Tigard Water District And City Of Durham ~ AG190001 ~ Tigard Water Service Area For Delivery Of Water Service ig0ZDi
TIGARD WATER SERVICE AREA AGREEMENT
AMONG THE CITY OF TIGARD, CITY OF DURHAM
AND TIGARD WATER DISTRICT FOR DELIVERY OF WATER SERVICE
This Tigard Water Service Area Agreement("Agreement") is made and entered into pursuant to
Oregon Revised Statutes 190.010, by and among the City of Tigard, an Oregon municipal
corporation("Tigard"), the City of Durham, an Oregon municipal corporation("Durham"), and
the Tigard Water District, a domestic water supply district organized under ORS Chapter 264
("TWD"). Tigard, Durham and TWD are jointly referred to herein as "the Parties."
RECITALS:
The cities of Tigard, King City and Durham(collectively the "Cities") withdrew territory and
water system facilities from the original Tigard Water District boundaries effective July 1, 1993.
Pursuant to ORS 222.540, TWD turned over to the Cities its water mains, service installations,
structures, facilities, improvements and other property in the area withdrawn from TWD as it
existed on June 30, 1993 ("original District")that were not necessary for the operation of the
remainder of the water supply system of TWD.
The area withdrawn by Tigard was a major portion of the original District boundaries. Because
of this,Tigard was entitled to a major portion of TWD's infrastructure pursuant to ORS 222.540
while King City and Durham were entitled to smaller portions. Pursuant to ORS 222.550, should
TWD dissolve, Tigard will obtain all of the TWD's remaining assets that have not been
distributed under ORS 222.540.
With the assets and infrastructure obtained by its withdrawal from TWD, Tigard created a city
water division within its Public Works Department. Durham, King City and TWD executed
separate agreements with Tigard dated December 23, 1993 (the"1993 IGAs")whereby each of
them delegated authority to Tigard to operate,maintain, repair,replace, construct and reconstruct
the water system facilities as part of an integrated water supply system over the Tigard Water
Service Area("TWSA"), which comprised the area of the original District.
All parties to the separate 1993 IGAs committed to cooperate with Tigard and each other in
capital improvement planning and long-term water supply decisions so that Tigard could provide
current and future water system users within the TWSA with high-quality water at a reasonable
price.
The 1993 IGAs provided that Tigard will set rates and charges and receive revenue from water
system users in Tigard, King City, Durham, and TWD for the entire TWSA, and with that
revenue Tigard will provide the funds to pay for providing water service,
The 1993 IGAs expire on December 31, 2018;and the Parties agree that it is in their best interest
to enter into this Agreement to supersede and replace the respective agreements. Tigard has a
previous agreement with the City of King City dated December 9, 2014 that will remain in place.
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NOW,THEREFORE,the premises being in general as stated in the foregoing recitals, it is
agreed by and between the Parties hereto as follows:
1. Definitions
"Master Declaration"means the Tigard Master Water System Revenue Bond Declaration
dated May 1, 2012, as it has been and may be amended in accordance with its terms.
"Remaining Party(ies)"means a Party who continues its interest in this Agreement
following notice of withdrawal by another party.
"Tigard Water Fund"means the enterprise fund(s)maintained by Tigard for water system
purposes.
"Tigard Water Service Area"means that area comprising the boundaries of Tigard,
Durham and the Tigard Water District, as they existed on December 23, 1993.
"Withdrawing Party"means a Party hereto who provides notice of intent to withdraw
from membership in this Agreement.
2. Mission Statement
Tigard is the authorized water supplier within the TWSA and is recognized by the
Division of Drinking Water, Oregon Health Authority, and by the Washington County
Public Health Division as a municipal water supplier. As such, Tigard has sole authority
to carry out the functions of a water supplier and responsibility to meet regulatory and
other requirements mandated by federal and state law and to meet the technical,
managerial and financial responsibilities to all customers within the TWSA regardless of
the jurisdictional boundaries of the Parties. The Parties commit to working together as
good stewards of a fully integrated water supply system so that all current and future
water system users in the TWSA receive a high-quality, economical water supply. The
Parties further commit to working together and with other agencies and jurisdictions in a
cooperative effort to plan for the future long-term water supply needs of the TWSA.
3. Effective Date and Term
This Agreement will be in full force and effect commencing at 12:01 AM on January 1,
2019 and shall continue indefinitely,unless earlier terminated by one or more of the
Parties according to the terms of this Agreement. Tigard recognizes that by this
Agreement, it is assuming the responsibility to provide water to the customers of Durham
and TWD for the duration of this Agreement unless Durham or TWD obtains a
reasonable alternative domestic water supply and the Agreement is terminated. If Durham
or TWD terminates this Agreement but does not have a separate water source, then the
Parties agree to negotiate in good faith a wholesale water supply contract as provided in
Section 11.6. Upon the effective date of this Agreement, the 1993 IGAs for Durham and
TWD will terminate and be of no further effect.
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4. Water Service Area Advisory Board
4.1. The Tigard City Council will establish the Water Advisory Board ("WAB"). The
WAB may adopt bylaws that must be approved by the Tigard City Council. The
WAB will consist of five members. Members of the Board will be designated by
the respective governing bodies for approval by the Tigard City Council:
Tigard-One Member
Durham- One Member
TWD - One Member
At Large—Two Members. One member who resides within the TWSA but
outside Tigard and one member who resides within Tigard. At-large members
will be nominated by the WAB with final decision and appointment by the Tigard
City Council. The at-large members shall represent the interests of the general
TWSA public.
