Accept All Items.  lfyou have any questions, concerns, or require additional information; please contact me prior  tot the meeting.    CITYOF EPHRATA STAFF REPORT  To: From: Date: Proceeding Type: Subject:  Mayor, City Council and City Administrator  Finance Director' Trachsler/ Deputy Finance DirectorLnenicka Financial Software Upgrade Recommendation  January 12, 2023 Council Action  Legislative History: January 18, 2023 N/A Council Approval  First Presentation: Second Presentation: Requested Action:  Staff] Report Summary: The City of Ephrata published an RFP in 2021 and 2022 for Finance Software. There were 3 respondents to each RFP: Vision Municipal, Springbrook and Tyler Technologies. Staff analyzed each vendor based on the demonstrations provided. One of the requirements was that the software be web/cloud based and not server based. The reason behind this requirement is the City currently has Springbrook v6 that was purchased in 2008 and is server based. This has restricted the city's ability to receive updates to software as technology  progressed.  Due to that requirement, Vision Municipal was eliminated.  Discussion/Analysis: Springbrook demonstrated their web based software, v7. This version is transitioning from server based to web based. Not all modules have been fully transitioned and the product is not fluid and intuitive. The consideration of v7 led staff to believe that by staying with Springbrook and transitioning to v7, the City could potentially be in the same position 5 After evaluation of both proposals, considering long term costs, and the city's needs for reporting and efficiency, staff recommends the ERP PRO software by Tyler Technologies. It provides a comprehensive modern software solution designed to address the City's software, training, and support needs well into the future. The financial system is fully integrated and provides all the ERP PRO uses the latest software technology which will enable staff to perform their jobs quicker and with more accuracy. Based on the demonstrations, the software seems more intuitive and will provide staff a quicker and more in-depth ability to research and provide necessary financial information for decision-making. The software also allows for the employees in the organization to have access only to the areas which they are responsible for. This means  years from now in terms of not having up to date technology.  required applications.  Page 1of2    individuals can enter their own timecards and payables into the system and have it reviewed by Staff Recommendation: Council authorize staff to move forward with Tyler Technologies, Inc. for Financial Implications: Cost for implementation and maintenance for the first year is $142,798; annual maintenance costs which includes any new updates to the software is $43,228; credit card processing fees  the appropriate staff prior to processing.  Financial Software.  are 2% of the monthly payments processed. A. Cost Analysis between' Tyler and Springbrook  Attachments: Legal Review  Thei following documents are attached and subject tol legal review:  Type ofl Document  Title ofDocument  Date Reviewed by Legal Counsel  Page2of2    Finance Software Price Comparison  Current SB SBv7  TylerTech  Annual Fee Migration Total Fees Current SB SBV7 Tyler  16,000.00 $29,418.00 $ 43,228.00  $47,250.00 $ 99,570.00  $ 16,000.00 $76,668.00 $142,798.00  Online Pmt Rate Avg Month  Average MonthFee $4,025.00  Payments  Variable $262,000.00 $ 4,025.00  2%  $262,000.00 $ 5,240.00    CITY OF EPHRATA STAFF REPORT Mayor and City Council Leslie Trachsler, Finance Director January03, 2023 Council Action Professional Service Rate Increase Legislative History: January 18, 2023 N/A Motion to accept  To: From: Date: Proceeding Type: Subject:  First Presentation: Second Presentation: Requested Action:  Staff Report Summary: City has established and maintained a working relationship with Martin Law since 2005 to represent the city's interest in the Grant County Landfill Remediation project. Discussion/Analyss: Marten Law is asking the city to approve a proposed hourly rate increase of 10%1 for 2023 and to cover any costs theyi incur on the city's behalf. Their rates are competitive for their field of expertise andi is ar necessary business response to the accelerating inflation rate. Staff Recommendation: Motion to authorize administration to accept proposed 2023 Billing  Environmentall Lawi is their expertise.  Guidelines from Marten Law.  Financial Implications: $250,000-5300,000 based ont time spent budgeted  Attachments A. B. Legal Review  Proposed 2023 Billing Guidelines  Schedule A- - Billing Policies and Terms of Engagement  The following documents are attached and subject to legal review:  Date Reviewedby Legal Counsel  Type of Document  Title of Document  Pageiof1    MARTEN LAW  December 27, 2022 Leslie Trachsler City of Ephrata 121 Alder Street S.W. Ephrata, WA 98823 trachsler@ephtataorg  Re: Request for 2023 Billing Adjustment  Dear Leslie:  Thank you for giving Marten Law the opportunity to work with you in 2022. Ia am writing to confirm the City of Ephrata'sa approval of our proposed 2023 rates, While price increases are never welcome, we hope you will appreciate that our costs have risen substantially. Inj particular, our payroll has significantly increased this past year, as yours probably did, in order to continue to attract and retain top law school talent. We succeeded at that (adding several recent graduates from law schools ranked in the top 10 nationally), but only by paying the competitive salaries that lawyers at thatl level command. We continue not to charge for telecommunication, postage, Westlaw research, copies, and related costs. However, we ask that this yeary you approve our request to pass through, at our cost, data and cloud storage costs where we incur such costs for data - such as discovery documents - specifically held for our work on your matters. We will only charge document cloud storage costs when you pre-  which are set outi in the attached table.  approve them.  Updated terms of our representation are attached as Exhibit A.  Please call me ifyou have any concerns about our proposed 2023 rates or revised billing guidelines. Ifyou are satisfied with our proposal, please indicate so by signing and returning a copy of this letter to our ChiefAdministrative Officer,  William Ashby, atl basnby@martenlawcom. Thank you.  Sincerely,  Bunhsur Bradley M. Marten  T-206.999.1808 I 1191 Second Ave, Suite 2200, Seattle, WA 98101 marteniaw.com    Leslie Trachsler December 27, 2022 Page2 Attorney at Law Direct: (206)999-1808 Email: bmartenemartenlaw.com Enclosure  The terms oft thei foregoing letter are agreed to and accepted as ofthis  day of  2022.  City of Ephrata By:  Leslie Trachsler  (00443549.DOCK/1)  4883-8134-5798, v.3    Leslie Trachsler December 27, 2022 Page3  Schedule/ A BILLING POLICIES &  TERMS & CONDITIONS OF ENGAGEMENT  Professional Fees  Our goal is to ensure that the fees we charge reflect the value we bring to your project. Hourly rates are the major determinant of our fees. Each lawyer and paralegal is assigned a billing rate that we believe is a fair reflection of his or her knowledge, skill and experience. Our attorneys' hourly rates range from $465.00 per hour for our junior associates to $975.00 per hour for our most experienced partners. We reassess our rates ati the close ofeach year, but we will not change the rates we charge you from that shown below without your consent. Staffing decisions will be made by the attorney in charge of your matter, after consultation with you, with the objective of rendering services to you on the most efficient and  cost-effective basis.  Title Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Attorney Paralegal Paralegal Paralegal  Name  2023 Rates $690.00 $465.00 $465.00 $725.00 $725.00 $725.00 $795.00 $975.00 $465.00 $650.00 $495.00 $495.00 $465.00 $975.00 $465.00 $360.00 $385.00 $325.00  Allan, Richard H. Brown, Bryce M. Carey, Isabel Q. Ferrell, Jessica K. Fite, Lawson E. Kray, Jeffrey B. Lyman, Jack B. Marten, Bradley M. Nelson, Shannon E. Odell, Stephen J. Pollack, James B. Ross, Jack L. Smith, Michael B. Uhling, Terry T. Xu, Victor Y. Baker, David K. Goodrich, Marina V. Herlihy, Erin E.  (00443549.DCK/I)  4883-8134-5798,V.3    Leslie Trachsler December 27, 2022 Page4 Time Records  To accurately establish the fair value of the services that we provide to you, each lawyer and paralegal that works on this matter will maintain, review and submit detailed time records for the work they do. Time will be accounted for in  increments of one-tenth ofa anl hour. Estimates of Fees  Estimates of legal fees are estimates only and are not an agreement to perform services for a fixed: fee. Despite our best efforts, the time necessary to complete the  legal services for this matter may exceed our best estimates.  Expenses and Costs  In the course of our representation, we will incur third-party costs and expenses on your behalf. The dollar amount of these costs will depend on the work that we do for you. We will keep these expenses to a minimum. You agree that Marten is authorized to incur those costs and expenses which Marten deems necessary to For most third-party costs, we receive vendor invoices specific to accomplishing your tasks. We do not "mark-up" vendor costs, but pass these costs through to you at the exact amount invoiced us by each vendor. As a general rule, when vendor costs aggregate $1,000.00 or less, we will pay these costs from our own funds and include them for reimbursement on your next invoice. However, we reserve the right to require that you pay providers of goods and services directly or that you deposit funds with us in advance when we estimate that these expenditures will We will strive to include all costs and expenses that were incurred on your behalf during the month on ourinvoice for that month'swork. However, should a cost not be available in our billing system ini time to be posted on the current invoice, it will Ifyous should ever have any question regarding the fairness or accuracy oft the costs and expenses reflected on your! bill orify fyou would like morein-depth detail, please let your attorney or our Finance Department know. They will work with you to ensure that the bill was indeed fair and that you are satisfied with the value which  perform the legal services for this engagement on your behalf.  exceed $1,000.00.  be included on your next invoice.  wel have provided. Data and Cloud Storage  Occasionally, during the course of representation, we may be required to utilizea a third-party vendor to electronically store large amounts of case related data on Clients' behalf. Our data storage vendors identify the size of data storage  (00443549.DOCK/1)  4883-8134-5798,V.3    Leslie Trachsler December 27, 2022 Page5  necessary for each Clients' specific matter, and charges Marten on a per Gigabyte basis. We pass through to each Client, without mark-up, the costs for the data storage specifically identified as having been held on that Clients' behalf.  