Tualatin Valley Water District & Hillsboro - Joinder and Amendment for Willamette Water Supply Program Design and Outreach JOINDER AND AMENDMENT AGREEMENT
This Joinder and Amendment Agreement (Joinder Agreement) is entered into by and
between the City of Hillsboro, an Oregon municipal corporation, (Hillsboro);the Tualatin Valley
Water District, a domestic water supply district organized pursuant to Chapter 264 (TVWD)and
the City of Tigard, an Oregon municipal corporation(hereinafter"Tigard"), each a"Party"and
collectively the "Parties".
RECITALS
In August, 2013,Hillsboro and TVWD entered into an Intergovernmental Agreement
regarding Predesign, Design,Public Affairs And Public Outreach In Furtherance Of The
Willamette Water Supply Program("Supply Agreement").
The Supply Agreement is comprehensive in all aspects to accomplish tasks to achieve
preliminary design of the Willamette Water Supply Program and final design of the SW 124 '
Avenue Pipeline Project.
As part of implementation of the Supply Agreement,TVWD entered into a professional
services agreement with HDR Engineering, Inc. dated September 24, 2013 entitled Design
Support Services on the Willamette Water Supply System Preliminary Design. (HDR
Preliminary Design Agreement)
Tigard desires to join in the Supply Agreement with respect to the preliminary routing
and design portion of the work that is described in the Supply Agreement and the HDR
Preliminary Design Agreement. Hillsboro and TVWD are willing to allow Tigard to participate
on that limited basis. It is also anticipated that the City of Beaverton and the City of Tualatin
may execute a similar Joinder and Amendment Agreement with Hillsboro and TVWD.
For these reasons, Hillsboro,TVWD and Tigard wish to amend the Supply Agreement,
and being fully advised,now therefore the Parties agree as follows:
1. Covenant of Tigard. In consideration of Hillsboro and TVWD's consent to
Tigard becoming a Party to the Supply Agreement and the Cost Share Participation described
below, Tigard agrees to be bound by all terms and conditions of the Supply Agreement and this
Joinder Agreement and all Parties agree that the Supply Agreement shall be amended as
provided herein.
2. Cost Share Participation. Tigard has elected a minimum cost share participation
of$100,000 in the Project Components related to preliminary routing and design generally
described in Sections 3.1.3, 3.1.4 and 3.1.5 of the Supply Agreement as shown on Ex. 1,attached
hereto and incorporated by reference and more specifically set forth in the HDR Preliminary
Design Agreement. Participation at this level will provide a preliminary design capacity that
incorporates five(5)million gallons per day(mgd)placeholder for design purposes but does not
guarantee any capacity in the Program defined in the Supply Agreement. Tigard may participate
in technical advisory committees,have access to the Program Sharepoint website, receive
technical memoranda prepared by the Parties and consultants,preliminary design cost estimates
JOINDER AND AMENDMENT AGREEMENT,Page 1 of 3
25104.03214848-1036-5209.vl
and the HDR Preliminary Design Report. Payment is due to TVWD within 30 days of execution
of this Joinder Agreement.
3. Obtaining Guaranteed Capacity. All Parties agree that the allocation of cost
share and capacity under the Supply Agreement is set forth in Section 4.1 of the Supply
Agreement. To obtain guaranteed capacity or guaranteed increased capacity in the Program prior
to construction,Tigard will be required to reimburse Hillsboro and TVWD for the proportionate
actual design cost share consistent with the cost share allocations for final Program capacities,
under all tasks in Section 3 of the Supply Agreement, excluding prior costs incurred under
Sections 3.1.1 and 3.1.2 related to public outreach and public affairs, and any additional terms as
mutually agreed upon to achieve true up for actual costs incurred. Payments shall be made by
Tigard prior to final design and construction to obtain the guaranteed capacity. Failure to make
such payment shall result in forfeiture of guaranteed capacity.
4. Amendment of Supply Agreement.
A. All Parties agree that Section 4.1 of the Supply Agreement is amended to
read:
"4.1 Cost Share. Cost share is the percentage of Program cost allocated to a
party as determined by this Agreement, a task order or addenda, or as modified by execution of a
written amendment by the Parties. The Program is intended to have an actual peak design
capacity of 91.2 million gallons per day(mgd). A Party's election of planned capacity share in
the Program or the S.W. 124th Avenue Pipeline Project will determine that Party's share of the
costs to complete the Scope of Work identified in this Agreement. Until amended,Hillsboro
shall have a cost share and capacity share interest of 36.2 mgd of the 91.2 mgd(36.2/91.2) and
TVWD will have a cost share and capacity share interest of 55 mgd of the 91.2 mgd(55.0/91.2).
