Tualatin Valley Water District IG187006 ~ Transfer Purchase and Sale of Willamette Intake Facilities 12 -7 00(:2�
Exhibit "A"
AGREEMENT FOR TRANSFER,PURCHASE AND SALE OF THE
WILLAMETTE INTAKE FACILITIES BETWEEN
TUALATIN VALLEY WATER DISTRICT AND THE CITY OF TIGARD
EFFECTIVE MARCH 1,2018
This is an Agreement for Transfer, Purchase and Sale of the Willamette Intake Facilities
("Agreement") between the Tualatin Valley Water District("TVWD") and the City of Tigard
("Tigard").
RECITALS
A. TVWD is a domestic water supply district organized under ORS Chapter 264, which
distributes potable water to its water system users.
B. Tigard is a municipal corporation that operates a municipal water supply utility under
ORS Chapter 225 to distribute potable water to its water system users.
C. TVWD and the City of Wilsonville entered into the Agreement Regarding Water
Treatment Plant Design, Construction, Operation and Property Ownership dated July 6,
2000 ("2000 Master Agreement"), the Accord Agreement dated June 19, 2001 ("Accord
Agreement") and the First Amendment to the 2000 Master Agreement dated , 2018
("First Amendment") to construct and operate intake facilities, pumps, a water treatment
plant and certain transmission facilities upon real property jointly owned by them
("Willamette River Water Treatment Plant" or "WRWTP" Supply Facilities) for the
purpose of supplying potable water to Wilsonville and providing a future supply to
TVWD. The ownership interests in the real property and WRWTP Supply Facilities of
TVWD and Wilsonville are specified in those agreements.
D. TVWD and the City of Sherwood entered into an Agreement on December 27, 2006
("Sherwood TVWD WRWTP Agreement") for the purchase and sale of five (5) million
gallons per day("MGD")of capacity in the WRWTP Supply Facilities.
E. The WRWTP Supply Facilities include components referred to herein as Intake Facility
Assets or Intake Facilities, to wit: fish screens, intake pipe, protective bollards, caisson,
pump station building, pipe, electrical conduit, instruments and controls and related
appurtenances that convey raw water to the WRWTP.
F. TVWD has received an offer from Tigard dated March 20, 2017 to purchase a portion of
TVWD's capacity ownership interest in the Intake Facility Assets, for the purpose of
providing Tigard with a total of a 10 percent ownership interest in the Intake Facility or
Fifteen (15) MGD capacity in the Intake Facility, contingent upon, among other things,
completion of capacity expansion improvements so that the Intake Facilities can deliver
approximately 150 MGD.
G. TVWD and Tigard will become members of the Willamette Intake Facilities Commission
(WIF Commission) established by the Willamette Intake Facilities Intergovernmental
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Exhibit"A"
Agreement ("WIF Agreement") effective April 1, 2018, to govern management and
operation of the Intake Facilities.
H. According to the terms of the 2000 Master Agreement and Accord Agreement and in
consideration of the terms and conditions of the First Amendment, Wilsonville has
agreed to waive exercise of its Right of First Offer as to the ownership capacity for the 15
MGD capacity in the existing and expanded Intake Facilities conveyed to Tigard under
this Agreement.
I. The Parties hereto wish to state the terms and conditions of transfer,purchase and sale of
a portion of existing TVWD Intake Facilities capacity from TVWD to Tigard and
participation by Tigard in the expansion and construction of Intake Facility
improvements to obtain a total capacity of 150 MGD. Notwithstanding Tigard's future
intent to utilize supply in the future, Tigard does not plan to use the Willamette River as a
source for Tigard water system users for a significant period of time. Tigard's intent is to
lease, build, or invest in other facilities or supply contracts that are not a part of this
Agreement to deliver water from the Intake Facilities to its service area or become a
wholesale customer to the Willamette Water Supply System.
NOW,THEREFORE,THE PARTIES AGREE AS FOLLOWS:
AGREEMENT
Based on the foregoing Recitals and the mutual promises and obligations set forth herein,
and other good and fair consideration, the sufficiency of which is hereby acknowledged, the
Parties agree:
1. Effective Date.
This agreement is effective as of March 1, 2018.
2. Recitals.
The Recitals above are incorporated and made part of this Agreement.
