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HomeMy WebLinkAbout2000-035 Water & Sewer Junior Lien Revenue Bonds CITY OF YAKIMA, WASHINGTON WATER AND SEWER JUNIOR LIEN REVENUE BONDS (AHTANUM) AN ORDINANCE of the City of Yakima, Washington, authorizing the issuance and sale of Water and Sewer Junior Lien Revenue Bonds of the City in the aggregate principal amount of not to exceed $2,500,000, to pay the costs of financing capital improvements to the City water and sewerage system and costs of issuance; fixing the form and terms of such bonds; and approving the Sewer Construction and Bond Purchase Agreement. • PASSED ON September 5, 2000 Prepared by: PRESTON GATES & ELLIS LLP 701 Fifth Avenue, Suite 5000 Seattle, Washington 98104 -7078 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS Section 1.1. Definitions 2 ARTICLE II FINDINGS Section 2.1. Approval of Plan and System • 7 ARTICLE III ISSUANCE OF BONDS Section 3.1. Issuance of the Bonds 7 Section 3.2. Registration, Exchange and Payments 8 Section 3.3. Execution and Authentication of Bonds 10 Section 3.4. Lost or Destroyed Bonds 11 Section 3.5. Form of Bonds 11 ARTICLE IV REDEMPTION OF BONDS Section 4.1. Optional and Mandatory Redemption Prior to Maturity 11 Section 4.2. Notice of Redemption 12 Section 4.3. Effect of Redemption 12 ARTICLE V FUNDS AND ACCOUNTS, DEFEASANCE Section 5.1. Revenue Fund; Priority of Payments 13 Section 5.2. Bond Fund 14 Section 5.3. Security and Source of Payment of Bonds 17 ARTICLE VI PARTICULAR COVENANTS OF THE CITY Section 6.1. Rate Covenant 18 Section 6.2. Maintenance and Operation 19 Section 6.3. Liens or Encumbrances 19 Section 6.4. Insurance 19 Section 6.5. Books and Accounts 20 Section 6.6. Tax Covenant; Priority of Lien 20 Section 6.7. Pledge Effected by Ordinance 21 ARTICLE VII MISCELLANEOUS Section 7.1. Undertaking to Provide Ongoing Disclosure 22 Section 7.2. Sewer Construction and Bond Purchase Agreement 22 Section 7.3. Deposit of Bond Proceeds 22 Section 7.4. Severability 22 - 1 - P:1NMN \NMN1IJ 00/09/19 Section 7.5. General Authorization 23 Section 7.6. Prior Acts 23 Section 7.7. Effective Date 23 Appendix A Form of Bonds Appendix B Description of Project 11 - P: \NMN \NMN1IJ 00/09/19 ORDINANCE NO. 2000 - 35 AN ORDINANCE of the City of Yakima, Washington, authorizing the issuance and sale of Water and Sewer Junior Lien Revenue Bonds of the City in the aggregate principal amount of not to exceed $2,500,000, to pay the costs of financing capital improvements to the water and sewerage system and costs of issuance; fixing the form and tennis of such bonds; and approving the Sewer Construction and Bond Purchase Agreement. WHEREAS, the City of Yakima, Washington (the "City ") now owns, operates and maintains a water supply and distribution system and a sewerage collection and disposal system, which water and sewerage systems have been combined for purposes of financing in the manner provided by law; and WHEREAS, it is in the best interest of the City to undertake improvements to the City's water and sewerage system; and WHEREAS, the City has issued its Water and Sewer Revenue Bonds, 1968 Series B (the "First Lien Bonds ") and its Water and Sewer Revenue Bonds, 1991 (the "1991 Bonds "), its State Revolving Fund Loan, 1992 (the "1992 Loan"), its Water and Sewer Revenue Bonds, 1996 (the "1996 Bonds ") and its Water and Sewer Revenue and Refunding Bonds, 1998 (the "1998 Bonds ") and has outstanding certain obligations to the Public Works Trust Fund of the State of Washington; and WHEREAS, in order to provide the funds necessary to finance improvements to the water and sewerage system, it is deemed necessary and advisable that the City issue its Water and Sewer Junior Lien Revenue Bonds (Ahtanum) in the aggregate principal amount of not to exceed $2,500,000; NOW, THEREFORE, BE IT ORDAINED BY the City of Yakima, Washington, as • follows: C: \word\ wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 1 of 23 ARTICLE I DEFINITIONS Section 1.1. Definitions. As used in this ordinance: "Additional Bonds" means any revenue bonds, revenue warrants or other revenue obligations which may be issued in the future on a parity of lien with the Second Lien Parity Bonds. "Adjusted for inflation" means annual adjustment of the rates at which the Trunkage and Direct Connection Obligations are calculated by multiplication of the rate in effect for the immediately preceding year by a factor equal to ninety percent (90 %) of the averaged percents of change during the preceding year in the following indexes: (i) the U.S. Cities Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI -W); and (ii) the Seattle Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI -W). Such adjustments shall be made once annually. "Agreement" means the Sewer Construction and Bond Purchase Agreement between the City and Apple Tree Partnership approved in Section 7.2 of this Ordinance. "Ahtanum Account" means the Ahtanum Revenue Account in the Revenue Fund created in Section 5.1 hereof. "Ahtanum Connection Charges" means the revenue received by the City specifically in payment of Connection Charges for facilities on real property in the Ahtanum Sub - Basin, except that Base Collection Pipes Charge revenue (calculated pursuant to YMC 7.58.070, as amended, or updated from time to time) shall be included only for facilities that connect directly to Project Pipe. "Ahtanum Sub - Basin" means that area designated "Ahtanum Sub - Basin" on the map attached to the Agreement as Exhibit 2(d), and incorporated by reference. C: \word\ wastewater \apple tree \8- 00\rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 2 of 23 "Bonds" means the City of Yakima Water and Sewer Junior Lien Revenue Bonds (Ahtanum) in the aggregate principal amount of not to exceed $2,500,000 authorized by this Ordinance. "Bond Fund" means the 2000 Junior Lien Revenue Bond Fund ( Ahtanum) created by this Ordinance. "Bond Owners" means the registered owners of any Bond or Bonds. "Bond Registrar" means the Director of Finance and Budget of the City of Yakima, for the purposes of registering and authenticating the Bonds, maintaining the Bond Register, effecting transfer of ownership of the Bonds and paying interest on and principal of the Bonds. "City" means the City of Yakima, Washington, a municipal corporation duly organized and,existing under and by virtue of the laws of the State of Washington. "Code" means the Internal Revenue Code of 1986, as amended, as the same may be amended from time to time, and the regulations promulgated thereunder. "Connection Charges" means specifically the Base Treatment Plant Charge (calculated pursuant to YMC 7.58.050, as amended or updated from time to time), the Base Trunks/Interceptors Charge (calculated pursuant to YMC 7.58.060 as amended or updated from time to time), and /or the Base Collection Pipes Charge (calculated pursuant to YMC 7.58.070, as amended or updated form time to time), imposed upon the owner of any facility for connection of the facility to the City wastewater system, and not including other charges which may be required by other sections of the Yakima Municipal Code or other laws. "Costs of Maintenance and Operation" means all normal operating expenses, current maintenance expenses, expenses of reasonable upkeep and repairs, insurance and administrative expenses and reasonable pro -rata budget charges for services provided to the System by City C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 3 of 23 departments, but excluding depreciation, payments for debt service or into reserve accounts, costs of capital additions to or replacements of the System, municipal taxes, or payments to the City in lieu of taxes. "Council" means the legislative body of the City as the same shall be duly and regularly constituted from time to time. "Direct Connection Obligation" means an amount calculated at an initial rate of 38 cents ($0.38) per square foot applied to the area of the parcel of real property underlying the facility, which shall become payable to the Bond Fund (solely out of Ahtanum Connection Charges) on the next quarterly interest payment date after a facility on real property in the Ahtanum Sub - Basin outside Apple Tree Development pays the YMC 7.58.070 Base Collection Pipes Charge to connect directly to Project Pipe while the Bonds are outstanding. The initial rate shall be in effect until June 30, 2001, and shall then and annually thereafter be adjusted for inflation. In the event Ahtanum Connection Charges are not sufficient to satisfy this obligation when it first becomes payable into the Bond Fund, the exact amount of any shortfall shall be carried forward as Direct Connection Obligation and shall remain payable into the Bond Fund until it is, if ever, satisfied by Ahtanum Connection Charges received by the City in excess of Trunkage or Direct Connection Obligations while the Bonds are outstanding. "First Lien Bonds" means the following Outstanding bonds: Authorizing Series or Issues Date of Issue Ordinance Water and Sewer Revenue December 1, 1968 1071 Bonds, 1968 Series B "Gross Revenues" means all earnings, revenue, monies, and general facilities charges including but not limited to connection charges, received by the City from or on account of the C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc BOND ORDINANCE Last printed 09/19/00 10:30 AM Page 4 of 23 • operations of the System from any source whatsoever. Gross Revenues include Ahtanum Connection Charges. "Net Revenues" means the Gross Revenues of the System less the Costs of Maintenance and Operation. "1991 Bonds" means the City of Yakima Second Lien Water and Sewer Revenue Bonds, 1991, issued pursuant to Ordinance No. 3380. "1992 Loan" means the City of Yakima State Revolving Fund Loan, 1992, issued pursuant to Ordinance No. 3454. "1996 Bonds" means the City of Yakima Second Lien Water and Sewer Revenue Refunding Bonds, 1996, issued pursuant to Ordinance No. 96 -40. "1998 Bonds" means the City of Yakima Second Lien Water and Sewer Revenue and Refunding Bonds, 1998, issued pursuant to Ordinance No. 98 -31. "Outstanding" means, in connection with any revenue bonds, as of the time in question, all bonds issued except bonds theretofore paid and cancelled or if, having matured or been called for redemption, payment has been provided therefor, or bonds which have been defeased in accordance with their authorizing ordinance and state law. "Permitted Investments" means any legal investments for funds of the City. "Professional Utility Consultant" means the independent person(s) or firm(s) selected by the City having a favorable reputation for skill and experience with facilities of comparable size and character to the System in such of the following as are relevant to the purposes for which they are retained: (a) engineering and operations, and (b) the design of rates. "Project" means the improvements to the System described in Appendix B attached hereto. C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 Alvt BOND ORDINANCE Page 5 of 23 "Project Costs" means all costs expended or incurred by the City in connection with the planning, design, financing, construction, inspection, construction contract(s), and administration of the Project, including, but not limited to engineering and survey fees. "Project Pipe" means the Ahtanum Trunk Line and /or the 10" sewer line constructed along South 86`'' Avenue pursuant to the Agreement. "Revenue Fund" means the Water and Sewer Operating Funds of the City heretofore established. "Second Lien Parity Bonds" means any Outstanding revenue bonds, revenue warrants or other revenue obligations issued by the City which have a lien upon the Gross Revenues of the System to pay and secure the payment of the principal thereof and interest thereon equal to the lien created upon the Gross Revenues of the System to pay and secure payment of the principal of and interest on the 1998 Bonds. "Second Lien Parity Bonds" includes the 1991 Bonds, the 1992 Loan, the 1996 Bonds, the 1998 Bonds and any Additional Bonds. "Senior Lien Bonds" means any First Lien Bonds, any Second Lien Parity Bonds, all obligations to any state or federal agency including, but not limited to obligations to the Public Works Trust Fund and the State Revolving Fund and any other revenue bonds or obligations heretofore or hereafter issued with a lien on Gross Revenues junior to the Second Lien Parity Bonds but superior to the Bonds. "System" means the combined water and sewerage system of the City as it now exists, and as it may be later added to, extended and improved for as long as any First Lien Bonds, any Second Lien Parity Bonds or any Bonds remain Outstanding. "Trunkage Obligation" means an amount calculated at an initial rate of 24 cents ($0.24) per square foot applied to the area of the parcel of real property underlying the facility, which C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 6 of 23 shall become payable to the Bond Fund (solely out of Ahtanum Connection Charges) on the next quarterly interest payment date after a facility on real property in the Ahtanum Sub -Basin outside Apple Tree Development pays the YMC 7.58.060 Base Trunk/Interceptors Charge while the Bonds are outstanding. The initial rate shall be in effect until June 30, 2001, and shall then and annually thereafter be adjusted for inflation. In the event Ahtanum Connection Charges are not sufficient to satisfy this obligation when it first becomes payable into the Bond Fund, the exact amount of any shortfall shall be carried forward as Trunkage Obligation and shall remain payable into the Bond Fund until it is, if ever, satisfied by Ahtanum Connection Charges received by the City in excess of Trunkage or Direct Connection Obligations while the Bonds are outstanding. "YMC" means the City of Yakima Municipal Code, as amended. ARTICLE II FINDINGS Section 2.1. Approval of Plan and System. The public interest and necessity require that the City finance certain improvements to its water and sewerage system described in Appendix B (the "Project "). The City hereby adopts such Project as a plan and system. The estimated cost of the Project is $2,500,000. ARTICLE III ISSUANCE OF BONDS Section 3.1. Issuance of the Bonds. The City shall issue the Bonds in the aggregate principal amount of not to exceed $2,500,000 for the purpose of providing the funds necessary to finance the Project and to pay the expenses incidental to the issuance of the Bonds. The Bonds shall be designated the "City of Yakima Water and Sewer Junior Lien Revenue Bonds (Ahtanum), shall be in fully registered form, shall be in the denomination of $100,000 and integral multiples of $500 in excess thereof, shall be dated as of the date of delivery to the initial C: \word \wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10 :30 AM BOND ORDINANCE Page 7 of 23 purchaser, bear interest at the rate of 6% per annum payable on each March 1, June 1, September 1, and December 1, beginning on March 1, 2001, and be payable as to principal on June 1, 2041. The final principal amount of the Bonds shall hereafter be fixed by resolution of the Council following receipt of bids for construction of the Project. The adoption of such resolution shall be a condition precedent to any and all obligations of the City arising under this Ordinance, or under the Agreement. Section 3.2. Registration, Exchange and Payments. (a) Registrar /Bond Register. The City Director of Finance and Budget shall act as registrar, authenticating agent, paying agent and transfer agent (the "Bond Registrar "). The Bond Registrar shall keep, or cause to be kept, at its principal office, sufficient records for the registration and transfer of the Bonds (the "Bond Register "). The Bond Registrar is authorized, on behalf of the City, to authenticate and deliver Bonds transferred or exchanged in accordance'with the provisions of such Bonds and this Ordinance and to carry out all of the Bond Registrar's powers and duties under this Ordinance. (b) Registered Ownership. The City and the Bond Registrar may deem and treat the Registered Owner of each Bond as the absolute owner for all purposes, and neither the City nor the Bond Registrar shall be affected by any notice to the contrary. Payment of any such Bond shall be made only as described in Section 3.2(f) hereof, but such registration may be transferred as herein provided. All such payments made as described in Section 3.2(f) shall be valid and shall satisfy the liability of the City upon such Bond to the extent of the amount or amounts so paid. C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 8 of 23 (c) Registration. The Bonds shall be registered initially in the name of Apple Tree Partnership, initially with a single Bond. Registered ownership of such Bonds, or any portions thereof, may not thereafter be transferred without the consent of the City. (d) Transfer or Exchange of Registered Ownership; Change in Denominations. The registered ownership of any Bond may be transferred or exchanged, with the written consent of the City, but no transfer of any Bond shall be valid unless it is surrendered to the Bond Registrar with the assignment form appearing on such Bond duly executed by the Registered Owner or such Registered Owner's duly authorized agent in a manner satisfactory to the Bond Registrar. Upon such surrender, the Bond Registrar shall cancel the surrendered Bond and shall authenticate and deliver, without charge to the Registered Owner or transferee, a new Bond (or Bonds at the option of the new Registered Owner) for the same aggregate principal amount in any authorized denomination, naming as Registered Owner the person or persons listed as the assignee on the assignment form appearing on the surrendered Bond, in exchange for such surrendered and canceled Bond. Any Bond may be surrendered to the Bond Registrar and exchanged, without charge, for an equal aggregate principal amount of Bonds in any authorized denomination. The Bond Registrar shall not be obligated to transfer or exchange any Bond during a period beginning at the opening of business on the 15th day of the month next preceding any interest payment date and ending at the close of business on such interest payment date, or, in the case of any proposed redemption of the Bonds, after the mailing of notice of the call of such Bonds for redemption. (e) Registration Covenant. The City covenants that, until all Bonds have been surrendered and canceled, it will maintain a system for recording the ownership of each Bond that complies with the provisions of Section 149(a) of the Code. C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 9 of 23 (0 Place and Medium of Payment. Both principal of and interest on the Bonds shall be payable in lawful money of the United States of America. For so long as all Bonds are in fully registered fotiu, payments of principal and interest shall be made at the office of the Bond Registrar in Yakima, Washington. As more fully provided in Article V, interest on the Bonds shall be paid by check or draft mailed to the Registered Owners at the addresses for such Registered Owners appearing on the Bond Register on the 15th day of the month preceding the interest payment date, and principal of the Bonds shall be payable upon presentation and surrender of such Bonds by the Registered Owners at the principal office of the Bond Registrar; provided, however, that if so requested in writing by the Registered Owner, interest will be paid by wire transfer on the date due to an account with a bank located within the United States. Section 3.3. Execution and Authentication of Bonds. The Bonds shall be signed on behalf of the City with the manual or facsimile signature of the Mayor, shall be attested by the manual or facsimile signature of the City Clerk and shall have the corporate seal of the City impressed or a facsimile thereof imprinted thereon. Only such Bonds as shall bear thereon a Certificate of Authentication in the form hereinbefore recited and manually executed by the Bond Registrar shall be valid or obligatory for any purpose or entitled to the benefits of this ordinance. Such Certificate of Authentication shall be conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and delivered hereunder and are entitled to the benefits of this ordinance. In case either of the officers who shall have executed the Bonds shall cease to be such officer or officers of the City before the Bonds so signed shall have been authenticated or delivered by the Bond Registrar, or issued by the City, such Bonds may nevertheless be authenticated, delivered and issued and upon such authentication, delivery and issuance, shall be C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 10 of 23 as binding upon the City as though those who signed the same had continued to be such officers of the City. Any Bond may also be signed and attested on behalf of the City by such persons as at the actual date of execution of such Bond shall be the proper officers of the City although at the original date of such Bond any such person shall not have been such officer of the City. Section 3.4. Lost or Destroyed Bonds. In case any of the Bonds shall be lost, stolen or destroyed, the Bond Registrar may authenticate and deliver a new bond or bonds of like amount, date, tenor and effect to the Registered Owner or nominee thereof upon payment to the City for the expenses and charges in connection therewith and upon his or her filing with the Bond Registrar evidence satisfactory to said Bond Registrar that such Bond or Bonds were actually lost, stolen or destroyed and of his ownership thereof, and upon furnishing the City with indemnity satisfactory to them both. Section 3.5. Form of Bonds. The Bonds shall be substantially in the form of Appendix A hereto. ARTICLE IV REDEMPTION OF BONDS Section 4.1. Optional and Mandatory Redemption Prior to Maturity. The Bonds may be subject to optional or mandatory redemption in advance of their scheduled maturities as follows: (a) Optional Redemption. The Bonds shall be subject to redemption prior to their stated maturity at the option of the City, in whole or in part at any time (bonds redeemed to be selected by the City by lot), at 100% of the principal amount thereof plus accrued interest, if any, to the date of redemption. (b) Mandatory Redemption. Subject to the provisions of Sections 5.1, 5.2 and 5.3 hereof, the Bonds shall be redeemed prior to maturity by lot (or paid at maturity) from such C: \word \wastewater \apple tree \8- 00\rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 11 of 23 sources of payment and at such times as are set forth in this paragraph. On each interest payment date, if there shall be on hand in the Bond Fund sufficient monies to pay the interest due on the Bonds on such interest payment date, plus a sum of $500 or more, such sum in excess of the interest payable on that date shall be applied to call and redeem Bonds at par plus accrued interest to the date of redemption. Such redemption shall be made within 30 days if all Bonds are held by the Apple Tree Partnership, or within 60 days if any Bonds are held by any other person. Section 4.2. Notice of Redemption. Written notice of any optional redemption of Bonds shall be given by the Bond Registrar on behalf of the City by first class mail, postage prepaid, not less than 5 days before the redemption date to the Registered Owners of Bonds that are to be redeemed at their last addresses shown on the Bond Register. Advance written notice of mandatory redemption is not required. The requirements of this section shall be deemed complied with when notice is mailed, whether or not it is actually received by the owner. Each notice of redemption shall contain the following information: (1) the redemption date, (2) if less than all outstanding Bonds are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the Bonds to be redeemed, (3) that on the redemption date the redemption price will become due and payable upon each Bond or portion called for redemption, and that interest shall cease to accrue from the redemption date, (4) that the Bonds are to be surrendered for payment at the principal office of the Bond Registrar, (5) the date of the notice and (6) any other information needed to identify the Bonds being redeemed. Section 4.3. Effect of Redemption. From the redemption date, interest on each Bond to be redeemed shall cease to accrue. C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 12 of 23 ARTICLE V FUNDS AND ACCOUNTS; DEFEASANCE Section 5.1. Revenue Fund; Priority of Payments. The City hereby obligates and binds itself to set aside and pay into the Water and Sewer Operating Funds (the "Revenue Fund ") as collected the Gross Revenues of the System (which include the Ahtanum Connection Charges). The Gross Revenues of the System shall be held in the Revenue Fund separate and apart from all other funds and accounts of the City and used only for the following purposes and in the following order of