Monthly Invoicing  Generally, we prepare and forward to you our billing statements during the first week following the calendar month to which they apply. Our invoices will reflect the time spent and a brief description of the services performed on your behalf. Prior to our rendering your bill, the attorney in charge of your matter will review  all time charged to it to ensure that your bill is accurate and fair.  Payment' Terms  Marten's invoices are due and payable thirty (30) days from invoice date. Interest willl be charged on amounts remaining unpaid more than ninety (90) days aftert the invoice date, at an interest rate not to exceed twelve percent (12.0%) per annum, compounded monthly. For amounts remaining unpaid more than one hundred eighty (180) days, in addition to the interest charges specified above, Marten shall be entitled to recover attorney fees and court costs incurred to collect these Use the following ACH/Wiring information to make electronic payments:  amounts.  NAME OF BANK:  The Commerce Bank of Washington 601 Union Street, Suite 3600 Seattle, WA 98101  ABA/ROUTING #: 125008013 ACCOUNT NAME: Marten Law LLP  ACCOUNT #:  003155862  Send physical checks for payment directly to the following address:  Marten Law LLP 1191 Second Avenue, Suite 2200 Seattle, Washington 98101 File Storage  Marten retains client files for seven years from the date we close the file. Once we have completed the legal work on this matter, we will notify you via letter that we are closing your file. Ifwel have gathered materials in support ofthis matter during the engagement, we will give you the opportunity at that time toi request the return of those documents. We will also pass through to each Client, without mark-up, the costs of consolidation and transportation of matter materials. If you request  (00443549.DOCK/1)  4883-8134-5798, v.3    Leslie Trachsler December 27, 2022 Page6 6  the return of the documents, Marten reserves the right to retain copies. On or shortly before the seventh anniversary of the original archive date, we will notify you via letter that, absent instructions from you requesting delivery of the materials, the firm will follow its established policy and destroy the portion of the  file that belongs toy you. Disclaimer of Guarantee  Marten makes and has made no promise or guarantees about the outcome of this  representation undertaken by Marten.  Termination  You may terminate Marten's engagement at any time and for any reason (or no reason)b by written notice. Upon receipt ofsuch notice, Marten will stop performing services on your behalf except with respect to those specific matters, if any, identified in the notice of termination or related correspondence. As to those specific matters only, Marten will continue to represent you during a reasonable transition period until new counsel is engaged and Marten is instructed to cease Upon such termination, within ten (10) days, you agree to pay Marten's outstanding fees and expenses. Outstanding fees and expenses include both billed but unpaidinvoices: and unbilled time and expenses fors services performed donyour Marten may terminate its engagement as your counsel at any time and for any reason, including but not limited to non-payment or late payment of fees, to the extent permitted by the applicable rules of professional conduct. Upon such termination of its engagement as counsel, Marten will cooperate with you in the transfer of its responsibilities to successor counsel at your direction. You agree to pay Marten's outstanding fees and expenses within thirty (30) days  work on such matters.  behalf.  ofthe effective date ofsuch termination.  Your Satisfaction  Your satisfaction with the value you receive from Marten is our top priority. Our goal is toj provide outstanding legal services to you on the most cost-efficient basis possible. If at any time you wish to discuss your relationship with Marten, our billing policies and procedures, or a specific bill, we encourage you to contact the attorney responsible for this engagement. Bradley Marten can be reached at 206- 999-1808. You may also contact our Finance Department at (206) 292-2623 for  general billing inquiries.  (00443549.DOCX/1)  4883-8134-5798,V.3    CITY OF EPHRATA STAFF REPORT  To: From: Date: Subject:  Mayor and City Council Kurt Adkinson - City Admin. Bill Sangster 1/18/2023  Proceeding Type: Council Action  Amendment #9-Contract for Engineering Services for  Well #9 site evaluation to G&O. Legislative History: January 18, 2023 N/A Council Approval of Amendment #9  First Presentation: Second Presentation: Requested Action:  Staff Report Summary: This Amendment to the G &O contract is for additional  Well #9 Site Evaluation. It will consist of the hydrogeologist Performing a video inspection and well tests to determine the cause of ongoing issues with Well #9. It will be a part of the Reservoir 6 and Pressure Zone 5 Improvements Project. This Work will determine the process to get Well #9 back to #9 to contract for Professional Engineering Services.  Discussion/Analyss:  operating at full capacity.  Staff Recommendation: Motion to Authorize Administration to execute Amendment  Financial Implications: Not to exceed $6,800  Pageiof2    Attachments A. B.  Amendment #91 to Contract for Professional Engineering Services  Legal Review  The following attached documents are subject to legal review:  Date Reviewed byLegal Counsel N/A  Type of Document  Title of Document  Page 2of2    AMENDMENT NO.9  TO  CONTRACT FOR PROFESSIONAL ENGINEERING SERVICES THIS AMENDMENT, made this day, by and between the City of Ephrata, Grant County, Washington, hereinafter referred to as the Agency, and Gray & Osborne, Inc., hereinafter referred to as the Engineer, hereby modifies the Contract for Engineering Services dated  (by Agency). July 18, 2019, for General Engineering Services.  City of Ephrata - Reservoir 6 and Zone 51 Improvements Design Services See attached Exhibits A and B for scope and fee. Forai not-to-exceed cost of  $6,800.  IN WITNESS WHEREOF, the parties hereto have executed, or cause to be executed by their duly authorized officials, this AMENDMENT to the Contract for Engineering  Services in duplicate on the respective dates indicated below.  GRAY & OSBORNE,INC.  CITY OF EPHRATA  By:  RRPBRe (Signature)  By:  (Signature)  Name: Michael B.J Johnson, P.E., President Name:  GRAY & OSBORNE, INC.  (Print)  Date:  1/4/23  Date:  "Equal Opportunty/Afimative Action Employer"  (January 4,2023)  Page lof3    EXHIBIT A SCOPE OF WORK CITY OF EPHRATA  DESIGN SERVICES FOR RESERVOIR 6 AND ZONE 5 IMPROVEMENTS Based on our understanding of the project, this Scope of work Presents professional engineering services requested by the City of Ephrata for an amendment to the design Work performed includes a site visit and initial evaluation of Well 9. Gray & Osborne will coordinate a site visit with the hydrogeologist and City stafft to visit the site and perform the initial video inspection and well testing. Additional well testing may be  services for the Reservoir 6 and Zone 5 Improvements project.  required based on results of the initial evaluation.  PROJECT BUDGET  The maximum amount payable to the Engineer for completion of work associated with this scope of work, including contingencies, salaries, overhead, direct non-salary costs, and net fee, is set forth in the attached Exhibit B. This amount will not be exceeded  without prior written authorization ofthe City.  (January 4, 2023)  Page 2of3    EXHIBIT B ENGINEERING SERVICES SCOPE AND ESTIMATED COST  CITYOFEPHRATA- RESERVOIR 6AND. ZONESIMPROVEMENIS  Project Manager Hours 4 4 $190 $760 $ 2,000 $ 70 $ 4,300 $ 430 $ 6,800  Project Engineer Hours 8 8 $155 $1,240  Tasks  Well9 Intial Evaluation Coordination Fully Burdened Billing Rate Range:* Estimated Fully Burdened Billing Rate:* Fully Burdened Labor Cost: Total Fully Burdened Labor Cost: Direct Non-Salary Cost: Subconsultant:  Hour Estimate:  $140 to $215 $125 to $160  Mileage & Expenses (Mileage @ current IRS rate) Hydrogeological - Aspect Consulting Subconsultant Overhead (10%) TOTAL ESTIMATED COST:  Actual labor cost will be based on each employee's actual rate. Estimated rates are for determining total estimated cost only. Fully burdened billing rates include direct salary cost,  (January 4,2023)  Page 3 of3    Aspect CONSULTING Client: City of Ephrata  Contract Change  Date: December 5, 2022 Contract No.: 1 Project No.: 210371  Attn: Mr. Kurt Adkinson 121 Alder Street SW Ephrata, WA 98823  Project Name: Water Right Permitting and Well Support  Ephrata, Washington  Subject: Draft Scope of Work for Well 9 Site Visit and Initial Evaluation  Description of Work  Cost Time and Materials; not to exceed basis: $4,300  Aspect Consulting, LLC (Aspect) is pleased to provide the City of Ephrata (City) with an initial evaluation oft the City's Well9. We understand the City experiences operational problems with Well9. Specifically, the discharge from Well 91 has entrained air. The City operates Well 9 at about 1,400 gpm primary during summer months to meet peak demand. The City does not track water levels in Well 9 but has had reported issues with low groundwater levels impacting the well performance in other wells. Itisnot clear ifther recent air entrainment may be related to lower water Under this scope of work, Aspect will conduct a site visit to evaluate access for collecting water levels and conducting a video scan of Well 9, attempt collection of water levels, and interview operational staff. We understand there isa % inch access port with two 90-degree turns but that one of the turns may be removed to provide better access for collection of water levels. Ideally, Aspect will collect a pumping and static water level during the site visit. We will coordinate with the City's operator to determine the optimum time following aj period of non-pumping to measure the static water level and ideally have the City's operator turn the pump on during our site visit to also collect aj pumping water level. Aspect will also interview the City's operator during our site visit about their recent observations and options for conducting a short 4-hour pumping test and a well video scan to evaluate well performance and Aspect will produce an email summary of the results of the initial site visit and interview that includes recommendations to address observations. The recommendations are likely to include options to gain downhole well access for collection of water levels with aj pressure transducer and video scan; such as,pump removal, lifting and shifting the pump, or drilling ofa new access port in the wellhead. amended above, these terms, conditions, and rates apply to this contract order.  levels or to a broken line in the pump column.  conditions.  