4.2. Water Advisory Board Terms of Appointment
Upon appointment as provided in Section 4.1,WAB members shall serve an
initial term from the date of appointment to December 31, 2021. Members serve
at the pleasure of the appointing body. The at large members serve at the pleasure
of the Tigard City Council.
Thereafter,WAB members shall be appointed in December of the expiring term
year for the following four-year term. Each term will begin on January 1 and end
on December 31 four years hence. Each WAB Board member shall serve until a
successor has been appointed. Members may be re-appointed to succeeding terms
without limit. Vacancies may be filled in the same manner as a regular
appointment.
4.3. Eligibility
Each WAB member shall be an elected official serving on the appointing
governing body, except for the at-large members who must meet the requirements
in paragraph 4.1. Each governing body may appoint an alternate to attend
meetings in the place of a regularly appointed WAB member. The alternate shall
be appointed in the same manner and must meet the same qualifications as the
regularly appointed WAB member.
4.4. WAB Support
Tigard will appoint city officials as staff to the WAB to assist the Board in its
duties. Tigard will provide adequate facilities and equipment for all WAB
meetings.
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4.5. Meetings,Quorum and Voting
A quorum of the WAB is three(3)members. All meetings will be conducted in
accordance with the Oregon Public Meetings Law. All actions require at least
three(3) affirmative votes. Generally,meetings of the WAB will be held at least
bimonthly,but may occur less frequently as provided in the bylaws. If a meeting
is held less than bimonthly, in lieu of a meeting Tigard shall provide an electronic
status report to each Party that includes,but is not limited to,the information set
forth in Section 6.4.3. A special meeting or emergency meeting may be called as
provided in the bylaws by the Chair or any two Members.
4.6. Duties
The WAB will be an advisory board and may make recommendations to the
Tigard City Council on significant water service issues including,but not limited
to:
4.6.1. water system rate methodology and structure to be charged to TWSA
users;
4.6.2. system development charges and methodology to comply with state law
and to provide that development growth within the existing TWSA and
future areas added to the TWSA pay an equitable share;
4.6.3. proposed Capital Improvement Plans, Master Plans, Water Management
and Conservation Plans, Curtailment Plans,Emergency Plans and
amendments thereto;
4.6.4 recommendations to the Budget Committee and Council on budget
requests or amendments to the existing budget for water system operation
and maintenance or CIP;
4.6.5 policies,rules and regulations regarding the water system or TWSA users
which may be adopted by the Tigard City Council;
4.6.6 proposed issuance of borrowings secured by water system revenues;
4.6.7 proposed sale of water to areas outside the TWSA;
4.6.8 other water related issues assigned by the Tigard City Council or as
suggested by the WAB.
5. Ownership of Assets
The Parties agree to the following ownership provisions:
5.1. "System Assets": Assets within the TWSA necessary for the operation of the
water supply system throughout the TWSA, more specifically defined as follows:
transmission mains with diameters 12 inches and over that are necessary for the
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transmission of water throughout the system; computerized control systems
("SCADA"); reservoirs; wells; pump stations and real property upon which
reservoirs and pump stations are sited. The real property descriptions are set forth
on Exhibit A and incorporated herein by reference. Real property does not
include any area within highways, roads and streets. The Parties agree that System
Assets within the TWSA are, and shall be,jointly but proportionately owned by
the Parties as provided in Section 11.2 so long as this Agreement is in place. The
Parties further agree that if System Assets are sold,the proceeds shall be placed in
Tigard's Water Fund and dedicated for use in the TWSA water system.
5.2. "Distribution Assets": Water mains with diameters less than 12 inches and service
installations. Distribution Assets are considered the property of the jurisdiction in
which the asset is located.
5.3. "System Assets Outside the TWSA": Assets or shares of assets that have been or
will be acquired or constructed outside of the TWSA boundaries on behalf of the
water supply system. The Parties agree that any System Asset Outside the TWSA
shall be solely owned by Tigard as the record title holder and Tigard shall
exercise and be responsible for all rights, duties and obligations as required by
any agreement entered into by Tigard for those assets. The System Assets Outside
the TWSA shall be held in trust and used for the benefit of the TWSA parties and
their customers. Tigard shall provide water subject to the terms of this Agreement.
TWD and Durham have the right to specifically enforce this Agreement or obtain
other remedies to compel Tigard to deliver water to their respective customers
from these System Assets Outside the TWSA. If System Assets Outside the
TWSA are sold or transferred or otherwise disposed of,then any proceeds
received shall be placed in Tigard's Water Fund and dedicated for use in the
TWSA water system.
5.4. All System Assets and Distribution Assets within the TWSA shall be pledged by
Durham and TWD to Tigard to be managed and utilized by Tigard in order to
provide water services to all current and future water system users in the TWSA.
5.5. Tigard has sold two series of Water Revenue Bonds in the aggregate initial
principal amount of$128,530,000 with a maturity date of August 1, 2045 for the
LOT Water Project which is a System Asset Outside the TWSA. Tigard has made
various covenants related to those borrowings and the revenues from all users of
the TWSA are pledged to the bondholders for repayment.Neither Durham nor
TWD may terminate and withdraw from this Agreement prior to August 2, 2045
to ensure payment of this borrowing and compliance with the covenants related to
these borrowings.
5.6. Upon notice of withdrawal and termination of this Agreement,the interest in
System Assets held by Durham or TWD will be sold to and purchased by Tigard
according to Section 11, subject to provisions for indebtedness incurred against
those assets in Section 7. Distribution Assets will remain the property of the
Withdrawing Party in which the distribution asset is located and Tigard will have
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no further obligation to operate, maintain, repair or replace them, unless Tigard
otherwise agrees.