The percentage calculation is 39.69%for Hillsboro and 60.31% for TVWD. No other party shall
have any interest therein unless mutually agreed upon by amendment to this Agreement and by
execution of a Joinder Agreement. A form of Joinder Agreement is attached as Ex. B."
B. All Parties agree that Section 7.7 of the Supply Agreement is amended by
adding the following to the existing text:
If to Tigard: City of Tigard
Dennis Koellermeier
13125 SW Hall Blvd.
Tigard, OR 97223
5. Existing Agreement. In all respects, and except as specifically modified by this
Joinder Agreement, all terms and conditions of the Supply Agreement are in full force and effect.
6. Joinder by Other Entities. Tigard agrees that execution of a Joinder Agreement
by Hillsboro, TVWD and Cities of Beaverton and Tualatin may occur without necessity of future
action or consent by Tigard. Joinder by any other entity not named will require consent of all
Parties as provided under the Supply Agreement.
JOINDER AND AMENDMENT AGREEMENT,Page 2 of 3
25104.03214848-1036-5209.v1
7. Effective Date. This Joinder Agreement shall become effective on the last date
signed below and shall remain in effect under the terms of the Supply Agreement.
8. Counterparts. This Joinder Agreement may be signed in counter-part and each
part shall constitute an original.
IN WITNESS WHEREOF,the parties have executed this Joinder Agreement as of the
date opposite their signatures.
CITY OF HILLSBORO CITY OF TIGARD
an Oregon Municipal Corporation an Oregon Municipal Corporation
Mayor Mayor
Attest: Attest:
City Recorder City Recorder
Approved as to form Approved as to form
City Attorney City Attorney
TUALATIN VALLEY W ER DISTRICT
Board President
Board S cretary
Approved as to rm
District Counsel
JOINDER AND AMENDMENT AGREEMENT,Page 3 of 3
25104.03214848-1036-5209.v 1
7. Effective Date. This Joinder Agreement shall become effective on the last date
signed below and shall remain in effect under the terms of the Supply Agreement.
8. Counterparts. This Joinder Agreement may be signed in counter-part and each
part shall constitute an original.
IN WITNESS WHEREOF, the parties have executed this Joinder Agreement as of the
date opposite their signatures.
CITY OF HILLSBORO CITY OF TIGARD
an Oregon Municipal Corporation an Oregon Municipal Corporation
Ma or Mayor
Attest: Attest:
City Recorder City Recorder
Approved as to form Approved as to form
,,4,�' �2
City Attorney City Attorney
TUALATIN VALLEY WATER DISTRICT
Board President
Board Secretary
Approved as to form
District Counsel
JOINDER AND AMENDMENT AGREEMENT, Page 3 of 3 25104.032\4848-1036-5209.v 1
00
7. Effective Date. This Joinder Agreement shall become effective on the last date
sighed below and shall remain in ciTect under the teams of the Supply Agreement.
g. Counterparts. 'Chis Joinder Agreement may be signed in counter-part and each
part shall constitute an original.
IN WITNESS WHEREOF,the parties have executed this Joinder Agreement as of the
date opposite their signatures.
CITY OF HILLSBORO CITY OF TIGARD
an Oregon Municipal Corporation an Oregon Municipal Corporation
Mayor Mayor
Attest: Attest:
City Recorder City Recorder
Approved as to form Ap� v7asfrn•
City Attorney i Attorney
TUALATIN VALLEY WATER DISTRICT
Board President
Board Secretary
Approved as to form
District Counsel
JOINDER AND AMENDMENT AGREEMENT,Page 3 of 3
25104.032A848-1036-5209M
EXHIBIT 1
AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF HILLSBORO AND TUALATIN
VALLEY WATER DISTRICT REGARDING PREDESIGN, DESIGN, PUBLIC AFFAIRS AND PUBLIC
OUTREACH IN FURTHERANCE OF THE WILLAMETTE WATER SUPPLY PROGRAM
THIS AGREEMENT is made and entered into thisday of AA& 2013, between the
City of Hillsboro, Oregon, a municipal corporation of the State of Oregon, ("Hillsboro"), and the
Tualatin Valley Water District, a domestic water supply district of the State of Oregon
("TVWD").