Total Budget $4,300  This contract order incorporates the attached Terms and Conditions and Schedule of Charges. Except as  RDiRO Printed Name: Daniel R. Haller, PE  ASPECT CONSULTING, LLC ali limited libiliy company CLIENT  Principal Engineer  By:  OFFICELOCATIONS OREGON: Bendl Portiand wwwaspedconutingcom  WASHINGTON: Bainbridge Islandi Bellingham! Olympia I Seattle Wenatchee IYakima    Contract Order No. 1 Project No. 210371  Printed Name/Date:  V:1210371: 2021 City ofE Ephrata Water Right AsisansConiacsPopost acaURARAtTIAN  Page 2    Aspect Consulting, LLC Terms and Conditions  1.F RIGHT OF ENTRY AND PROPERTY RESPONSIBILITY  The Client will obtain right of entry to the property where the Services are to be performed ("Property"). The right of entry shall allow Aspect andi its subcontractors to enter the Property to perform the Services, which may require repeated visits to the Property for on-site monitoring ifi included in the description of Services, Aspect IS responsible for its own activities, but has no responsibility for the Property, for third party safety precautions, or for the safety or control oft third parties. Client recognizes special risks exist whenever professional consulting services are employed to determine subsurface water resources at a site. Client shall disclose to Aspect all known conditions, substances, or features in writing or in maps, plans or drawings. Even with adequate disclosure by Client, Client acknowledges that the use ofe exploration and testing equipment may unavoidably damage or alter the Property surface or subsurface and Client accepts this risk. Client assumes responsibility for claims and/or damages arising from changed or differing site conditions ort to subsurface structures, including buried utility lines, pipes, tanks, tunnels, or other conditions and agrees to! hold harmless, defend and indemnify Aspect and its subcontractors from any such claims and/or damages, including attorney fees, except to the extent directly caused by the negligence of Aspect ori its Client shall provide Aspect with all information available to Client concerning past and present use oft the Property and the nature and extent of any known or suspected hazardous substances or conditions, prior to Aspect performing the Services. Unless expressly stated otherwise int the Agreement, Client acknowledges that Aspect has no liability as a generator, operator, transporter, disposer, or arranger oft the transportation and/or disposal of hazardous substances from the Property. Client agrees to hold harmless, defend and indemnify Aspect andi its subcontractors from any claims and/or damages, including attorney fees, arising out of the presence, release, or threatened release of hazardous substances on or from the Property, except to the extent 4.1 Aspect may dispose of anys samples obtained from the Property 30 calendar days after the issuance of any document that includes the data obtained from the sample, unless other arrangements are mutually agreed upon in writing. Unless expressly stated otherwise int the description of Services, the disposal cost for samples is not included in any cost estimate for the Services. Client acknowledges the difficulty in determining disposal costs in advance and authorizes Aspect to bill Client for expenses 4.2 Any wellsi installed as part of Aspect's work may later need to be properly decommissioned and recorded in accordance with applicable law. Unless expressly stated otherwise in the description of Services, well decommissioning and recording are not 5.1 Data, reports ori information provided by Aspect under this Agreement shall only become the property of Client upon full payment for the Services. After full payment, Aspect shall retain joint ownership of all such information. Aspect shall retain copies of the original electronic files and/or hardcopy versions ofi information provided by Aspect or by Client. Aspect's originals shall 5.2 Alli reports prepared by Aspect under this Agreement are intended solely for the Client and apply only to the Services. Any use or reuse by Client for purposes outside oft this Agreement is att the sole risk of Client and without liability to Aspect. Aspect shall 5.3 Aspect is entitied to rely upont the completeness and accuracy of reports, documents, drawings, plans and other information 5.4 In the event Aspect is required to respond to legai process related to the Services for Client, Client agrees to reimburse Aspect its current hourly charges for personnel involved in the response and attorney fees reasonably incurred in obtaining advice concerning the response, preparation to testify, and appearances related to the legal process, travel and all reasonable expenses 5,5 Unless a different time period is stated in the. Agreement, Aspect shall retain records in accordance with Aspect's records  2. SUBSURFACE RISKS  subcontractors. 3. HAZARDOUS SUBSTANCES  directly caused by the negligence of Aspect or its subcontractors. 4. SAMPLE DISPOSAL/WELL DECOMMISSIONING  incurred in disposing of samples obtained from the Property. included int the Services to be performed by Aspect. 5.0 OWNERSHIP OF DOCUMENTS /WORK PRODUCT  govern int the event of any dispute regarding the content of electronic media furnished to others.  not be liable for anyt third parties' use of the deliverables provided by Aspect.  furnished by Client concerning the Property or the project that ist the subject of this Agreement.  associated with the litigation. retention policy.  1of2  Revision Date June, 2015    6. PAYMENT TERMS  Invoices shall be submitted to Client upon completion of the Services, or ifs Services extend beyond 30 days, on a monthly basis for the preceding months work. Billing corrections must be requested within 30 days ofi invoice date. Payment terms are net 30 days from the date ofi invoice. All overdue payments are subject to an additional interest and service charge of one and one-half percent (1.5%) (or the maximum rate permissible by law, whichever is lesser) per month or portion thereof from the due date until the date of payment. All fees will be charged or billed directly to Client. Aspect will not bill a third party without as statement, signed by thet third party, accepting payment responsibility. Int the event a third party fails to pay, Client shall remain liable for all unpaid invoices for the Services. Aspect may suspend work and/or withhold delivery of data for Services in the event Client fails to pay its invoices. Client shall be responsible for all costs and expenses of collection including reasonable attorney's fees. Aspect will perform all Services, including hydrogeology for developing ground water that may reasonably exist beneath the site, consistent with recognized standards of professionals in the same locality and involving similar conditions. Aspect makes no warranty, express ori implied, on the actual capacity or drawdown of any proposed water well(s), or the quality of ground water, if any, which may be produced by any water well(s) to be drilled and/or developed under this Agreement. ASPECT MAKES NO OTHER WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS ORI IMPLIED, IN CONNECTION WITH THE SERVICES. Nor representative of Aspect is authorized to give or make any other representation or warranty in any way, in connection with the Services. Aspect shall not bel liable for any failure or delay inp performance by Aspect resulting, in whole or in part, from any cause beyond the reasonable control of Aspect, nor shall Aspect be liable for the action ori inaction of governmental agencies, including but not limited to, the issuance or non-issuance of any water right permit, certificate, amendment and/or transfer. 8.1 Aspect maintains primary General Liability Insurance for bodily injury and property damage with a limit of$1,000,000 per occurrence and $2,000,000 aggregate. Aspect maintains Professional Liability insurance to provide coverage for liability resulting 8.2 Aspect's liability to Clientf for bodily injury or property damage covered by Aspect's General Liability Insurance policy shall be limited tot the proceeds available from the primary General Liability Insurance policy. The liability of Aspect, its manager, members, professionals, employees, and subcontractors to the Client for damages, including attorney fees, resulting from an act, error or omissioni in providing or failing to provide professional services, whether based in tort or in contract, shall be limited tot the greater of $50,000 ort the amount of compensation paid to Aspect under this Agreement, unless higher limits are agreed upon inj writing. Inr no event shall either party be liable tot the other party, for any consequential or incidental damages, including, without limitation, Suspension ort termination of all or any part oft the Services may be initiated by Client; however Client shall be responsible for all fees owed Aspect for Services performed by Aspect, including ali direct costs and all expenses incurred or committed that cannot be cancelled without penalty as well as reasonable termination expenses, prior to Aspect's reçeipt of written notice from Client. Either party may terminate this Agreement for cause in the event of the other party's substantial or material failure to perform in accordance with the terms hereof, through no fault of the terminating party. Except for termination arising out of delinquency in payment, a termination for cause shall not be effective unless: (i) not less than seven days' written notice ofi intent tot terminate has been provided; (i) the notices specifies all reasons for the termination; and (li) the notified party is given an opportunity to consult with the terminating party to discuss the termination and to cure the substantial failure before the expiration of the period specified 10.11 These Terms and Conditions, together with the Agreement, the Schedule of Charges, and any additions or revisions agreed uponi iny writing by the parties, form the entire Agreement and control over all previous communications, representations, or  7. PERFORMANCE ANDI WARRANTY LIMITATION  8. INSURANCE/LIMITATION OF LIABILITY from professional errors and omissions.  damages for loss ofi income, and/or loss of profits.  9.1 TERMINATION  int the written notice. 10. MISCELLANEOUS PROVISIONS  agreements, either verbal or written, between Client and Aspect. 10.2 Aspect may assign work included under the Agreement to subcontractors.  10.3 Client and Aspect agree to use their best efforts to resolve any disputes, claims or other matters in controversy arising under 10.4 These Terms and Conditions shall be governed by the laws of the State of Washington. The sole venue for any legal action 10.5 The unenforceabiity of any term or condition herein shall not affect the validity or enforceability of the remainder to these Terms and Conditions; the intent of the parties being the provisions are severable. The section headings of these Terms and Conditions are intended solely for convenience and do not define or affect these Terms and Conditions or their interpretation. No waiver by either party of any provision, term or condition hereof or of any obligation of the other party hereunder shall constitute a  or related tot this Agreement.  related to this Agreement shall be! King County, Washington.  waiver ofa any subsequent breach or other obligation.  