6. Asset Usage/Water Rates/Revenues
6.1. Tigard's Utilization of All Assets
The Parties agree that all System Assets, Distribution Assets and System Assets
Outside the TWSA will be utilized by Tigard to provide water services to current
and future users in Durham and TWD. Durham's and TWD's ownership interest in
the Distribution Assets will remain though the assets are being utilized by Tigard,
unless and until transferred to Tigard by agreement or operation of law.
6.1.1. Tigard agrees that it will maintain,preserve and keep the assets in good
repair and working order. Tigard may appropriate from the Water
Fund all moneys necessary to meet all obligations of this Agreement.
6.1.2. Tigard shall keep the assets free of all levies, liens and encumbrances
except those created by this Agreement or consented to by the governing
body of Durham and TWD in writing. The Parties contemplate that the
assets will be used for a governmental or proprietary purpose by Tigard
and,therefore, that the assets will be exempt from all property taxes.
Nevertheless, if the use, possession or acquisition of the assets are
determined to be subject to taxation, Tigard shall pay when due all taxes
and governmental charges lawfully assessed or levied against or with
respect to the assets. Tigard shall pay all gas, water, electricity, heat,
power,telephone,utility and other charges incurred in the operation,
maintenance,use,occupancy and upkeep of the assets from the Water
Fund. Where there is shared use of the assets, these costs will be shared in
an equitable manner.
6.1.3. Tigard shall maintain(i) casualty insurance on System Assets within the
TWSA, (ii) liability insurance that protects Durham and TWD, including
their officers and employees, from liability arising from Tigard's acts or
omissions in the operation of the water supply system, and(iii)worker's
compensation insurance as a complying employer covering all Tigard
employees working on, in,near or about the assets as required under the
laws of the State of Oregon. Such coverages will be in the same amounts
and coverages as typically obtained by Tigard. Tigard will furnish to
Durham and TWD certificates evidencing such coverage within 30 days of
request for same. All such insurance will be with insurers that are
authorized to issue such insurance in the State of Oregon, name Durham
and TWD as additional insureds, and contain a provision to the effect that
such insurance shall not be canceled or modified materially and adversely
to the interest of Durham and TWD without first giving written notice
thereof to Durham and TWD at least thirty(30)days in advance of such
cancellation or modification. Tigard may meet any of these requirements
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through a self-insurance program. Such insurance requirements may be
waived in writing by the respective governing bodies of Durham and
TWD. System Assets Outside the TWSA will have insurance coverages
as provided according to the applicable agreement that governs the
ownership, operation, maintenance, repair and replacement of the asset.
6.1.4. The fees, rates and charges charged by Tigard for providing water services
to current and future water system users in Durham and TWD shall be the
same as those charged within Tigard.
6.1.5. Notwithstanding the foregoing, Tigard may impose different fees,rates
and charges for providing water service to areas of the TWSA within
Durham or TWD based on Cost of Service Principles when the reasonable
estimated cost of providing such service is greater due to special
circumstances, including but not limited to additional cost to pump water
to serve users in a particular area. Any differential fees, rates and charges
imposed for providing water service will be limited to the actual additional
costs and be reviewed by the WAB,which will forward a recommendation
to Tigard based upon its review. The Tigard City Council will consider the
WAB's recommendation prior to taking action. When differing fees, rates
and charges are imposed, they will be consistently applied in both Tigard
and the remainder of the TWSA where the criteria for imposition are
applicable.
6.1.6. At the request of Durham and TWD, Tigard may include additional
Durham or TWD charges for their residents only, which will be shown on
the bill as a separate Durham or TWD charge.
6,2. Moneys/Revenues/Master Declaration
6.2.1. Moneys and revenues for operation,maintenance and repair shall be held
by Tigard in the appropriate Tigard Water Fund. All funds in the Tigard
Water Fund will be used solely for water system purposes.
6.2.2. Moneys and revenue for system capital improvement shall be held by
Tigard in a fund dedicated solely for this purpose.
6.2.3. Tigard shall develop a methodology for system development charges
("SDCs") for the entire TWSA and collect the SDCs pursuant to Tigard
Municipal Code Chapter 3.24.
6.2.4. Tigard has outstanding borrowings under a Master Water System Revenue
Bond Declaration dated May 1, 2012 as it has been and may be amended
pursuant to its terms (the"Master Declaration"). The Master Declaration
governs Tigard's use of water system revenues. Consequently, all
provisions in this Agreement describing the use of water revenues or the
Water Fund are subject to the limits and flow of funds in the Master
Declaration. If there are any conflicts between this Agreement and the
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Master Declaration, the provisions of the Master Declaration shall control.
If necessary, this Agreement will be revised to be consistent with the
Master Declaration.
6.2.5. Tigard agrees to make payments due from it under this Agreement solely
from Net Revenues as defined in the Master Declaration and not from
other sources. Tigard's obligation to make payments under this
Agreement(a)is not secured by a lien on Net Revenues and(b)is subject
to Section 4.1 of the Master Declaration which requires Tigard to use
water system revenues to make certain other payments, for example debt
service on outstanding bonds before paying other expenses.
6.3. Capital Improvements
6.3.1. Tigard shall develop and implement capital projects in accordance with a
long-range Capital Improvement Program supported by sound engineering
analysis. The projects will be developed and implemented to achieve the
best interests of water customers within the TWSA, irrespective of city
boundaries.