RECITALS
The parties agree upon the following recitals:
A. WHEREAS, it is critical to plan and implement long-term water supply needs for
public health, safety and welfare and to enable the continued economic viability of Washington
County;and
B. WHEREAS, TVWD and Hillsboro have selected the Willamette-River as their
preferred option to meet long-term water supply needs; and
C. WHEREAS, TVWD, the. City of Sherwood, the City of Tualatin and the City.of
Tigard are members of the Willamette River Water Coalition (WRWC) and through WRWC, each
has pursued use of the Willamette River as a water source under Water Permit No. 49240; and
Tigard and Tualatin may wish to participate in the further development of the Willamette
Water Supply Program and
D. WHEREAS, Washington County (County) has begun its process to acquire right of
way, permits, design and construct an extension of its road system known as the S.W. 124th
Avenue Project (Road Project) that will connect S.W. Tualatin Sherwood Road with S.W.
Grahams Ferry Road. The County has offered to allow TVWD and Hillsboro to locate water
facilities within the County right of way as part of the Road Project .through an
Intergovernmental Agreement to be negotiated and executed in the future ("the 124th Avenue
Pipeline Project"). To qualify for inclusion in the Road Project, design plans and specifications
must be provided to the County by January, 2014. Initial cost estimates have shown that
construction of the SW 124th Avenue Pipeline Project in coordination with the Road Project
could result in savings to TVWD and Hillsboro of about $30 million to $75 million as compared
to not participating in the Road Project at this time- and
E. WHEREAS, Hillsboro and TVWD desire to construct water supply facilities to
Page 1—Willamette Water Supply Program Agreement
supply and distribute water from the Willamette River Water Treatment Plant ("WRWTP")
located in Wilsonville, Oregon, to their respective service areas. These water supply facilities
collectively will be referred to herein as the "Willamette Water Supply Program" or "Program".
This Agreement provides for the Parties to share the cost of the following elements of the
Program identified more fully in Section 3, Scope of Work, to facilitate the planned
development of the facilities needed to serve the Parties: design of the initial segment of the
pipeline identified as the SW 124th Avenue Pipeiine Project; public outreach; public affairs and
intergovernmental coordination; right of way and property acquisition services, surveying,
geotechnical and environmental studies; preliminary design of the entire water supply system,
permitting and final design of a large-diameter pipe segment along and under the general route
as it is finally determined on Exhibit A, attached hereto and incorporated by reference, which
alignment is subject to modification when final road alignment is determined by the County.;
and
F. WHEREAS, the SW 124th Avenue Pipeline Project will be part of the overall
Willamette Water Supply Program, and as such Hillsboro and TVWD wish to construct the SW
124th Avenue Pipeline Project as part of the Road Project. The SW 124th Avenue Pipeline
Project would consist of a large diameter pipeline (approximately 72-inch diameter) within the
124th Street roadway as determined by the County between S.W. Tualatin Sherwood Road and
S.W. Grahams Ferry Road and as depicted on Ex. A, subject to modification when final
alignment is determined by the County; and
G. WHEREAS, the parties desire to share the cost of defined elements of the work
necessary to plan and-construct the Program and the SW 124th Avenue Pipeline Project
described in this Agreement, task order or addenda to be attached hereto and incorporated
herein in the future; and
H. WHEREAS, the parties not only desire to enter into this Agreement for the
purpose of supplying water to their current and future water system users but also potentially
to other municipal water providers.; and
I. WHEREAS, it is recognized by the parties that it is necessary to enter into this
intergovernmental cooperative agreement through ORS Chapter 190 and the parties have the
authority to enter into this Agreement pursuant to their applicable charter, principal acts, and
Oregon Revised Statutes.Sections 190.003 through 190.030; and
J. WHEREAS, the Parties desire to enter into this Agreement and recognize that
future separate Agreements will be negotiated regarding design, construction, operation and
governance of those Willamette Water Supply Program facilities; and being fully advised,
NOW,THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties agree as follows:
1. INCORPORATION OF RECITALS
Page 2—Willamette Water Supply Program Agreement
The Recitals above are hereby made part of this Agreement.