3. Intake Facilities.
Intake Facilities shall mean the facilities used to withdraw and transmit water
from the Willamette River to the Parties at the System Separation Point between the
WRWTP and the Willamette Water Supply System Water Treatment Plant ("WWSS
WTP"), as defined in the WIF Agreement, including the screens, intake pipe, wetwell,
pump station building, pumps and associated electric and mechanical systems (e.g. wire,
conduit, electrical devices and ventilation equipment). Intake Facilities includes both the
existing Intake Facilities and the Intake Facilities after they are expanded and upgraded to
the anticipated 150 MGD.
4. Sale of Existing Intake Facility Capacity.
TVWD hereby agrees to sell, transfer and assign, and Tigard agrees to purchase,
an amount of TVWD's capacity ownership interest in the Intake Facilities so that Tigard
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Exhibit"A"
will obtain an undivided 10 percent ownership interest as tenant in common of the
capacity of the existing Intake Facilities set forth on Exhibit 1, attached hereto and
incorporated by reference. It is intended that when the existing Intake Facilities are
expanded and modified as provided in Section 5, Tigard will own 15 MGD of capacity in
the expanded Intake Facilities. Accordingly, the sale and transfer of the existing Intake
Facility capacity is expressly contingent upon the expansion and upgrade of the Intake
Facility to achieve the approximate 150 MGD capacity, subject to proportionate
reduction based on actual capacity achieved as set forth in Section 5.2.
5. Expansion and Upgrade of Intake Facilities.
5.1 TVWD and Tigard, as well as the cities of Beaverton, Sherwood,
Hillsboro and Wilsonville, have executed or will execute the WIF Agreement as well as
separate agreements with TVWD to provide for the permitting, design and construction
of screens, intake pipe, protective bollards, building(s), pumps, electrical wire, conduit
and equipment, instrumentation and controls and seismic improvements to achieve Intake
Facilities approximate capacity of 150 MGD ("Expansion Project"). Upon completion of
expansion, the ownership capacity of the Intake Facilities is expected to be:
Entity Ownership Capacity Ownership Interest
(MGD) (%
TVWD 59.1 39.40
Wilsonville 25.0 16.67
Sherwood 9.7 6.47
Hillsboro 36.2 24.13
Tigard 15.0 10.00
Beaverton 5.0 3.33
TOTAL 150.0 100.00
5.2 Following completion of the Expansion Project, if the total capacity of the
Intake Facilities is less than 150 MGD, all parties have agreed that the reduction shall be
proportionately shared by all of the above Parties; except that in no event will TVWD's
capacity share be reduced below 56.5 MGD nor will Wilsonville's and Sherwood's share
be reduced below 20 MGD and 5 MGD respectively. If proportionate reductions are still
necessary once these minimum thresholds are reached, the remaining parties will
proportionately share in the additional reduction as provided in the WIF Agreement.
5.3 TVWD and Tigard agree that the Expansion Project will be managed by
TVWD as Managing Agency under the WIF Agreement unless the Parties later mutually
agree upon a construction agreement for the Project.
6. Consideration.
6.1 On or before May 1, 2018, Tigard shall pay TVWD $750,239 in return for
a 10 percent (15 MGD) ownership interest in the capacity of the Intake Facilities as set
forth on Exhibit I attached hereto and incorporated by reference.
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Exhibit "A"
6.2 In addition, Tigard shall pay to TVWD, through the Willamette Water
Supply Program (WWSP), a proportionate share of actual costs incurred for permitting,
acquiring and installing new screens, design and construction of seismic improvements,
and all other improvements necessary to expand the Intake Facilities to 150 MGD at the
estimated cost set forth on Exhibit I, attached hereto and incorporated by reference. These
actual costs include costs expended to date and costs incurred for ongoing work to
complete the Expansion Project. As Managing Agency of the WIF Commission, TVWD
will cause the WWSP staff to manage all aspects of the Expansion Project.
6.3 The Parties agree that the cumulative amounts described in paragraphs 6.1
and 6.2 above constitute full consideration (the "Purchase Price") for Tigard's 10 percent
(15 MGD) ownership interest in the capacity of the Intake Facilities. If the Expansion
Project achieves a maximum intake capacity in excess of 150 MGD, Tigard is entitled to
ownership of the proportionate increase in the capacity in excess of 15 MGD based on
the Ownership Capacity table shown in Section 5.1 above.