6.3.2. The WAB will review and provide a recommendation on the Capital
Improvement Program to the Tigard City Council, who will consider the
WAB recommendations prior to approval of the Capital Improvement
Program.
6.3.3. The Capital Improvement Program will establish the location of a capital
improvement and designate the type of asset, as defined in Section 5, for
which the capital improvement qualifies.
6.3.4. Capital improvements made subsequent to entering into this Agreement
will be addressed as follows: (1)those that are determined to be
Distribution Assets will become the property of the jurisdiction in which
the improvement is located; and(2) for those that are determined to be
System Assets,the Parties each have a proportionate ownership, as
provided in Section 5.1. System Assets Outside the TWSA will be solely
owned by Tigard.
6.3.5. Tigard may enter into long-term water supply contracts in accord with the
best interests of water users within the TWSA, irrespective of city
boundaries. Long-term water supply contracts must be submitted to the
WAB for its review and comment prior to approval by the Tigard City
Council.
6.4. Accounting
6.4.1. Tigard will use generally accepted accounting principles applicable to
utility enterprises for the recording and identifying of all revenues and
expenditures made for the water system.
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6.4.2. At least annually and within 30 days of receipt of a written request from a
member of the WAB, Tigard shall provide a written report to the WAB
detailing at least the following:
6.4.3.1 The current balance in the Water Fund(s) and the change in the
balance from the prior report.
6.4.3.2 The income from the Water Fund(s) for the reporting period, by
type of revenue collected within each jurisdiction.
6.4.3.3 Expenditures from the Water Fund(s) for the reporting period and
the description of the expenditure.
7. Indebtedness
7.1. Upon termination and withdrawal by TWD or Durham after August 2, 2045, the
Withdrawing Party shall pay in full the proportionate share of outstanding
borrowings incurred for System Assets and Distribution Assets except as provided
in Section 11. Payment shall be made on the withdrawal date unless otherwise
agreed. Any amount the Withdrawing Party owes shall be first offset from the
amount the Withdrawing Party is otherwise eligible to receive pursuant to Section
11.4.
7.2. Tigard is authorized by statute to borrow money for the water system. Durham
and TWD shall cooperate and take action as reasonably required by Tigard to
enable Tigard to sell these borrowings on favorable terms.
8. Services Provided By Tigard
8.1. Tigard will provide water, from such sources or combination of sources
determined by Tigard,to current and future water system users in all TWSA
jurisdictions on the same terms and conditions Tigard provides water to its water
system users. If circumstances require water curtailment or other water use
restrictions, emergency or otherwise, each jurisdiction shall be subject to the same
policies and procedures so that curtailment is applied uniformly within the
TWSA. Durham or TWD may not sell water provided through this Agreement to
a third party without the prior written consent of Tigard. Proposed sale of surplus
water by Tigard to a non-party for other than short-term emergency purposes will
be reviewed and commented on by the WAB prior to approval by the Tigard City
Council. Any revenues generated by such a sale of surplus water will be
deposited into Tigard's Water Fund.
U. Certainty of water supply is of paramount interest. Tigard will provide equally,
and in a manner consistent with the terms of this Agreement, all services,
equipment and personnel required for delivery of potable domestic water to water
system users within Durham and TWD. This includes,but is not limited to,
system repair and maintenance,water distribution,new installations, system
upgrades, and billing functions.
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8.3. Tigard will make the same public meeting spaces that are used for WAB meetings
available to any Party on request free of charge with reasonable advance notice
for that Party's use for regular or special meetings for water related matters.
8.4. Each Party shall respond in the normal course of business to all requests for
public records in its possession by persons who are not Parties and shall defend
the other Parties and hold them harmless from any and all claims or legal actions
made or filed by the person making the records request for records in its
possession.
8.5. Tigard shall provide all readily available financial records relating to the water
supply system to any Party for inspection and copying on reasonable advance
notice and during Tigard's normal business hours. Readily available records are
those financial records regularly kept in the ordinary course of business that can
be produced without search time and for which requests are of a reasonable or
limited volume. Such records shall be produced at no charge. Except for the
report required by paragraph 6.4.2, financial information that can only be obtained
by a custom report that does not exist in the financial management system or
records not meeting this "readily available"definition may be requested in
accordance with State Public Records Law and Tigard's Public Records Law
Policy.
8.6. Tigard will publish the proposed budget in accordance with Oregon Budget
Law. The WAB may request a presentation of the proposed budget for
consideration and recommendation prior to Tigard's adoption of the budget. It
will be incumbent upon the WAB to schedule the meeting to accommodate the
timing of Tigard's budget hearings. Tigard will post a copy of each year-end
financial audit("CAFR"), with includes Water Fund accounts, on the city
website. Hard copies are available upon request,based upon availability and
price as set forth in the city's Master Fees and Charges.
9. Rules and Regulations
9.1. The Ordinances, Resolutions, Rules,Rates and Regulations for Water Service
("Water Service Rules") adopted by the Tigard City Council govern water service
to Durham and TWD.
9.2. The Tigard City Council may modify, alter or repeal the Water Service Rules,
rates and at any time according to its processes only after the WAB has had the
opportunity to study and comment upon the proposed Water Service Rules. The
WAB is empowered to make a continuing review of any Water Service Rules
regarding the water system which may be adopted by the Council and periodically
to make recommendations to the Council for additions or amendments.
10. Extension of Service
10.1. Extension or modification of Durham's or TWD's water distribution system by
private parties may be done only with prior written approval of Durham or TWD.