2. TERM
This Agreement shall continue in effect until the scope of work is completed and all
costs pertaining thereto have been apportioned to the Parties, and payment therefore has
been made, unless otherwise agreed to in writing by the Parties. .
3. SCOPE OF WORK
3.1 Proiect. The scope of the Willamette Water Supply Program (Program) is
generally described to include a water treatment plant in Wilsonville, a large-diameter
(approximately 72-inch) water transmission pipeline from Wilsonville to the TVWD and
Hillsboro water distribution systerns, and terminal storage.. This Agreement addresses only
limited work (Project) in furtherance of the Program. The Parties agree that the Scope of Work
of the Project under this Agreement is:
3.1.1 Public Outreach to those interested persons or communities who may be
impacted by the Program.
3.1.2 Public Affairs and Intergovernmental Coordination with Federal, State and
local governments and agencies who may be impacted or have an interest in the
Program or the SW 124th Pipeline Project or otherwise have a permitting or regulatory
role.
3.1.3 Identification of property ownership, areas of need, development of
negotiation, and acquisition strategies and services in support of acquisition of right of
way or property ownership for the Program.
3.1.4 The conduct of surveys, geotechnical investigations and all other studies
necessary to determine routing of the pipeline and other Program matters.
3.1.5 The completion of a Preliminary Engineering study for the Program in its
entirety including treatment,transmission and storage components.
3.1.6 The completion of a final design for the SW 124th Avenue Pipeline Project
to be included in the Road Project.
3.1,7 The retention of such consultants as the Parties deem appropriate to
achieve the tasks generally described above.
3.1.8 In furtherance of the general descriptions above, the Parties will agree on
a detailed scope of the specific task, budgets and cost share participation which will be
Page 3—Willamette Water Supply Program Agreement
e
memorialized by task order or addenda to this Agreement.
3.2 Sufficient Funds. It is understood and agreed that based upon the final task
scope, budget and cost share participation for the Project Components in Section 3.1 above,the
allocation of costs will be agreed upon and each party will budget sufficient'funds for its
respective share in the Program and the SW 124th Avenue Pipeline Project as identified herein..
4. PROGRAM AND PROJECT COSTS
4.1 ' Cost Share. Cost share is the percentage of Program cost allocated to a party as
determined by this Agreement, a task order or addenda, or as modified by execution of a
Joinder Agreement. The Program is intended to have an actual peak design capacity of 85
million gallons per day (rngd). A Party's election of planned capacity share in the Program or
the 5,W. 124th Avenue Pipeline Project will determine that Party's share of the costs to
complete the Scope of Work identified in this A9eement. Until amended, Hillsboro shall have a
cost share and capacity share interest of 30/85 and TVWD will have a cost share and capacity
share interest of 55/85th. No other party shall have any interest therein unless mutually agreed
upon and.by execution of a Joinder Agreement. A form of Joinder Agreement is attached as Ex.
B.
4.2 Project Cost. Project cost includes all direct and indirect costs of the Project as
determined by the Project Manager. The direct and indirect direct costs of the Scope of Work
(Section 3.1) shall be shared by the Parties in proportion to their cost share amount as reflected
in the specific addendum for that component. Costs will also include reimbursement to TVWD
or another Party providing administration services delegated by task order or addenda at then
current hourly rates for staff time. TVWD will invoice each Party monthly for the Project costs
for the previous 30 days with such detail as the Party reasonably requires verifying the amount
to be paid. Each Party shall pay its share within 30 days after receipt of invoice. In the event of
a dispute, the Party shall pay the undisputed portion and notify TVWD in writing of its reasons
for disputing the full payment amount. Any amount not paid within 30 days from the date of
the original invoice will bear interest at the State of Oregon Local Government Investment Pool
rate.
4.3 Subsequent Agreements. The Parties agree that construction, ownership,
governance, operation, maintenance, repair and replacement, expansion of facilities and other
matters of the Program will be determined by subsequent Agreement. No Party shall be
obligated to enter into or contribute financially to any construction contract or property
acquisition for the SW 124th Avenue Pipeline Project until such time as the Parties have entered
into the future separate agreements to address ownership, management and governance with
respect to the Program.
4.4 Budget. Annually, , TVWD shall prepare and distribute to each party by January
31St a forecast of anticipated costs for the Willamette Water Supply Program for that ensuing
fiscal year beginning July 1St. Each Party shall be responsible to budget and appropriate its
share for the upcoming fiscal year.