priority: First, to pay the Costs of Maintenance and Operation of the System; Second, to make all required payments into the First Lien Revenue Bond Fund; Third, to pay the interest on the Second Lien Parity Bonds; Fourth, to pay the principal of and any sinking fund payments for the Second Lien Parity Bonds; Fifth, to make all payments required to be made into the reserve account created to secure the payment of the Second Lien Parity Bonds; Sixth, to make all payments of interest or principal on any Senior Lien Bonds not provided for above in this section; Seventh, to make, solely out of Ahtanum Connection Charges, all payments required to be made into the Bond Fund; and Eighth, to retire by redemption or purchase in the open market any outstanding revenue bonds or obligations of the City, to make necessary additions, improvements and repairs to or extensions and replacements of the System, or for any other lawful City purposes. The Ahtanum Revenue Account is hereby created as a special account in the Sewer Operating Fund. Until the maturity of the Bonds, that part of the Gross Revenues consisting of C: \word\ wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 13 of 23 Ahtanum Connection Charges shall be deposited in the Ahtanum Account but shall otherwise be subject to all provisions of this Ordinance. Nothing contained in this Section 5.1 shall be construed to require the deposit into the Revenue Fund of any of the revenues, income, receipts or other monies of the City derived through the ownership or operation of any separate utility system hereafter created or established from funds other than the proceeds of Senior Lien Bonds or Bonds. Section 5.2. Bond Fund. (a) There is hereby created a special fund of the City designated the Junior Lien Revenue Bond Fund, (Ahtanum)(the "Bond Fund ") which shall be used solely for the purpose of paying the principal and interest on the Bonds, and of retiring the Bonds prior to maturity in the manner herein provided. The City shall have no obligation to make any payment into the Bond Fund from any source other than the Ahtanum Connection Charges. If there are insufficient funds available at any time to pay the principal of or interest on the Bonds when, by the terms of such Bonds, it becomes due, the City's obligation to pay such principal or interest shall not come into effect until, and then only to the extent, a deposit is made into the Bond Fund. Such a deposit shall be applied first to pay unpaid interest and then applied to redeem Bonds. Amounts payable into the Bond Fund shall be determined quarterly. During the month prior to each interest payment date, the City shall pay into the Bond Fund, solely from and solely to the extent of Ahtanum Connection Charges collected by the City, an amount equal to the aggregate of the Trunkage Obligation and the Direct Connection Obligation then existing. After each such quarterly determination and payment into the Bond Fund, any Ahtanum Connection Charges remaining on hand in the Ahtanum Account may be held in the Sewer C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 14 of 23 Operating Fund of the City and may be expended for general water and sewer system purposes. If on any later interest payment date, Ahtanum Connection Charges on hand in the Ahtanum Account are not sufficient to satisfy the Trunkage Obligation and the Direct Connection Obligation then payable into the Bond Fund, Ahtanum Connection Charges held in the Sewer Operating Fund or expended for general water and sewer system purposes shall be treated as a loan from the Ahtanum Account to the Sewer Operating Fund and shall be repaid to the Ahtanum Account, without interest, to the extent necessary to make, together with Ahtanum Connection Charges on hand in the Ahtanum Account, the payments into the Bond Fund required by this Ordinance the Agreement to satisfy the Trunkage Obligation and the Direct Connection Obligation (but not more than the amount required to pay principal of and interest on the Bonds, when due). Such repayment shall be made solely out of the Sewer Operating Fund of the City and not out of the general funds of the City, or any other City asset. The City shall maintain records of the following information for each connection of a facility on °real property in the Ahtanum Sub -Basin to the City Wastewater system: the parcel number and area of the underlying real property; the amount of Ahtanum Connection Charges received by the City and the date of receipt; the amount of any Connection Charges waived; the Trunkage Obligation and the Direct Connection Obligation, if any, arising from the connection; the amounts paid into the Bond Fund on the next interest payment date; the amounts of principal and interest paid on the Bonds, the amounts of Ahtanum Connection Charges paid into the Sewer Operating Fund; and the amounts, if any, of such Ahtanum Connection Charges repaid to the Ahtanum Account from the Sewer Operating Fund. The obligation of the City to pay Ahtanum Connection Charges into the Bond Fund to satisfy the Direct Connection Obligation and the Trunkage Obligation shall terminate June 1, C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 15 of 23 2041, and the City shall thereafter have no obligation or liability with respect to the Bonds except to apply to their payment any monies then held in the Bond Fund. Money in the Bond Fund may, at the option of the City, be invested and reinvested as permitted by law in Permitted Investments maturing, or which are retirable at the option of the owner, prior to the date needed or prior to the maturity date of the Bonds. Earnings on investments in the Bond Fund shall be retained in such Fund. (b) Whenever and so long as amounts on deposit in the Bond Fund, are sufficient to provide money to pay the Bonds then Outstanding, including such interest as may thereafter become due thereon, no payments need be made into the Bond Fund pursuant to this Ordinance. (c) Until set aside for the retirement of principal and payment of interest, as aforesaid, monies in the Bond Fund shall be held in trust for the benefit of the owners of the Bonds then Outstanding. (d) The amounts so pledged to be paid into the Bond Fund are hereby declared to be a prior lien and charge upon the Ahtanum Connection Charges superior to all other charges of any kind or nature whatsoever (including any transfer of money to other funds of the City and City taxes or City payments in lieu of taxes) except items First through Sixth of Section 5.1 hereof. (e) The Council hereby finds and declares that in fixing the amounts to be paid into the Bond Fund out of the Ahtanum Connection Charges, it has exercised due regard for the Costs of Maintenance and Operation and for the amounts required to pay and secure the payment of the principal of and interest on the Senior Lien Bonds and the Bonds. The City does not warrant that the Ahtanum Connection Charges will be sufficient to pay the Direct Connection C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 16 of 23 Obligation or Trunkage Obligation and does not covenant that such obligations will be sufficient to pay the principal of or interest on the Bonds. Section 5.3. Security and Source of Payment of Bonds. Notwithstanding any other provision of this Ordinance or the Agreement, the obligation of the City to pay the principal of and interest on the Bonds is limited to payment of the Direct Connection Obligation and Trunkage Obligation, solely out of Ahtanum Connection Charges, into the Bond Fund, according to the terms of this Ordinance and the Agreement. The City covenants to pay into the Ahtanum Account all Ahtanum Connection Charges. The rates for Connection Charges producing such Ahtanum Connection Charges shall be set from time to time by the City Council acting within its legislative capacity.. The City shall have no obligation to make any payment into the Bond Fund from any source other than the Ahtanum Connection Charges. If there are insufficient funds available in the Bond Fund at any time to pay the principal of or interest on the Bonds when, by the tern's of such Bona, such principal or interest becomes due, the obligation to pay such principal or interest does not arise and shall not come into effect until, and then only to the extent that, a deposit of Ahtanum Connection Charges is made into the Bond Fund. Such a deposit shall be applied first to pay unpaid interest, and any monies remaining then applied to redeem Bonds as provided in this Ordinance. No failure to pay the principal of, or interest on, any Bond, by reason of insufficient Ahtanum Connection Charges or the lack of money in the Bond Fund, shall constitute a default on the part of the City, or give rise to any debt or other obligation of the City to pay such principal or interest from any other source. C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 17 of 23 The lien on the Ahtanum Connection Charges securing payment of the Bonds, is junior in rank to the lien on such revenues securing all Senior Lien Bonds at any time Outstanding. Such lien and pledge securing the Bonds shall teintinate on the maturity date of the Bonds or on any prior date on which all Bonds are retired and all interest then accrued is paid. After such maturity date, the City shall have no obligation to pay any portion of the principal of or interest on the Bonds other than to apply any monies held in the Bond Fund on such date to the payment of such principal or interest. The Bonds shall also be junior in rank to any water and sewer revenue bonds issued by the City for general system purposes if, in the opinion of the City's Bond Counsel, such bonds cannot legally be issued on a parity with outstanding bonds ranking prior to the Bonds but can be issued with a lien junior to such outstanding bonds. The provisions of Section 6.1 hereof are applicable to any bonds so issued ranking prior to the Bonds. ARTICLE VI PARTICULAR COVENANTS OF THE CITY The City covenants and agrees with the owners of all Bonds as follows: Section 6.1. Rate Covenant. So long as any Bonds remain outstanding, such owners shall be beneficiaries of, and entitled to enforce, the covenants contained in Section 6.1 of Ordinance No. 98 -31, Section 6.1 of Ordinance No. 96 -40, Section 6.1 of Ordinance No. 3380 and Section 10 of Ordinance No. 1071 authorizing the issuance and sale of the outstanding First Lien Parity Bonds and the outstanding Second Lien Parity Bonds (all as defined in Ordinance No. 98 -31 of the City) so long as any such bonds remain outstanding. Such owners shall also be beneficiaries of, and entitled to enforce, the covenants with respect to maintenance of rates made in connection with the issuance and sale of all revenue bonds of the City hereafter issued on a C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 18 of 23 parity of lien with such outstanding bonds so long as any such bonds remain outstanding. If required to meet the covenants of this subsection, and if required by State law, the City will submit any increase in rates and charges for voter approval. No failure to meet the covenants of this subsection resulting from voter disapproval of increased rates or charges shall constitute a breach of such covenants. Section 6.2. Maintenance and Operation. The City shall at all times maintain, preserve and keep the properties of the System in good repair, working order and condition and will from time to time make all necessary and proper repairs, renewals, replacements, extensions and betterments thereto, so that at all times the business carried on in connection therewith will be properly and advantageously conducted, and the City will at all times operate or cause to be operated the properties of the System and the business in connection therewith in an efficient manner and at a reasonable cost. Section 6.3. Liens or Encumbrances. Except for the lien and charge of any Senior Lien Bonds andthe Costs of Maintenance and Operation, the City will not at any time create or permit to accrue or to exist any lien or other encumbrance or indebtedness upon the Ahtanum Connection Charges or any part thereof, prior or superior to the lien thereon for the payment of the Bonds, and will pay and discharge, or cause to be paid and discharged, any and all lawful claims for labor, materials or supplies which, if unpaid, might become a lien or charge upon the Ahtanum Connection Charges, or any part thereof, or upon any funds in the hands of the City, prior to or superior to the lien of the Bonds, or which might impair the security of the Bonds. Section 6.4. Insurance. The City shall, to the extent insurance coverage is available at reasonable cost with responsible insurers, keep, or cause to be kept, the System and the operation thereof insured, with policies payable to the City, against the risks of direct physical loss, C: \word\ wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 19 of 23 damage to or destruction of the System, or any part thereof, and against accidents, casualties or negligence, including liability insurance and employer's liability, at least to the extent that similar insurance is usually carried by utilities operating like properties as determined by the City Manager. A program of self insurance against certain risks or as to part of the potential liability for certain risks may be included as part of the City's insurance coverage plan. Section 6.5. Books and Accounts. The City shall keep proper books of account in accordance with any applicable rules and regulations prescribed by the State of Washington. The City shall prepare, and any owner or holder of Bonds may, upon written request, obtain copies of, balance sheets and profit and loss statements showing in reasonable detail the financial condition of the System as of the close of each year, and the income and expenses of such year, including the amounts paid into the Revenue Fund, the Bond Fund, and into any special funds or accounts created pursuant to the provisions of this Ordinance, and the amounts expended for maintenance, renewals, replacements, and capital additions to the System. Section 6.6. Tax Covenant; Priority of Lien . (a) The City covenants to undertake all actions required to maintain the tax - exempt status of interest on the Bonds under Section 103, Sections 141 through 149 inclusive, and Section 265 of the Code as set forth in the Arbitrage and Tax Certification that will be executed at the closing of the Bonds. (b) Nothing herein contained shall prevent the City from issuing revenue bonds or other obligations which are a charge upon the Gross Revenues of the System, or any part thereof, junior or inferior to the payments required by this ordinance to be made out of the Ahtanum Connection Charges into the Bond Fund. C: \word \wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 20 of 23 (c) For so long as the Bonds are Outstanding, no bonds may be issued subsequent to the issuance of the Bonds with a lien and charge on the Gross Revenues superior to the lien and charge of the Second Lien Parity Bonds. Section 6.7. Pledge Effected by Ordinance. (a) The Bonds are special limited obligations of the City payable from and secured (except as provided in this paragraph) solely by Ahtanum Connection Charges, subject to the prior payment of Costs of Maintenance and Operation of the System and the prior payment of all amounts due as set forth in items First through Sixth of Section 5.1 hereof. There are also hereby pledged as security for the payment of the principal and interest on the Bonds in accordance with the terms of this Ordinance, subject to the provisions of this Ordinance restricting or permitting the application thereof for the purposes and on the terms and conditions set forth in this Ordinance, (i) the proceeds of the sale of the Bonds to the extent held in the funds established by this Ordinance and (ii) the money and assets, if any, credited to the Bond Fund. The Ahtanum Connection Charges and other money and assets hereby pledged shall immediately be subject to the lien of this pledge without any physical delivery thereof or further act, and the lien of this pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the City regardless of whether such parties have notice thereof. (b) The Bonds shall not in any manner or to any extent constitute general obligations of the City or of the State of Washington, or of any political subdivision of the State of Washington, or a charge upon any general fund, special fund or upon any money or other property of the City or of the State of Washington, or of any political subdivision of the State of Washington, not specifically pledged thereto by this ordinance, nor shall the full faith and credit C: \word\ wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 21 of 23 of the City or of the State of Washington, or of any political subdivision of the State of Washington, be pledged to the payment of principal, premium, if any, or interest thereon. ARTICLE VII MISCELLANEOUS Section 7.1. Undertaking to Provide Ongoing Disclosure. The Bonds are issued in denominations of more than $100,000 each and will be sold to less than 35 persons with knowledge and experience in financial and business matters who are capable of evaluating the merit and risks of the prospective investment and are not purchasing for others or for resale and such bonds are therefore exempt from the requirements of Section (b)(5) of the Rule 15c2 -12 of the Securities and Exchange Commission. Section 7.2. Sewer Construction and Bond Purchase Agreement. The Council hereby approves the Sewer Construction and Bond Purchase Agreement between the City and Apple Tree Partnership, a form of which has been provided to the Council, and authorizes the City Manager to execute such Agreement. Section 7.3. Deposit of Bond Proceeds. There is hereby authorized to be created an Ahtanum Trunk Line Project Account into which shall be deposited the proceeds of the Bonds and the parties' contributions as provided in the Agreement. Section 7.4. Severability. If any one or more of the covenants or agreements provided in this ordinance to be performed on the part of the City shall be declared by any court of competent jurisdiction to be contrary to law, then such covenant or covenants, agreement or agreements, shall be null and void and shall be deemed separable from the remaining covenants and agreements in this ordinance and shall in no way affect the validity of the other provisions of this ordinance or of any Bonds. C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 22 of 23 Section 7.5. General Authorization. The City Manager and Director of Finance and Budget, and each of the other appropriate officers, agents and representatives of the City are each hereby authorized and directed to take such steps, to do such other acts and things, and to execute such letters, certificates, agreements, papers, financing statements, assignments or instruments as in their judgment may be necessary, appropriate or desirable in order to carry out the terms and provisions of, and complete the transactions contemplated by this ordinance. Section 7.6. Prior Acts. All acts taken pursuant to the authority of this ordinance but prior to its effective date are hereby ratified and confirmed. Section 7.7. Effective Date. This ordinance shall be effective 30 days after its passage, approval and publication as provided by law. PASSED by the Council of the City of Yakima at a regular meeting thereof, held this 5 day of September, 2000. CITY OF YAKIMA, WASHINGTON 277? /:de--(_- Mayor ATTEST 2 L�6v Acting City Clerk Publication Date: 9 - 8 Effective Date: 10 - 2000 C: \word\ wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE Page 23 of 23 APPENDIX A UNITED STATES OF AMERICA NO. $ STATE OF WASHINGTON CITY OF YAKIMA WATER AND SEWER JUNIOR LIEN REVENUE BOND (AHTANUM) INTEREST RATE: 6 % MATURITY DATE: June 1, 2041 CUSIP NO.: REGISTERED OWNER: PRINCIPAL AMOUNT: The City of Yakima, Washington (the "City"), subject to the limitations set forth in the Bond Ordinance (hereafter defined), hereby acknowledges itself to owe and for value received promises to pay to the Registered Owner identified above, or registered assigns, on the Maturity Date identified above, the Principal Amount indicated above and to pay interest from , or the most recent date to which interest has been paid or duly provided for, until payment of this bond at the Interest Rate set forth above, payable on March 1, 2001, and quarterly thereafter on each June 1, September 1, December 1, and March 1. Both principal of and interest on this bond are payable in lawful money of the United States of America. Interest on this bond shall be paid by check or draft mailed to the Registered Owner at the address appearing on the Bond Register on the 15` day of the month preceding the interest payment date, and principal of this bond shall be payable upon presentation and surrender of this bond by the Registered Owner at the principal office of the Director of Finance and Budget of the City in Yakima, Washington (the "Bond Registrar "); provided, however, that if so requested in writing by the Registered Owner, interest will be paid by wire transfer on the date due to an account with a bank located within the United States. This bond is one of an authorized issue of bonds of like date and tenor, except as to number, amount, rate of interest and date of maturity, in the aggregate principal amount of $ (the "Bonds "), and is issued pursuant to Ordinance No. (the "Bond Ordinance ") passed by the City Council on September 5, 2000, to finance certain improvements to the water and sewerage system of the City. Capitalized terms used in this bond and not otherwise defined shall have the meanings given them in the Bond Ordinance. The City has reserved the right to redeem the Bonds, in whole or in part (and if in part, with maturities to be selected by the City and by lot within a maturity) at any time, at par plus accrued interest, if any, to the redemption date. C: \word\ wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE - Appendix A — Bond Form Page 1 of 5 The bonds of this issue are also subject to mandatory redemption prior to maturity through mandatory payments as specified in the Ordinance solely out of certain funds derived by the City from Ahtanum Connection Charges, as defined in the Ordinance. Portions of the principal amount of this Bond in installments of $500 or any integral multiple thereof may be redeemed in accordance with the provisions set forth above, and if less than all of the principal amount is to be redeemed, upon the surrender of this Bond at the office of the Bond Registrar there shall be issued to the Registered Owner, without charge, for the then unredeemed balance of the principal sum, at the option of the owner, a Bond or Bonds of like maturity and interest rate in any of the denominations authorized by the Bond Ordinance. Notice of optional redemption, unless waived, is given by the Bond Registrar by mailing an official redemption notice by regular mail, postage prepaid, not less than 5 days prior to the date fixed for redemption, to the Registered Owner of any Bond to be redeemed at the address appearing on the Bond Register. The requirements for such notice shall be deemed to be complied with when notice is mailed, regardless of whether it is actually received by the owner of any Bond. If such notice has been given and if the City has set aside, on the date fixed for redemption, sufficient money for the payment of all Bonds called for redemption, the Bonds so called shall cease to accrue interest after such redemption date, and all such Bonds shall no longer be deemed to be outstanding for any purpose, except that the Registered Owners shall be entitled to receive payment of the redemption price and accrued interest to the redemption date from the money set aside for such purpose. The' Bonds are payable solely from the special fund of the City known as the Junior Lien Water and Sewer Revenue Bond Fund (Ahtanum)" (the "Bond Fund "). The City has, according to the terms of the Bond Ordinance, irrevocably obligated and bound itself to pay into the Bond Fund solely out of Ahtanum Connection Charges, certain amounts to pay the principal and interest on such bonds. The City has pledged to set aside from the Ahtanum Account in the Revenue Fund solely out of the Ahtanum Connection Charges and to pay into the Bond Fund the various amounts required by the Bond Ordinance to be paid into and maintained in the Bond Fund within the times provided by the Bond Ordinance. To the extent more particularly provided by the Bond Ordinance, the amounts so pledged to be paid from the Revenue Fund solely out of the Ahtanum Connection Charges into the Bond Fund shall be a lien and charge thereon junior in rank to the lien and charge upon such Ahtanum Connection Charges of the amounts required to pay and secure the payment of the City's Senior Lien Bonds, including any revenue bonds hereafter issued on a parity with the Senior Lien Bonds, and superior to all other liens and charges of any kind or nature, except the Costs of Maintenance and Operation of the System. The City has further bound itself to maintain the System in good repair, working order and condition, to operate the same in an efficient manner and at a reasonable cost. The City C: \word \wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE - Appendix A — Bond Form Page 2 of 5 hereby covenants that it will perform all the covenants of this Bond and of the Bond Ordinance, and reference is hereby made to the Bond Ordinance for a complete statement of such covenants. This Bond is a special limited obligation of the City and is not an obligation of the State of Washington or any political subdivision thereof other than the City, and neither the full faith and credit nor the taxing power of the City or the State of Washington is pledged to the payment of this Bond. The City shall have no obligation to make any payment into the Bond Fund from any source other than the Ahtanum Connection Charges. If there are insufficient funds available in the Bond Fund at any time to pay the principal of or interest on the Bonds when, by the terms of such Bonds, such principal or interest becomes due, the obligation to pay such principal or interest does not arise and shall not come into effect until, and then only to the extent that, a deposit of Ahtanum Connection Charges is made into the Bond Fund. Such a deposit shall be applied first to pay unpaid interest, and any monies remaining then applied to redeem Bonds as provided in the Ordinance. The obligation of the City to pay Ahtanum Connection Charges into the Bond Fund shall terminate on June 1, 2041 and the City shall thereafter have no obligation or liability with respect to the Bonds except to apply to their payment any monies thereon held in the Bond Fund. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Ordinance until the Certificate of Authentication has been manually signed by the Bond Registrar. This Bond is transferable only with the consent of the City and only on the records maintained t by the Bond Registrar for that purpose upon the surrender of this Bond by the Registered 'Owner or his /her duly authorized agent and only if endorsed in the manner provided hereon, and a new fully registered Bond of like principal amount, maturity and interest rate shall be issued to the transferee in exchange. It is hereby certified that all acts, conditions and things required by the Constitution and statutes of the State of Washington and the Charter and ordinances of the City to exist, to have happened, been done and performed precedent to and in the issuance of this Bond have happened, been done and performed and that the issuance of this bond and the bonds of this series does not violate any constitutional, statutory or other limitation upon the amount of bonded indebtedness that the City may incur. The City has caused this Bond to be executed by the manual or facsimile signature of the Mayor and to be attested by the manual or facsimile signature of the Clerk, and has caused the seal of the City to be impressed or imprinted on this bond, as of this day of C: \word\ wastewater \apple tree \8- 00\rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE - Appendix A — Bond Form Page 3 of 5 CITY OF YAKIMA, WASHINGTON By /s/ manual or facsimile Mayor ATTEST: /s/ manual or facsimile Clerk The Bond Registrar's Certificate of Authentication on the Bonds shall be in substantially the following form: CERTIFICATE OF AUTHENTICATION Date of Authentication: This is one of the Water and Sewer Junior Lien Revenue Bonds (Ahtanum) of the City of Yakima, Washington, dated described in the Bond Ordinance. CITY OF YAKIMA, WASHINGTON By Director of Finance and Budget, as Bond Registrar The following abbreviations, when used in the inscription on the face of this Bond, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM — as tenants in common • TEN ENT — as tenants by the entireties JT TEN — as joint tenants with right of survivorship and not as tenants in common UNIF GIFT (TRANSFERS) MIN ACT - Custodian (Cust) (Minor) under Uniform Gifts (Transfers) to Minors Act (State) C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE - Appendix A – Bond Form Page 4 of 5 Additional abbreviations may also be used, though not in the above list. ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR TAXPAYER IDENTIFICATION NUMBER OF TRANSFEREE (Please print or typewrite name and address, including zip code, of transferee) the within bond and does hereby irrevocably constitute and appoint as attorney -in -fact to transfer said bond on the books kept for registration thereof with full power of substitution in the premises. DATED: SIGNATURE GUARANTEED: NOTICE: Signature(s) must be guaranteed pursuant to law. NOTE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. THIS BOND MAY NOT BE TRANSFERRED WITHOUT THE CONSENT OF THE CITY OF YAKIMA. C: \word \wastewater \apple tree \8 -00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE - Appendix A — Bond Form Page 5 of 5 APPENDIX B DESCRIPTION OF PROJECT The Project includes the following improvements to the City's water and sewerage system as described in the City's Comprehensive Plan: (i) Design and construction of the Ahtanum Trunk Line, beginning along South 64th Avenue approximately 1,200 feet south of Washington Avenue, and then following South 64th Avenue south to Ahtanum Road, and then following Ahtanum Road west to South 86th Avenue; and (ii) design and construction of a 10" sewer line along South 86th Avenue north from Ahtanum Road towards Occidental Avenue. The Ahtanum Trunk Line is a necessary wastewater collection component to provide City wastewater service to the Ahtanum Sub -Basin and has been identified in the Wastewater Utility Capital Facilities section of the City's Capital Facilities Plan 1996 -2001, which is an element of the City Comprehensive Plan adopted pursuant to State Growth Management Act requirements. Preliminary analysis by the City shows that the pipe size requirements necessary for the Ahtanum Trunk Line to serve the Ahtanum Sub -Basin include 3,500 linear feet of 24" pipe and 7,000 linear feet of 18" pipe. Approximately 2100 linear feet of 10" pipe are required for the sewer line along South 86th Avenue. Final pipe size requirements will be determined by sewer planning for the drainage basin as determined by the City. The Project also includes manholes, related appurtenances and roadway restoration. C: \word \wastewater \apple tree \8- 00 \rev'd BO 8 -30 clean.doc Last printed 09/19/00 10:30 AM BOND ORDINANCE - Appendix B — Description of Project Page 1 of 1 • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON . AGENDA STATEMENT • Item No. C I For Meeting Of 9 /5 /00 • ITEM TITLE: Consideration of Legislation re: Ahtanum Trunk Line /Apple Tree Development SUBMITTED BY: Dick Zais, City Manager Glenn Rice, ACM Larry Peterson, City Legal Doug Mayo, Wastewater Manager CONTACT PERSON /TELEPHONE: Doug Mayo /575 -6077 SUMMARY EXPLANATION: The City of Yakima has reached a tentative agreement with the Apple Tree Partnership (AT) for planning, design, and construction of a new sewer interceptor extension to be known as the Ahtanum Trunk Line. The project is estimated to cost $2.5 million and will be financed by a combination of $325,000 public and $2,175,000 private cash contributions in the form of limited- obligation revenue bonds Apple Tree promises to buy. (continued on next page) - • Resolution 1 Ordinance 1 Other (Specify) Motions (2) Contract 2 Mail to (name and address): (1) Apple Tree Partnership 2550 Borton Rd Yakima, WA 98903 (2) HLA, Inc. 801 S. 39th Ave. Yakima, WA 98908 Funding Source Budgeted in Fury 6 as roiect 1821, APPROVED FOR SUBMITTAL: i �ty Manager STAFF RECOMMENDATION: Staff respectfully requests that the City Council: A. Pass the proposed Ordinance Authorizing Issuance and Sale of a Utility Revenue Bonds. Please' note: Section 7.2 of the proposed Ordinance approves and authorizes execution of the Sewer Construction and Bond Purchase Agreement. Consequently, there is no separate resolution for that action. B. Adopt the proposed Resolution Authorizing Execution of Professional Services Agreement with Huibregtse, Louman Associates, Inc. for Design Services C. Pass a motion calling for City staff to prepare and submit documents required for the City to provide wastewater service to the Ahtanum Sub -basin and seeking an amendment to Exhibit A of the Agreement for Wastewater Treatment and Disposal Service (4 -Party Agreement) entered into February 2, 1976 for the Sewer Service Area Boundary D. Pass a motion to execute a separate Memorandum of Understanding pertaining to potential future service to Apple Tree Property within the Coolidge and Washington Avenue Sub - basins BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: • Page 1 • • (continued from page 1) In the future, following design, cost estimates, completion of•environmental review under SEPA, and public bidding, Council will be asked to take subsequent action authorizing construction and approving sale of a Utility Revenue Bond Issue. The attached memorandum from staff provides a complete overview of the agreement between the parties. In the future, following design, cost estimates, completion of environmental review under SEPA, and public bidding, Council will be asked to take subsequent action authorizing construction and approving sale of a Utility Revenue Bond Issue. The attached memorandum from staff provides 'a complete overview of the agreement between the parties. • Changes that,were made since the August 15 agenda are as follows: • • Text clarified regarding Apple Tree's opportunity for reimbursement to reinforce limits on City's obligations and to ensure this transaction does not impair City's opportunity to finance future projects • Date of June 1,2041 set for end of City's obligations • Other non - substantive housekeeping changes in text, particularly to more closely integrate the Ordinance and the Agreement • Memorandum of Understanding clarified regarding possible future Apple Tree service through Coolidge and /or Washington line • Slight modification of the map defining the Ahtanum Sub Basin • • • Page 2 Transmittal August 11, 2000 To: Honorable Mayor, Members of City Council, City Manager SUBMITTED BY: Dick Zais, City Manager Glenn Rice, ACM Larry Peterson, City Legal Doug Mayo, Wastewater Manager AHTANUM TRUNK LINE PROJECT AN AGREEMENT BETWEEN THE CITY OF YAKIMA AND APPLE TREE PARTNERSHIP TO BRING CITY SEWER SERVICE TO AHTANUM AND BEYOND. The City of Yakima has reached a tentative agreement with the Apple Tree Partnership (AT) for planning, design and construction of a new sewer interceptor extension to be known as the Ahtanum Trunk Line. The Agreement commits the City to a public works project to build a major trunk line following the old YVT right of way along South 64th Avenue and Ahtanum Road out to South 86th Avenue, and a 10" line along South 86th Avenue connecting the area north of Ahtanum Road including the Apple Tree property to the trunk line. The project is estimated to cost $2.5 million and will be financed by a combination of public and private cash contributions and limited - obligation revenue bonds Apple Tree promises to buy. Apple Tree and the City will directly contribute a combined total of $525,000 in cash. (City $325K; AT $200K) The balance of Project Costs will be financed by Apple Tree's purchase of Revenue Bonds that will be paid exclusively from sewer connection charges paid during a forty year period by properties served by the new trunk line. The specific amount financed by the Revenue Bonds will be determined after engineering and design is completed, and the cost of construction is determined by public bidding. A Resolution establishing the specific amount of the Revenue Bonds will be presented to the City Council after the bids are opened. In consideration of its cash contribution, and its purchase of the Limited Revenue Bonds, Apple Tree will be entitled to waiver of the trunkage element of the City connection charges for up to 225 acres of its property. The project will make City sewer service available to the Ahtanum area west of South 64th Avenue. The new 2 mile trunk line will create opportunities for significant public health improvements in the Ahtanum Sub - Basin, and will facilitate development of new housing and other uses by Apple Tree and others. This project will allow for remediation and enhancement of the environmental conditions and encourage economic development within the entire sub -basin along south 64th avenue and west on Ahtanum Road to 86th Avenue. The project will be designed to ultimately serve the entire sub -basin within the GMA boundary. Service by Public Utilities is one of the basic tenets of GMA policy. This proiect will lead to the ultimate Annexation of the entire subbasin. All AT and other connected properties,will become subject to annexation. If annexed, the 1999 value to the City, of property tax, utility taxes, sales tax, and per capita. is over $200,000 per year or over $8,000,000 over a 40 year period. This value will increase as development occurs and property values increase. August 11, 2000 One critical element of the total finance package is the waiver of the future element of the Base Trunkage Charge of the Wastewater Connection Charge. Chapter 7.58.060 YMC allows the City to waive the future element of the Base Trunk/Interceptor Charge under conditions such as this project. The City allowed for this waiver as an incentive to developers to make the investments necessary to provide for expansion of the City's existing trunkage system. Through developer financed projects, the City hopes to encourage expansion thereby spurring economic growth which in turn will speed up the City's return on previous and future City rate payer investment. What the City receives: 1) A major sewer interceptor ($2.5 mill) which will serve the Southwest subbasin to Ahtanum (over 1,100 acres) with modest City cash obligation. 2) Capacity for future extension of this line to serve the area to Wiley City and beyond (additional 350 acres) 3) Wastewater Connection Charge (WCC) at Zone 3 rates, less Revenue Bond obligations, for all new customers outside of AT development. (Present value over $4.8 mill) 4) Treatment element of WCC for all AT customers. (Present value $720,000) 5) Signed OUA's for all customers and all AT properties. All properties will become subject to annexation. If annexed, the 1999 value to the City, of property tax, utility taxes, sales tax, and per capita. is over $200,000 per year or over $8,000,000 over a 40_year period. This value will increase as development occurs and property values increase. What Apple Tree receives: 1) Public sewer service to their planned housing /commercial development. 2) Waiving of "future trunkage" portion of Wastewater Connection Charge for up to 225 acres of AT development. (present value approximately $3,270,000) 3) Possibility of repayment of all or part of Revenue Bond (maximum present value $1,815,000). Actual repayment dependent upon connections within the area served by this project, Paid at $0.24 (adjusted for inflation) per square foot of newly connected acreage. City's obligations: 1) Cover bond issuance, agreement preparation, and any right -of -way costs. $160,000 has been budgeted. $50,000 has been incurred to date. 2) Design and build project 3) Waive "future trunkage" portion of Wastewater Connection Charge for up to 225 acres of AT development. (present value approximately $3,270,000) 4) Obligated portion of treatment, trunkage, and collection elements of WCC from Ahtanum Sub - Basin connections only for bond debt repayment for 40 years. (Value dependent upon connections, estimated present value $1,815,000) Paid at $0.24 (adjusted for inflation) per square foot of newly connected acreage. 5) Contribute $325,000 cash toward project costs. 6) Provide Treatment and Interceptor capacity for new customers in the Ahtanum subbasin and other typical obligations of ownership. August 11, 2000 • Staff Reccomendations: Staff respectfully requests that the City Council: A) Pass the proposed Ordinance Authorizing Issuance and Sale of a Utility Revenue Bonds. Please note: Section 7.2 of the proposed Ordinance approves and authorizes execution of the Sewer Construction and Bond Purchase Agreement. Consequently, there is no separate resolution.for that action. B) Adopt the proposed Resolution Authorizing Execution of Professional Services Agreement with Huibregtse, Louman Associates, Inc. for Design Services, and C) Pass a motion calling for City staff to prepare and submit of documents required for the City to provide wastewater service to the Ahtanum Sub -Basin and seeking an amendment to Exhibit A of the Agreement for Wastewater Treatment and Disposal Service (4 Party Agreement) entered into February 2, 1976 for the Sewer Service Area Boundary D) Pass a motion to execute a separate Memorandum of Understanding pertaining to potential future service to Apple Tree Property within the Coolidge and Washington Avenue sub - basins. • August 11, 2000 TABLE1 Ahtanum Trunk Line Project 2000 rates Cit Cit x Apple Tree Apple Tree Possible Possible Possible Possible Benefit Obligations Benefit Obligations 40 year projection Construction Cash Obligation ' ($325,000) ($200,000) Other obligations (1) $160,000) Revenue Bond Purchase _ j$1 ,815,000) Revenue Bond payment (2) $1,815,000 $1,815,000 Connection Charges MOM A. .le Tree AT Trunkage Waivers ac $3,269,614 Future Construction AT Trunkage (ac) 225 ($2,528,658) AT treatment (SDU) 463 $720,471 Future Construction AT Treatment SDU 463 $203,641 • MI EN Remaining subbasin Trunkage Connection Charges (ac) (3) 323 $4,694,439 Future Construction Trunkage (ac) 323 ($3,630,591) Treatment Connection Cha .es SDU 4 808 $1,294,048 Future Construction Treatment SDU 808 $355,218 Collection Connection Charges (ac) (5) - $625,696 Sub -total $7,334,653 $9,018,108 $5,084,614 ($2,015,000) ($1,683,455) $3,069,614 Other City Benefits (6) When Annexed 1999 value times 40 years Pr•.:rt Tax $5,120,000 Utility Tax $1,760,000 — Residential Stipend $1,060,000 Sales Tax $200,000 Sub -total $8,140,000 TOTAL $15,474,653 $9,018,1081 $5,084,614 ($2,015,000) $6,456,545 III $3,069,614 • Cash Obligation set by Agreement, other possible obligations are estimated and variable. (1) Includes professional and City services for agreement preparation, bond council, bond issuance, and right -of -way perfection (2) Revenue Bond repayment is wholly dependant upon revenue from new connections to the project pipeline. (3) Connected acreage calculated at 1,100 total less 177 within AT at 35% connected 1,100- 177'.35 = 323 (4) Connected SDU's calculated at 2.5 per connected acre. (323•2.5) = 808 (5) Directly connected acreage calculated at 10,50011 by 150 feet of property depth with 50% connection. (6) 1999 value to City if annexed. Annual value will increase as development occurs. 1 1 1 TABLE 2 Comparison of Wastewater Connection Charges between Zones 1, 2, and 3 Below calculations assume a Single Dwelling Unit With developer constructed collection system. Lot size Zone 1 Zone 2 " Zone 3 "' payment due from payment due from payment due from new connection new connection new connection 8,000 $1,142.68 $2,764.98 $4,224.89 10,000 $1,233.78 $3,261.78 $4,892.09 12,000 $1,324.98 $3,758.58 $5,559.29 15,000 $1,461.78 $4,503.78 $6,560.09 20,000' $1,689.78 $5,745.78 $8,228.09 ' Per section 7.58.075 of the City of Yakima Municipal Code A maximum lot size of 20,000 square feet shall be utilized in calculating charges ... for Single Dwelling Units. 1 1 The fundamental difference between Zone 1 and Zone 2 charges is the cost to construct the trunks and interceptor a greater distance. 1 I The fundamental differences between Zone 2 and Zone 3 charges are the cost to construct the trunks and interceptor an even greater distance and that Zone 3 was not credited with past EPA Grants. TABLE 3 Comparison of Wastewater Connection Charges Typical Zone 3 Lots vs. Apple Tree Lots Because of Waivers of Trunkage Charges Below calculations assume a Single Dwelling Unit With developer constructed collection system. Lot size Zone 3 AT lot (sq. feet) WCC treatment only payment due from payment due from new connection new connection 8,000 $4,224.89 $1,556.09 10,000 $4,892.09 $1,556.09 12,000 $5,559.29 $1,556.09 15,000 $6,560.09 $1,556.09 20,000* $8,228.09 $1 ,556.09 Per section 7.58.075 of the City of Yakima Municipal Code A maximum lot size of 20,000 square feet shall be utilized in calculating charges ... for Single Dwelling Units. One critical element of the total finance package is the waiver of the future element of the Base Trunkage Charge of the Wastewater Connection Charge. Chapter 7.58.060 YMC allows the City to waive the future element of the Base Trunk/Interceptor Charge under conditions such as this project. The City allowed for this waiver as an incentive to developers to make the investments necessary to provide for expansion of the City's existing trunkage system. Through developer financed projects, the City hopes to encourage expansion thereby spurring economic growth which in turn will speed up the City's return on previous and future City rate payer investments. I ATTACHMENT 1 The City believes the necessary, proposed changes to the 4 -Party Agreement should be a painless, routine matter. Precedent has been established on at least two occasions. Text Amendment No. 1 to the 4 -Party Agreement dated September, 1982, amended the Yakima Urban Area as set forth in EXHIBIT A of the 4 -Party Agreement to expand the service area for the Terrace Heights Sewer District to include an area along Keys Road. The Third Amendment to Agreement for Wastewater Treatment and Disposal Service dated August 22, 1995 amended the "Urban Boundary" as set forth in EXHIBIT A of the 4 -Party Agreement, again to expand the service area for the Terrace Heights Sewer District by 320 acres to include a development proposed by Mr. Potter and Mr. Gable. Action necessary to include the Ahtanum Subbasin into the City of Yakima's "Sewer Service Area" should be no more challenging or complicated. •A. SEWER CONSTRUCTION AND BOND PURCHASE AGREEMENT 1. Parties. City of Yakima 129 North Second Street Yakima, WA 98901 ( "City" herein) Apple Tree Partnership 2550 Borton Road Yakima, WA 98903 ( "AT" herein) Collectively herein the "Parties" 2. Definitions. Except to the extent modified herein or unless the context specifically indicates otherwise, the meaning of those terms defined in the City of Yakima Municipal Code ( "YMC") section 7.58.020, as amended, shall have the same meaning in this Agreement. In addition, the following terms shall have the following meanings herein: (a) "Adjusted for inflation" means annual adjustment of the rates at which the Trunkage and Direct Connection Obligations are calculated by multiplication of the rate in effect for the immediately preceding year by a factor equal to ninety percent (90 %) of the averaged percents of change during the preceding year in the following indexes: (i) the U.S. Cities Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI -W); and (ii) the Seattle Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI -W). Such adjustments shall be made once annually. (b) "Agreement" means this Sewer Construction and Bond Purchase Agreement. (c) "Ahtanum Connection Charges" means the revenue received by the City specifically in payment of Connection Charges for facilities on real property in the Ahtanum Sub- Basin, except that Base Collection Pipes Charge revenue (calculated pursuant to YMC 7.58.070, as amended, or updated from time to time) shall be included only for facilities that connect directly to Project Pipe. The rates for Connection Charges producing such Ahtanum Connection Charges shall be set from time to time by the City Council acting within its legislative capacity. Connection Charges for specific properties in the Ahtanum Sub -Basin shall be based on the rates for Connection Charges in effect at the time such Connection Charges are paid. (d) "Ahtanum Sub-Basin" means that area designated " Ahtanum Sub- Basin" on the map attached to this Agreement as Exhibit 2(d), which is incorporated by reference. The Parties expressly acknowledge that, over the term of this C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 1 of 15 Agreement, this map is likely to prove imperfect in some cases, in that there may be both properties included in the designated Ahtanum -Sub -Basin which ultimately connect to the City wastewater system through a sewer trunk line other than the Ahtanum Trunk Line, and properties outside the designated Ahtanum -Sub -Basin which ultimately connect to the City wastewater system through the Ahtanum Trunk Line. The Parties stipulate and agree that any such imperfections benefiting one