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Tigard will act as the managing agency to ensure that design and construction
meets all relevant Tigard public works improvement standards and American
Water Works Association("AWWA") design standards prior to acceptance.
10.2. No existing or future development in an unincorporated area of the TWSA will be
required to annex to a city as a consequence of this Agreement.
10.3. Any annexation shall be in accordance with the applicable statutes, charters and
ordinances of the affected entities.
10.4. The Parties will be jointly responsible for any expenses associated with efforts of
the City of Tigard to withdraw from the Tualatin Valley Water District to reach
the goal of having a single water provider in Tigard so long as Tigard provides
notice of intent to withdraw and confers with the governing body of each party
prior to initiating the withdrawal process. Such expenses will be paid out of the
Water Fund.
10.5. No part of this Agreement may be interpreted as a waiver of any Party's statutory
rights upon annexation of territory. Annexation of new territory to any Party's
jurisdictional boundary and annexation related changes to a boundary between
any of the Parties will be subject to the process for boundary changes set out in
the Metro Code and the Oregon Revised Statutes. The determination of what
Party or other entity will be the water supply provider for the area to be annexed
will be decided by that process. Each Party to this Agreement reserves all rights to
appear and be heard in those proceedings. Each Party agrees in good faith to
execute any and all documents as is reasonable and necessary to effectuate a final
decision on any boundary change as between any two or more Parties. Any of the
Parties may enter an urban services agreement with Tigard to be the water supply
provider within all or a portion of that served Party's jurisdictional boundary by
the process set out in state law for such agreements.
11. Termination, Withdrawal and Sale of Interest
11.1. Notice
On or after August 2, 2045,Durham or TWD may provide written notice
("Notice")to Tigard and the other Party of its desire to terminate and withdraw
from this Agreement. The Notice shall set a withdrawal date not less than five
years from the date of the Notice and not earlier than August 2,2045 unless the
parties agree otherwise. The Withdrawing Party will sell all of its ownership
interest in the System Assets to Tigard effective on the withdrawal date. Tigard
will be obligated to purchase all of the Withdrawing Party's interest in the System
Assets. The parties may mutually agree on a withdrawal date different from that
provided in the Notice.
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11.2. Calculation of Ownership Interest of System Assets
Should Durham or TWD wish to terminate its interest in this Agreement with
Tigard and withdraw, then the Withdrawing Party's proportionate interest in a
System Asset will be determined based upon Meter Equivalency. "Meter
Equivalency" is calculated based on actual sizes and numbers of meters tracked to
each Party's jurisdiction.
The following table will be used to determine meter equivalency:
Size I 5/8-inch I 8/4-inch I 1-inch 1-1/2- 2-1nti I 3-inch I 4-inth I &inch I 8-inch 10-inch I 12-inch
JEquivalentl LOW 1 1440 1 2.667 1 7.9903 1 12.987 1 22.901 1 46.968 1 49.957 1 79.995 156.291 225.059
Tigard will provide a report of Party's respective meter equivalency upon request
by the WAB.
11.3. Valuation
Unless the Parties agree otherwise,the value of the Withdrawing Party's
proportionate interest in a System Asset will be determined as of the withdrawal
date by a mutually agreed utility valuation professional familiar with utility
system valuations. The value will be based upon the remaining useful life of the
System Assets. Real Property containing System Assets will be valued by a
mutually agreed certified appraiser who is a member of the Appraisal Institute
applying United States Property Appraisal Practices ("USPAP") (collectively the
"Valuation Experts"). If the Parties cannot agree on a single utility Valuation
Expert or a single real estate Valuation Expert, then each Party will pick one and
the two Valuation Experts selected will choose a third, who will render a final,
binding decision for all Parties. The decision of the Valuation Experts must be
rendered within 180 days of his/her/their retention by the Parties. The Parties will
equally share all costs of the Valuation Expert(s).
11.4. Purchase Terms
Following Notice, Tigard and the Withdrawing Party(ies)will have 180 days to
determine the value of System Assets and Real Property to be purchased and
negotiate a fair and equitable transaction. If they cannot agree, they will employ
valuation experts as described in Section 11.3. The established value of the assets
to be purchased will be the purchase price included in the terms of purchase and
sale. The Remaining Party(TWD or Durham)will be informed of all discussions
or decisions of price and terms. Tigard may elect to pay cash at closing or to make
installment payments over a term not to exceed five(5) years from the withdrawal
date set forth in the Notice with interest on the unpaid principal at the Local
Government Investment Pool Rate of Interest. Tigard may also elect to assume
the Withdrawing Party's proportionate share of debt from System Assets or
Distribution Assets and apply the amount of debt so assumed as a credit against
the purchase price. If Tigard does not agree to assume the Withdrawing Party's
proportionate share of debt, then the purchase and sale terms must provide for
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payment to Tigard as provided in Section 7.1. The final terms of purchase and
sale will be reduced to a term sheet for tentative approval by the designated
representatives of Tigard and Withdrawing Party.
In recognition of the Withdrawing Party's partnership and contribution by rate
payers to system assets outside of the TWSA, for System Assets Outside the
TWSA, the term sheet shall also provide for payment by Tigard of an amount
equal to the reimbursement component of Tigard's Water System Development
Charge as of the time of withdrawal (SDC-r) (excluding the amount attributed to
System Assets and Distribution Assets)multiplied by the meter equivalency of
the Withdrawing Party. The SDC-r on January 1, 2019 is$3,898 per EDU(5/8-
inch meter).Notwithstanding any future changes to state SDC statutes, total
payment per EDU of the withdrawing party will not be less than the value of half
($1,949/EDU)or more than twice($7,796/EDU)the total value of SDC-r on
January 1, 2019.