Page 4—Willamette Water Supply Program Agreement
5. PROJECT MANAGEMENT
5.1 Project Manager. TVWD is designated as the Project Manager for the Scope of
Work and the duration of this agreement.
5.2 Project Management Team. The Project Management Team shall consist of the
TVWD Chief Executive Officer and the Hillsboro Water Department Director, or their designees.
TVWD, as the Project Manager, will report, as often as necessary considering the task at hand,
to the Project Management team for decisions. Except as required under a Party's charter,
statutes, ordinances, or governing body policies, the designated member of the Project
Management Team or their designee shall have authority to make decisions required to carry
out their obligations under this Agreement.
5.3 Committees. The Project Management Team shall have the power to appoint
other committees to advise it on issues determined to be necessary. The Project Management
Team may develop an Engineering Design Technical Advisory Committee,a Public Outreach and
Affairs Technical Advisory Committee, a Finance Technical Advisory Committee and such other
committees as it deems appropriate.
5.4 Approval of Expenditures. The budget allocation for each Party and
appropriation shall be approved pursuant to each Party's applicable legal requirements. During
the management of the Scope of Work in this Agreement, any change order that will increase
an approved contract will require approval by the respective Parties pursuant to their
contracting processes within 30 days. All other decisions may be made by the Project
Management Team.
5.5 Project Management Authority
TVWD is the Project Manager liaison with the County under the Road Project and the other
elements identified in the Scope of Work under this Agreement. TVWD shall oversee the
execution of each task identified in the Scope of Work, and shall have the following powers:
5.5.1 To enter into contracts for services for each element of the Scope of Work,
subject to Section 5.4;
5.5.2 To retain such agents, officers and employees as it deems necessary and to
contract services; and
5.5.3 To make decisions.related to the SW 124th Avenue Pipeline Project within
the Road Project as necessary in case of an emergency requiring immediate
action. In such cases, TVWD shall inform Hillsboro of the action(s) taken within
one business day. The parties acknowledge that the construction of the Road
Page 5—Willamette Water Supply Program Agreement
Project has not been commenced and final decisions on construction of the
Road Project belong to the County.
5.6 Road Project Design Process. As Project Manager, TVWD shall have authority on
behalf of the parties to coordinate and be the point of contact with the County in the
solicitation of bids and award of contracts for the SW 124th Avenue Pipeline Project. The
Parties must approve the design and construction documents for inclusion in the Road Project
and the bid and award of the SW 124th Avenue Pipeline Project portion of the contract.
6. DEFAULTS
6.1 Event of Default. The failure of a Partyto perform any duty imposed upon it by
this Agreement shall constitute a default.
6.2 Notice of Default. The non-defaulting Party shall have the right to give the
defaulting Party a written notice of default,which shall describe the default in reasonable detail
and state the date by which the default must be cured,which date shall be at least 64 days
after receipt of the notice of default, except in the case of a failure to make full payment, in
which case the date shall be 30 days after receipt of the notice of default.
6.3 Opportunity to Cure. If within the applicable period described in Section 7.2 the
defaulting Party cures the default,or if the failure is one (other than the failure to make full
payments),that cannot in good faith be corrected within such period and the defaulting Party
begins to correct the default within the applicable period and continues corrective efforts with
reasonable diligence until a cure is effected,the notice of default shall be inoperative, and the
defaulting Party shall lose no rights under this Agreement. If, within the specified period,the
defaulting Party does not cure the default or begin to cure the default as provided above,the
non-defaulting Party at the expiration of the applicable period shall have the rights specified in
Section 6.4.
6.4 Rights Upon Default. If the defaulting Party has not cured the default as
provided in Section 7.3, it shall have no rights under this Agreement until the default has been
cured. In addition, the non-defaulting Party may pursue any other remedy available at law or in
equity against the defaulting Party subject to the dispute resolution procedures of Section 7.17.
Page 6—Willamette Water Supply Program Agreement
6.5 Reallocation. If a Party is terminated for default,the remaining parties shall
undertake to share proportionately in the amount the terminated party was obligated to pay
and cost share shall be reallocated accordingly, unless the remaining Parties otherwise agree.