6.4 The Purchase Price paid to TVWD under paragraphs 6.1 and 6.2 above
entitles Tigard to 10 percent ownership interest in the capacity of the Intake Facilities
with the expectation of realizing 15 MGD of capacity ownership. If the final approved
design capacity of the expanded Intake Facilities is less than 150 MGD, such that
Tigard's resulting capacity is less than 15 MGD, TVWD and Tigard will renegotiate the
cost shares of the Purchase Price based on the updated total capacity of the expanded
Intake Facilities, following the same methodology used to calculate the proposed
Purchase Price that assumed the total capacity of 150 MGD. If Tigard's resulting
capacity exceeds 15 MGD,TVWD is not entitled to an increase in the Purchase Price.
7. Payment.
7.1 TVWD will submit a monthly progress payment invoice to Tigard for the
City's proportionate share of Expansion Project costs incurred. The invoice may include
costs incurred from previous months that were carried forward provided they are
separately listed.
7.2 Tigard shall review each invoice and pay any uncontested charges within
30 days of the invoice date. Tigard shall provide a written notice for any contested
charge. Within 15 days of receiving the notice, TVWD and Tigard shall discuss and
attempt to resolve the objection. If not resolved, the matter will be submitted to Dispute
Resolution.
7.3 When a disputed cost is resolved and results in payment of all or a part of
the amount originally invoiced, Tigard shall pay the amount within 10 days along with
interest at the rate TVWD would have earned upon the amount in the Local Government
Investment Pool commencing 30 days from the date of the original invoice to the date of
payment.
8. Conditions of Sale.
TVWD and Tigard agree that the sale and transfer of capacity ownership of the
existing Intake Facilities is conditioned upon satisfaction of the following:
8.1 Tigard and TVWD shall each become a party to the Willamette Intake
Facilities Intergovernmental Agreement and a member of the WIF Commission.
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Exhibit"A"
8.2 The Intake Facilities will be expanded and upgraded to achieve
approximate capacity of 150 MGD as provided in Section 5.2.
8.3 The grant of an easement to the WIF Commission by TVWD and
Wilsonville over, under and through the WRWTP Property to access, locate, design,
construct, operate, maintain, repair, replace and reconstruct the Intake Facilities. The
easement form is part of the WIF Agreement and by signature below is acceptable to the
Parties.
8.4 The grant of an easement by TVWD and Wilsonville to Hillsboro,
Beaverton and Tigard, or to an intergovernmental entity to which they are parties, over,
under and through the WRWTP Property for a raw water pipeline, electrical ductwork,
surge tanks, electrical equipment, instrumentation and controls and any necessary
structures or buildings to take raw water from the System Separation Point and convey it
to the WWSS WTP. The easement form attached hereto is acceptable to the Parties.
8.5 Tigard has water rights through the Willamette River Water Coalition with
an approved point of diversion at the WRWTP, River Mile 39.
9. Wilsonville.
9.1 TVWD has entered into various agreements with the City of Wilsonville
regarding co-ownership of the Property upon which the WRWTP, the Supply Facilities
that comprise the WRWTP, and the Intake Facilities are located.
9.2 Under the 2000 Master Agreement and the Accord Agreement,
Wilsonville and TVWD have reciprocal rights of first offer in any proposed sale or
transfer of Property or Supply Facilities as well as a right to notice of any requested
expansion of facilities to determine whether leasing is available to defer the capital
expansion proposed in the notice and whether to participate. By letter dated June 7,
2017, Wilsonville declined to exercise its right of first offer for this sale and transfer by
TVWD to Tigard. TVWD has retained capacity ownership of 59.1 MGD in the Intake
Facilities and Wilsonville and TVWD have agreed that the right of first offer remains as
to TVWD's 56.5 MGD and Wilsonville's 25 MGD capacities respectively. Tigard's 15
MGD capacity ownership is not subject to the rights of first offer in the 2000 Master
Agreement, Accord Agreement or First Amendment.