Payment will be made on the same terms and conditions as payment for System
Assets.
11.5. Purchase and Sale Agreement
Within 60 days after the terms of purchase and sale are determined, Tigard and
the Withdrawing Party will prepare the necessary documents for final approval by
their respective governing bodies. Transfer of title and termination of the
Withdrawing Party's interest in this Agreement will occur on the withdrawal date.
11,6. Water Supply Contract
If TWD or Durham elects to terminate and withdraw, it may request a water
supply contract from Tigard and the Remaining Party. If requested, the
Withdrawing Party and Tigard/Remaining Party will negotiate in good faith a
wholesale water supply contract using cost of service water industry standards
based on the most recent American Water Works Association Ml, Principles of
Water Rates, Fees, and Charges, Manual of Water Supply Practices using the
principles of the "Utility Approach"to determine revenue requirements and
capital-related costs including depreciation expense and return-on-rate base.
The length and other terms of any water supply contract will be negotiated at the
time.
11,7. System Separation
The Withdrawing Party will be responsible for all costs for improvements or
system modifications necessary to separate the Distribution Assets from the
TWSA System Assets, installation of master meters,notices to customers, costs of
account transfer incurred by Tigard and the like. If the Withdrawing Party obtains
water supply from a non-TWSA source,the Withdrawing Party will also install
cross connection control devices of a type and at locations approved by Tigard.
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The terms of the purchase and sale agreement will also include a plan and
schedule for system separation.
12. Rebate
The Parties agree that the ability of Tigard to operate,maintain, construct, repair and
replace an integrated water system within the TWSA provides opportunities to achieve
economies of scale. As an incentive for Durham and TWD to delegate authority to Tigard
and remain a Party to this agreement, Tigard agrees to rebate to Durham and TWD an
amount equal to five percent(5%)of gross water sales attributed to water system users
located within their respective boundaries. The 5%will be paid on system revenues
received on an annual basis,unless the Parties agree otherwise. If Durham enacts a right-
of-way usage fee applicable to the water system located within its boundaries, Durham
may charge that fee to Tigard, in lieu of payment under this section,provided the fee does
not exceed 5% of the value of gross water sales attributed to water system users located
within Durham's jurisdictional boundaries and no further payment will be made to
Durham under this Agreement. At all times, the rebate amount shall be indexed to and
tied with the right of way license fee enacted and charged by Tigard within its
boundaries. Any challenge or other proceeding initiated by a non-party to test the
validity of this rebate will be defended by Tigard and the costs of defense will be paid
from the Water Fund.
13. Eminent Domain
Durham and TWD agree that Tigard is empowered to use any right of condemnation
possessed by Durham or TWD and act in the name of Durham or TWD as necessary to
provide water services consistent with the terms of this Agreement, and Durham and
TWD agree to take any action necessary for Tigard to exercise that right on the request of
Tigard. If Tigard seeks to exercise its own condemnation authority within Durham or
TWD, it will inform the affected party and proceed in its own name and authority.
TWD or Durham will consider any request by Tigard for Tigard to exercise powers of
eminent domain if needed to acquire property within that Party's jurisdictional boundary
for use for the water supply system. TWD or Durham may not unreasonably withhold its
consent to such a request. TWD or Durham may condition its exercise of such authority
for a project that benefits only Tigard on Tigard's agreement to pay all attorney fees and
costs incurred in any such proceedings. For projects that relate to the TWSA system,
costs of condemnation will be paid from the Water Fund(s).
14. Annual Meeting
The governing bodies of the Parties to this Agreement will meet annually to discuss and
consider issues related to this Agreement. The annual meeting will include a summary of
key activities and any specific suggestions or recommendations which WAB members
believe would benefit the water system for consideration by the Tigard City Council.
The Tigard City Council will consider such recommendations.
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15. Applicable Law,Jurisdiction and Venue
This Agreement will be governed by and construed in accordance with the laws of the
State of Oregon. If litigation is commenced. the Parties agree that jurisdiction and venue
lie in the Circuit Court of the State of Oregon for Washington County.
16. Indemnity
To the extent permitted by law, each Party shall defend and indemnify the other Parties,
their members, officers, governing bodies, employees or agents who was or is a party, or
is threatened to be a party, to any suit or proceeding, from and against all liability, claims,
damages or losses, including attorney fees, arising out of acts or omissions arising from
the performance of this Agreement. No party shall be indemnified for its own acts or
omissions. This indemnity shall remain in full force and effect notwithstanding
termination of this Agreement.
17. Default
17.1. Generally
A Party is deemed in Default of this Agreement if the Party violates any provision
of this Agreement or fails to perform an obligation required to be performed or
otherwise breaches this Agreement. An Event of Default is deemed to have
occurred if the Defaulting Party fails to cure the Default within the cure period
designated in this Section.
17.2. Notice of Default and Cure
A written notice of Default("Notice of Default") shall be delivered to the Party in
Default("Defaulting Party")by one or both of the other Parties. The Notice of
Default must specify the nature of the Default and provide a specified period to
cure the Default or otherwise reasonably commence to cure the Default in a
diligent manner. A reasonable cure period ("Cure Period")will be 90 days unless
another time for cure is contained in the Notice of Default. The Notice of Default
may also include a requirement to engage in the Dispute Resolution process. A
copy of the Notice of Default shall be delivered to all other Parties.