party will be offset by other imperfections benefiting the other, and further agree to forego subsequent efforts to amend the boundaries or area of the designated Ahtanum Sub - Basin. (e) "Ahtanum Trunk Line" means that wastewater trunk /interceptor pipe serving the Ahtanum Sub -Basin and constructed pursuant to this Agreement, not including the approximately 2100 foot 10" sewer line to be constructed along South 86th Avenue, also constructed as part of the Project under this agreement. (f) "Ahtanum Trunk Line Project Account" (abbreviated "ATLP Account ") means a financial account which shall be established and maintained by the City and into which the Parties' contributions, the proceeds of the sale of the Revenue Bonds, and interest thereon, shall be paid, and from which costs of the Project shall be paid. (g) "Apple Tree Development" means the development by AT of approximately 225 acres of residential /commercial developable property (not including non - sewered golf course property), as depicted on Exhibit 2(d) hereof and incorporated herein. The development includes both current and future development areas. (h)+ "AT" means Apple Tree Partnership, a Washington general partnership. (i) ' "Bond Counsel" means Preston Gates & Ellis LLP. (j) "Bond Fund" means the Junior Lien Revenue Bond Fund (Ahtanum) established by the Bond Ordinance. (k) "Bond Ordinance" means the City ordinance providing for the sale of the Revenue Bonds described in section 4.3 of this Agreement. (1) "City" means the City of Yakima, a Washington municipal corporation. (m) "Closing" means the proposed date and place of delivery of and payment for the Revenue Bonds. (n) "Collection Element" means that portion of the Connection Charge, as defined in Section 7.58.070 of the YMC and designated "Base Collection Pipes Charge." The Collection Element consists of two (2) separate components: (i) equitable share (historic); and (ii) actual cost (future). (o) "Connection Charges" means specifically the Base Treatment Plant Charge (calculated pursuant to YMC 7.58.050, as amended or updated from time to time), the Base Trunks /Interceptors Charge (calculated pursuant to YMC 7.58.060 as amended or updated from time to time), and / or the Base Collection Pipes Charge (calculated pursuant to YMC 7.58.070, as amended or updated form time to time), imposed upon the owner of any facility for C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 2 of 15 connection of the facility to the City wastewater system, and not including other charges which may be required by other sections of the Yakima Municipal Code or other laws. (p) "Direct Connection Obligation" means an amount calculated at an initial rate of 38 cents per square foot applied to the area of the parcel of real property underlying the facility, which shall become payable to the Bond Fund (solely out of Ahtanum Connection Charges) on the next quarterly interest payment date after a facility on real property in the Ahtanum Sub -Basin outside Apple Tree Development pays the YMC 7.58.070 Base Collection Pipes Charge to connect directly to Project Pipe while the Revenue Bonds are outstanding. The initial rate shall be in effect until June 30, 2001, and shall then and annually thereafter be adjusted for inflation. In the event Ahtanum Connection Charges are not sufficient to satisfy this obligation when it first becomes payable into the Bond Fund, the exact amount of any shortfall shall be carried forward as Direct Connection Obligation and shall remain payable into the Bond Fund until it is, if ever, satisfied by Ahtanum Connection Charges received by the City in excess of Trunkage or Direct Connection Obligations while the Bonds are outstanding. (q) "Project" means (i) design and construction of the Ahtanum Trunk Line, beginning along South 64th Avenue approximately 1,200 feet south of Washington Avenue, and then following South 64th Avenue south to Ahtanum Road, and then following Ahtanum Road west to South 86th Avenue; and (ii) design and construction of a 10" sewer line along South 86th Avenue north from Ahtanum Road towards Occidental Avenue. The Ahtanum Trunk Line is a necessary wastewater collection component to provide City wastewater service to the Ahtanum Sub -Basin and has been identified in the Wastewater Utility Capital Facilities section of the City's Capital Facilities Plan 1996 -2001, which is an element of the City Comprehensive Plan adopted pursuant to State Growth Management Act requirements. Preliminary analysis by the City shows that the pipe size requirements necessary for the Ahtanum Trunk Line to serve the Ahtanum Sub -Basin include 3,500 linear feet of 24" pipe and 7,000 linear feet of 18" pipe. Approximately 2100 linear feet of 10" pipe are required for the sewer line along South 86th Avenue. Final pipe size requirements will be determined by sewer planning for the drainage basin as determined by the City. The Project also includes manholes, related appurtenances and roadway restoration. (r) "Project Costs" means all costs expended or incurred by the City in connection with the planning, design, construction, inspection, construction contract(s), and administration of the Project, including but not limited to engineering and survey fees. (s) "Project Pipe" means the Ahtanum Trunk Line and / or the 10" sewer line constructed along South 86th Avenue pursuant to this Agreement. (t) "Revenue Bonds" means the City of Yakima Water and Sewer Junior Lien Revenue Bonds (Ahtanum), issued pursuant to the Bond Ordinance and this Agreement to pay part of the Project Costs. C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 3 of 15 (u) "Trunkage Element" means that portion of the Connection Charge defined in YMC 7.58.060 and designated "Base Trunk /Interceptors Charge." The Trunkage Element consists of two (2) separate elements: (i) equitable share (historic); and (ii) actual cost (future). (v) "Trunkage Obligation" means an amount calculated at an initial rate of 24 cents per square foot applied to the area of the parcel of real property underlying the facility, which shall become payable to the Bond Fund (solely out of Ahtanum Connection Charges) on the next quarterly interest payment date after a facility on real property in the Ahtanum Sub -Basin outside Apple Tree Development pays the YMC 7.58.060 Base Trunk /Interceptors Charge while the Revenue Bonds are outstanding. The initial rate shall be in effect until June 30, 2001, and shall then and annually thereafter be adjusted for inflation. In the event Ahtanum Connection Charges are not sufficient to satisfy this obligation when it first becomes payable into the Bond Fund, the exact amount of any shortfall shall be carried forward as Trunkage Obligation and shall remain payable into the Bond Fund until it is, if ever, satisfied by Ahtanum Connection Charges received by the City in excess of Trunkage or Direct Connection Obligations while the Bonds are outstanding. (w) "YMC" shall mean the City of Yakima Municipal Code, as amended. 3. Recitals. (a) Apple Tree Partnership ( "AT ") has developed an eighteen (18) hole golf course and clubhouse, and intends to develop the nearby Apple Tree Development, which is not now served by sanitary sewer. (b). Extension of the City sewer system by construction of the Project is necessary to provide wastewater service to the Apple Tree Development as well as to make sewer capacity available to other properties within and beyond the Ahtanum Sub - Basin, including the communities of Ahtanum and Wiley City. (c) The City is willing to construct the Project, provided that the Project is primarily funded by the proceeds of the Revenue Bonds, which shall be payable solely from Ahtanum Connection Charges according to the terms and conditions of this Agreement and the Bond Ordinance; and provided further (i) that AT contributes a portion of the Project Costs according to the provisions of Section 4.2(c) herein, and (ii) that AT purchases the Revenue Bonds. (d) The City shall not use, pledge or make available its credit, general funds,, revenues or, except as provided by Section 4.3 hereof, any other revenue source for repayment of the Revenue Bonds; however, as provided in Sections 4.1(d) and (h) herein, the City will contribute a share of the Project Costs. (e) AT is willing to contribute a portion of the Project Costs as further set forth in Section 4.2(c) herein and is willing to purchase the Revenue Bonds to finance Project Costs not funded by the Parties' contributions. 4. Agreement of the Parties. In consideration of the above, and for good and valuable consideration, the City and AT promise and agree as follows: C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 4 of 15 4.1 Obligations of the City. (a) The City shall undertake to construct the Project as a public works project of the City. In that regard, the City shall be responsible for all planning, design engineering, plans and specifications to current City standards, compliance with public bidding requirements, construction, change orders, construction supervision, inspection and acceptance of the Project. Execution of the contract for construction shall be authorized by resolution of the City Council following receipt of bids for construction of the Project. The adoption of such resolution shall be a condition precedent to any and all obligations of the City arising under the Bond Ordinance or under this Agreement. The City shall have and maintain full authority and control over all phases of the Project. The City shall indemnify, defend and hold AT harmless from and against any and all claims, demands, obligations, liabilities or causes of action arising from the planning, design, engineering, construction, or operation of the Project, for which the City would as a matter of law be liable to any other party. (b), The City shall use its best efforts to obtain all necessary easements, licenses, rights -of -way and crossing permits for the Project. In that regard, the City shall be the lead agency for the Project, except that AT shall support the City's efforts to obtain all necessary easements, licenses, rights -of -way and crossing permits for the 10 -inch pipe along South 86th Avenue. (c) The City shall use its best efforts to obtain from appropriate regulatory authorities all construction permits and plan approvals necessary for the Project. (d) Total Project Costs are estimated at $2,500,000. The City shall contribute the following to the Project: (i) the sum of Three Hundred Twenty Five Thousand Dollars ($325,000.00); (ii) all legal and administrative costs of the City with regard to negotiation and documentation of this Agreement; (iii) all costs and expenses of preparation and issuance of Revenue Bonds; and (iv) all costs of right -of -way acquisition for the Ahtanum Trunk Line. The City and AT agree to cooperate to secure right -of -way for the approximately 2100 foot South 86th Avenue sewer line, and shall mutually address cost if such element is substantial. (e) The City shall issue the Revenue Bonds in such amount(s) as may be necessary to pay Project Costs in excess of the Parties' contributions as provided in this Agreement. Specific details of the issuance, sale, and payment of such Revenue Bonds are set forth in Section 4.3 herein. The amount of Revenue Bonds to be issued initially shall be determined by the City, in its sole discretion, following receipt of the Engineer's estimate of Project Costs and / or opening of bids on the Project. The final principal amount of the Revenue Bonds shall hereafter be fixed by resolution of the City Council following receipt of bids for construction of the Project. The adoption of such resolution shall be a condition precedent to any and all obligations of the City arising under the Bond Ordinance or under this Agreement. (f) The City shall support a request by AT to Yakima County to complete such land use planning as may be necessary for the Apple Tree Development, however in no instance shall such support require the City to incur any expenses. C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 5 of 15 The City and AT shall jointly request and prosecute any amendment necessary to include Apple Tree Development within the City's Urban Growth Area Boundary. The Parties expect the City's Urban Growth and sewer service areas to increase during the term of this Agreement and expect that, as time passes and urban development continues, portions of the Ahtanum Sub -Basin that are now outside the City's Urban Growth Area or sewer service area will later be included inside those areas. Accordingly, the Parties shall co- operate to establish any amendments necessary to include Apple Tree Development and the greater Ahtanum Sub - Basin, or additional portions of either, in the City's Urban Growth and sewer service areas. The City and AT shall cooperate in obtaining such other approvals and agreements as may be necessary to allow the Project to proceed to completion. In addition, the City and AT shall coordinate with such other agencies, including but not limited to the State Department of Health and the State Department of Ecology, as may be necessary to obtain approvals for construction of the Project. (g) The City shall not be responsible or liable to AT in any way for any delays or other impediments with respect to obtaining any necessary regulatory approval, planning, designing, constructing, or operating the Project, including without limitation litigation, claims, lack of regulatory approval, moratorium, acts of God, or any other occurrence or circumstances, provided the City exercises reasonable care and good faith to obtain any necessary regulatory approval, and to plan, design, construct and operate the Project. (h) Upon execution of this Agreement, the City shall contribute an initial $80,000.00 of its $325,000.00 cash obligation set forth in 4.1(d) above. In the event that additional contributions are necessary to pay Project Costs prior to Closing of -the sale of Revenue Bonds, the City and AT shall make such additional contributions in proportion to the balance of their cash contributions contemplated hereby (i.e., the City's initial cash contribution of $80,000 will leave a balance of $245,000 and AT's initial cash contribution of $80,000 will leave a balance of $120,000. During the period between execution of this Agreement, when each Party will make its initial contribution, and closing of the sale of the Revenue Bonds, when the Parties will contribute any balance of their contributions promised under this Agreement, the Parties will contribute at a rate of 245 City dollars for every 120 AT dollars). In no event shall the City's total cash contribution exceed the sum of $325,000.00. (i) The City shall not be obligated to incur any expense or to otherwise proceed at any stage before funds exist in the ATLP Account sufficient to pay Project Costs, whether such funds result from contributions or from the sale of Revenue Bonds. (j) In the event the Project is cancelled or abandoned for any reason, the Parties' contribution obligations established by this Agreement shall remain in effect to the extent necessary to pay any and all Project Costs incurred prior to such cancellation or abandonment. (k) In the event the Project is cancelled or abandoned by AT, any unutilized contributions shall be refunded to the City and AT in proportion to their C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 6 of 15 respective cash contribution to that time. The City shall retain all right, title and interest in planning documents, engineering plans and specifications developed for the Project. (1) If, for any reason, either Party is unable to perform its obligations hereunder, that Party shall reimburse the other Party for all of its contributed funds, together with the interest earned on such funds. (m) The City shall, according to its exclusive discretion, invest cash contributions by both AT and the City, as well as proceeds from Revenue Bonds, in interest - earning accounts. Interest earnings on such funds shall be applied to Project Costs. Any funds remaining unspent after all Project Costs have been paid shall be utilized to redeem Revenue Bonds issued hereunder. In the event the Project is cancelled or abandoned by AT, interest earnings (after payment of Project Costs) shall be returned to the City and AT in proportion to their respective cash contributions to that time. (n) At the time of AT's purchase of Revenue Bonds hereunder, the City shall contribute the balance of its cash contribution to the Project. 4.2 Obligations of AT. (a) AT shall cooperate with the City in the planning and design of the Project. (b) Prior to the award of any contract(s) for the construction of the Project, AT shall purchase the Revenue Bonds at a negotiated sale as specifically set forth in section 4.3 herein. (c), In addition to all other obligations set forth herein, AT shall contribute the sum of $200,000.00 to the Project. Upon execution of this Agreement, AT shall contribute an initial $80,000 of its $200,000 cash obligation. If additional contributions are necessary to pay Project Costs prior to Closing of the sale of Revenue Bonds, the City and AT shall make such additional contributions according to the provisions of Section 4.1(h) above. In no event shall AT's total cash contribution exceed the sum of $200,000. (d) AT shall support the City's efforts to obtain all necessary easements, licenses, rights -of -way and crossing permits for the 10 -inch sewer line along South 86th Avenue. (e) In the event that AT cancels or abandons this Agreement, the City may apply AT's contributions to the payment of any and all Project Costs incurred prior to such cancellation or abandonment, and any portion of the Parties' contributions which is not necessary for payment of Project Costs shall be refunded to the City and AT in proportion to their respective cash contributions at the time. (f) At the time of AT's purchase of Revenue Bonds hereunder, AT shall contribute the balance of its cash contribution to the Project. (g) AT shall execute an Outside Utility Agreement (OUA) with the City for each parcel it owns or controls within the Apple Tree Development within thirty days after this Agreement is executed, or as soon as AT acquires ownership or C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 7 of 15 control of such parcel(s). AT shall have no right or power to permit any connection to the Ahtanum Trunk Line or the South 86th Avenue sewer line, and any such connections shall be permitted in the sole discretion of the City. The City's current form of OUA is attached hereto as Exhibit 4.2(g). This Agreement shall in no way restrict the City's right to amend its OUA policy and / or to modify its form of OUA. 4.3 Agreement to Purchase Revenue Bonds. (a) Project Financing. AT agrees to purchase from the City all of the Revenue Bonds on the terms and based upon the covenants, representations and warranties set forth herein. Appendix A, which is incorporated into this Agreement by reference, contains a description of the Revenue Bonds, including expected principal amounts, maturities, expected interest rates, expected purchase price and the proposed date and place of delivery and payment (the "Closing "). The principal amount of such Revenue Bonds shall be the amount necessary to pay Project Costs in excess of the Parties' contributions as provided in this Agreement. If the final total Project Costs exceed the Parties' contributions plus the original principal amount of the Revenue Bonds plus any interest or earnings which accrues to the ATLP Account, AT shall purchase completion Revenue Bonds sufficient to pay such excess Project Costs, and the terms for such completion Revenue Bonds shall be substantially the same as for the original Revenue Bonds. At the same time the City Council considers authorizing execution of this agreement, the City Council shall consider an ordinance providing for the sale of the Revenue Bonds (referred to herein as the "Bond Ordinance "). Die final principal amount of the Revenue Bonds shall hereafter be fixed by resolution of the City Council following receipt of bids for construction of the Project. The adoption of such resolution shall be a condition precedent to any and all obligations of the City arising under the Bond Ordinance or under this Agreement. The Revenue Bonds shall not be publicly sold and any assignment or transfer of the Revenue Bonds shall be made only with the written consent of the City. (b) Representations of the City. The City represents and covenants to AT that: (i) It has, and will have at the Closing, the power and authority to pass the Bond Ordinance and to deliver and sell the Revenue Bonds to AT; (ii) This Agreement and the Revenue Bonds do not and will not conflict with, or constitute or create a breach or default under, any existing law, regulation, order or agreement to which the City is subject; (iii) No governmental approval or authorization, other than the Bond Ordinance, which has not been obtained, or will not be obtained prior to Closing, is required in connection with the sale of the Revenue Bonds to AT; C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 8 of 15 (iv) It will exercise reasonable care in the design of the Project, issuance of Revenue Bonds, and performance of other obligations hereunder. (c) Right of Apple Tree to Cancel Agreement. AT shall have the right to cancel this Agreement to purchase the Revenue Bonds by notifying the City of its election to do so if, after the execution of this Agreement and prior to the Closing: (i) A decision by a court of the United States or the United States Tax Court shall be rendered, or a ruling or a regulation (final, temporary, or proposed) by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency shall be issued and in the case of any such regulation, published in the Federal Register, or legislation shall have been enacted by either the House of Representatives or the Senate of the United States, which subjects to federal income taxation the interest received on bonds of the type and character of the Revenue Bonds; or (ii) A general banking moratorium shall have been declared by United States, New York State or Washington State authorities. (d) Conditions of Apple Tree's Obligation. AT's obligation to purchase the Revenue Bonds is also subject to the condition that, at or prior to the Closing, the City will deliver to AT all of the following: (i) The Revenue Bonds, fully registered in the name of AT, as bond owner; (ii) The approving legal opinion of Bond Counsel dated the Closing date; (iii) A certificate setting forth the facts, estimates and circumstances in existence on the date of Closing which establish that it is not expected that the proceeds of the Revenue Bonds will be used in a manner that could cause the Revenue Bonds to be "arbitrage bonds" or "private activity bonds" within the meaning of Sections 148 and 141 of the Internal Revenue Code of 1986, as amended, respectively, and any applicable regulations thereunder; (iv) A certified copy of the Bond Ordinance; and (v) Such additional certificates, instruments or opinions or other evidence as Bond Counsel to the City may deem reasonably necessary or desirable to evidence the due authorization, execution, authentication and delivery of the Revenue Bonds. (e) Costs of Issuance. The City shall pay the cost of preparing, printing and executing the Revenue Bonds, the fees and disbursements of Bond Counsel, bond registration expenses and other expenses of the City relating to the Revenue Bonds. AT will pay fees and disbursements of AT's counsel and consultants and its other costs and expenses incident to this Agreement. C: \ WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 9 of 15 (f) Closing. The City and AT further agree that the Closing will take place in Yakima, Washington, prior to the award of any contract for construction of the Project. The proceeds from the sale of the Revenue Bonds, together with contributions set forth herein, will be used to pay all Project Costs. (g) Source of Payment of Revenue Bonds. As more fully provided in the Bond Ordinance and notwithstanding any other provision of this Agreement or the Bond Ordinance, the obligation of the City to pay the principal of and interest on the Revenue Bonds is limited to payment of the Direct Connection Obligation and Trunkage Obligation, solely out of Ahtanum Connection Charges, into the Bond Fund, according to the terms of the Bond Ordinance and this Agreement. Passage of the Bond Ordinance and issuance of the Bonds will obligate the City to pay into such Bond Fund, solely out of Ahtanum Connection Charges collected by the City, the Trunkage Obligation and the Direct Connection Obligation. The City shall have no obligation to make any payment into the Bond Fund from any source other than the Ahtanum Connection Charges, which shall be accumulated between interest payment dates in a special