2of2  Revision Dale June, 2015    SCHEDULE OF CHARGES  Aspect CONSULTING  Effective January 2022  Unless otherwise slatedi in the proposal or services agreement, current rates are as follows: PERSONNEL CHARGES: ENGINEERS, SCIENTISTS, AND ANALYSTS  Hourly Rate $290 $275 $254 $238 $238 $224 $209 $192 $178 $166 $153 $138 $128 Hourly Rate $140 $114 $105 $166 $148 $130 $132 $120 $112 $105 Hourly Rate $246 $228 $234 $207 $350/hr Federal Gov Rate Plus 15% Cost Plus 15%  Principals and Associates  inclpalscients/engineer/An0lysi2 Pincipalscienisi/Engineer/Andiysil St. Aisoclatescienis/Enis/Engineer/Andlyst Associate censvtnoneetAIdy" Seniors censengneeAroyIs Senior cenia/fngneelAdiyniz Senior centsléngneelAndyil ORCISeMVCONNONN ARCISeNcOMPOT PORCISANCOMPNCNT Staff censyngneelAnorts Staff Scentaléngnee/Anoaiz Stalfs Ssenls/éngnoerAnowail Field/Construction: Staff Fleld/Construction Supervisor Field Technician2 2 Field Technician 1 Design, CAD, and Graphics Staff Engineering Designer Sr. CAD1 Technicion/Speciolsit CAD Technician Technical Editing and Project Operations Sr. Technical Editor Technical Editor Project Coordinator: 3 Project Coordinator: 2 Project Coordinatorl Sr. Technology Project Manager lechnology Project Manager Senior Sollware/Dalobose ArChlect/Developer Sollwore/Dalabose Archilect/Deveioper Legal Testimony (4-hour minimum) Subcontractors and Miscellaneous Expenses  Technical Professionais  PERSONNEL CHARGES: TECHNICAL AND PROJECT SUPPORT STAFF  PERSONNEL CHARGES: TECHNOLOGY AND SOFTWARE DEVELOPMENT  OTHER DISBURSEMENT CHARGES  Mileage  Olher equipment, rentals, and expenses will be provided on a per job basis.  Client acknowledges that Aspect will adjust the Schedule of Charges annually, and that the Agreement will remoin valid for any and all  annually adjusted Schedule of Chorges.    CITYOF EPHRATA STAFF REPORT  To: From: Date:  Mayor and City Council Kurt Adkinson, City Administrator Bill Sangster 1/18/2023  Proceeding Type: Council Action  Subject: Nat Washington Way Overlay Project t- Consultant Agreement  Legislative History: January 18, 2023 Council Approval  First Presentation: Second Presentation: Requested Action:  Staff Report Summary: The City has received TIB funding for Nat Washington Way  Overlay Project - Phase 1. The project begins at the Railroad Tracks and A St. and goes to 3rd Ave. SE. The total project cost estimate is $625,705, with the City paying 10% matching funds ($62,571) which will come from the City's TBD Funding. Part of this funding is for the Design work and Bid  documentation for the project.  Discussion/Analysis: The Consultant Agreement needs to be accepted so the Gray  & Osbomne, Inc. can begin Design of the Project and complete Bid Documents for a call for bid in April/ May 2023. This project was funded by TIB and was accounted for in the 2023  City Budget.  Staff Recommendation: Motion to Approve the Nat Washington Way Overlay  Project Design work by Gray & Osbore, Inc.  Financial Implications: $70,000  Pageiof2    Attachments A. B. C.  Consultant Agreement  Legal Review  The following documents are attached and subject to legal review:  Date Reviewed byl Legal Counsel N/A  Type of Document  Title of Document  Page2of2    Transportation Improvement Board (TIB) (ib Consultant Agreement  TIBPROJECTI NUMBER PROJECT TITLE&WORKI DESCRIPTION Nat Washington Way Overlay AS Street SE to 2nd Avenue SE CONSULTANT NAME &ADDRESS Gray & Osbome, Inc. LUMP SUM $ R COST PLUSFIXEDFEE  PROJECTA PHASE (check one)  Design  Construction  3-E-164(007)-1  1130 Rainier Avenue South, Suite 300, Seattle, Washington 98144  AGREEMENT TYPE (check one) ENEOPOGRESPANENT RATE 186% OVERHEADCOST METHOD FIXEDFEE $8.629  Actual Cost Actual Cost! Not ToExceed FixedRate Negotialedi Hourly Rate ProvisionalHoury! Rale  42%  SPECIFIC RATES OFPAY COST PERI UNIT WORK  DBEF PARTICIPATION Yes COMPLETIONDATE  WBE PARTICIPATION Yes MAXIMUMAMOUNT PAYABLE  No December 31, 2024  No $70,000  %  THIS AGREEMENT, made and entered into this.  day of December 2022 between the Cily of Ephrata, Washington, hereinafter called the  AGENCY, andt thea above organization! hereinafter çalled the CONSULTANT. Thel Transportation Improvement! Board! hereinafter called the TIB, administers the following WHEREAS, the AGENCY desirest toa accomplisht thea abover referencedp project, witht the aidofTIBi funds inc conformance witht ther rules andi regulations promuigaledbyt the WHEREAS, the AGENCY does not have sufficient staff to meett ther required commitment andt therefore deems itadvisable and desirable toengage the assistance ofa WHEREAS, the CONSULTANT represenis that he/shei isino compliance with the Washington State Statutes relating top professional registration, ifapplicable, and has NOW THEREFORE, in consideration oft the terms, conditions, covenants and performance contained herein, or attached andi incorporated: andi made aj part hereof, the Thev work under this AGREEMENT shall consisto ofthe above describedy work and The Scope ofv Work andj projecti level lofe effortiorl lhisp project is detailedi in ExhibitB services ast herein defined and necessary toa accomplish the completed work for alttachedi hereto, andby this reference madea aj part oft this AGREEMENT.  accounts: Transportation Improvement Account funds, SmallCiy Account funds, and City HardshipA Assistance Account funds.  WITNESSETHTHAT: TIB; and  CONSULTANT toprovidet ther necessary services fort the PROJECT; and signifieday willingnesst tofurnish Consulling services tothe AGENCY,  parties hereto agree ask follows:  I SCOPE OF WORK  GENERAL DESCRIPTION OF WORK  this PROJECT. The CONSULTANT shall furnish all services, labor and related equipmentr necessary toconduct and complelet thev work as designaledeisewhere  int this AGREEMENT  TIB Form 190-016 Revised Oct 2001  Page1of17    Transportation Improvement Board (TIB) Consultant Agreement  II GENERAL REQUIREMENTS  Allreimbursable diredt labor, overhead, directi non salary costs and fixed fee costs for the subconsullant shall be substantiated in the same manner as outlined in this AGREEMENT withoutp tprior written permissionofthe AGENCY. Nop permission  Allaspects ofc coordinationoft thew work ofthis AGREEMENT, witho outsidea agencies, Section V. Als subcontracts exceeding $10,000 in cost shall contain alla applicable TheCONSULTANT shala attendo coordination, progress andp presentationr meelings for subcontracting shall creale, between the AGENCY and subcontractor, any required shall be agreed to belween the AGENCY and the CONSULTANT and The CONSULTANT warrants that helshe has not employed or retained any shown in Exhibit Ba attached hereto and made part of this AGREEMENT. The company or person, other than a bona fide employee working solely for the CONSULTANT: shallprepareamonhly progressr report, inaforma approvedt byt the CONSULTANT, tosolicitors securet this contract, and thati ithas nol paidor agreed AGENCY, thatwilloutinel inwrittena andg graphicalf formthev variousp phases andt the topaya any company orp person, other than abona fidee employee workings solelyk for order of performance ofthe worki insufficiento details sothattheprogresso ofthev work the CONSULTANT, any fee, commission, percentage, brokerage fee, gift, ora any can easily be evaluated. Goals for Disadvantaged Business Enterprises (DBE). other consideration, contingent upon or resulting from thea awardorr makingoft this Minorily Business Enterprises (MBE), and Women-owned Business Enterprises contract. For breachory violation of thisv warrant, the AGENCY: shall have ther right The original copies of all reports, PS&E, and other data furnished to the fee, commission, percentage, brokerage fee, gift or contingent fee. specifications, documents, and other work products prepared by the Any and all employees oft the CONSULTANT or other persons while engaged in CONSULTANT prior to completion or termination of this AGREEMENT are thep performance of any workors services required oft the CONSULTANT under this instruments ofs servicef fort thel PROJECT anda arep properly of the AGENCY. Reuse AGREEMENT, shall! bec considerede employees ofthe CONSULTANT only andnot by the AGENCY or by others actingt through or on behalf oft the AGENCY ofa any ofthe AGENCY, anda any andallclaims thatr may or mighta arise under any Worker's such instruments ofs service, not occurring as ap part of this PROJECT, shall be Compensation Act on behalf of said employees or other persons while so  groups ori individuals shall receive advance approval byt theA AGENCY. Necessary provisions ofu this AGREEMENT. contacts andi meelings with agencies, groups or individuals shall be coordinated The CONSULTANT shall subcontract with the AGENCY or such Federal, Community, State, City or County officials, contractor any other relationship.  throught the AGENCY.  not  fort the performance of any work under  groups or individuais as may ber requested by the AGENCY. The AGENCY wil provide the CONSULTANT sufficient notice prior to meetings requiring CONSULTANT participation. The minimum number of hours or days notice  VII EMPLOYMENT  (WBE)if frequireds shal be shown int theh headingo oft this Agreement. CONSULTANT by the AGENCY shall be relumed. AIl designs, drawings,  to annul this AGREEMENT without liability, ori inits discretion, toc deduct fromt the AGREEMENT price ord consideration or otherwise recover the fulla amount ofsuch  without! liability of legale exposuret toll the CONSULTANT.  engaged, and any anda all claims made bya at third party asac consequence of any act or omission on the part oft the CONSULTANTS employees or other persons while S0 engagedo ona any ofthev work ors services provided tob ber rendered herein, shall bet thes sole obligation andi responsibility of the CONSULTANT. or have been, atany time during the period of the contract, int thee employ oflhe STATE, or the AGENCY, except regularly retired employees, without writen  IV  TIME FORI BEGINNING AND COMPLETION  TheCONSULTANT shalnotb begina anyy work undert thet terms ofthis AGREEMENT The CONSULTANT shall  at  untila authorizedi inwriting! byt theA AGENCY. Allwork undert this AGREEMENT shall attributable to the CONSULTANT, butr may bee extended by the AGENCY, inthe event ofa delay attributable tot the AGENCY, or because oft unavoidable delays caused bya ana acto ofGOD or governmental actions or other conditions beyond! the AGENCY isrequired toextend thee established completion time.  not engage, on full or part time basis, or other basis,  be completed by the date shown in the heading of this AGREEMENT under duringt the period oft thec contract, any professionalort technicalpersonnel who are,  completion date.  The established completion time shall not be extended because of any delays consentofn the publice employer ofs suchp person.  