17.3. Response by Defaulting Party
17.3.1.Nonpayment Default
The alleged Defaulting Party shall either: (1)make payment in full by the
date set in the Default notice; (2) submit a plan for repayment that the
Board must approve; or(3)request Dispute Resolution. The Cure Period
for non-payment is a 90-day period,but the Board may, in its sole
discretion, approve a payment plan in extraordinary circumstances.
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17.3.2. Other Defaults
The Defaulting Party must: (1) cure the Default by the Cure Period set forth
in the Notice of Default; (2) state why the Default cannot be cured within
the Cure Period, what efforts the Defaulting Party has made to cure the
Default and provide a reasonable plan to cure the Default; or(3)request
Dispute Resolution. The other Parties must approve the plan for cure and if
not approved, an Event of Default will be declared. If Dispute Resolution is
requested by the Defaulting Party,then that process will be followed.
17.3.3. Failure to Cure
Failure to cure the Default within the allowed Cure Period will result in the
Declaration of an Event of Default, and the Parties shall proceed to Dispute
Resolution.
18. Dispute Resolution Process
This Agreement obligates the Parties to cooperate in the ownership and operation of the
System Assets and Distribution Assets for the mutual benefit of all Parties to consistently
deliver water to the TWSA. The Parties agree that each Party should bring forward
issues regarding past performance or anticipated performance of obligations and duties at
the earliest reasonable opportunity so that all Parties can proactively work toward
solutions in an attempt to avoid a formal declaration of default. This Dispute Resolution
process is provided to encourage informal resolution through negotiation among the
Parties' staff, executives or elected officials before resorting to a formal process using
mediation, arbitration, or litigation.
18.1. Notice of Dispute
Any dispute or Notice of Default will be submitted in writing to the Tigard City
anager, r to the TWD Board Chair. If the dispute is not resolved within the 30-
1 day period following receipt of notice, it will be referred to mediation. In the case
o n u nc�x of a Notice of Default, either the Defaulting Party or the other Party may demand
Dispute Resolution at any time during the Default process as set forth above.
18.2. Mediation
A Party desiring mediation must provide the other Party with a written notice
("Request to Mediate"), which will set forth the nature of the dispute or Default.
The Parties will thereafter cooperate in good faith to select the mediator with
Arbitration Service of Portland Oregon or other mutually agreed mediation
service within 14 days of a Request to Mediate and may adopt any procedural
format that seems appropriate for the particular dispute. Mediation should be
scheduled within 14 days of selection of the mediator, or as soon as possible,
based on availability. The mediator will then set the rules for conduct of the
mediation. The Parties will share the mediation costs as agreed upon with the
mediator. If a written settlement agreement is not reached by the Parties within
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60 days from the date of the Request to Mediate, or such longer time frame as
may be agreed upon, in writing, by the Parties, then the Parties may commence
litigation. If mediation fails to resolve the matter, the Parties may mutually agree
to binding arbitration in lieu of litigation.
18.3. Arbitration
If the Parties agree to enter into binding arbitration, selection of the arbitrator,time
frame for arbitration, and procedural rules for arbitration will be agreed upon at
that time. The Oregon Rules of Civil Procedure and Oregon Evidence Code will
apply unless specifically modified by the arbitration agreement. Any arbitrator or
arbitrators selected must have significant municipal law experience,unless the
Parties mutually agree otherwise, in writing.
18.4. Litigation
If all Parties do not agree to arbitrate,then any Party may seek legal relief through
the Circuit Court of Washington County.
18.5. Remedies,Injunction Relief and Specific Performance
After exhaustion of Dispute Resolution Procedures through the mediation step, a
Party may seek all remedies available at law, or in equity, for breach of this
Agreement. The purpose of the remedy is to make all non-Defaulting Party whole
and to bring the Defaulting Party into compliance, if possible. The remedies may
include, but not limited to money damages for additional costs of service, costs of
capital and other actual costs incurred by the other Parties resulting from the
Default,plus interest at the statutory judgment rate of interest from the date of
Default.
A Party may seek and obtain immediate equitable relief to prevent irreparable
harm before or during the Dispute Resolution process.
19. Dissolution
On or after August 2, 2045,the Parties may desire to dissolve this Agreement.
Dissolution of the Agreement requires an affirmative vote of every Party's governing
body. Dissolution may occur no later than five years from the date of the last affirmative
vote to dissolve and no sooner than two years, unless the governing body of each Party
agrees to a different timeline. If the Agreement is not dissolved by unanimous consent,
then any Party(ies) seeking dissolution may elect to terminate and withdraw as described
in Section 11.
19.1. Plan of Dissolution
Tigard will develop a Dissolution Plan to wind up business affairs, to be reviewed
and approved by the WAB before it is presented to each Party's respective
governing body. The Dissolution Plan must provide for among other things: (1)
17
the continued operation of the System Assets while the Dissolution Plan is
implemented; (2) an accounting of assets and liabilities; (3)provisions for the
payment of debts and obligations; (4)the creation of a reserve account for known,
unforeseen, and contingent liabilities; (5)a plan for liquidation of the assets or
the purchase of System Assets by Tigard from TWD and Durham; (6) a
mechanism for distribution of asset proceeds and excess funds among the Parties
in accordance with their ownership interest, following payment of all liabilities
and obligations related to the System Assets; (7) a plan for separation of the
TWD and Durham Distribution Assets from the System Assets to be acquired by
Tigard; and(8)provisions for a long-term water supply contract between Tigard
and the other Parties. To the extent that valuation of System Assets is necessary,
the valuation process of Section 11.3 shall apply except that each Party will
appoint a valuation expert and the three shall agree. If they cannot agree,the
average of the three valuation results will be calculated and conclusive.