7. GENERAL PROVISIONS
7.1 Future Agreements. The Parties acknowledge that the terms and conditions of
this Agreement may be superseded or replaced by a subsequent agreement to provide for
construction, ownership, governance, operation, maintenance repair, replacement and
expansion of the Program to connect the Willamette WTP with their respective service areas.
7.2 Instruments of Further Assurance. From time to time, at the request of either
Party, each Party shall, without further consideration, execute and deliver such further
instruments and shall take such further action as may be reasonably required to fully effectuate
the purposes of this Agreement consistent with its terms.
7.3 Terminology. The captions beside the section numbers of this Agreement are for
reference only and shall not modify or affect this Agreement in any manner whatsoever.
Wherever required by the context, any gender shall include any other gender, the singular shall
include the plural, and the plural shall include the singular. Further, Party or Parties shall mean
TVWD, Hillsboro or a local government entity who enters into this Agreement by execution of a
Joinder Agreement.
7.4 Assignment. No Party shall have the right to assign its interest in this Agreement
(or any portion thereof),without the prior written consent of the other Party .
7.5 Severability. In case anyone or more of the provisions contained in this
Agreement shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
7.6 Counterparts. This Agreement may be executed in any number of counterparts
and by the parties or separate counterparts, any.one of which shall constitute an agreement
between and among the parties.
7.7 Notices. Any notice herein required or permitted to be given shall be given in
writing, shall be effective when actually received, and may be given by hand delivery'or by
United States mail, first class postage prepaid, addressed to the parties as follows:
If to Hillsboro: City of Hillsboro
Water Department Director
150 E. Main
Hillsboro, OR 97123
Page 7—Willamette Water Supply Prograrn Agreement
If to TVWD: Tualatin Valley Water District
Chief Executive Officer
1850 SW 170th Avenue
Beaverton, OR 97006
7.8 Amendment. This Agreement may be amended only if both parties concur in the
proposed amendment by a written agreement, signed by authorized representatives of each
party.
7.9 Books Reports & Accounting. TVWD shall maintain books and records which
shall show all income, receipts, expenses and costs in connection with its rights and duties
under this Agreement. All such books of account or other records may be examined and copies
of books and records made by TVWD staff at reasonable times upon reasonable notice.
7.10 Waiver. The failure of a Party to insist on the strict performance of any provision
of this Agreement or to exercise any right, power or remedy upon a breach of any provision of
this Agreement shall not constitute a waiver of any provision of this Agreement or limit the
Party's right thereafter to enforce any provision or exercise any right.
7.11 Force Maieure. 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 non-party 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 authorization; 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; delay or failure by
suppliers or transporters of materials, parts, supplies, services or equipment or by contractors'
or subcontractors' shortage of, or inability to obtain, labor,transportation, materials, machinery
equipment, 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 10 business days of the suspension of
performance, 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.
7.12 Implied Covenants. The Parties agree that in construing this Agreement no
covenants shall be implied between the Parties except the covenants of good faith and fair
dealing.
Page 8—Willamette Water Supply Program Agreement
7.13 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Oregon.
7.14 Remedies Not Exclusive. Each and every power and remedy specifically given to
the non-defaulting Parties 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.
7.15 Survival of Terms & Conditions. The provisions of this Agreement shall survive its
termination to the full extent necessary for their enforcement and the protection of the Party in
whose favor they run.
7.16 Time is of the Essence. A material consideration of the Parties entering into this
Agreement is that the Parties will make all payments as and when due and will perform all
other obligations under this Agreement in a timely manner. Time is of the essence of each and
every provision of this Agreement.
7.17 Dispute Resolution. The Parties hereby agree that resolution of any and all
disputes arising out of the terms of this Agreement or interpretation therecrf shall follow a
prescribed process beginning with negotiation and subsequently moving to mediation, provided
the dispute remains unresolved. If a dispute arises between the parties regarding this
Agreement,the parties shall follow the dispute resolution provisions below:
7.17.1 Written Notice. A written notice regarding the dispute (Dispute Notice)
shall be sent to the other party. If additional Parties join this Agreement, the
references to account for multiple parties shall be adjusted per Section 8.3.
7.17.2 Negotiations. Within thirty (30) days following receipt of the Dispute
Notice, the parties to the dispute ("Disputing Parties") shall assign a
representative to participate in good faith negotiations for a period not to
exceed-sixty (60) days after appointment of the representatives.