9.3 Wilsonville has also consented to expansion of the Intake Facilities to 150
MGD with the expectation that its capacity ownership will increase to 25 MGD. Under
the First Amendment between TVWD and Wilsonville, among other consideration, those
parties agreed that Wilsonville's expansion cost share would only be $75,000 for intake
permitting and $50,000 for new screens. TVWD and Tigard understand and agree that
this cap on Wilsonville's cost share will cause the other Parties to the WIF Commission
to pay for all other costs for expansion and upgrade at the actual costs as estimated on
Exhibit I.
9.4 Tigard understands and agrees that by entry into this agreement, it does
not become a party to the 2000 Master Agreement, Accord Agreement or First
Amendment, nor does it acquire any ownership interest in the Property or the remaining
WRWTP Supply Facilities, existing raw water pumps, existing electrical equipment or
the existing raw water pipeline from the System Separation Point into the WRWTP
except as provided in this Agreement(i.e. the easements).
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Exhibit "A"
10. Intake Facilities Expansion.
10.1 Tigard agrees that TVWD, as the Managing Agency of the WIF
Commission, will be responsible for the permitting, design, construction and
commissioning of the Intake Facilities Expansion Project. TVWD shall act by and
through the WWSP staff. Under the WIF Agreement, TVWD shall:
10.1.1 Serve as the contracting agency for the Expansion Project
including, but not limited to, the preparation and administration of RFPs and
RFQs and all procurement solicitations,manage all contracts and change orders in
accordance with TVWD Local Contract Review Board Rules.
10.1.2 Following receipt of bids or proposals, WWSP staff shall develop
a written recommendation of award for presentation to all participants in the
Expansion Project. Tigard shall have 10 days to approve or object. If approved,
then TVWD will issue the Notice of Intent to Award. The Parties will reasonably
cooperate to resolve objections. A final decision on award must be made within
the timelines stated in the solicitation.
10.1.3 Any change order or procurement contract that will exceed
$100,000 of Tigard's proportionate share of the contract price will require prior
approval except in the case of emergency.
10.1.4 A change order that is deemed an emergency may be approved by
the WWSP Program Director, or designee, as the Program Director deems
reasonable under the circumstances. The emergency change order will be
provided to Tigard as soon thereafter as reasonable.
10.1.5 WWSP will prepare a Work Plan and Cash Requirements Schedule
for the Expansion Project and update it periodically so that Tigard can monitor
progress, expenditures and forecast when monetary contributions to the
Expansion Project are due and payment required.
10.1.6 TVWD and Tigard anticipate entering into a subsequent
agreement(s) regarding design and construction of the Expansion Project. The
Parties may elect to have that agreement, if created, supersede this Agreement and
govern the Expansion Project.
11. Representations by TVWD.
11.1 The execution, delivery and performance of this Agreement have been
duly authorized by TV WD's Board of Commissioners and the person signing below has
full power to bind TVWD to the terms of this Agreement.
11.2 The entry into this Agreement will not result in a breach or violation of, or
constitute a default under, any other agreement to which TVWD is a party.
12. Representations by Tigard.
12.1 The execution, delivery and performance of this Agreement have been
duly authorized by the Tigard City Council and the person signing below has full power
to bind Tigard to the terms of this Agreement.
12.2 The entry into this Agreement will not result in a breach or violation of, or
constitute a default under, any other agreement to which Tigard is a party.
13. Existing Intake Facilities Assets and WIF Site Conditions.
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Exhibit"A"
13.1 AS-IS. The Parties agree that TVWD makes no representation or
warranties as to the condition of the Existing Intake Facility Assets and Tigard accepts
them in AS- IS condition.
13.2 Site Conditions. The Parties agree that TVWD makes no representation or
warranty as to the condition of the property site for construction of the expanded and
upgraded facilities. Tigard accepts the site conditions AS-IS and any and all risks
(known or unknown)as to what may be encountered when the Expansion Project occurs.
13.3 Risk of Loss. Risk of loss, damage or destruction of the Intake Facilities
assets will be borne by TVWD for the period prior to the effective date of the Agreement.
Thereafter, risk of loss, damage or destruction to the Intake Facilities (Existing and
Expanded) shall be borne by Tigard to the extent of Tigard's proportionate capacity
ownership.
14. Sale,Transfer and Assignment.
The Parties agree that any subsequent sale, transfer or assignment of any interest
in the Intake Facilities shall be subject to the WIF Agreement.