VII NONDISCRIMINATION  control of the CONSULTANT. A prior supplemental agreement issued by the The CONSULTANT agrees not to discriminate against any client, employee or The CONSULTANT shall be paid by the AGENCY for completed work and terminations, rates of pay or other forms of compensation, selection for training, services rendered under this AGREEMENT as provided in Exhibit C attached renditionofservices. The CONSULTANT understands and agreest thati ifitviolates hereto, andb byt thisr reference madey partofthis AGREEMENT. Such payments shall this provision, this AGREEMENT may be terminated! by the AGENCY and further be full compensation for work perlormed or services rendered and for alll labor, that the CONSULTANT shall be barred from performing any services for the materials, supplies, equipment, andi incidentals necessary toc complete the work AGENCY now or in the future unless a showing is made satislactory to the  applicant fore employment orf for services because ofr race, creed, color, national origin, marital status, sex, age or handicap except for a bona fide occupational qualifications with regardto, butnotlimited tothef following: employment upgrading, demotion or transfer, recruitment or any recruitment advertising, layffs or  V PAYMENT  specifiedi ins Sectionl I, Scope ofV Work.  AGENCY that discriminatory practices have terminated and that recurrence of During the performance oft this AGREEMENT, the CONSULTANT, fori itself, its assignees, ands successors ininterest agrees as follows: with the Regulations relative ton nondiscrimination int thes same manner asin Federally- assisted programs of lhe Department of Transportation, Title 49, Code ofFederal Regulations, Part21, as they may be amendedf from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference andr made a partoft this AGREEMENT.  such actionisu unfikely.  VI SUBCONTRACTING  TheA AGENCY permits subcontracis fort thosei items ofwork ass showni in ExhibitG the cost factors shown on Exhibit G, attached hereto and byt this reference made The work oft the subconsultant: shall not exceed its maximum amount payable unless aprior writtena approval hasi beeni issued by theA AGENCY.  tot this Agreement Compensalion fort this subconsultant work shall be based on A. COMPLIANCE WITH REGULATIONS: The CONSULTANT shall comply  apartoft this AGREEMENT.  TIB Form 190-016 Revised Oct 2001  Page20f17    Transportation Improvement Board (TIB) Consultant Agreement  B. NONDISCRMINATION: The CONSULTANT, with. regard to the work performed byi it during the AGREEMENT, shall not discriminate on the and retention ofs subconsultants, including procurements ofr materials and programs setf forthi in Appendixlloft the Regulations. SOLICITATIONS FOR SUBCONSULTANTS, INCLUDING shall ber notified by the CONSULTANT oft the CONSULTANTS obligations  IX  TERMINATION OF AGREEMENT  grounds of race, creed, color, sex, age, marital slalus, national origin or Ther righti is reserved by the AGENCY to terminatet this AGREEMENT time leases of equipment. The CONSULTANT shall notp participate either directly Int the event this AGREEMENT ist terminated by the AGENCY other than for fault or indirectly in the discrimination prohibited by Section 21.5 of the on the part of the CONSULTANT, a final payment shall be made to the Regulations, including employment practices when the contract covers a CONSULTANT ass showni inExhibitFfort thet typeofA AGREEMENT used. PROCUREMENTSOF MATERIALS, AND EQUIPMENT: Ina all solicitations byt the CONSULTANT oft the! Nolice of Termination. lfthe accumulated payment either byo competitive biddingo or negotiation made byt the CONSULTANTI for amount that would be due computed as set forth herein above, then no final work to be perfored under a subcontract, including procurements of payment shall be due and the CONSULTANT shall immediately reimburse under this AGREEMENT and the Regulations relative to nondiscrimination Int thee eventt the: servicesofthe CONSULTANT aret terminatedby! the AGENCYfor ont theg grounds ofrace, creed, color, sex, age, maritals status, national origin fault ont the part of the CONSULTANT, the above formula for INFORMATION AND REPORTS: The CONSULTANT shall provide all AGENCY with consideration given to the actual costs incurred by the information and reports required by the Regulations, or directives issued CONSULTANT in perlorming the work to the date of termination, the amount of pursuant thereto, ands shall permit access toit its books, records, accounts, work originally required which was salisfaçtorily completedt to date of termination, other sources ofi information, andi its facilities as may bec determinedb byt the whether thaty worki isina aformo oratypey whichisu usablet tot the AGENCY atthet time AGENCY or TI8 to be pertinent to ascertain compliance with such oft terination; the costt tot the AGENCY ofe employinga another firmt toc complete the Regulations or directives. Where any information required of the workrequired: andt thet timev which maybe required todos so, andother factorsv which CONSULTANTISIn! thee exclusivep possessionofanotherv whof faisorrefuses affect thev value tot the AGENCY oft the work performed att the time of termination. to furnish this information the CONSULTANT shall so certify to the Under no circumstances shall payment made under this subsection exceed the AGENCY,or thel TIB as appropriate, and shall setf forthy whate efforts ithas amount which would have been made using the formulas setf forth int the previous SACTOBFORHONCAPUNCE Int thee eventoft theCONSULTANTS Ifitis determinedf fora any reason thatt the CONSULTANT was notindefaultort that the AGENCY shall impose such sanctions as or the Transportation convenience of the AGENCY in accordance with the 1 Withholding of payments to the CONSULTANT under the Int thee evento oft the death ofa any member. partner or officer of the CONSULTANT 2, Cancellation, terminationors PedPACREBENGNNA involvede employee. thes survivingr members oft the CONSULTANT hereby principally agreet to INCORPORATIONOFI PROVISIONS: The CONSULTANT shallinclude the the AGENCY. The subsection shall not be a bar to renegotiation of the provisions of paragraphs (A) through (G) in every subcontract, including AGREEMENT between the surviving members of the ÇONSULTANT and the Regulations or directivesi issuedp pursuant! thereto. The CONSULTANT shall Int the event of the death of any of the parties listed int the take such action with respect toa any subconsultant or procurement ast the should the surviving members of the CONSULTANT, with previous the paragraph, AGENCYS AGENCY ort thel Transportation Improvement Board may directa asameans concurrence, desire to terminale this AGREEMENT, payment shall be made as of enforcing such provisions including sanctions for noncomplance; setf forthi inthes second paragrapho ofthiss section. orist threatened with, litigationy witha a subconsullantor: supplier asa aresult of Inthee eventt this AGREEMENT isterminated prior tocompletion, such direction. the CONSULTANT may request the AGENCY toenteri into ofalln reports and other dala, PS&E materials furnished to the theoriginalcopies suchl litigation top protectt thei interests oft the AGENCY, and in addition, the the AGENCY and documents prepared by the CONSULTANT CONSULTANTby prior to said CONSULTANT may requestt thel TIB toe enter into such Iitigation top protect termination, shall become and remain the property of the AGENCY and may be UNFAIR EMPLOYMENT PRACTICES: The CONSULTANT shall comply PROJECT, shall bev without! liability or legale exposure tot the CONSULTANT. with RCW 49.60.1 180 prohibiting unfair employment practices and the Payment for any part oft the work byt the AGENCY shall not constitute a Executive Orders numbered E.0.70-01 and E.0.66-03 of lhe Governor of the AGENCY of any remedies of any typei itmay have the ÇONSULTANT waiver by  handicap except for al bona fide occupational qualification in the selection upon ten days written notice tot the CONSULTANT.  atany  Nop payments shall ber made fora any work completed after ten days made to the CONSULTANT prior to Nolice of Termination exceeds the tolal  followingr receipt  materials ork leases ofe equipment, each potential subconsultant ors supplier AGENCYfor: any excess paid.  the shall not  andh handicap.  apply. In such an event, the amount to be paid shall be determined payment by the  made tooblaint thei information, noncompliancer limitedto:  paragraph.  the CONSULTANTS failure to perform is without it or its  fault of this provision  with ther nondiscrimination; provisions oft this AGREEMENT, negligence, the termination shall be deemed to be a termination employees for the or  improvement Board may determine to be appropriale, including, but not AGREEMENT.  AGREEMENT until theCONSULTANT complies, andlor  or any ofits supervisory personnel assigned tot the project, or, dissolution oft the partnership. termination olher corporation, or disaffiliation of the complete the work under thet terms oft this AGREEMENT, ifrequested1 todosoby  orinpart.  AGENCY,ithe AGENCY so chooses.  procurements ofr malerials and leases of equipment, unless exempt by the provided. however, that, int thee eventaCONSULTANT: becomes involved in,  thei inlerests ofthel TIB. the Stale ofWashington.  used byi itwithoutr restriction. Such unrestricted use, noto occurring asap partolt this for any breach of this AGREEMENT by the CONSULTANT, againstt or for failure oft the CONSULTANT toperformwork required ofitby lhe AGENCY. Forbearanceofany rights under the AGREEMENT will not constitute waiver ofe entillement toe exercise those rightsy withr respect toa any future actor omission by the CONSULTANT.  TIB Form 190-016 Revised Oct2 2001  Page3of17    Transportation Improvement Board( (TIB) Consultant Agreement  X CHANGES OF WORK  Unless otherwise specified in the AGREEMENT, the AGENCY shall be  The CONSULTANT shall makes such changes andr revisionsi in the complete work responsible for administration of construction contracts, if any, on the project of this AGREEMENT as necessary to correct errors appearing therein, when Subject to the processing of an acceptable, supplemental agreement, the required to do so by the AGENCY, without additional compensation thereof. CONSULTANT shall provide on-call assistance tot the AGENCY during contract Should the AGENCY find it desirable for its own purposes to have previously administration. By providings sucha assistance, theCONSULTANT: shall assumeno satislactorily completed work or parts thereof changed or revised, the responsibility for: proper construction techniques, job site safely, or any CONSULTANT: shallr makes suchr revisions aso directed by theA AGENCY. Thisv work consiucioncontradors failureto perform Itsworki ina accordancer with the contract  shall be considered as Extra Work and will be paidf for as herein provided under documents. Any dispute conceming questions off factin connection witht thev work not disposed RCW48. ofby AGREEMENT between the CONSULTANT and the AGENCY shall be relerredf for determination lot the Direclor of Public Works or AGENCY Engineer, Insurance Coverage AGREEMENT, provided however, that ifa an action is brought challenging the STATE. Director of Public Works or AGENCY Engineer's decision, that decision shall be subjecttothes scope ofj judicialr review providedi under Washington Case! Law.  Section) XIV.  XI DISPUTES  The CONSULTANT shall obtain and keep in force during the terms of the AGREEMENT, or as otherwise required, thet following insurance with companies ort through sources approved by the Slate Insurance Commissioner pursuant to  whose decision int the matter shall be final and binding on the parties of this A. Worker's compensation and employer's liability insurance as required by the  B. General commerciall liability insurance in an amount notl less thana singlei limit ofoner million ando 100/1000 Dollars ($1,000,000.00)1 fort bodiyi injury, includingo death  VENUE, APPLICABLELAW/AND XII PERSONAL. JURISDICTION  andp property damage per occurrence.  