7.17.3 Mediation. If after the sixty (60) day period of negotiation (or a period
not to exceed ninety (90) days following the receipt date of the Dispute Notice),
the disputes) cannot be resolved, the Disputing Parties agree to submit the
matter to non-binding mediation. The Disputing Parties shall attempt to agree
on a mediator in a period not to exceed one hundred twenty(120) days following
the receipt date of the Dispute Notice and proceed accordingly.
Page 9—Willamette Water Supply Program Agreement
• i
8/7/13
dispute(s) cannot be resolved, the Disputing Parties agree to submit the matter to
non-binding mediation. The Disputing Parties shall attempt to agree oil a
mediator in a period not to exceed one hundred twenty (120) days following the
receipt date of the Dispute Notice and proceed accordingly.
7.17.41,1 ti ag tion. If the Parties cannot agree on a mediator within the allocated
time, or if the mediator cannot resolve the dispute(s) within one hundred eighty
(180)days following the receipt date of the Dispute Notice, either of the Disputing
Parties may initiate litigation in the Circuit Court of the State of Oregon for
Washington County and seek all available remedies. Moreover, each of the
Disputing Parties shall bear its own legal and expert witness fees at all stages of
the dispute resolution process, including at trial or on any appeals. In addition,
nothing shall prevent the Disputing Parties fi•om waiving any of the dispute
resolution steps by mutual consent.
7.18 New Member. Upon approval by the then Parties to this Agreement, new local
government entities may join so long as they execute a Joinder Agreement (Exhibit B) pursuant
to which they agree to be bound by the terms of this Agreement and additional terms and
conditions set forth in the Joinder Agreement.
IN Wlrl'NESS Wl-1EREOF, the parties have,pursuant to official action of their respective
governing bodies, duly authorizing the same, caused their respective officers to execute this
instrument on their behalf.
CITY OF HILLSBORO TUALATIN VALLEY WATER DISTRICT,
An Oregon municipal corporation Domestic water supply district
4410
Ma rl;(/11p,�}lr Chief Executive Officer
M M01-
APPROVED AS TO FORM: APPROVED AS TO FORM:
4812-1009-q`ti Attorney District Counsel
Attest:
Cit} Recorder
{00323531;3;Page 9- Willamette Water Supply Program Agreement
7.17.4 Litigation. if the Parties cannot agree on a mediator within the allocated
time, or if the mediator cannot resolve the dispute(s) within one hundred eighty
(180) days following the receipt date of the Dispute Notice, either of the
Disputing Parties may initiate litigation in the Circuit Court of the State of Oregon
for Washington County and seek all available rernedies. Moreover, each of the
Disputing Parties shall bear its own legal and expert witness fees at all stages of
the dispute resolution process, including at trial or on any appeals. In addition,
nothing shall prevent the Disputing Parties from waiving any of the dispute
resolution steps by mutual consent.
7.3.8 New Member. Upon approval by the then Parties to this Agreement, new local
government entities may join so long as they execute a Joinder Agreernent (Exhibit B) pursuant
to which they agree to be bound by the terms of this Agreement and additional terms and
conditions set forth in the Joinder Agreement.
IN WITNESS WHEREOF, the parties have, pursuant to official action of their respective
governing bodies, duly authorizing the same, caused their respective officers to execute this
instrument on their behalf.
CITY OF HILLSBORO TUALATIN VALLEY WATER DISTRICT,
An Oregon municipal corporation Domestic water supply district
Mayor Mark Knudson, Chief Executive Officer
APPROVED AS TO FORM: APPROVED AS TO F M
City Attorney Clark I. Balfour, District Counsel
Attest:
City Recorder
Page 10—Willamette Water Supply Program Agreement
Tualatin Valley Water District
Delivering the Best Water Service Value
May 14, 2014
Dennis Koellermeier
City of Tigard
13125 SW Hall Blvd.
Tigard,OR 97223
Re: Joinder and Amendment Agreement
Dear Mr. Koellermeier,
Enclosed please find Tigard's copy of the subject agreement which has been signed in counterparts
and constitutes an original.
Should you have any questions, I can be reached at 503-848-3046 or judi@tvwd.org.
Sincerely,
?di4Tonks
Clerical Assistant
Enclosure
cc: Mark Knudson
Todd Heidgerken
1850 SW 170th Avenue • Beaverton,Oregon 97006 • Phone:503-642-1511 • Fax:503-649-2733 • www.tvwd.org