account known as the Ahtanum Revenue Account, or Ahtanum Account. If there are insufficient funds available at any time to pay the principal of or interest on the Revenue Bonds when, by the terms of such bonds, it becomes due, the City's obligation to pay such principal or interest shall not come into effect until, and then only to the extent, a deposit is made into the Bond Fund. Such a deposit shall be applied first to pay unpaid interest and then applied to redeem Revenue Bonds, all as provided in the Bond Ordinance. Amounts payable into the Bond Fund shall be determined quarterly. During the month prior to each interest payment date, the City shall pay into the Bond Fund, solely from the Ahtanum Account, and solely to the extent of Ahtanum Connection Charges collected by the City, an amount equal to the aggregate of the Trunkage Obligation and the Direct Connection Obligation then existing. After each such quarterly determination and payment into the Bond Fund, any Ahtanum Connection Charges remaining on hand in the Ahtanum Account may be held in the Sewer Operating Fund of the City and may be expended for general water and sewer system purposes. If on any later interest payment date, Ahtanum Connection Charges on hand in the Ahtanum Account are not sufficient to satisfy the Trunkage Obligation and the Direct Connection Obligation then payable into the Bond Fund, Ahtanum Connection Charges held in the Sewer Operating Fund or expended for general water and sewer system purposes shall be treated as a loan from the Ahtanum Account to the Sewer Operating Fund and shall be repaid, without interest, to the extent necessary to make, together with Ahtanum Connection Charges on hand in the Ahtanum Account, the payments into the Bond Fund required by this Agreement and the Bond Ordinance to satisfy the Trunkage Obligation and the Direct Connection Obligation (but not more than the amount required to pay principal of and interest on the Bonds, when due). Such repayment shall be made solely out of C: \ WINDOWS\ TEMP\ rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 10 of 15 the Sewer Operating Fund of the City and not out of the general funds of the City, or any other City asset. The City shall maintain records of the following information for each connection of a facility on real property in the Ahtanum Sub -Basin to the City Wastewater system: the parcel number and area of the underlying real property; the amount of Ahtanum Connection Charges received by the City and the date of receipt; the amount of any Connection Charges waived; the Trunkage Obligation and the Direct Connection Obligation, if any, arising from the connection; the amounts paid into the Bond Fund on the next interest payment date; , ; and the amounts of principal and interest paid on the Revenue Bonds, the amounts of Ahtanum Connection Charges paid into the Sewer Operating Fund; and the amounts, if any, of such of Ahtanum Connection Charges repaid to the Ahtanum Account from the Sewer Operating Fund. No failure to pay the principal of, or interest on, any Revenue Bond, by reason of insufficient Ahtanum Connection Charges, or lack of money in the Bond Fund, shall constitute a default or breach of contract on the part of the City or give rise to any debt or other obligation of the City to pay such principal or interest from any other source. (h) Security for Payment of Revenue Bonds. As provided in the Bond Ordinance, the lien on the Ahtanum Connection Charges securing payment of the Revenue Bonds shall be junior in rank to the lien on such revenues securing water and sewer revenue bonds of the City, including Public Works Trust Fund obligations, outstanding at the time of Closing, any bonds issued on a parity with such outstanding revenue bonds, or any obligations to the Public Works Trust Fund or other state or federal agencies subsequently incurred. The Revenue Bonds shall also be junior in rank to any water and sewer revenue bonds issued by the City for general system purposes if, in the opinion of the City's Bond Counsel, such bonds cannot legally be issued on a parity with outstanding bonds ranking prior to the Revenue Bonds but can be issued with a lien junior to such outstanding bonds. The following rate covenant would be applicable to any bonds so issued ranking prior to the Revenue Bonds. (i) Rate Covenant. So long as any Revenue Bonds remain outstanding, the City hereby agrees with AT and will, pursuant to the Bond Ordinance, covenant with the owners of the Revenue Bonds, that such owners shall be beneficiaries of, and entitled to enforce, the covenants contained in Section 6.1 of Ordinance No. 98 -31, Section 6.1 of Ordinance No. 96 -40, Section 6.1 of Ordinance No. 3380 and Section 10 of Ordinance No. 1071 authorizing the issuance and sale of the outstanding First Lien Parity Bonds and the outstanding Second Lien Parity Bonds (all as defined in Ordinance No. 98 -31 of the City) so long as any such bonds remain outstanding. Such owners shall also be beneficiaries of, and entitled to enforce, the covenants with respect to maintenance of rates made in connection with the issuance and sale of all revenue bonds of the City hereafter issued on a parity of lien with such outstanding bonds so long as any such bonds remain outstanding. C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 11 of 15 If required to meet the covenants of this subsection, and if required by State law, the City will submit any increase in rates and charges for voter approval. No failure to meet the covenants of this subsection resulting from voter disapproval of increased rates or charges shall constitute a breach of such covenants. 4.4 Connection Charges. (a) In consideration of the AT contribution to the Project to pay part of Project Costs and its purchase of the Revenue Bonds, AT, its successors or assigns shall not, during the first 40 years following acceptance of the Project by the City, be charged for the "future" portion of the Trunkage Element (YMC7.58.060 ) of the current or future wastewater connection charges for any current or future connections up to a sum total of 225 acres within the Apple Tree Development. The "historic" portions of the Trunkage Element of the current or future wastewater connection charges shall be charged by the City to all Apple Tree Development properties. This historic portion of the Trunkage Element charges shall be fixed, for the life of this Agreement, at the rate in effect, by City ordinance, on May 27, 1998. (b) AT will not be charged any Collection Element of the current or future wastewater connection charge for any current or future development within the Apple Tree Development or for any other development for which AT constructs /installs the collection system at its own expense in accordance with City standards and policies. (c) Unless otherwise expressly provided in this Agreement, every facility on property within the Ahtanum Sub - Basin, including facilities on AT properties, shall be required to obtain a side sewer connection permit according to the requirements of the Yakima Municipal Code and to pay the Base Treatment Plant Charges as provided in YMC 7.58.050 of the Yakima Municipal Code, and any other charges required under YMC 7.58.040 or any other provision of the Yakima Municipal Code, in effect at the time any connection or other charges are payable or a side sewer permit is issued or the fee is paid. (d) Nothing in this Agreement shall be deemed to limit the general rate - setting authority of the City of Yakima. 4.5 Conditions of Construction. The City is not obligated to award construction contracts for the Project, nor shall the City be obligated to commence construction of the Project, unless and until AT purchases the Revenue Bonds. 4.6 Miscellaneous Provisions. (a) Notices. All notices required to be given by the parties pursuant to this Agreement shall be in writing and may be served, either personally or deposited in the United States Mail, postage prepaid, return receipt requested, and properly addressed to the parties at the following addresses, or as the same may be changed from time to time by written notice to the other party. C: \WINDOWS \TEMP \rev'd BP,A 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 12 of 15 "AT" "City" Apple Tree Partnership City Manager 2550 Borton Road City of Yakima Yakima, WA 98903 Yakima City Hall 129 North Second Street Yakima, WA 98901 Any notice required by this Agreement shall be effective when actually received or when mailed, whichever event occurs first. (b) Entire Agreement. It is expressly understood that this Agreement (and incidental documents and agreements referenced herein) is intended by the Parties to be integrated with the Bond Ordinance, and that the two combined documents contain all of the terms and conditions upon which this transaction has been agreed, and no representations or terms or conditions are to be considered at any time or for any purposes which are not set forth herein, or otherwise mutually agreed in writing by the Parties. (c) No Joint Venture. Nothing in this Agreement shall create a joint venture, partnership or principal agent relationship between the parties hereto. It is understood that no party shall have the right to bind the other party with respect to any matter whatsoever without the advance written consent of an authorized officer of the other party. (d) Severability. Should any provision of this Agreement be found by any court to be invalid or unenforceable for any reason, the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions hereof, unless such invalidity or unenforceability would defeat an essential business purpose of this Agreement, in which case it shall be terminated. (e) Attorney's Fees. Should it be necessary for either party to invoke the aid of a court to enforce the terms of this Agreement, the prevailing party therein, in addition to costs allowed by law, shall recover a reasonable sum as attorney's fees, all of which the other party agrees to pay. (f) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington. Venue shall be laid in Yakima County. (g) No Assignment. This Agreement may not be assigned by AT without the written consent of the City, which shall not be unreasonably withheld. (h) Modification. This Agreement may be modified or amended only by an instrument in writing executed by the parties hereto. (i) Benefit. This Agreement is intended to benefit only the parties hereto. C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 13 of 15 Dated this 1 ( 444- day of Vtavt- -er , 2000. City Contract No. 2000 -76 Ordinace No. 2000 -35 CITY OF YAKIMA, WASHINGTON By Richard A. Zais, Jr., City Manager APPLE TREE PARTNERSHIP E I B„,(2„„_ By ' W Its VAR /V ea_ By t AA► Its pA(Zr ocik C: \ WINDOWS\ TEMP\ rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 14 of 15 • APPENDIX A DESCRIPTION OF BONDS (a) Purchase Price: 100% of par value. (b) Denominations: $100,000 and integral multiples of $500 in excess thereof (may be issued as a single bond). (c) Form: Fully registered in the name of AT, as bond owner. (d) Interest Payment Dates: Quarterly on each March 1, June 1, September 1, and December 1. (e) Maturity Schedule: Bonds shall mature and bear interest as follows: Due Amount Interest Rate June 1, 2041 $2,500,000* 6.00% (f) Optional Redemption: The Revenue Bonds are subject to redemption at the option of the City in whole or in part at any time (by lot within a maturity) at a price of par plus accrued interest, if any, to the date of redemption. (g) Mandatory Redemption: If not previously redeemed as described above, the Bonds shall be called for redemption by lot (in such manner as the Bond Registrar determine's) at par plus accrued interest at any time, but solely out of the funds specified, and on the conditions provided, in Section 4.1(b) of the Bond Ordinance. (h) Closing Date: On or about December 15, 2000. (i) Bond Counsel: Preston Gates & Ellis LLP. * May be reduced based on actual amount of bonds required to be issued under the Agreement. The Parties expect the actual amount to be about $2,000,000. C: \WINDOWS \TEMP \rev'd BPA 8 -30 clean.doc Last printed 09/08/00 10:09 AM City of Yakima - Apple Tree Agreement Page 15 of 15 ;44' . . ,, OFFICE OF THE CITY CLERK t a m 74� s ¢ ' 129 North Second Street IV *t _„,,`,0700:^-, e I Yakima, Washington 98901 1, 0; �c� ` Phone (509) 575 -6037 Fax (509) 576 -6614 1 ' 11 1 " S P - T,.- 49 - _ November 20, 2000 Mr. James C. Carmody Velikanje Moore & Shore, P.S. P. 0. Box 22550 Yakima, Wa 98907 Re: Apple Tree Contract and Memorandum of Understanding City Contracts Nos. 2000 -76 and 2000 -77 Dear Mr. Carmody: Enclosed is a copy of the Apple Tree Sewer Construction and Bond Purchase Agreement and Memorandum of Understanding with the date of execution inserted as November 11, 2000 as we discussed. Sincerely, �7 gj i ls , - --ti_.- -} re.- -t - 0-' 'i - "' Karen S. Roberts, City Clerk Enclosure Yakima iii 1994 E. Frederick Velikanje* Carter L. Field Nancy L. Geisler Velikanje Moore & Shore, P.S. John S. Moore J. Jay Carroll Metiner G. Kimel a t t o r n e y s at l e W Morris G. Shore Mark E. Fickes Travis W. Misfeldt George F. Velikanje Douglas L. Federspiel Garon K. Jones V MS Alan D. Campbell Brendan V. Monahan James C. Carmody Kevan T. Montoya • of counsel c r ry OF YA K1 r; A i November 15, 2000 1 i NOV 2000 OFFICE OF CITY M �11 AG EP 11� j 1 iVi ITA�. EP Mr. Glenn Rice Assistant City Manager CITY OF YAKIMA 129 North Second Street Yakima, Washington 98901 Re: City of Yakima - Apple Tree Ahtanum Sewer Extension Dear Glenn: I have enclosed original executed copies of the following documents: 1. Sewer Construction and Bond Purchase Agreement; and 2. Memorandum of Understanding. I have also enclosed an initial deposit for sewer extension development costs in the sum of Forty Thousand Dollars ($40,000). The deposit is made payable to the City of Yakima and represents Apple Tree's initial contribution to engineering expenditures for the project. It is our understanding that the deposit will cover current obligations incurred with respect to engineering of the sewer line extension. Please keep us advised and we will provide supplemental contributions as required for payment of services. We appreciate City of Yakima's work and commitment to this project. Very truly yours, 0 — 10 , il ‘Ili , I ,_ Q., . 9i: . .4 3. _, - .. mes C. Carmody 411 JCC:ji Enclosures Via hand delivery c: John Borton 405 East Lincoln Avenue P.O. Box 22550 Yakima, WA 98907 (509) 248 -6030 fax (509) 453 -6880 .. . • • . . ‘ , ' ,FA.•• APPLE TREE PARTNERSHIP Key Bank 66516ft 209 Yakima 8804 Occidental Avenue Yakima, WA 98912 i Yakima, Washington 98903 1s-57 APPLE TREE 1250 1 1. / 1 4 / 2009Y ,-; PAY TO THE $ ORDER OF CITY OF YAKIMA g 4 40, 000. .00i: F a , , , - , - 1 . 7 . y Thousa nd and 00i Dzia... K. * * * * 4 * 4 *,• 4 * * 4 A * * X- 4 A * .W * * * * * 4 *'. 4 'A * * * * * 4, .)4 , k * ;DOLLARS CITY OF YAKI.A : t i'. MEMO SEWER EXTENSION FOR DEVELOPMENT i) I . .:` 0 ) V7115gggliVKIfti , .... . APPLE TREE GOLF COURSE 66516 CITY CIF YAlx:111A 1i/14/2000 Bill #SEWER EXT. 40,000.01= l''.F Eq'N''' - ! c'"7=q F7PNSTflN r. DFVF'OPMF19 1 i7,1 f;?tc?irA 1 i IRIPI ai��i�.r�7 \ pig- , ` Exhibit 1 1 rwatirjj.„ li , • mu h = :i.l s>� * : �. ::��. ����a 4 -; 4 -; 11 x 17 Versi on 1 . i --10.1 � -a ■∎ ■� -a ■ dE ALE ; ■ uauu uNdiN'iN l[ • ..:: = p _ ,,■._ rte 1 -- I i r � � ;, • � I = - , �. -: ..� Ahtanum Sub Basin i er Construct I n 3 I pM■1 • �. Ill -� - �� - -- _.r : / ' �_:!... � . ... -.. . ■, i Sew ruct & Bo d — -� -, .7 _ ~" �{ � 10...04. �' . " :4' IIF � Purchase Agreement c .- I I /r ;, It .. �iN wtr_ �� A r gill . N — - e . E ' r--- - - -- II .. diF41::� ■ le City Limits 1 — ....ai Wi g` •' -- " - 1 " c _ :_ L - li� -lr. • i;. * , -° E ,_ „ �i::; - 0 ( Zone One) I I JT � i t R .... " �C 1 • t�: : :1 � • N Ur . : I N PJ J SGG .... :r . ;I j ; l a ' f o) I. 6 u @ �� I 11111 . 1., , - - - i I� ! 1`. s:r +_ __: € • "° .ii � T �� @ _�� . , — - GMA Urban Growth Boundary de �'■�� W — JL -�= : _ °� :� :_ p (Zone Three) 7. elm ■■ ■ - _- -- _ ' �' ; _ _ � '� Sewer Lines 1. ■ ■� ■_ - _ I r11 I I -W � I -- ".T. �p �� t E ' : 1 ' : I flIIflI !I t 'I ... ..:. _ - 'w` s: :� Apple Tree IL "r�� : � _ Future Development 1 m 1. I - , f:: � Proposed Project Pipe L 4 , Ahtanum -� Sub Basin ' lib _ - : _ ■.-� -V V - i A#11 ■ J _ ■_ f — — — 1 _ Rol — iis This 11x17 map represents I _ but does not replace the - — - , Int '1 - .ENTAL _ _ — OC aCf4'A'.AVE — _ full size version of MI , ■ �,. - I L Exhibit 2(d) to the � ■ 1 Sewer Construction Bond I' a Purchase Agreement . III - , tam ____-_ I r--- i _ i I l i, ..- ',... , ill: to: . _ q .11 .4,. --..." 1 - f . , 7 111P46$111 1 H r i 117---J !� -1 -' ' I II= I �1 of Y4i� - N � o �� I m • ii A...-.: 10 01 LI _L -],-- --1-- _. ., � r - I ■1 �■ 11 �� I I O • IIMMil ei - -. ■ ■ZMME■ 111 — t Il a o • ...111. ,.d Scale - I in = 25000 1 111 . - -- - -- WI .11-1.--•- is- - _ ....--\--- . i � � - 0 1250 2500 -- f� Created: August 28, 2000 - - ....4 --- .. _WN00 Exhibit 2(d) " C I- ' '• i 1AT- 11 x 17 Version t TI i 1 --4 k•-,4 Ahtanum Sub Basin DOUCIAC Ft = VO01. O011rYlVrI, - F 1 , — 7 Sewer Construction & Bond I I Purchase Agreement -Z.. . .._ a a 1 — CA) LunIts LI/ : MA NO u , "'''' - 1 ...., • y )- _,,,..._,=. --- — -- lour Prry LIM= .Are4 ,OCr --! L"' °- - -- GMA Crbao Growth Boundary VI VIA.411 41 7 _ „ sewn I lines s ......... _ E. .......A.. - S „AVM, RC ,w,r,L...L.=.....m... iiiiirr •• .....4 :.+ .. r __ M .....-.1..._ r 1 _ -. ,1- 0.(.0■70 • AA . ' At -,-....... • .1] • I • ' ' • . 1 _ .. • i . a ...--•-... t-- I r 1 _, ------ ••-•••-•'.. AMMON AO --- i- - i - — *. J -. , ....... . - ... 'i . . . - GLUM' PO ?, *. N 0 et AN . o ,wonfol4, A CO riiiiiiM • , , • • > ,,, ,,g• 4 4 s e li4 n 3 -,----- _ s. ... .. .. as.ss.......1.1., RESOLUTION NO. R -2000- 106 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute an agreement with Huibregtse, Louman, & Associates (HLA), a civil engineering firm, for the design and construction of the Apple Tree Sewer Extension plans for the City of Yakima. WHEREAS, the City of Yakima desires to extend sewer service mainline to the Apple Tree Development; and WHEREAS, the City requires professional civil engineering services to prepare plans, specifications, and estimates for the construction of the sewer mainline extension; and WHEREAS, the City of does not have the staffing levels necessary to provide said civil engineering services; and WHEREAS, the Yakima City Council deems it to be in the best interest of the City that the attached agreement document be executed by the City of Yakima, accordingly; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute an agreement with Huibregtse, Louman, & Associates, Inc. (HLA) for the purpose mentioned above, a copy of which agreement is attached hereto and by reference made a part hereof. ADOPTED BY THE CITY COUNCIL this 5th day of SEPTEMBER, 2000_ Mary Place, Mayor ATTEST: ACTING City Clerk August 10, 2000 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT entered into this day of , 2000, by the CITY OF YAKIMA, 129 North Second Street, Yakima, WA 98901, hereinafter called the CITY, and HUIBREGTSE, LOUMAN ASSOCIATES, INC., 801 North 39' Avenue, Yakima, WA 98902, hereinafter called the ENGINEER, WHEREAS, it would be beneficial to the CITY to utilize the ENGINEER as an independent entity to accomplish the Scope of Work as set forth herein and such endeavor would best accomplish the objectives of the Project, WITNESSETH: That in consideration of the mutual covenants and agreements herein contained, the parties hereto do mutually agree as follows: 1. ENGAGEMENT OF ENGINEER: The CITY, acting pursuant to its vested authority, does hereby hire the ENGINEER and the ENGINEER agrees to perform professional engineering and surveying services in connection with the proposed Ahtanum Trunk Sewer Extension (Apple Tree Sewer Extension) for the City of Yakima. The City Council of the City of Yakima at its meeting of , 2000, authorized the City Manager to sign this Agreement for Professional Services. City Manager Richard A. Zais, Jr., or designated representative, will act as the liaison for the CITY, and Mr. William L. Huibregtse will act as liaison for the ENGINEER for administration of this Agreement. This Agreement for Profes- sional Services can only be amended or revised by the written agreement of both parties. The relationship of the ENGINEER to the CITY shall be that of an independent ENGINEER rendering professional services. The ENGINEER shall have no authority to execute contracts or to make commitments on behalf of the CITY and nothing contained herein shall be deemed to create the relationship of employer and employee or principal and agent between the CITY and the ENGINEER. 2. CHARACTER AND EXTENT OF SERVICES: The ENGINEER shall perform certain professional engineering and surveying services for the following described Ahtanum Trunk • Sewer Extension (Apple Tree Sewer Extension) Project: Project is the design and construction of (A) the Ahtanum Trunk Sewer Line, beginning along South 64'h Avenue approximately 1,200 feet south of Washington Avenue; then following South 64' Avenue south to Ahtanum Road; then following Ahtanum Road west to South 86' Avenue; and (B) design and construction of a 10 -inch sewer along South 86 Avenue north from Ahtanum Road to Occidental Avenue. The Ahtanum Trunk Sewer Line is a necessary wastewater collection component to provide City wastewater service to the Ahtanum Sub -Basin and has been identified in the Waste- water Utility Capital Facilities section of the CITY's Capital Facilities Plan 1996 -2001, which is an element of the City Comprehensive Plan adopted pursuant to State Growth Management Act requirements. A map of the Ahtanum Trunk Sewer Line is attached as Exhibit A. Preliminary analysis by the City shows that the pipe size requirements necessary for the Ahtanum Trunk Line to serve the Ahtanum Sub -Basin include 3,500 linear feet of 24 -inch pipe and 7,000 linear feet of 18 -inch pipe. Approximately 2,100 linear feet of 10 -inch pipe are required for the sewer line along South 86 Avenue. Final pipe size requirements will be determined by sewer planning for the drainage basin as determined by the CITY. The Project also includes manholes, related appurtenances, • and roadway restoration. G: UANI YA K /MA -JC -31 YKJ3 -76. wod 1 Rev. August 10, 2000 PHASE I - DESIGN AND FINAL PLANS AND SPECIFICATIONS a. Perform the field investigations and field surveying necessary to design the Ahtanum Trunk Sewer Extension project in accordance with the intent of the Agreement between the City of Yakima and the Apple Tree Partnership. b. Supervise and perform subsurface explorations such as borings, soil tests, and the like to assist in estimating foundation conditions. c. Perform the preliminary design and present preliminary plans to the CITY prior to detailing final Plans. d. On the basis of approved preliminary plans, perform the final design and prepare complete Plans and Specifications for bid call on the proposed work, as authorized by the CITY. e. Furnish the CITY a reproducible original of the final Plans and Specifications for bidding and construction. • f. Furnish to the CITY engineering data for and assist in the preparation of the required documents so the CITY may secure approval of such governmental authorities as have jurisdiction over design criteria applicable to the Project. g. Answer and supply such information as is requested by prospective bidders. h. Prepare and issue addenda. if necessary. i. Prepare the ENGINEER's Estimate of construction cost. j. Attend bid opening and participate in the bid opening and evaluation process. k. Prepare tabulation of all bids received by the CITY and review bidder's qualifica- tions. I. Make recommendation of construction contract award to the lowest responsible bidder. PHASE II - SERVICES DURING CONSTRUCTION a. Furnish the field survey crew necessary to set horizontal and vertical control for the improvements authorized for construction, including alignment and offset construction stakes. b. Furnish a qualified resident engineer who shall make construction observations and be on the job when significant work is in progress, whose duty shat; oe to provide surveillance of project construction for substantial compliance with Plans and Specifications. c. Prepare periodic progress reports on the Project and file same with the CITY and provide monthly progress estimates to the CITY. d. Consult and advise the CITY during construction and make a final report of the completed work. e. Monitor the construction contractor's compliance with State equal employment opportunity requirements and labor standards. G: UAMYAK/MA -JC -31 YKJ3 -76. wpd 2 Rev. August 10. 