15. Dispute Resolution.
15.1 Mediation and Litigation. If a dispute arises regarding any term of this
Agreement or the performance thereof, then one Party shall give written notice to the
other specifying the dispute. The chief executive officer of each Party shall meet. If the
matter is not resolved within 30 days from the date of notice, then either Party may
request mediation by notice to the other Party, mailed or delivered within 15 days after
impasse. The Parties shall mutually agree on a mediator. If no mediator is selected or if
mediation is not successfully completed within 60 days of the notice requesting
mediation, then the Parties may proceed to litigation in the Circuit Court of the State of
Oregon for Washington County. The Parties may also mutually agree to arbitration. A
Party may seek all legal and equitable remedies. Interest on any judgment shall accrue at
the statutory rate.
15.2 Consent to Joinder of Disputes. The Parties understand that TVWD has
similar agreements with Beaverton, Sherwood, Hillsboro, and Wilsonville regarding the
Project and that a dispute under this Agreement or a dispute under those agreements may
impact each other and the Parties desire to avoid conflicting decisions in the case of
disputes affecting the Project. Therefore,the Parties to this Agreement consent to joinder
of any dispute hereunder with similar disputes between TVWD and those other Partners.
This obligation to joinder as a party will apply to mediation or any litigation in Circuit
Court.
16. Breach of Agreement and Remedies.
16.1 Notice. If a Party to this Agreement believes that the other Party is in
material breach of its obligations under this Agreement, the non-breaching Party must
provide the breaching Party with not less than 10 days' written notice of the breach in the
case of nonpayment or 30-day notice in all other cases.
16.2 Cure. Within 10 days of receipt of such notice, the breaching Party must
provide a written response stating how cure will be performed. If the default is for failure
to make payment, then payment must be made within 10 days unless the Parties mutually
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Exhibit "A"
agree otherwise. The disputed amount will be paid but the Party so making payment may
proceed to dispute resolution to obtain repayment of the money. Cure for defaults other
than failure to make payment must be completed within 30 days unless a longer period to
cure is necessary. In such case, within 30 days, the breaching party must begin diligent
cure. Nothing herein prevents a Party from seeking Dispute Resolution.
16.3 Remedies. Following Dispute Resolution, the non-breaching Party may
seek all available legal or equitable remedies available under Oregon law.
17. Termination.
17.1 This Agreement may be terminated by mutual agreement of the Parties.
17.2 The Parties agree that voluntary or involuntary termination and transfer of
any interest in the Intake Facilities shall be governed by the terms and provisions of the
WIF Agreement.
18. Force Majeure.
The obligations of a Party, other than the payment of money, shall be suspended
to the extent and for the period that performance is prevented by any cause, whether
foreseen, foreseeable or unforeseeable, beyond the Party's reasonable control if the Party
is making a good faith effort to resolve or avoid the cause, including without limitation
labor disputes (however arising and whether or not employee demands are reasonable or
within the power of the Party to grant); acts of God, laws, regulations, orders,
proclamations, instructions or requests of any government or governmental entity;
judgments or orders of any court; inability to obtain on reasonably acceptable terms any
public or private license, permit or other authorizations; curtailment or suspension of
activities to remedy or avoid an actual or alleged, present or prospective violation of
federal, state, or local environmental standards; acts of war or condition arising out of or
attributable to war, whether declared or undeclared, riot, civil strife, insurrection or
rebellion, fire, explosion, earthquake, storm, flood, sinkholes, drought or other adverse
weather conditions out of the ordinary; material delay or failure by suppliers or
transporters of materials, parts, supplies, utilities or services; accidents, breakdown of
equipment, machinery or facilities, or any other cause whether similar or dissimilar to the
foregoing, provided that the affected Party shall give notice to the other Party within 30
days of the suspension of performance or as soon as reasonably possible, stating in such
notice the nature of the suspension, the reasons for the suspension and the expected
duration of the suspension. The affected Party shall resume performance as soon as
reasonably possible.
19. Severability.
Should any provision of this Agreement be rendered invalid by a court of
competent jurisdiction or arbitrator with authority to render a provision invalid, it is
agreed that every other part of the Agreement shall remain in full force and effect so long
as the benefit of the bargain remains.
20., Entire Agreement.