In the event that either party deems it necessary to institute legal action or Excepting the Worker's Compensalion insurance and any prolessional liability proceedings toenforcea anyr rightord obligationu under this AGREEMENT, thep parties insurance secured by the CONSULTANT, the AGENCY wil be named on all hereto agree that any such action shali bei initiatedi in the Superior Court oft the cerlficates ofi insurance asa ana additionali insured. The CONSULTANT shallf fumish Statec of Washington, situatedi int the county! the AGENCY is locatedi in. Thep parties the AGENCY with verification ofi insurance and endorsements required by this heretoa agree thata all questions shalle ber resolved by application ofv Washington law AGREEMENT. The AGENÇY reserves the right to require complete, certified and that the parties to such action shall have the right of appeal from such copies of allr requiredi insurance policies ata anyt time. Washington. The CONSULTANT hereby consents tot the personalj jurisdiction of Alli insurance shall be oblained from an insurance company authorized to do the Superior Courtoft the State ofWashington, situatedi inthec county theA AGENCY business in the State of Washington. The CONSULTANT shall submit a The CONSULTANT shall comply with all Federal, State, and local laws and The CONSULTANT'S professional tothe AGENCY shall be limited AGREEMENT shall be interpreted and construed in accord with the laws of amount payable under this AGREEMENT or one milion dollars, whichever is the The CONSULTANT shall indemnify and hold the AGENCY and the STATE of The AGENCY wil pay no progress Washington, and their officers and employees harmless from and shall process CONSULTANT hasf fully complied with this payments section. This andd defenda atitso owne expense aliclaims, demands, or suits atk law ore equitya arising and the AGENCY and the STATE may take such other remedyis action asi exclusive; inv whole or inp partf from the CONSULTANTS negligence or breach ofa any ofit its them under other provisions ofthis AGREEMENT, or otherwise inlaw. is available to employees and provided further thatit ifthe claims or suits are caused by or result A. The AGENCY may ata any time, by written order, make changes within the indemnityp provisiony withr respectto()caims or suitst based upons suchi neglgence, B. Ifany such change causes ani increaseor decrease inthee estimated costof,  decisions of the Superior court in accordance with the laws of the State of  islocatedin.  verfication ofi insurance as outlineda above within 14 days oft the executionoft this AGREEMENT tot the AGENCY. No cancellation ofthef foregoing policies shall be effectivev withoutt thirty (30) days prior notice tothe AGENCY. greater unless modified by Exhibit H. In no case shall the CONSULTANT'S prolessionall liabilityt lothirdp parties bel limitedi in any way.  XII  LEGAL RELATIONS ANDI INSURANCE  ordinances applicable to the work to be done under this AGREEMENT. This  liabilily  tot the  Washinglon.  under Section until the not V  obligations under this AGREEMENT; provided thatr nothing! herein shall requirea CONSULTANT toi indemnify the AGENCY and the STATE against and hold harmless theA AGENCY andhesTATEfromdaims. demandsors suits basedsolely upon the conduct of the AGENCY and the STATE, their agents, oficers and from the concurrent negligence of(a)t the CONSULTANT'S agents or employees and (b) the AGENCY and the STATE. their agents, officers and employees, this (2) thec costs tot theA AGENCY andt the STATE ofd defending such claims ands suits, etc. shall be valid and enforceable only tot the extent of the CONSULTANT's negligence ort ther negligence ofthe CONSULTANT's: agents ore employees. The CONSULTANT's relation lo the AGENCY shall be at all limes as an The CONSULTANT specifically assumes potential labiliy for actions brought by the CONSULTANT'S own employees against the AGENCY and. solely for the purpose of this indemnification and defense, the CONSULTANT speciliçally waives anyi immunity under the statei industriali insurancel law. Title5 51 RCW. The CONSULTANT recognizes that this waiver was specilficaly enteredi inlop pursuant tothep provisions of RCW 4.24.115 andv was thes subjecto of mutual negoliation.  XIV EXTRA WORK  generais scope ofthe AGREEMENT inthe: services tobep performed. or the time required for, performance of any part of the work under this AGREEMENT, whether or not changed by the order, or otherwise affects any other tems and conditions oft the AGREEMENT, the AGENCY shall make an equitable adjustment in the (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affecled terms and The CONSULTANT must submit any proposal for adjustment (hereafter relerred to as proposal) under this clause within 30 days from the date of receipto oft thev written order. However, ifthe AGENCY decidest that thef facis justify i, the AGENCY may receive and act upon a proposal submitted  independent contractor.  shall modify the AGREEMENT accordingly.  before final paymentoft theA AGREEMENT.  TIB Form 190-016 Revised Oct2 2001  Page4o/17    Transportation Improvement Board(TIB) Consultant Agreement  D, Failuret to agree to any adjustment shall be a dispute under the dispules clause. Howeverr nothingir inthis clauses shallexcuset the CONSULTANT1 from proceeding with theA AGREEMENT as changed. ther maximum amountp payablef fort this AGREEMENT, shall noth bei increased Agency. ord considered tobei increased except bys specificv written supplement tot this  XVIE CERTIFICATION OF THE CONSULTANT AND THE AGENCY  Notwithstanding the terms and condition of paragraphs (a) and (b) above, Attached hereto as Exhibit A-1, are the Certifications of the Consultant and the  XVIII COMPLETEAGREEMENT  AGREEMENT:  XV ENDORSEMENT OF PLANS XVI TIBANDAGENCYREVEW.  This document and referenced altachments contains all covenants, stipulations and provisions agreed upon by the parties. No agent, or representative ofe either any slatement, representation, promise or agreement not set forth herein. No changes, amendments, or modifications ofthe terms hereofs shall bey valid unless reduced to writing and signed by the parties as an amendment lo this This AGREEMENT may! bes simultaneously executedi in severalcountepars, each ofv which shall be deemed to be an original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements, representations, warranties, covenants, and agreements contained in the proposal, and the supporting materials submitted by the CONSULTANT, and does hereby accept theA AGREEMENT and agrees to alloft thet terms and conditions thereof.  The CONSULTANT shall place his endorsement on all plans, estimates or any party has authority tor make, and the parties shall notbe bound! by ort be1 liable for,  other engineerings data fumishedt by him. examination oft theworkinprogress.  AGREEMENT.  The AGENCY and TIB shall have the right to participate in the review or  XIX EXECUTION. AND ACCEPTANCE  Inw witness whereoft the parties heretol havee executedt this AGREEMENT: as ofthe day andy year first above written.  MROBRA - Michael B. Johnson, P.E., President  By  By Cilyof  Consultant Gray&Osbome. Inc.  Ephrata  TIB Form 190-016 Revised Oct2 2001  Page50f17    Transportation Improvement Board (TIB) Consultant Agreement  EXHIBIT A-1 Certification of Consultant Cilyof Ephrata  Project No. 3-E-164(007)-1  lhereby certify that! am Michael B. Johnson, P.E. a duly authorized representative of the firm of Gray & Osborne, Inc. whose address is 1130 Rainier Avenue South, Suite 300, Seattle, Washington 98144 andt that neitherl nor the above firm here represent has: (a) Employed or retained for a commission, percentage, brokerage, contingent fee or other consideration, any firm or person (other thana a bonai fidee employee working solely for me ort the above CONSULTANT) to solicit or securet this contract. (b) Agreed, as ane express ori implied conditionf for obtaining this contract, to employ or retain thes services ofafi firm or person inc connectionv with (c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above CONSULTANT): any fee, contribution, donationo or consideration ofa any kind for, ori inconnection with procuring or carrying out the contract; lfurther certify thatt thet firml hereby representi is authorizedt to dol businessint the State ofWashington and thatt thet firm isinf full compliance with lacknowledge that this certificate is to be available tot the Transportation improvement Board (TIB), in connection with this contract involving  carrying out the contract.  except asl here expressly stated (fa any): requirements ofthe Boardo of Professional Registration.  participation ofl TIBI funds andi is subjectt to applicable State and Federal laws, both criminal and civil.  12/23/22 Dale  MRORER  Signalue  Certification of Agency Official  Ihereby certify thatl lam the AGENCY Officiah of the City of Ephrata, Washington and that the above consulling firm or his/her representative has not been required, directly or indirectly as ane express ori implied conditioni in connection with oblaining or carrying out this contract to: (b) Payo or agreet top payt toa anyf firm, persond or organization, any fee, contribution, donation or consideration ofa anyl kind, except asl here expressly lacknowledgel that this certificatei ist tol be available tot the TIB, inc connection with this contract involving participation of TIB funds and is subject  (a) Employ orr retain, or agree to employ or retain, any firm orp person, or  stated (ifa any).  toa applicable Slate and Federal laws, both criminal and civil.  Date  Signature  TIB Form 190-016 Revised Oct2001  Page60l17    Transportation Improvement Board (TIB) Consultant Agreement  EXHIBIT B-1 Scope of Work  Projed No. 3-E-164(007)-1 Describet the Scope of Work Introduction  The City ofE Ephrata, withf financial assistance (grant) fromt the Washington State Transportation improvement Board (TIB), desires to improve Nat Washington Way, from A Street SE toDS Street SE. Thei improvements willi include planingt thee existing roadway, completing subgrade repair (digouts) where needed, replacing 9non-compliant curb ramps with ADA compliant ramps, overlaying with 2-inches ofHot Mix Asphalt (HMA) over the existing roadway, restripingt the paveds surfaces tot their current configuration, andr raisinge existing catch! basins andu utility covers/ids tot ther new surface. The proposed depth ofH HMAI replacement willl bel based on similar projects completed for the City, anda allowable! limitsf for TIB. No separate geotechnical analysis oft the site will be completed. The approximate project limits are  outlined! below:  SEGMENT1 PROJECT LOCATION  2NDAVESE  3RDAVES  BRDAVESE  Unless otherwise directed and approvedI by the City and the TI8, thep project will be designedi lin conformance with the TIB grant Stommwater: Assumes noi improvements will be made tot the stormwater collection system. Itis anticipated that existing stormwater Cultural Resource Survey: Thisp projecti isf funded with TIBI Preservation funds. Perap programmatic agreement with DAHP, this project does noti require additional reviewi for compliance with Executive Order 21-02. As such, services to complete this have not beeni included int this scope ofv work. Shouldi it be determined that this work is necessary ity will be considered ane extra cost and a supplement tot this Roadway Geometry: Itis anticipated that the exisling roadway geometry will not be altered. Curb ramps within the project vicinity will be  applications (FY 2024 projects). This scope ofv worki includes the following assumptions:  facilities will only be adjusted tot ther new roadway grades.  