2000 f. Review Contractor's submission of samples and shop drawings, where applicable. g. Recommend progress payments for the construction contractor(s) to the CITY. h. Prepare and submit proposed contract change orders when applicable. i. Prepare and furnish reproducible record drawings of all completed work from as- built drawings furnished by the CITY's construction contractor. PHASE III - ADDITIONAL SERVICES • a. Perform, at the CITY's option and direction, any other engineering, field surveying, inspection, or management services required in addition to that provided above. b. Prepare documents for alternate bids requested by the CITY for work which is not executed. c. Redesign the project in the event the final cost estimate or the lowest responsive bid less deductive alternates exceeds the funds available. 3. ITEMS TO BE FURNISHED AND RESPONSIBILITY OF CITY: The CITY will provide or perform the following: a. Provide full information as to CITY requirements of the Project. b. Assist the ENGINEER by placing at his disposal all available information pertinent to the site of the Project including previous reports, drawings, plats, surveys, utility records, and any other data relative to design and construction of the Project. c. Examine all studies, reports, sketches, estimates, specifications, drawings, proposals, and other documents presented by the ENGINEER and render in writing decisions pertaining thereto within a reasonable time so as not to delay the work of the ENGINEER. d. Advertise for hearings and proposals for bidders, open the proposals at the appointed time and place, and pay for all costs incident thereto. e. Obtain approval of all governmental authorities having jurisdiction over the Project and such approvals and consents from such other individuals or bodies as may be necessary for completion of the Project. f. Print copies of the final plans and specifications and distribute to contractors, subcontractors, suppliers, plan centers, government agencies, and others with interest in this project. g. Provide written direction to the ENGINEER, prior to beginning preliminary design engineering, advising which project rights of way and easements are secured by the CITY and are available for this project. 4. COMPLETION TIMES: The services called for under the various phases of Section 2 of this Agreement shall be completed as follows: Phase I - Design and Final Plans and Specifications Complete final plans, specifications, and cost estimates within ninety (90) calendar days from the date of authorization to proceed. G: VANIYAKIMAJC- 31YKJ3- 76.wpd 3 Rev. August 10, 2000 Phase II - Services During Construction: Within the times mutually agreed upon by the CITY and the ENGINEER. Estimated construction contract time for the project is one hundred eighty (180) • calendar days. Phase III - Additional Services: Within the times mutually agreed upon by the CITY and the ENGINEER. • 5. PROFESSIONAL FEES: For the services furnished by the ENGINEER as described under Section 2 of this Agreement, the CITY agrees to pay the ENGINEER the fees as set forth herein: Phase I - Design and Final Plans and Specifications: Ahtanum Trunk Sewer Extension Project - The lump sum amount of $159,500.00. This amount may not be increased or decreased without the written agreement of both parties. Phase II - Services During Construction: According to Exhibit B - Schedule of Hourly Rates on a time spent basis plus reimbursement for direct non -salary expenses such as materials testing, repro- duction expenses, out of town travel costs, long distance telephone calls, and outside consultants. The maximum amount payable by the CITY to the ENGINEER for services provided under this Phase it shall not exceed $172,900.00. This maximum amount may be increased only by the written agreement of both parties. Phase III - Additional Services: According to Exhibit B - Schedule of Hourly Rates on a time spent basis plus reimbursement for direct non -salary expenses such as laboratory testing, reproduction expenses, out of town travel cc-ts, long distance telephone calls, and outside consultants. The maximum amount payable by the CITY to the ENGINEER for other services provided under this Phase III shall not exceed the amount authorized by the CITY in the Crflr's authority to proceed letter to the ENGINEER. This maximum amount may oe increased only by the written agreement of both parties. 6. PAYMENT: Phase I - Monthly_ payments payable according to Section 7 of this Agreement, based on the estimated percent of completion. Phase II - Monthly payments payable according to Section 7 of this Agreement, based on the documented amount due. Phase III - Monthly payments payable according to Section 7 of this Agreement, based on the documented amount due. 7. PAYMENT OF COMPENSATION: ENGINEER shall submit monthly invoices to the CITY. Said invoices shall itemize all services rendered during the preceding monthly period. The G: UANIYAKIMAJC- 31YKJ3 -76. wpd 4 Rev. August 10, 2000 CITY shall make payment to the ENGINEER within thirty (30) calendar days of receipt of the invoice. All payments are expressly conditioned upon ENGINEER providing services here- under that are satisfactory to the CITY. 8. REVISION OF THE WORK: If, after the preliminary Plan has been approved and the ENGINEER is authorized to proceed with working drawings and has performed work in prosecuting the same and the CITY authorizes new or substantially alters the Plan, requiring new working drawings or Specifications, the CITY will pay the ENGINEER a just and equitable compensation as determined by the CITY and ENGINEER or arbitrators in the event an agreement cannot be reached between the CITY and the ENGINEER. 9. ADDITIONAL WORK: If. during the performance of the Agreement, other or additional services than herein specified are required in connection with the Project, the CITY may order the ENGINEER in writing to perform such services for the consideration provided in Section 5, Phase III, such services in all other respects to be subject to the terms of this Agreement. 10. FACILITIES TO BE FURNISHED BY THE ENGINEER: The ENGINEER shall furnish and maintain a Yakima, Washington, office, drafting space, and equipment suitable and adequate for the prosecution of the work that is normal to the functioning of an established consulting engineering and surveying practice. 11. TERMINATION: The CITY or ENGINEER may terminate this Agreement by giving thirty (30) days written notice to the other party. In such event, the CITY shall forthwith pay the ENGINEER in full for all work previously authorized and performed prior to" notice of termination. In the event of termination, the ENGINEER agrees to cooperate reasonably with any consulting engineer thereafter retained by the CITY in making available information developed as the result of work previously performed by the ENGINEER. If no notice of termination is given, relationships and obligations created by this Agreement, unless otherwise expressly provided, shall be terminated upon completion of all applicable requirements of the Agreement. 12. TAXES AND ASSESSMENTS: ENGINEER shall be solely responsible for compensating its employees and for paying all payroll - related taxes, deductions, and assessments, including but not limited to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. 13. DESIGN INTENT: ENGINEER shall prepare the design documents, drawings, and specifi- cations with the understanding that a representative of ENGINEER may be observing the quality and progress of the resulting construction for compliance with the design intent. 14. ACCESS, APPROVALS. PERMITS: The CITY shall arrange for access to and make all provisions for ENGINEER to enter upon such public and private property as may be required for ENGINEER to perform its services under this Agreement. 15. STANDARD FOR PERFORMANCE: The ENGINEER shall perform its services in accord- ance with generally accepted consulting engineering standards and shall be responsible for the professional and technical soundness and accuracy of all work and services furnished pursuant to this agreement. 16. CITY- PROVIDED INFORMATION: ENGINEER is entitled to rely on all information furnished or to be furnished by CITY. CITY agrees to defend and indemnify ENGINEER, its officers, agents, and employees from any and all claims for damages caused by an error or omission G:VANIYAKIMA- JC- 31YKJ3 -76 wpd 5 Rev. August 10, 2000 if information provided by the CITY were the cause of the claim, and provided further that the ENGINEER's reliance on such information was reasonable under the circumstances. 17. SCHEDULING: The CITY shall inform ENGINEER of activities being conducted by other parties and of any changes in schedules or other plans relevant to the services provided under this Agreement. 18. COST ESTIMATES: The CITY is herewith advised that ENGINEER has no control over the cost of labor, material, or equipment; over subcontractors' and suppliers' methods of produc- ing and delivering such goods and services; or over the methods and styles of competitive biding or market conc: Accordingly, ENGINEER's cost estimates are made and furnished on the basis of ENGINEER's experience and qualifications and represent only best judgment as an engineering firm familiar with the construction industry. As such, ENGINEER cannot and does not warrant or guarantee the accuracy of its cost estimates, or that cost estimates will not vary, significantly from the actual project or construction costs realized by the CITY. 19. CONSTRUCTION AND SAFETY: ENGINEER shall not be responsible for the means, methods, techniques, sequences, or procedures of construction selected by contractors or the safety precautions and programs incident to work of contractors. 20. SUBMITTAL REVIEW: Review of proposed contractor substitutions of materials and equipment by ENGINEER is only for general conformance with the design concept of the Project and general compliance with the information given in the contract documents. The review does not affect the contractor's responsibility to perform all contract requirements with no change in contract price or time. 21. OWNERSHIP OF DOCUMENTS: All reports, designs, drawings, and specifications prepared by ENGINEER pursuant to this Agreement shall be the property of the CITY upon payment being made by the CITY to ENGINEER in accordance with this Agreement. ENGINEER shall provide the CITY with originals and /or reproducible copies of such documents when requested by CITY representatives. ENGINEER does not intend nor represent that such documents are suitable for reuse by the CITY or others on extensions of this project or with regard to any other project. Any such reuse without the written permission of ENGINEER shall be at the CITY's risk. 22. THIRD -PARTY BENEFICIARIES: It is recognized that the services performed by ENGINEER are for the benefit of the CITY and no other party. There are no third -party beneficiaries to this Agreement. 23. NONDISCRIMINATION PROVISION: During the performance of this Agreement, ENGINEER shall not discriminate on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, handicap. This provision shall include, but not be limited to, the oll wing l employment,, upgrading, demotion, transfer, recruitment, advertising, layoff or termination; rates of pay or other forms of compensation; selection for training; and the provision of services under this Agreement. 24. COMPLIANCE WITH LAW: ENGINEER acrees to perform all work/services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. G: JANI YAK/MA -JC -31 YKJ3 -76. wpd 6 Rev August 10, 2000 25. EXECUTIVE ORDER 11246 CLAUSE • a. ENGINEER will not discriminate against any employee or applicant for employment because of race, creed, sex, color, or national origin. ENGINEER will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, sex, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprentice- ship. ENGINEER agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the CITY setting forth the provisions of this nondiscrimination clause. b. ENGINEER will, in all solicitations or advertisements for employees placed by or on behalf of ENGINEER, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, or national origin. c. ENGINEER will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies and raw materials. d. ENGINEER will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. e. ENGINEER will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor, or pursuant thereto, and will permit access to ENGINEER's books, records, and accounts by the CITY, the Washington State Planning and Community Affairs Agency, and the U.S. Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. f. In the event of ENGINEER's noncompliance with the noncompliance provision clauses of this Agreement or with any such rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and ENGINEER may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 25, 1965, or as otherwise. provided by law. g. ENGINEER will include the provisions of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. ENGINEER will take such action with respect to any subcontract or purchase order as the CITY may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event ENGINEER becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the CITY, ENGINEER may request the United States to enter into such litigation to protect the interest of the United States. 26. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 CLAUSE: Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any G: VAN \YAKI MA -JC -31 YKJ3 -76. wod 7 Rev. August 10, 2000 program or activity receiving federal financial assistance. This shall include compliance with all applicable provisions of the Regulations of the U.S. Department of Commerce Pa Subtitle 15 of the Code of Federal Regulations) issued pursuant to the Civil Rights Act of 27. ACCESS TO RECORDS CLAUSE: The CITY and other authorized representatives of the state government shall have access to any books, documents, papers, and recor P ENGINEER which are directly pertinent to the Agreement for the purposes of making ds s of examination, excerpt, and transcriptions. 9 audit, s , ENGINEER agrees to maintain such records and follow such procedures as may be required. In general, such records will include information pertaining to this Agreement, obligations and unobligated balances, assets and liabilities, outlays, equal o 9 q fired. appropriate), and performance. PPortunity, labor standards (as All such records and all other records pertinent to this Agreement and work undertaken under this Agreement shall be retained by ENGINEER for a period of three years after the final udit of the CITY's project, unless a longer period is required to resolve audit findin s or liti audit In such cases, the CITY shall request a longer period for record retention. g gation. 28. INTEREST OF MEMBERS OF A CITY: No elected official of the CITY and no other officer, employee, or agent of the CITY who exercises any functions or responsibilities in connection the planning and carrying out of the project shall have an y personal financial interest, direct or indirect, in this Agreement: and ENGINEER shall take appropriate compliance. ppropriate steps to assure 2 9. PERSONNEL: ENGINEER represents that ENGINEER has, or will scure at its own expense, all personnel required in order to perform under this Agreement. e Such personnel shall not be employees of or have any contractual relationship to the CITY. All services required hereunder will be performed by ENGINEER or under ENGIN supervision, and all personnel engaged in the work shall be fully E be authorized or permitted under state or local law to perform such services. qualified and shall be 30. COPYRIGHT: No reports, maps, or other documents produced in whole or in part under Agreement shall be the subject of an application for copyright by or on behalf of ENGIN this 31. AGE DISCRIMINATION ACT OF 1975. AS AMENDED: EER. participation, denied program benefits, or subjected No person shall be excluded from under any program or activity receiving federal funding assistance (42 U.S.C. 610�et. age 32. SECTION 504 OF THE REHABILITATION ACT OF 1973, AS AMENDED: N 0 otherwise Eq.). qualified individual shall, solely by reason of his or her handicap, be excluded from (including employment), denied program benefits, or subjected to discrimination under any program or activity receiving federal funds (29 U.S.C. 794). 33. PUBLIC LAW 101 -336 AMERICANS WITH DISABILITIES ACT OF 1990: Su bject to the provisions of this title, no qualified individual with a disability shall, by reason of su disability. be excluded from participation in or be denied the benefits of the se such programs, or activities of a public entity, or be subjected to discrimination by Vices, 34. NON - EXCLUSIVE AGREEMENT: The parties hereto agree that this Agreement y such h entity. exclusive and the CITY may retain, employ, or contract with other engineering firms for non - is during the term of this Agreement in compliance with RCW 39.80. work G: UANI YAKIMA -JC -3I YKJ3 -76. wpd 8 Rev. August 10, 2000 35. INSURANCE: It is understood the CITY does not maintain liability insurance for ENGINEER or its employees and subcontractors. 36. INDEMNIFICATION AND HOLD HARMLESS: a. ENGINEER agrees to protect, defend, indemnify, and hold harmless the CITY, its elected officials, officers, ,employees, and agents from any and all claims, demands, losses, liens „liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs, and expenses (including attorneys' fees and disbursements) caused by or occurring by reason of any negligent act and /or omission of ENGINEER, its officers, employees, agents, and /or subcontractors, arising out of or in connection with the performance of this Agreement. • b. In the event that both ENGINEER and the CITY are negligent, ENGINEER's liability for indemnification of the CITY shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs, and expenses (including reasonable attorney's fees) that can be appor- tioned to ENGINEER, its officers, employees, agents, and /or subcontractors. c. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. 37. INSURANCE PROVIDED BY ENGINEER: a. Commercial Liability Insurance. On or before the date this Agreement is fully executed by the parties, ENGINEER shall provide the CITY with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect that "this certificate is issued as a matter of information only and confers no right upon the certificate holder” shall be deleted). Said policy shall be in effect for the duration of this Agreement. The,.policy shall name the CITY, its elected officials, officers, agents, and employees as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice (any language in the clause to the effect that "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. b. Commercial Automobile Liability Insurance. On or before the date this Agreement • is fully executed by the parties, ENGINEER shall provide the CITY with a certificate of insurance as proof of commercial automobile liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect that "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted). Said policy shall be in effect for the duration of this Agreement. The policy shall name the CITY, its elected officials, G. UANI YAKI MA -JC -31 YKJ3 -76. wpd 9 Rev. August 10. 2000 officers, agents, and employees as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice (any language in the clause to the effect that "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. c. Professional Liability Insurance. On or before the date this Agreement is fully executed by the parties, ENGINEER shall provide the CITY with a certificate of insurance as evidence of Professional Errors and Omissions Liability Insurance with coverage of One Million Dollars ($1,000,000.00) per occurrence and an annual aggregate limit of at least One Million Dollars ($1,000,000.00). The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. If the policy is on a claims made basis, the retroactive date of the insurance policy shall be on or before January 1, 1998, or shall provide full prior acts. The insurance coverage shall remain in effect during the term of this Agreement and for a minimum of three (3) years following the termination of this Agreement. d. Insurance Provided by Subcontractors. ENGINEER shall ensure that all sub- contractors it utilizes for work/services required under this Agreement shall comply with all of the above insurance requirements. 38. ASSIGNMENT: This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by ENGINEER to any other person or entity without the prior written consent of the CITY. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of ENGINEER stated herein. It is understood by both parties that geotechnical engineering subconsultant services may be employed by the ENGINEER for this project. 39. SEVERABILITY. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 40. INTEGRATION: This written document constitutes the entire agreement between the CITY and the ENGINEER. There are no other oral or written Agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 41. NOTICES: Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: Yakima City Engineer and Yakima City Manager Yakima City Hall Yakima City Hall 129 North Second Street 129 North Second Street Yakima, WA 98901 Yakima, WA 98901 G:UANIYAKIMA- JC- 31YKJ3 -76 wod 10 Rev. August 10, 2000 TO ENGINEER: Huibregtse, Louman Associates, Inc. 801 North 39 Avenue Yakima, WA 98902 or to such other addresses as the parties may hereafter designate in writing. Notices and /or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 42. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 43. VENUE: The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written. CITY OF YAKIMA HUIBREGTSE, LOUMAN ASSOCIATES, INC. R.A. Zais, Jr., William L. Huibregtse, PE City Manager President DATE: DATE: 8 - /( -oO ATTEST: Karen S. Roberts City Clerk City Contract No. Resolution No. G. UANIYAKI MA -JC -31 YKJ3 -76. wpd 11 Rev. August 10, 2000 t' ' 1_.'y I I , - _ ' i t t - 1 I I, �� i 0 1 ,11 ,, 1 / 'f1[R Iruall > � • { 'I , .IA�n r • / / N 4P U. / e ■ I I y, II N[ 1,,,,•1 11 )' 7 n I � li v li 1 it • 1 I ;1 113t, ��� I '1 I . ' c li 4 q, 1 ol • • F I ( 111)1 11 )IsF 1 \ 1 1 _ � , n I ' III. 1 ' n , ,1101 I 11'1 1 . I• - • • w 1 I u I • 4 4,i • A VI NVI . ) , 1 I') - ■ • I / I ' ). d — � -� :.- /I I 1 1• 1 ' )Ilucc,1urrly.11 ••• • pI' t • _ ,• y" •r_•• ■ II • • I. • • 1 :Il: �'�III 1111111" �• •1 u ::. 11 ` 11 1 ,•. ,., l.. .. ' I /MI I J I I I ,,,r,,• 1 i••• . : -r v kilt b 1 . 1 A J ., _— .1 J - / 1 111:1 ' II( )1 )' I I) 1 t I W1': 111 X11 l /,1 • i :1Vill. c , � ::,11. I A I1 � I A It I l! i j 1 0 . : 1 . _ . ' J( — ° (_ _ . 1 • _ 1 ' \ ! i n / '1 1 • .. 1 i 111 ) I l'17/C ... I / • :11111111 • 1 , 1 I I ' • I i • 1 s I I. 1 I 1 ,, ` 1 . • • �; I 4 uln, EXHIBIT A L ®CA - fl® �t . EXHIBIT "B" SCHEDULE OF RATES FOR HUIBREGTSE, LOUMAN ASSOCIATES, INC. (January 1, 2000, Through December 31, 2000) Principal Engineer $109.00 per hour Licensed Professional Engineer $89.00 per hour Licensed Professional Land Surveyor $83.00 per hour Project Engineer $75.00 per hour CAD Technician $65.00 per hour Resident Engineer /Inspector $62.00 per hour Senior Engineering Technician $49.00 per hour Engineering Technician $43.00 per hour Word Processing Technician $43.00 per hour Two Man Survey Party $119.00 per hour Three Man Survey Party $154.00 per hour Vehicle Mileage 0.30 per mile G UANI YAKIMA -JC -31 YKJ3 -76. wpd 12 Rev. August 10. 2000 EXHIBIT "B" SCHEDULE OF RATES FOR HUIBREGTSE, LOUMAN ASSOCIATES, INC. (January 1, 2001, Through December 31, 2001) Principal Engineer $112.00 per hour Licensed Professional Engineer $92.00 per hour Licensed Professional Land Surveyor $85.00 per hour Project Engineer $77.00 per hour CAD Technician $67.00 per hour Resident Engineer /Inspector $64.00 per hour Senior Engineering Technician $50.00 per hour Engineering Technician $44.00 per hour Word Processing Technician $44.00 per hour Two Man Survey Party $122.00 per hour Three Man Survey Party $159.00 per hour Vehicle Mileage 0.30 per mile G.tJANIYAKIMA- JC- 31YKJ3 -76 wpd 13 Rev. August 10, 2000 • • • Return Address: City of Yakima Yakima, Washington OUTSIDE UTILITY AGREEMENT, ANNEXATION COVENANT, AND SPECIAL POWER OF ATTORNEY THIS AGREEMENT is made between the City of Yakima (hereinafter "City ") and the • undersigned Owner(s) and or Occupant(s) hereinafter collectively "Owner "). WHEREAS, Owner owns and /or occupies the following-described g d real property located within Yakima County, Washington, to wit: and, - WHEREAS, Owner has applied to the City for City domestic water and /or sewer service for the above - described real property: NOW, THEREFORE, in consideration of the furnishing of such water and/or sewer service, Owner for himself and on behalf of his heirs, successors and assigns, does hereby promise and agree as follows: 1. Incorporation of Recitals. The foregoing recitals are Incorporated herein by reference. 