This Agreement, including all attached exhibits, and the referenced Agreements
contains the entire and final understanding of the Parties and supersedes all prior
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Exhibit"A"
Agreements and understandings between the Parties related to the subject matter of this
Agreement.
21. No Joint and Several Liability
Each Party to this Agreement assumes its own rights and obligations and does not
assume the rights and obligations of any other Party.
22. Counterparts.
This Agreement may be executed in counterparts, all of which taken together
shall constitute a single Agreement.
23. Covenant of Good Faith
The Parties agree in construing this Agreement no covenants shall be implied
between the Parties except the covenants of good faith and fair dealing.
24. Governing Law and Judicial Review.
This Agreement and construction thereof shall be governed by and interpreted in
accordance with the laws of the State of Oregon without regards to principles of conflicts
of law. Subject to Dispute Resolution, any claim, action or proceeding between the
Parties that arises from or relates to this Agreement shall be brought in the Circuit Court
of the State of Oregon for Washington County.
25. Amendments and Modifications.
Any modification or amendment to this Agreement must be in writing and signed
by both Parties.
26. Successors and Assigns
This Agreement shall bind and insure to the benefit of the Parties and their
successors and assigns.
27. Third Parties.
The Parties recognize and agree that TVWD has entered into this Agreement with
Tigard for sale and purchase of a portion of TVWD's existing Intake Facilities and the
commitment by Tigard to participate in the Expansion Project. This Agreement is
pursuant to a larger plan with the Cities of Beaverton, Sherwood and Hillsboro under
nearly identical agreements. Therefore, the Parties hereto recognize that those other
entities are third party beneficiaries of this Agreement and the Parties to this Agreement
are third party beneficiaries of those agreements.
28. Non Waiver.
Failure of any Party at any time to require performance of any provision of this
Agreement shall not limit the Party's right to enforce the provision, nor shall any waiver
of any breach of any provision be a waiver of any succeeding breach of the provision or a
waiver of the provision itself or any other provisions.
29. Time is of the Essence.
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Exhibit "A"
Time is of the essence of each and every term, covenant, and condition set forth in
this Agreement. A material consideration of the Parties for entering into this Agreement
is that each Party will make all payments as and when due and will perform all other
obligations under this Agreement in a timely manner.
30. Further Assurances.
Each Party agrees that it will, without further consideration, execute and deliver
such other documents and take such other action as may be reasonably requested by the
other Party to more effectively consummate or achieve the purposes or subject matter of
this Agreement.
31. Notices.
All notices, payments and other communications to the Parties under this
Agreement must be in writing, and shall be addressed respectively as follows:
Tigard: City of Tigard
Attention: City Manager
13125 SW. Hall Blvd
Tigard, Oregon 97223
TVWD: Tualatin Valley Water District
Attention: Chief Executive Officer
1850 SW 170'h Avenue
Beaverton, Oregon 97003
All notices shall be given by (i) personal delivery to the Party, (ii) certified or
registered mail, or (iii) electronic communication followed immediately by registered or
certified mail return receipt requested. All notices shall be effective and shall be deemed
delivered (a) if by personal delivery, on the date of delivery, (b) if by certified or
registered mail on the date delivered to the United States Postal Service as shown on the
receipts; and(c) if by electronic communication, on the date the confirmation is delivered
to the United States Postal Service as shown on the actual receipt. Upon a change in
ownership, a new Party shall, upon entering into this Agreement, notify the other Party or
Parties of their contact person, address and facsimile number. Any Party may change its
address from time to time by notice to the other Parties.
32.Remedies Not Exclusive.
Each and every power and remedy specifically given to the non-defaulting Party
shall be in addition to every other power and remedy now or hereafter available at law or
in equity (including the right to specific performance), and each and every power and
remedy may be exercised from time to time and as often and in such order as may be
deemed expedient. All such powers and remedies shall be cumulative, and the exercise
of one shall not be deemed a waiver of the right to exercise any other or others. No delay
or omission in the exercise of any such power or remedy and no renewal or extension of
any payments due under this Agreement shall impair any such power or remedy or shall
be construed to be a waiver of any default.
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TUAL TIN VALLEY W TER DISTRICT CITY OF TIGARD
By: By
Title: Title: C+21
Approved as to Form: Approved as to Form:
District Counsel City Attorney
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