agreement will ber required for that work.  evalualed for ADA compliance andi improvedif necessary.  TIB Form 190-016 Revised Oct2 2001  Page7of17    Transportation Improvement Board (TIB) Consultant Agreement  Permits: Itis anticipated thata SEPA checklist will not ber required as part oft this project. Itis anticipated that an! Ecology Construction Stormwater Erosivity Waiver willl be required. Itis anticipated that WSDOT approval oft the proposed design will not be required. The Topographic survey: Itis assumed that al limited topographic survey of the project site will be completed. Itis assumed thatt the footprint oft thei improvements will lie entirely withint the existing roadway and curb ramps andy will not require right of way acquisition,  scope oft this agreement includes completion oft thei identified required permits.  Task1-Project! Management A.  Provide overall project management services including: Project staff management, Implementation of quality control program, and Management of project! budget ands schedule.  1. 2. 3.  Task2-Community and Agency Coordination  A.  Participate at two project meetings with Citys stafft tor review projed, project concerns, status of deliverables, budget, Conduct twoi in-house quality assurance/quality control (QA/QC) meetings duringt the course of thep project. The meetings will take place at approximately 60 and 90p percent completion status. The meetings willi include review by qualified senior staff members, key design team members, and Agency staff (as desired), and' TIBS staff (as Incorporate pertinent recommendations. ands suggestions into bid/construction documents regarding QAIQC  critical pathi items, any new project concerns, etc, during the course of the project.  Task3-Quality Assurance/Quality Control Meetings  A.  desired). reviews.  B. A.  Task 4- Project Funding Agency Coordination  TheE Engineer shall coordinatei theiry work (as applicable) as authorized by the City with the City's funding agency (TIB) and assist the Cityi inp preparing projectf forms, on-line reimbursement requests, and other required paperwork. Establishy vertical and horizontal (right-of-way) control for survey and mapping within project corridor. Acquire records of survey, platr maps, assessor maps, etc., as required for establishing right-of-way. Identify right- Acquire limited topographical survey of site (within and adjacent top project corridor) toi include referencing surface grades, utility markings, pavement edges, curb and gutter, sidewalk, sidewalk curb ramps, driveways, utility structures, incuding utility poles, hydrants, valves, sanitary, and storm facilities, and water facilities in sufficient Acquire off-sites survey at properties abutting project corridor, intersecting streets, and all driveways tot facilitate incorporation ofi ingresslegress corridors into design and ins sufficient details toi identify impacts and provide adequate mitigation to adjacent properties. Extend topography tol back of curb/sidewalk, where determined to! be necessary byt the Engineer. Note: This work assumes right of access will be granted by property owners for this Incorporate all electronic files (produced by survey) and create ab base map of the project corridor, adjacent parcel  Task 5- Right-of-Way: and1 Topographical Survey  A. B. C.  of-way (centerline ande edges).  detail tos support design of thep project.  D.  work ifneeded.  E.  lines, ande existing utilities ofrecord and/or surveyed utilities.  TIB Form 190-016 Revised Oct 2001  Page8of17    Transportation Improvement Board (TIB) Consultant Agreement  Task 6-F Preliminary Design A. B.  Prepare preliminary plans (50 percent design level)i in City approved format. The Plans will utilize Washington State Department of Transportation (WSDOT) and City design standards, as applicable. Prepare specifications in City-approvedi format, to alsoi include proposal, contract, bonds, andi insurance documentslequirements and related documentation. The Specifications will be prepared with reference to the WSDOT: 2023 Standard Specifications for Road, Bidge, and Municipal Construction and City designs standards, as Prepare preliminary plans, drawings, special details, etc., of all motorized and non-motorized facilities induding roadi improvements, sidewalk curb ramps, road striping, minor restoration, and related facilities at 90 perçent level ofo design, andi in City-approved format toinclude updated Engineer's construction cost estimate(s). Submit (wo copies) of plan sets and specifications (including updated cost estimates) to Cityf for review and comment at 90p percent. Incorporate applicable City comments. Format of plans sets shall be similar to other transportation and TIB funded products the Engineer has prepared for the City andi modeled after the 2023 Standard Specifications. Identify areas on adjacent private property where temporary construction permits need to be acquired tot facilitate construction. Thist mayi include small, parallel, and adjacent strips of land or driveway areas needed tobe Prepare generic temporary construction permits for City distribution and acquisition as may be required.  applicable.  C.  Task7-Temporary Construction: and Right-of-Way Documentation  A. B.  reconstructed and incorporated into project documents.  Note: Right-of-way acquisition is not anticipated nori includedi in this scope of work. Ifs suchi is required, itwill be negotiated as an extra.  Task 8- Final Design Plans and Specifications  A. B. C.  Prepare ands submitf final (100%) project plans, specifications, and cost estimates toi include evaluation andlor incorporation of all previous and pertinent City, andlor funding agency review comments. Submit final plans, specifications, engineer's cost estimate (construction), and TIBI Bid Authorization form to the City and TIB and solicit authorization tol bid the project from both the City and TIB. Prepare anda assist Cityi in submitting Department ofE Ecology-required Construction Stormwater Erosivity Waiver (include generic copyi in Specifications regarding transfer of coverage from City to Contractor).  Task9-E Bid and Award Services  A. B. C. D. E. F.  Prepare bid advertisement and distribute to up tot two newspapers (Daily Journal of Commerce as well as City's Prepare andj post electronic bid documents (PDF format) to Gray & Osborne's Bid Document Distribution System Answer bidi inquiries during bid phase, toi include providing written clarification asr may be required.  newspaper of record). Our fees do not include cost of publication of advertisements.  website. Maintain bidders list.  Prepare and distribute any bida addenda as required.  Attend bid opening, review bids tendered, check references ofr responsible, qualified low bidder, prepare and distribute bids summary, and prepare and transmit Engineer's' "Letter of Recommendation for Award."  Prepare TIB Bid Award UCE. Coordinate with Cily and TIB.  TIB Form 190-016 Revised Oct2001  Page90f17    Transportation Improvement Board (TIB) Consultant Agreement  Construction Engineering Services  Thel Engineer shall provide Construction Engineering Services asr may be further desired by the City and at the City's option. Ifthe City elects to exercise this option, the Engineer shall prepare a scope and fee for this additional work for the City'sreview and approval. Since the extent oft this work cannot be reasonably determined alt this time, ity will be prepared att the completion of the design phase as acontract supplement. Thel Engineer will alsol be entitled to subcontract workt to ac qualified firm as further approved by the City.  Services Specifically Not Included:  A. B. C. D. E.  Any work associated with rectifying discrepancies inr rights-of-way. record surveys, andp plat maps. etc. Any work associated with right-of-way acquisition, including: appraisals, appraisal reviews, fair cost estimates of market value of properties, Project Funding Estimates (PFE), legal descriptions, deeds, schematicexhibits,  negotiations, and conveyance documents.  Anys survey work associated withs staking of right-of-way and/or property lines. Any work associated with the preparation and filing ofe easements and'or record surveys. Any costs associated with the actual purchase ofreale estate. F. Any work associated with Cultural Resource Sludes/Assessments.  Documents tob beFurnished! byt the Consullant  One electronic copy oft the Project Specifications and Constructioni DrawingsinF Portable Document Format (PDF).  One Set of Project Specifications (hard copy) One Set ofH Half Size Construction Drawings (hard copy, 11'x17)  TIB Form 190-016 Revised Oct 2001  Page 100f17    Transportation Improvement Board(TIB) Consultant Agreement  EXHIBIT C-2 Payment (Cost Plus Fixed Fee)  The CONSULTANT: shalll be paidb byt the AGENCY for completed work and services rendered undert this AGREEMENT as provided hereinafter. Such payment shall bei full compensation for all work performed or services rendered and for all labor, materials, equipment, andi incidentals  necessaryt to complete the work specifiedi in Section I,' "Scope of Work"  A. Actual Costs  Payment for all consulting servicest fort thisp project shall be ont the! basis oft the CONSULTANTS actual cost plusa af fixedi fee. The actual cost The direct salary costi ist the directs salary paidt top principals, professional, technical, ando clerical personnel for the time they are productively engaged Overheadcosts: aret thosec costs othert thand direct costsy whicha arei includeda as such onthebooks ofthe CONSULTANTI inthenormale everyday keeping ofits books. Progress payments shall ber made att the rate showni inthel heading oft this AGREEMENT, under' "Overhead Progress Payment Rale." Total overheadp payment shall bet based ont ther methods showni int thet headingo of the AGREEMENT. Thet three options are explained asf follows: a. Actual Cost: Ifthis methodi isi indicatedi int thel heading oft the AGREEMENT, the AGENCY agrees tor reimburse the CONSULTANT the actual overhead costs verifiedbya audit, upt tor maximum amount payable, authonzed under this AGREEMENT, when accumulated with all other actual Actual Cost Not7 ToExceed Maximum Percent: Ifthisi methodi isi indicatedint thel headingo of this AGREEMENT, theA AGENCY agreest to reimburse the CONSULTANT att the actual overhead rate verified by audit up tot ther maximum percentage showni int thes space provided. Final overhead payment when accumulated with all olher