2. Charges and Fees. Owner shall pay to the City of Yakima, when due, all connection charges, service fees, future local improvement district assessments, capital cost recovery charges, if any, and any and all other charges and fees required by law to be paid for the service hereby applied for. Connection to or extension of a public utility system will be at 411 City of Yakima, Outside Utility Agreement (OUA) Amended by Resolution R- 98 -61, May 5, 1998 Page 1 • City of Yakima - Apple Tree Sewer Construction and Bond Purchase Agreement -- Exhibit 4.2(g) Page 1 of 6 • • Owner's expense and liability. Owner is responsible to obtain and record any necessary easements. 3. Property Alterations and Improvements. Owner promises and agrees to make all alterations, improvements, and repairs on and to such property and the buildings, structures, and other improvements thereon as specified on the attachment hereto marked "EXHIBIT A" and by reference made a part hereof (including, but not limited to, the service connection from the City's Main to the property), which alterations, improvements, and repairs shall be completed within the time specified on EXHIBIT A and shall be the property of Owner. Any future new construction or future alterations, additions or repairs shall conform to any and all then applicable construction and zoning codes as if the property affected by this Agreement were situated within the boundaries of the City of Yakima. The City shall have the right at any and all reasonable times to inspect the property described above, and any existing buildings, structures, and other improvements thereon. 4. Annexation Covenant. For purposes of this paragraph only, the term "Owner" shall exclude an occupant who does not own the real property legally described above. Owner has been informed of and understands that the City intends to commence annexation proceedings to annex certain property to the City of Yakima, including, but not limited to, the property legally described above. Information about the proposed annexation is available for public review at the City of Yakima Department of Community and Economic Development at 129 North 2nd Street, Yakima, Washington. Owner may review this information upon reasonable notice. Owner has a • Presently existing iegai right not to sign a petition for annexation of the property legally described above. The purposes of this Agreement include but are not limited to Owner waiving such right and creation of such waiver as a covenant running with the land in the event that the City, in its discretion, furnishes water and/or sewer service to the above - described lane. In consideraon and as a condition of such furnishing of water and %or sewer service. Owner, for himself and for his heirs, successors and assigns, agrees and covenants with the City of Yakima, and to the present and future owners of any property affected by the furnishing of City water and /or sewer service to which this covenant relates, such agreement to constitute a covenant running with the land, that they shall, whenever so requested, sign any letter, notice, petition, documents, or other instruments initiating, furthering or accomplishing the annexation of the above- described property to the City of Yakima, whether or not the annexation involves the assumption by the area to be annexed of existing City indebtedness, the application to the area to be annexed of the comprehensive plan and land use controls of the City, and such other conditions as the City may lawfully impose, and the Owner will not protest the future formation of any local improvement district for domestic water and /or sewer service for any district which includes the property affected by this Agreement. Furthermore, this instrument shall be considered both a valid Notice of Intent to Commence Annexation and a valid Petition. for Annexation, signed by the Owner, and by Owner's heirs, successors and assigns, for the above - described real property. 5. Special Power of Attorney. The undersigned Owner of the above - described real property, on behalf of himself, his heirs successors and assigns, hereby designates the City of Yakima as Owner's true and lawful attorney -in -fact for the purpose of signing any petition leading to the annexation of said real property to the City of Yakima, with full power to do and perform any proper act which Owner may do with respect to the annexation of said real property. The City of Yakima may exercise this power through its City Clerk or otherwise as the city Council may direct. This Special Power of Attorney is given for the valuable City of Yakima, Outside Utility Acreement (OUA) Amended by Resolution R- 98 -61, May 5, 1998 City of Yakima - Apple Tree Page 2 Sewer Construction and Bond Purchase Agreement -- Exhibit 4.2(g) Page 2 of 6 • consideration of the furnishing of water and/or sewer service by the City of Yakima, and this Special Power of Attorney is further given as security for performance of the annexation covenant obligation set forth above. This Special Power of Attorney Is not revocable and shall not be affected by the disability of the principal. 6.. Additional Conditions. Owner further agrees to perform and otherwise comply with the conditions, requirements, restrictions, and other provisions contained on the attachment hereto marked "EXHIBIT B" and by reference made a part hereof in order that this property be used and /or developed in accordance with the Comprehensive Plan of the City, as the Plan now exists or may be amended from time to time, and as if the property were situated within the boundaries of the City of Yakima, all of which are conditions of the granting by the City of the service(s) applied for by Owner. Utility services are being requested for the following described future or existing land use (check the appropriate box) as defined in the Yakima Urban Area . Zoning Ordinance: R -1 Single - Family Residential R - Two - Family Residential R -3 Multi- Family Residential • Other (Describe): Any change in current land use will require the execution of a new Outside Utility Agreement. 7 Bond Owner further agrees that the City may require the Owner to file with the City a bond conditioned so as to insure the performance by Owner or Owner's obligations Under this Agreement; and in the event the City so requires, the undersigned will file such a bond in the amount specified on EXHIBIT B, which bond shall be issued by a corporate surety company authorized to do business in the State of Washington, and which bond shall be subject to the approval of the Yakima City Attorney. 8. Property Sale or Transfer. Owner agrees that in the event of a sale or transfer of the property affected by this Agreement, Owner shall, as a condition of such sale or transfer, require the purchaser, or other new Owner, to sign a duplicate of this Outside Utility Agreement; and that this Agreement and the promises made herein, do constitute a covenant running with the land described above and shall be binding on Owner and Owner's successors in interests to such property, and that this Agreement shall be filed for record In the office of the Yakima County Auditor. 9. Fire Protection Flow Requirements. The City's approval of water service does not guarantee fire protection flow requirements. 10. Litigation: Governing Law. In the event of any suit or action is instituted by either party to enforce compliance with or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall be entitled to collect, in addition to necessary court • costs, such sums as the court may adjudge as reasonable attorney's fees. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for City of Yakima, Outside Utility Agreement (OUA Amended by Resolution R- 98 -61, May 5, 1998 City of Yakima - Apple Tree Page 3 Sewer Construction and Bond Purchase Agreement -- Exhibit 4.2(g) Page 3 of 6 • Yakima County, Washington. This Agreement shall be governed by the laws of the State of Washington. Non- Severabiiity. In the event that any material provision is found unenforceable by a court of competent jurisdiction, this Agreement shall be null and void and the City shall have no further obligation to provide water or sewer service to the property that is legally described above; provided, however, Owner shall make all payments as provided for under this Agreement for services rendered prior to termination of service pursuant to this provision. 12. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. DATED this day of t9 OWNER CITY OF YAKIMA By: By: By: Authorization No.: STATE OF WASHINGTON ) )SS. County of Yakima ) • I certify that I know or have satisfactory evidence that signed this • instrument and aCknOWIEdQEd it to be (his, her, their) free and voluntary act fOr the use diva purposes mentioned in the in strum ent - DATED this day of , .19 Pnnted Name: NOTARY PUBLIC In and for the State of Washington, residing at My commission expres: STATE OF WASHINGTON ) )SS. County of Yakima On this day of before me personally appeared and to me known to be the and of the Corporation that executed the foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned and on oath stated that (he, she, they) (was, were) authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation GIVEN under my hand and official seal the day and year last above whiten. Printed Name: NOTARY PUBLIC in and for the State of Washington, residing at My commission expires: City of Yakima, Outside Utility Agreement (OU� Amended by Resolution R- 98 -61, May 5, 1998 ty of Yakima - Apple Tree Page 4 Sewer Construction and Bond Purchase Agreement -- Exhibit 4.2(g) Page 4 of 6 . EXHIBIT "A" IMPROVEMENTS, ALTERATIONS AND REPAIRS TO BE MADE BY OWNIER OWNER • OWNER • City of Yakima, Outside Utility Agreement (OUA) Amended by Resolution R- 98 -61, May 5, 1998 Page 5 City of Yakima - Apple Tree Sewer Construction and Bond Purchase Agreement -- Exhibit 4.2(g) Page 5 of 6 EXHIBIT "B" CONDITIONS OF UTILITY SERVICE APPROVAL City of Yakima service is extended to and available for one located on Any other use or extension unless specifically authorized by appropriate City action is prohibited and grounds for summary disconnection and termination of service. OWNER OWNER S The City of Yakima public sewer system will be extended according to the City's requirements and specifications to serve the following development(s) all of which meets the proper zoning in accordance with Yakima County. Use and extension of the City sewer system is contingent upon compliance with all City sewer and wastewater system use ordinances and regulations (including, without limitation, Yakima Municipal Code Chapter 7.65) as those ordinances and regulations may be amended from time to time. Any other use or extension unless specifically authorized by appropriate City action is prohibited and grounds for summary disconnection and termination of service. OWNER OWNER • City of Yakima, Outside Utility Agreement (OUA) Amended by Resolution R- 98 -61, May 5, 1998 City of Yakima - Apple Tree Page 6 Sewer Construction and Bond Purchase A"reement -- Fxhibit 42(a) Pa A ..f A MEMORANDUM OF UNDERSTANDING 1. Parties. City of Yakima 129 North Second Street Yakima, WA 98901 ( "City" herein) Apple Tree Partnership 2550 Borton Road Yakima, WA 98903 ( "AT" herein) Collectively herein the "Parties" 2. Recitals. (a) The Parties have entered into a Sewer Construction and Bond Purchase Agreement ( "Agreement ") relative to the construction of the Ahtanum Trunk Line. (b) In addition to that Agreement, the Parties intend by this Memorandum of Understanding ( "Memorandum ") to memorialize certain future intentions. 3. Understanding of the Parties. (a) Coolidge Trunk Line. It is intended that the Apple Tree Development shall discharge into the Ahtanum Trunk Line unless, at some future date, the Coolidge Trunk Line is available for connection and discharge. (b) Washington Avenue Sub - Basin. Wastewater service to the " Washington Avenue Sub - Basin" may be considered and undertaken in a manner consistent with the Agreement. The City will support appropriate agreements to allow AT to discharge to the Washington Avenue (West Valley High School) sanitary sewer pipeline. If capacity requirements demand, City agrees that similar concepts, terms, and methods of cost determinations as established in the Agreement may be used in a separate agreement with AT to upsize or parallel the existing Washington Avenue sewer pipe line to provide capacity for AT development and others. The City and AT prefer to serve the Washington Avenue Sub -Basin with public sewer through either upsizing or construction of a parallel Washington Avenue sanitary sewer pipeline. The parties recognize, however, that upsizing or construction of a parallel public sewer line may be extremely difficult because of (1) physical or topographic constraints; (2) right -of -way and easement acquisition; or (3) relative significant economic cost to upsizing or paralleling of existing public sewer lines. In such circumstances, City and AT will review the installation of a pump station allowing discharge of wastewater from AT future development Washington Avenue Sub -Basin property to Ahtanum and /or Coolidge Trunk pipelines. (c) Nothing in this Memorandum shall modify the Agreement or relieve the Parties of their obligations under the Agreement. BOUNDARY DESCRIPTION FOR PROPOSED AHTANUM SEWER SUB -BASIN (APPLE TREE SEWER) Beginning at the Northwest Corner of the Southwest Quarter of the Southwest Quarter of Section 33, Township 13 North, Range 18 East, W.M.; thence east along the north line of said subdivision to the east line of West Half of the West Half of the Southwest Quarter of said Section 33; thence south along said east line and the southerly extension thereof to the centerline of Ahtanum Road; thence west along the centerline of Ahtanum Road to the centerline of S. 64 Avenue; thence south along the southerly extension of said centerline of S. 64 Avenue to the east - west centerline of Section 8, Township 12 North, Range 18 East, W.M.; thence west along the centerline of Section 8 and Section 7, Township 12 North, Range 18 East, W.M., and in Meadowbrook Road, to the Southeast Corner of the West Half of Government Lot 2 of said Section 7; thence north along the east line of the West Half of Government Lots 2 and 1 of said Section 7 and the east line of the West Half of Government Lots 7, 6 and 5 of Section 6, Township 12 North, Range 18 East, W.M. to a line that is parallel with and 264 feet north of the centerline of Ahtnaum Road; thence west along last said parallel line to the west line of said Section 6; thence on a meandering line along the top and edge of the bluff above and north of Ahtanum Road in a westerly and southwesterly direction to the centerline of Section 1, Township 12 North, Range 17 East, W.M.; thence west along the centerline of said Section 1 a distance of 1100 feet; thence south 200 feet to the top and edge of the bluff above and north of Ahtanum Road; thence on a meandering line along last said bluff to a point on the west line of the Northeast Quarter of the Southwest Quarter of said Section 1 that is 300 feet south of the Northwest Corner of last said subdivision; thence west along a line that is 300 feet south of as measured at right angles to and parallel with the centerline of said Section 1 to the west line of said Section 1, said line being in Draper Road; thence north along the west line of said Section 1 to the Northwest Corner of said Section 1; thence east along the Township line to the South Quarter Corner of Section 36, Township 13 North, Range 17 East, W.M.; thence north along the centerline of said Section 36 to the north line of the South Half of the Southeast Quarter of said Section 36; thence east along last said north line and the north line of the South Half of the South Half of Section 31 and Section 32, Township 13 North, Range 18 East, W.M., said line being in Coolidge Road, to the centerline of said Section 32; thence north along the centerline of said Section 32 to the north line of the South Half of the North Half of the Southeast Quarter of said Section32; thence east along last said north line to the Northeast Corner of the Southwest Quarter of the Northeast Quarter of the Southeast Quarter of said Section 32; thence south along the east line of last said subdivision to the Southeast Corner thereof; thence east to the point of beginning. WASHINGTON STATE ENVIRONMENTAL POUCY ACT DETERMINATION OF NONSIGNIFICANCE CITY OF YAKIMA, WASHINGTON AUGUST 22, 2000 PROJECT DESCRIPTION: Construction of the South 64 Avenue /Ahtanum Road sanitary sewer trunk line to serve the proposed Apple Tree Planned Development and the Wiley City Basin PROPONENT: Apple Tree LLC, 2550 Borton Rd. Yakima, WA 98903 LOCATION: Along South 64 Avenue and along Ahtanum Road, within Section 32, Township 13 North, Range 18 East, W.M., and Sections 5 and 6, Township 12 North, Range 18 East, W.M., in Yakima County. LEAD AGENCY: City of Yakima. DETERMINATION: The lead agency for this proposal, after reviewing the Environmental Checklist and related information, has not have a probable significant adverse impact d on r on enviironhment project and does environmental impact statement (EIS) will not be required as provided under RCW 43.21 C.030(2c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request. [ X ] This DNS is issued under WAC 197 -11 -355, Optional DNS process. There will be no additional comment period on this DNS. APPEALS: This determination may be appealed pursuant to YMC §6.88.170 to the Yakima city council, 129 North 2nd Street, Yakima WA 98901 in writing no later than five working days after the end of the comment period. Be prepared to make factual objections. Contact Dan Valoff, Associate Planner (509) 575 -6163 for more information. RESPONSIBLE OFFICIAL: William Cook POSITION / TITLE: Director Community & Economic Development TELEPHONE: 509 / 575 -6113 ADDRESS: 129 North 2nd Street, Yakima, WA •8901 DATE August 22. 2000 g SIGNATURE: STATe � rn c = _ iP = d5 Jy STATE OF WASHINGTON DEPARTMENT OF ECOLOGY 15 West Yakima Avenue, Suite 200 • Yakima, Washington 98902 -3452 • (509) 575 -2490 August 14, 2000 Don Skone :I: J ` 1 2 City of Yakima :�i! �F 129 N. 2"d St. ��NNI,� Di Yakima, WA 98901 Dear Mr. Skone: Thank you for the opportunity to comment on the notice of application for the Ahtanum Truck Sewer Improvements, proposed by Apple Tree LLC [EC# 13 -00]. We have reviewed the application and have the following comments. Water Resources The water purveyor (City of Yakima) is responsible for ensuring that the proposed use(s) are within the limitation of its water rights. The parameters include instantaneous and annual quantities, source(s), season of use, purpose of use, place of use, all provisions of the water use authorizations being satisfied including the primary and supplemental relationships of their separate rights. If you have any questions concerning the Water Resources comment, please contact Carol Mortensen at (509) 575 -2597. Sincerely, Debbie Smith- Taylor Environmental Review Coordinator Central Region Office DST 2000 -5307 m 18 A -‘411T •SERVICE • F PLANNING DEPARTME NT • �' 128 No Second Street • Room 417 • Courthouse • Yakima, Washin 0 • • • _ • •.• (509) 574 -2230 • 1-800-572-7354 •FAX (509) 574 -2231 • htt 9 98901 I. -• RICHARD F. ANDERWALD, AICP P :�/www.co.yakima.wa.us S M. ERICKSON DIRECTOR OF PLANNING / SPECIAL PROJECTS YAK I MA ASSISTANT DIRECTOR ----- cou Ihrrr August 15, 2000 i _ Don Skone. Planning Manager Department of Community and Economic Development 129 North Second Street Yakima, WA 98901 RE: Notice of Application for SEPA Review — Ahtanum Trunk Sewer Improvements (File # EC 13 -00) Deart woe: • We have reviewed the environmental checklist and supporting documentation for construction of the South 64 /Ahtanum Road trunk sanitary sewer line to serve the Apple Tree Planned Development and the Wiley City Basin. Our comments are as follows: Extensive previous environmental review has been conducted for land use and utility impacts of sewer service, as noted in the checklist. The 1985 EIS adopted by the Board for the Apple Tree Planned Development indicated service by the Regional Wastewater System as the preferred alternative for wastewater treatment and disposal. The final Environmental Impact Statement for comprehensive planning efforts conducted by the city and county under the Growth Management Act have evaluated regional wastewater system service for the unincorporated portions of the Yakima Urban Growth Area. in order to facilitate and support urban development. Apple Tree and the Wiley City and Ahtanum were included within the Yakima Urban Growth Area in 1997. The Yakima County Planning Department concludes that the previously adopted environmental documents for the project and subsequent comprehensive plans adequately evaluate the environmental impacts of the proposed sanitary sewer service to this urban area. The city should coordinate engineering and construction plans with the County Engineer to secure any necessary road crossing permits or where the construction of the sewer line will be within County rights - of -way. Thank -you for this opportunity to comment. Sincerely, Ste e Erickson, Assistant Director c: Richard F. Anderwald, AICP, Director of Planning/Special Projects G:\ USERS \ S T EVENEIYAK_CITY \ERS \Appl Tree sewer ER2000..doc "OUR MISSION: TO HELP OUR COMMUNITY DEFINE AND ACHIEVE ITS PREFERRED FUTURE" ` v Y1 4,11\ DEPARTMENT 'COMMUNITY AND ECONOMIC .,OPMENT �:. Planning Division 129 North Second Street V : ' _ Yakima, Washington 98901 b�ATEV Phone (509) 575 -6183 • Fax (509) 575 -6105 Don Skone, Manager NOTICE OF DECISION Compliance with the Washington State Environmental Policy Act (SEPA) August 22, 2000 On July 28, 2000 the City of Yakima issued a Notice of Application regarding a SEPA Checklist submitted from Huibregtse, Louman, Associates on behalf of Apple Tree LLC. The environmental analysis if for the construction of the South 64 Avenue /Ahtanum road sanitary sewer trunk line to serve the proposed Apple Tree Planned Development and the Wiley City Basin. City File Number UAZO EC #13-00. Following the required 20 -day public notice period and consideration of all comments received, the City of Yakima, Washington has issued the enclosed SEPA Threshold Decision This Decision may be appealed within 5 working days from the date of mailing of this decision. Appeals must be in writing and on forms available from the City of Yakima Planning Division, 129 North 2nd Street, Yakima, Washington. For further information or assistance, you may wish to contact Dan Valoff, Associate Planner, and (509) 575 -6163. j2/-- Don S. Skone Planning Manager Notice of Decision Mailing Date: 8/23/00 Enclosures: SEPA Threshold Decision. Yakima AFUO.,ua 'III'' STATE ENVIRONMENTAL POLICY ACT RECEIVED ENVIRONMENTAL CHECKLIST JUL 2 ry 2000 CITY OF YAKIMp. PLANNING DIV. A. BACKGROUND 1. Name of Proponent: Apple Tree LLC Phone Number: (509) 966 -3905 Address of Proponent: 2550 Borton Road Yakima, WA 98903 2. Person Completing Form: William L. Huibregtse, PE Phone Number: (509) 966 -7000 Address: Huibregtse, Louman Associates, Inc. 801 North 39' Avenue Yakima, WA 98902 3. Date Checklist Submitted: July 26, 2000 4. Agency Requiring Checklist: City of Yakima • 5. Name of Proposal, if Applicable: Ahtanum Trunk Sewer Improvements 6. Proposed timing or schedule (including phasing, if applicable): Begin Construction: Fall 2000 Complete Construction: Spring / Summer 2001 7. Do you have any plans for future additions, expansions, or further activity related to or connected with this proposal? If yes, explain. Additional extension of this trunk sewer may be constructed in the future by others. 8. List any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal. Apple Tree (Hull Ranch) Environmental Impact Statement (December 1985). Apple Tree Golf Course Wastewater Collection and Treatment Facilities Draft Engineering Report (May 1996). G:UAN \YAKIMA- JC3 \YKJ3- 78.wpd -1 - • Apple Tree Golf Course Wastewater Collection and Treatment Facilities Draft Engineering Report Revised Supplement (February 1997). Apple Tree Golf Course Planned Development Wastewater Collection Facilities Engineering Report (May 2000). SEPA process for the City of Yakima's Growth Management Act's Comprehensive Land Use Plan 9. Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? If yes, explain. No. 10. List any governmental approvals or permits that will be needed for your proposal, if known. Washington Department of Ecology, City of Yakima, and Yakima County - approval of trunk sewer and wastewater collection system engineering report and construction plans and specifications. Washington Department of Fish & Wildlife - JARPA Permit and Hydraulic Project Approval. Washington Department of Ecology - Construction Storm Water Permit and Pollution Prevention Plan. Yakima County - Construction Permit for installation, operation, and maintenance in County road rights of way. 11. Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. There are several questions later in this checklist that ask you to describe certain aspects of your proposal. You do not need to repeat those answers on this page. Construction of approximately 3,210 feet of 24 -inch sewer, approximately 7,270 feet of 18- inch sewer, and approximately 2,000 feet of 10 -inch sewer to provide wastewater trunk and collection service to the proposed Apple Tree Planned Development and the Wiley City Basin. The South 64 Avenue / Ahtanum Road sanitary sewer trunk is identified in the City of Yakima's Capital Improvement Plan, and sanitary sewer extensions such as this are recognized in Yakima County's current Rural Water and Sewer Plan. The area to be served by this sewer system is within the City of Yakima's Urban Growth Area. In the 1985 Environmental Impact Statement for the Apple Tree Planned Unit Development, the preferred alternative for wastewater treatment and disposal called for extension of the City of Yakima's sewer system to transport wastewater from the development to the Yakima Regional Wastewater Treatment Plant. 12. Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section, township, and range, if known. If a proposal would occur over a range of area, provide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans submitted with any permit application related to this checklist. G UAMYAKIMA- JC- 31YKJ3 -78 wpd -2- Proposed trunk and collection system will be constructed along South 64th Avenue and along Ahtanum Road, within Section 32, Township 13 North, Range 18 East, W.M., and Sections 5 and 6, Township 12 North, Range 18 East, W.M., in Yakima County. See attached Figure 1. B. ENVIRONMENTAL ELEMENTS 1. EARTH a. General description of the site (circle one): eft rolling, hilly, steep slopes, mountainous, other. b. What is the steepest slope on the site (approximate percent slope)? 1% - 2% slope. c. What general types of soils are found on the site (for example, clay, sand, gravel, peat, muck)? If you know the classification of agricultural soils, specify them and note any prime farmland. The U.S. Department of Agriculture Natural Resource Conservation Service has identified the following six soil classifications within the project area: Esquatzel silt loam Kittitas silt loam Naches loam Track loam Umapine silt loam Yakima silt loam The characteristics of each of these soil types are presented below: Esquatzel silt loam. This is a very deep, well drained soil, typically located on flood plains dissected by intermittent and perennial streams. Typically, the surface layer is brown silt loam about 17 inches thick. The underlying material to a depth of 60 inches or more is pale brown silt loam. In some areas, the surface layer is fine sandy loam. In some areas the soil is stratified with thin lenses of sandy loam, and in some areas very gravelly loamy sand is at a depth of 36 inches or more. Kittitas silt loam. This very deep, artificially drained soil is on flood plains. Typically, the surface layer is dark grayish brown and grayish brown, very strongly alkaline silt loam about 19 inches thick. The upper part of the underlying material is light brownish gray, moderately alkaline silt loam about 22 inches thick, and the lower part to a depth of 60 inches or more is light brownish gray, moderately alkaline very fine sandy loam and fine sandy loam. In some areas, the surface layer is silty clay loam. Naches loam. This is a very deep, well drained soil, typically found on stream terraces in valleys. Typically, the surface layer is grayish brown loam about 9 inches thick. The upper part of the subsoil is brown loam about 12 inches thick, and the lower part is G UANIYAKIMA- JC- 31YKJ3 -78 wpd -3- yellowish brown loam about 7 inches thick. The upper part of the substratum is a yellowish brown gravelly loam about 6 inches thick, and the lower part to a depth of 60 inches or more is dark grayish brown extremely gravelly sand. In some areas, the surface layer is gravelly, and in some areas the substratum is extremely gravelly to a depth of about 38 inches or more. Track loam. This very deep, artificially drained soil is located on flood plains. Typically, the surface layer is dark grayish brown, strongly alkaline loam about 14 inches thick. The upper part of the subsoil is grayish brown, strongly alkaline very gravelly loam about 7 inc-es thick, and the lower part is brown, strongly alkaline very gravelly loam about 5 inches thick. The substratum to a depth of 60 inches or more is brown, moderately alkaline very gravelly loamy sand. In some areas, the surface layer is silty clay loam or very gravelly loam. Umapine silt loam. This very deep, artificially drained, salt- and alkali- affected soil is typically found on flood plains and low terraces. Typically, the surface layer is light brownish gray, very strongly alkaline silt loam about 7 inches thick. The underlying material to a depth of 60 inches or more is light brownish gray and light gray, very strongly alkaline and strongly alkaline silt loam. In some areas, the surface layer is dark gray. Yakima silt loam. This very deep, well drained soil is found on flood plains. Typically, the upper part of the surface layer is grayish brown silt loam about 13 inches thick. The lower part is dark grayish brown sandy loan and brown gravelly very fine sandy loam about 14 inches thick. The upper part of the underlying material is brown gravelly very fine sandy loam about 3 inches thick, and the lower part to a depth of 60 inches or more is dark grayish brown extremely gravelly coarse sand. In some areas, the surface layer is gravelly or stony. Three soils within the project area are classified by the U.S. Department of Agriculture Natural Resource Conservation Service as being Prime Farm Land, these being Esquatzel silt loam, Naches loam, and Yakima silt loam. d. Are there surface indications or history of unstable soils in the immediate vicinity? If so, describe. No. e. Describe the purpose, type, and approximate quantities of any filling or grading proposed. Indicate source of fill. Sewer pipe trench excavations shall be backfilled with imported granular material obtained from a contractor - selected commercial source, or with native soil. Exact quantities are not known at this time. G.IJAMYAKIMA- JC- 31YKJ3 -78 wod -4- f. Could erosion occur as a result of clearing, construction, or use? If so, generally describe. No. Some minor erosion could occur within open trenches during construction. Potential erosion due to construction activities will be controlled through the implementation of best management construction practices. g. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or building)? There will be no increase in impervious services as a result of sewer construction. h. Proposed measures to reduce or control erosion, or other impacts to the earth, if any: Potential erosion due to construction activities will be controlled through the implementation of best management construction practices. 2. AIR a. What types of emissions to the air would result from the proposal (i.e., dust, automobile, odors, industrial wood smoke) during construction and when the project is completed? If any, generally describe and give approximate quantities if known. Dust, particulate matter related to construction activities, and hydrocarbons produced by construction equipment will be generated, short -term, and limited to areas immediately adjacent to the construction site. b. Are there any off -site sources of emissions or odor that may affect your proposal? If so, generally describe. No. c. Proposed measures to reduce or control emissions or other impacts to air, if any: Mitigating measures to control impacts during construction include contract specifications which require the contractor to use modern construction practices (watering) of construction areas to reduce dust and particulate matter, and compliance with federal, state, and local air quality requirements. 3. WATER a. Surface: 1. Is there any surface water body on or in the immediate vicinity of the site (including year -round and seasonal streams, saltwater, lakes, ponds, wetlands)? If yes, describe type and provide names. If appropriate, state what stream or river it flows into. G:UANIYAKIMA- JC- 31YKJ3- 78.wpd -5- The only water body within the project area is an unnamed creek, tributary to Spring Creek, which flows from west to east across South 64 Avenue, just north of Ahtanum Road. 2. Will the project require any work over, in, or adjacent to (within 200 feet) of the described waters? If yes, please describe and attach available plans. Construction of the sewer will pass under the unnamed creek tributary to Spring Creek. 3. Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. Indicate the source of fill material. None. 4. Will the proposal require surface water withdrawals or diversions? Give general description, purpose, and approximate quantities if known. Diversion of the unnamed creek will be required during construction of the sewer. This will be accomplished by diverting the creek around the construction site, and will be done in accordance with the conditions set forth by the Washington Department of Fish & Wildlife's Hydraulic Project Approval. 5. Does the proposal lie within a 100 -year flood plain? If so, note location on the site plan. Yes. Portions of the project lie within the 100 -year flood plain. 6. Does the proposal involve any discharges of waste materials to surface waters? If so, describe the type of waste and anticipated volume of discharge. The project, when completed, will not result in any discharge of waste materials to surface waters. Construction activities may include dewatering of the construction trenches via well points, and this clean water may be discharged to nearby surface waters. b. Ground: 1. Will ground water be withdrawn, or will water be discharged to ground water? Give general description, purpose, and approximate quantities if known. Shallow ground water may temporarily be withdrawn from the construction site via well points. The completed project, which will result in the installation of sewers in this portion of Yakima County, will result in the elimination of discharges of septic tank effluent from existing residences into the shallow ground water. G:UAN \YAKIMA- JCJ \YKJ3 -78 wpd -6- 2. Describe waste material that will be discharged into the ground from septic tanks or other sources, if any (for example: domestic sewage, industrial, containing the following chemicals...; agricultural, etc.). Describe the general size of the system, the number of such systems, the number of houses to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. The project may result in the elimination of septic tank effluent from existing residences within the project area. c. Water Runoff (including storm water): 1. Describe the source of runoff (including storm water) and method of collection and disposal, if any (include quantities, if known). Where will the water flow? Will this water flow into other waters? If so, describe. Completion of the project will not create additional impervious areas or additional volumes of storm water, nor will it alter the current method of storm water disposal. Storm water will continue to seep into the ground off impervious areas within the project area. 2. Could waste materials enter ground or surface waters? If so, generally describe. No. d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: The purpose of the project is to provide sewers to this unsewered portion of Yakima County, and to eliminate the discharge of septic tank effluent from existing and future residences into the shallow ground water. 4. PLANTS a. Check or circle type of vegetation found on the site: x deciduous tree: alder, maple, aspen, other x evergreen tree: fir, cedar, pine, other x shrubs x grass x pasture crop or grain wet soil plants; «] buttercup, bullrush, skunk cabbage, other water plants: water lily, eelgrass, milfoil, other other types of vegetation G.UAN \YAKIMA- JC- 3\YKJ3- 78.wpd -7- • b. What kind and amount of vegetation will be removed or altered? Construction of the sewer may require the removal of small amounts of grass, trees, and /or shrubs. c. List threatened or endangered species known to be on or near the site. None. d. Proposed landscaping, use of native plants, or other measures to preserve or enhance vegetation on the site, if any: None. 5. ANIMALS a. Circle any birds and animals which have been observed on or near the site or are known to be on or near the site: Bird: ha■k heron, eagle,(songbirc other Mammals: deer, bear, elk, beaver, other Fish: bass, salmon, trout, herring, shellfish, other b. List any threatened or endangered species known to be on or near the site. None. c. Is this site part of a migration route? If so, explain. No. d. Proposed measures to preserve or enhance wildlife, if any: None. 6. ENERGY AND NATURAL RESOURCES a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy needs? Describe whether it will be used for heating, manufactur- ing, etc. None. G.UANWAKIMA- JC- 3 \YKJ3- 78.wptl -8- b. Would your project affect the potential use of solar energy by adjacent properties? If so, generally describe. No. c. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: None. 7. ENVIRONMENTAL HEALTH a. Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that could occur as a result of this proposal? If so, describe. None. 1. Describe special emergency services that might be required. Emergency medical aid may be required should an accident occur during construction. 2. Proposed measures to reduce or control environmental health hazards; if any: None. b. Noise 1. What types of noise exist in the area which may affect your project (for example: traffic, equipment, operation, other)? None. 2. What types and levels of noise would be created by or associated with the project on a short-term or a long -term basis (for example: traffic, construction, operation, other) ? Indicate what hours noise would come from the site. Short-term noise will be generated during the construction of the project, and will be confined to a 7:00 a.m. to 7:00 p.m. period. 3. Proposed measures to reduce or control noise impacts, if any: Restrict construction activities to between the hours of 7:00 a.m. to 7:00 p.m. G. JC- 31YKJ3 -78 wpd -9- 8. LAND AND SHORELINE USE a. What is the current use of the site and adjacent properties? The current use of the site is roads and road rights of way (South 64 Avenue, Ahtanum Road, and 86 Avenue). Sewer improvements will be within those existing roads and rights of way. Adjacent properties are in residential and commercial uses. A Zoning Map of the site and adjacent properties is included as Figure 2. b. Has the site been used for agriculture? If so, describe. No. Some adjacent properties are in pasture. c. Describe any structures on the site. There are no structures currently within the roads or their rights of way. d. Will any structures be demolished? If so, what? No. e. What is the current zoning classification of the site? Suburban Residential and Rural Settlement, and Planned Unit Development. A Zoning Map of the site and adjacent properties is included as Figure 2. f. What is the current comprehensive plan designation of the site? The current comprehensive plan designation of the site is Urban Growth Area / Urban Reserve. The West Valley neighborhood planning effort is currently underway. g. If applicable, what is the current shore line master program designation of the site? Under Yakima County's current shoreline master program, Ahtanum Creek is classified as "rural," with a 75 -foot vegetative buffer. h. Has any part of the site been classified as an "environmentally sensitive" area? Some areas within the site have been classified as environmentally sensitive. A Critical Areas Map of the site and adjacent properties is included as Figure 3. G.UAN \YAKIMA- JC- 31YKJ3 -78 wpd -10- 1. Approximately how many people would reside or work in the completed project? It is estimated that 2,100 people may reside within the Apple Tree Planned Development at full buildout. Population projections were included in the SEPA review of the City of Yakima's Comprehensive Land Use Plan completed as part of Growth Management Act planning process. Projected population increases may occur over the next 40 years. j. Approximately how many people would the completed project displace? None. k. Proposed measures to avoid or reduce displacement impacts, if any: None. 1. Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: The West Valley neighborhood planning effort is currently underway. 9. HOUSING a. Approximately how many units would be provided, if any? Indicate whether high -, middle -, or low- income housing. None with this proposed sewer construction project. However, completion of the Apple Tree Planned Unit Development project to be served by this trunk sewer is expected to result in the construction of 325 single family residential units, 198 multi - family residential units, and a 60 -unit condominium motel. All of these are expected to be middle- to high- income housing units. b. Approximately how many units, if any, would be eliminated? Indicate whether high -, middle -, or low- income housing. None. c. Proposed measures to reduce or control housing impacts, if any: Not applicable. G:UANIYAKIMA- JC- 31YKJ3 -713 wpd -11- 10. AESTHETICS a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed? Not applicable. b. What views in the immediate vicinity would be altered or obstructed? None. c. Proposed measures to reduce or control aesthetic impacts, if any: None. 11. LIGHT AND GLARE a. What type of light or glare will the proposal produce? What time of day would it mainly occur? None. b. Could light or glare from the finished project be a safety hazard or interfere with views? No. c. What existing off -site sources of light or glare may affect your proposal? None. d. Proposed measures to reduce or control light and glare impacts, if any: None. 12. RECREATION a. What designated and informal recreational opportunities are in the immediate vicinity? The Apple Tree Golf Course exists near the project area and will be served by the completed sewer project. b. Would the proposed project displace any existing recreational uses? If so, describe. No. G.UAN \YAKIMA- JC- 3 \YKJ3 -78 wpd -12- c. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be provided by the project or applicant, if any: None. 13. HISTORIC AND CULTURAL PRESERVATION a. Are there any places or objects listed on, or proposed for, national, state, or local preser- vation registers known to be on or next to the site? If so, generally describe. No. b. Generally describe any landmarks or evidence of historic, archaeological, scientific, or cul- tural importance known to be on or next to the site. None. c. Proposed measures to reduce or control impacts, if any: None. 14. TRANSPORTATION a. Identify public streets and highways serving the site, and describe proposed access to the existing street system. Show on site plans, if any. South 64 Avenue, Ahtanum Road, and South 86` Avenue. An Arterial Street Map of the site and adjacent properties is included as Figure 4. b. Is the site currently served by public transit? If not, what is the approximate distance to the nearest transit stop? No. c. How many parking spaces would the completed project have? How many would the project eliminate? Not applicable. d. Will the proposal require any new roads or streets, or improvements to existing roads or streets, not including driveways? If so, generally describe (indicate whether public or private). No. G UAMYAKIMA- JC- 31YKJ3 -78 wpd - e. Will the project use (or occur in the immediate vicinity or) water, rail, or air transportation? If so, generally describe. No. f. How many vehicular trips per day would be generated by the completed project? If known, indicate when peak volumes would occur. Traffic increases were included in the SEPA review of the City of Yakima's Comprehensive Land Use Plan completed as part of the Growth Management Act planning process. The Apple Tree Planned Unit Development was the subject of a completed SEPA EIS process in 1985, which included traffic impact analysis and mitigations. g. Proposed measures to reduce or control transportation impacts, if any: None. 15. PUBLIC SERVICES a. Would the project result in an increased need for public services (for example: fire protection, police protection, health care, schools, other ?) If so, generally describe. Yes. An increase in residential units within the Wiley City Basin will result in an increased need for all public services. b. Proposed measures to reduce or control direct impacts on public services, if any. None. 16. UTILITIES a. Circle the utilities currently available at the site: e/ectricitO natural as,( ate�jli service (telephone sanitary sewer, (septic systerrl allrigatior (fable T1O) drains other. b. Describe the utilities that are proposed for the project, the utility providing the service, and the general construction activities on the site or in the immediate vicinity which might be needed. None. G.WANIYAKIMA- JC- 31YKJ3 -78 wpd -14- C. SIGNATURE The above answers are true and complete to the best of my knowledge. I understand that the lead agency is relying on them to make its decision. GM Proponent or Person Completing Form William L. Huibregtse, PE Project Consulting Engineer G UAN \YAKIMA- JC- 3 \YKJ3- 78 .wpd -15- DETERMINATION OF NONSIGNIFICANCE (DNS) Description of Proposal: Ahtanum Trunk Sewer Improvements. Proponent: Apple Tree LLC Location of proposal, including street address, if any: Along South 64t Avenue south of Washington Avenue, along Ahtanum Road between South 64 Avenue and 86 Avenue, and along South 86 Avenue between Ahtanum Road and Occidental Avenue, within Yakima County. Lead Agency: City of Yakima The lead agency for this proposal has determined that it does not have a probable significant adverse impact on the environment. An environmental impact statement (EIS) is not required under RCW 43.21 C. 030(2) (c). This decision was made after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public on request. There is no comment period for this DNS. X This DNS is issued under 197 -11- 340(2); the lead agency will not act on this proposal for 14 days from the date below. Comments must be submitted by Responsible Official: Position /title: SEPA Responsible Official Address: Phone: (509) 575 -6183 Date: Signature: G.\JAN \YAKIMA- JC- 3 \YKJ3- 78.wpd -1 6- 1 Et" 0 p / n -- - • ' , Y1 . O •. _ i� ra - _ Z/ER- - - - _ - - K r OAD. _ _ ' , • ••• p u rJ _ ill N 10 N •.146 C :�Ilpp _ - — � P+ - p • -- - - .- O P T i • 1{I --'- " -: _.. _ .." J - L— . - - - -- - _ , .. F - . 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City Zoning i �, ` efl 0 Federal/Trust Lands r . 0'm~t 't El Yakama Nation Closed Area • - _.v._ -.. 4,1.,.11.-- _. __ __-- _'__- _._�.__ -. , ,-.'. i • fir .� .. 9 L. . . _ _ Mapscale: 1 = 2000 feet ,t 9 i0 i;± ,. - - • — Me.dowb, 1'R -.1 .., N t k 1 ' I • W nata„taM 1 �0 • 'r F,, + rZ .. t - , , c � a Y a k ima County Geographic Information Services . Cs w qi 9 [ :, . :4.:L T.ti 128 N 2nd Street Room 421 . s , r ,' } } a ; c .' Yakima, WA 9a901 1509) 574 -2990 E.4r �; r G e i L ,F — -- — -- -. -_ _. Created. July 25, r e�,,,._ ._ aaumR�._ FIGURE 2 . , . - Critical Areas • • �� ze 2a 30 , 29 Wetlands Types: 27 ,", _ ., .c - \ ' ., � _ r • \,..0e1-_-:_ A _ �►.� f 9` Type f. 44.........--..., ' ��_.� _ r �s _.... �..r..:. � +` / .ri ,< 28 TYPe II x // _. �r"' „� Type III 1 _,. _ I I. Type IV _ .a.; 1 Shoreline Environments: s`% Conservancy III Rural 39 Urba n rir✓ 38 32 34 FEMA Designations: % �■ 1-1 Floodway • 33 dilli Floodplain • alll J • ki, .. \, :::, Stream Types. -,� One � / Two i� �r..� ►. �:l� _ tf`. A Three 3 s 2 .n �• ilar* 0 � ► �.�� -- ...1 , 416 Four 8 i ' � � v �� i _ ` �, Five .••• / . � � . ' � a _ _ �. ,• P Wildlife: • r - 4 4 — r � • � ' , mi 1 '� r � ,r - >• `� „ !. '�4.' .; p - -" Urban Growth Areas - ...fie•+ ..... f ��::::1'''' n �V, ` Ru, %►�A r , M p cale. 1 — 2000 feet Air _ _, 04 / 4141 -, ' .0 a ,. ______ A , r , .�• Yakima County Geographic Information Services e � _ .� �- � �y '• i] 128 N 2nd Street Room 4- �t ~ � - ^, '� 1 Yakima, WA 98 1609) 674 - , . _ - -- 1 , � Created: July 26, 2000 por 18 Jr 14 1 -j 19 FIGURE 3 r iii 1 "` ' � Arterial Streets ' =F L—L-7 , I t i r 2! 25 30 .9 1 _ RURAL 27 „ ... 1 _ __ i_ 28 Major Collector —`” Minor Collector EEE 1 — Rural Access 1 J L • URBAN r ~ � Principal Arterial (�' ��"` Minor Arterial I _ _ — L— l__ ° "' m ` Collector Arterial I ) Urban Access , Urban Areas 1 3a 3 I 34 I 33 4 I 1 1 __________ , ________._i___.____ (---- ..... ..,m. ..., 5 4\ 4 - iii f _ f f II 1 I �� 9 9 J 1 1 Mapscale: 1" = 2000 feet A 0:0.:,.., ...,..4.4 ________ to 7 lz r i Yakima County Geographic Information Services 9 128 N 2nd Street Room 421 Yakima, WA 98901 (509) 574 -2990 Created: July 25, 2000 18 15 14 13 i r FIGURE 4