actual costs shall not exceed the total maximum amount payable shown int the heading of this FixedRate: Ifthis methodisi indicatedi linthel heading oft the/ AGREEMENT, the AGENCY agrees tor reimburse the CONSULTANT for overhead AmaydrecosuIwisest estimate andt the overhead computation are attached hereto as Exhibits Da andE andb byt this referencemade part ofthis AGREEMENT. When anactual cost overheadi rated or actual costi nott to exceed overheadr ratei is used, the: actual loverheadrate detemmined alt the end ofe each fiscal years shall beu used for the computation ofp progress payments during the following year and for retroactively adjusling the The CONSULTANT shall adviset the AGENCY ass soon as possible oft the actual overhead rale fore eachi fiscaly year ando of the actual rate incurredt to the dale ofo completion oft the work. The AGENCY andlor TIB may perfor an audit oft the CONSULTANTS books and records at any time during Direct nonsalary costs will ber reimbursed att the actual cost tothe CONSULTANT applicable lot this contract. These charges mayi include, but arenot limitedt tot thef followingi items: travel, printing. long distancet telephone, supplies, computer charges, and fees of subconsullants. Air or train travel will only ber reimbursedt to economy class! levels unless otherwise approved byt the AGENCY. Thel billing for nonsalary cost, directlyi identifiable with the Project, shall be ani iemized listing oft the charges supported by original bils or legible copies of invoices, expense accounts, and miscellaneous supporting dalar retainedb byt the CONSULTANT. Copies ofthe original supporting documents shall be provided tot the AGENCY uponr request.. Allof Thef fixedi fee, which represents the CONSULTANTS profit, iss showni in thel heading oft this AGREEMENT under Fixed Fee. Thisf feei ist based ont the scoped ofwok definedi inthis AGREEMENT andthee estimatedi man- -months required top perfom thes stated scopec of work. Inthe eventa asupplemental agreement is entered intot for additional work by the CONSULTANT, thes supplemental agreement mayi include provision for the added costs and appropriale additional fee. Thefixedi fee will bep prorated and paid monthlyi inproportiont tot the percentage ofv work completed by the CONSULTANT  shalli include directs salary cost, overhead, and directr nonsalary cost. inwork necessaryt tofulfilt thet tems oft this AGREEMENT.  Direct Salary Costs Overhead Costs  costs. AGREEMENT.  atthe percentage rates shown. This rate shall not change duringt thel lifeoft the AGREEMENT.  previous year's overhead cost toreflectt the actual rate.  regular business hours to determine the actual overheadr rate, iftheys SOC desire.  3. Direct! Nonsalary Cost  the above charges must ber necessaryf fors services tobep providedunder this AGREEMENT.  Fixed Fee  andi reported inthe monthly progress reports accompanying thei invoices.  TIB Form 190-016 Revised Oct2 2001  Page 110f17    Transportation Improvement Board (TIB) Consultant Agreement  Any portion oft the fixedi fee eamed by nol previously paidi int the progress paymenls will be cover int thet final payment, subject to the provisions of The maximum total amount payable, by the AGENCY tot the CONSULTANT under this AGREEMENT, shall not exceed the amount shown in the heading oft this AGREEMENT as maximum amount payable, which includes the Fixed Fee, unless asupplemental agreement has been negotiated  Section IX, TeminalondlAgeement Maximum1 Total Amount Payable  ande executedbyt theAGENCY priort toi incurring any costs ine excess ofti the maximum amount payable.  B. Monthly Progress Payments  The CONSULTANT may submiti invoices totheA AGENCY for reimbursement ofa actual costs plust the calculatedo loverhead andfeer notr more often than once per month duringt thep progress ofthev work. Suchinvoices shall beinaformat: approvedb byt the AGENCY anda accompanied byt the monthly progressr reports requiredu under Sectionl H, General Requirements, oft the AGREEMENT. Thei invoices will bes supported byi itemized isting: and support document fore each  itemi induding directs salary, direct nonsalary, anda allowable overhead costs tov whichy will be addedt thep proratedFixedFee.  C. Final Payment  Final Payment of any balance due the CONSULTANT oft the gross amount eamedy will be made promptly uponi its verification byt the AGENCY after the completion oft the work undert this AGREEMENT, contingent upon receipt of AlIPS&E, plans, maps, notes, reports, and other related documents whicha are requiredt tob bei furnished under this AGREEMENT. Acceptance ofs such finai payment byt the CONSULTANT shall constitute a release of all claims of any nalure which the CONSULTANT may have against the AGENCY unless such claims are specifically reservedi in writing and transmitted to the AGENCY byt the CONSULTANT prior toits acceplance. Said final payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY may pursuey with respect los such claims that the AGENCY may have against the CONSULTANTOrIo  any remedies the/ AGENCY may pursuey with respectt tos sucho claims.  D. Inspection of Cost Records  The CONSULTANT andi his subconsultants shall keep available fori inspection by representatives of the AGENCY andlor TIB, fora period of three years after final payment, the cost records and accounts pertaining tot this AGREEMENT. Ifa any litigation, claim, or audit arising out of, in connection with, or relatedi tot this contracti isi initiated beforet the expiration of the three- -year period, thec cost records and accounts shall be retained until: such litigation, claim,  ora auditi involvingt ther recordsi is compleled.  TIB Form 190-016 RevisedOct2001  Page 120f17    Transportation Improvement Board (TIB) Consultant Agreement  EXHIBIT D-1  Consultant Fee Determination Summary Sheet (Lump Sum, Cost Plus Fixed Fee, Cost per Unit of Work)  Preparedby Project  Date December 22, 2022  Michael Meskimen, P.E, Gray & Osborne, Inc. Nat Washington Way Overlay  Direct Salary Cost (DSC)  Classification Principal-n-Charge Project Manager CivilE Engineer AutoCAD/GIS Tech/Engineering: Intern Professional Land Surveyor Survey Crew (2Person)  Man Hours 6 60 160 160 18 50  Rate $46t0$70 $42to$70 $35to$46 $18t0$49 $38to$57 $55t0$88  Cost $360 $2,880 $6,400 $6,720 $936 $3,250 $20,546 $38,216 $8,629 $2,609 $0 $70,000  x x x X x x  = = = = = = TOTALDSC  OVERHEAD (OH Costi including Salary Additives)  OHI RatexDSC or 186%x$20,546 FFRatexDSC or 42%x$20,546  FIXEDF FEE (FF) REIMBURSABLES SUBCONSULTANT COST GRANDTOTAL  Misc. Expenses, including mileage, per diem (room and! board), Reproduction, etc.  TIB Form 190-016 RevisedOct2001  Page 130f17    Transportation Improvement Board (TIB) Consultant Agreement  EXHIBIT D-2 (Specific Rates of Pay) FEE SCHEDULE Hourly Rate $18-$49 $36-$65 $34-$63 $25-$50 $30-$51 $35-$46 $38-$52 $42-$70 $46-$70 $37-$55 $30-$52 $55-$88 $91-$120 $38-$57 NIA  Consultant Fee Determination Summary Sheet  Discipline or. Job7 Title  Overhead 186%  Profit 42%  Rate PerHour  AutoCAD/GIS Tech.Engineering: Intern Electrical Engineer Structural Engineer Environmental Tech.Specialist Engineerin-fraining: Civil Engineer Project Engineer Project Manager Principa-in-Charge Resident Engineer Field Inspector Field Survey Crew (2 Person) Field Survey Crew (3 Person) Professional Land Surveyor Secretary/Word Processor*  $33.48-$91.14 $7.56-$20.58 $59.04-$160.72 $66.96-$120.90 $15.12-$27.30 $118.08-$213.20 $63.24-$117.18 $14.28-$26.46 $111.52-5206.64 $52.08-$93.00 $11.76-$21.00 $91.84-$164.00 $55.80-$94.86 $12.60-$21.42 $98.40-S167.28 $65.10-$85.56 $14.70-$19.32 $114.80-5150.88 $70.68-$96.72 $15.96-$21.84 $124.64-5170.56 $78.12-$130.20 $17.64-$29.40 $137.76-$229.60 $85.56-$130.20 $19.32-$29.40 $150.88-5229.60 $68.82-$102.30 $15.54-$23.10 $121.36-$180.40 $55.80-$96.72 $12.60-$21.84 $98.40-$170.56 $102.30-5163.68 $23.10-$36.96 $180,40-$288.64 $169.26-5223.20 $38.22-$50.40 $298.48-$393.60 $70.68-$106.02 $15.96-$23.94 $124.64-$186.96  NIA  NIA  NIA  Secretarial and clerical fees arer notb billed. buta arei includedi in thec overheadr mulliplier listed. Thes samei is truef fora accounting, bookkeeping. postage, in-house printing upto Alla actual out-of-pockete expensesi incurred directly ont thep projecta are added lot thet biling. Thel billingi isb based on direct out- -of-pockete expenses; meals, lodging, laboratory  $150, word processing. computer use. computer aided drafting. and! lelephone andf fax costs.  testing and transportation. Thet transportation ratei is $0.58 perr mile or thec currentr maximum IRS rate withoutr receipti IRS Section 162la).  TIB Form 190-016 Revised Oct2 2001  Page 140f17    Transportation Improvement Board(TIB) Consultant Agreement  EXHIBIT E-1 Breakdown of Overhead Cost GRAY & OSBORNE  COMPUTATION OF OVERHEAD MULTIPLIER  Federal, State, and Local Taxes Insurance and Medical. Professional Development and Education. Sick Leave, Vacations and Holidays. Administration (Typing, CADD, GIS, Computer)** Rent, Utilities, and Depreciation.. Office Expenses, Support and Maintenance. Travel.. Retirement and Incentive Program.. Facilities Cost of Capital TOTAL:  21.2% 23.0% .0.6% 14.2% 37.2% 19.0% 5.1% 2.0% 63.4% 0.3% 186.0%  "*Administration expenses includes secretarial and clerical work; GIS, CADD, and computer equipment; owned survey equipment and lools (stakes, hubs, lath, etc. Nole: mileage billed separalely atr rate noted): miscellaneous administration! lasks; facsimiles; telephone; postage;  and printing costs, which are less than$150.  TIB Form 190-016 Revised Oct2 2001  Page 150f17    Transportation Improvement Board( (TIB) Consultant Agreement  EXHIBIT F-1  Payment Upon Termination of Agreement by the Agency Other than for Fault of the Consultant  (Refer to Agreement, Section IX)  Lump Sum Contracts  Afinal payment shall be made tot the CONSULTANT which when added to any payments previously made shall total thes same percentage of the Lump Sum Amount as the work completed at the time of termination ist to the total work requiredi for the PROJECT. Ina addition, the CONSULTANT shall be paid fora any authorized extra work  completed.  Cost Plus Fixed Fee Contracts  Afi final payment shalll be made tot the CONSULTANT whichy when addedt toa any payments previously made, shall total the actual costs plus thes same perçentage of thei fixedi fee as the work completed at the time of termination ist to thet total work required for the PROJECT. In addition, the CONSULTANT shall be paid for any authorized  extra work completed.  Specific Rates of Pay Contracts  A final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this AGREEMENT plus and direct nonsalary costs incurred at thet time of termination of this AGREEMENT.  Cost Per Unit of Work Contracts oft this AGREEMENT.  Af final payment shalll ber made tot the CONSULTANT for actual units of work completed at thei time oft termination  TIB Form 190-016 Revised Oct2 2001  Page 160f17    Transportation Improvement Board (TIB) Consultant Agreement  EXHIBIT G-1 Subcontracted Work  The AGENCY permits subcontracts for thet following portions oft the work of this AGREEMENT:  None.  TIB Form 190-016 Revised Oct2 2001  Page 170f17