19.2. Transfer of Capacity Ownership
The Dissolution Plan shall provide for transfers of System Assets to Tigard
ownership for cash or other consideration, from a Party that seeks complete
divestiture of ownership. The Dissolution Plan must provide for appropriate
documents to vest ownership in Tigard. Legal fees and costs to transfer ownership
to implement the Dissolution Plan will be paid as a common expense from the
Water Fund(s).
19.3. Disputes
Any dispute regarding dissolution or the Dissolution Plan shall be first subject to
the Dispute Resolution process of Section 18 and, if not resolved after mediation,
then as determined by the Circuit Court of Washington County.
20. Ratification of this Amement/Execution in Counterparts
Prior to the effective date of this Agreement,the governing body of each Party shall enact
a resolution ratifying the Agreement. This Agreement may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall constitute
but one and the same instrument. Each copy of this Agreement so executed shall
constitute a duplicate original.
21. Amendments
Any amendment to this Agreement must be approved by the governing body of each
party.
22. Severability
If a portion of this Agreement is for any reason held to be invalid or unconstitutional by a
court of competent jurisdiction, all remaining portions of this Agreement shall remain in
effect until the Agreement is terminated. In such an event,the Parties will meet to consider
18
amendments to the Agreement to conform to the original intent of the Parties. If the
Parties are unable to agree on a revised Agreement within 90 days of entry of judgment by
the court, a Party may give notice of termination and withdrawal.
23. Property Conveyances
All Parties agree in good faith to execute any and all real property conveyances deemed
reasonably necessary or desirable to show each Party's share of ownership of such
Property as provided in this Agreement. Prior to December 31, 2019,TWD agrees to
transfer all System Assets within its boundaries and currently held in TWD's name to
Tenancy in Common agreements with Tigard and Durham.
24. Successors and Assigns
The Parties to this Agreement shall not have the right to transfer ownership of or to
remove System Assets, or to otherwise transfer any interest therein to a non-party without
written consent of the other Parties.Neither the benefits received by Durham or TWD nor
the obligations incurred under the terms of this Agreement are assignable or in any
manner transferrable by Durham or TWD without the written consent of Tigard and any
Remaining Party.
CITY F IG CITY OF DURHAM
By: By:
Jo ook,Mayor Gery Schirado, Mayor
APPR VED AS TO FO APPROVED AS TO FORM
By: By:
Shelb R hala, City Attorney David Doughman, City Attorney
TIGARD WATER DISTRICT
By:
Ken Henschel, Board Chair
APPROVED AS TO FORM
By:
Eileen Eakins, District Counsel
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amendments to the Agreement to conform to the original intent of the Parties.If the
Par--Lies are unable to agee on a revised Agreement within 90 days of entry of judgmeat by
the court,a Party may give notice of termination and w thtirawai.
233. Pro2erty Conve antes
All parties agtae in good faith to exemte any and all real property conveyances deamed
seasonably necessary or desirable to show each Panty's,share of ownersbip of such
Property as provided in this Agreement.Prior to December 31,2019,TWD agrees to
trmsfer all System Assets within its boundaries and currer►tly held in TWD's name to
Tenancy m Common agreements with Tigard and DuTham.
24. Successors and Asssys
The Parfm to this Agreement shall not have the no to transfer owl of or to
remove System Assets,or to otherwise transfer aay Wtesest t1 mein to a non-party without
written consent of the other Pantie&Neither the benefits received by Kama or TWA nor
the obligations incurred under the terms of this Agreement are assignable or in any
manner tramferrabic by Durham or'I WD without,the written consent of Tigard and say
Remaining Party.
CITI Y F ICr F D CM OF WTMAN.
Joh#Cook,Mayor &y Schb-ado,Mayor
APPROY D TO FOR34 APP VEDAS 13 FORM
By:
S l City Attcxney rid an,City Axtoruey
;H�cwxhcl,
w T T�,' Bowd Cbair
APPR A FORM
B .
Eileen Eakins,District Counsel
19
Exhibit A
City of Tigard Public Works Department Exhibit A
Water System Assets-Real Property
November 2018
Location Washington County Registered Owner Tax ID Year Area
Built
8777 SW BURNHAM ST TIC Agreement-Tigard,King City,Durham,&TWD 2S102AD03450
PUBLIC WORKS OFFICE 8777 SW BURNHAM ST- (TIGARD) 1989 943
PUBLIC WORKS SHOP 8777 SW BURNHAM ST- (TIGARD) 1989 13830
10310 SW CANTERBURY LN TICAgreement-Tigard,King City,Durham,&TWD 2S111BCO2600
EMERGENCY GENERATOR/STORAGE BUILDING(W/PIO VALUE)10310 SW CANTERBURY LN- (TIGARD) 1974 4765
CANTERBURY SITE#1-RESERVOIR#1-1 MG 10310 SW CANTERBURY LN- (TIGARD) 1960
CANTERBURY SITE#1-RESERVOIR#2-1 MG 10310 SW CANTERBURY LN- (TIGARD) 1969
BOOSTER PUMP STATION#1 10310 SW CANTERBURY LN- (TIGARD) 1972 50
ASR WELLHOUSE 10310 SW CANTERBURY LN- (TIGARD) 003 441
11580 BAYLOR ST Tigard Water District 1S136DD006600
BAYLOR WATER TANK#1-1.125 MG(NORTH TANK)(W/PIO VALUE)11580 BAYLOR ST- (TIGARD) 1969
BAYLOR WATER TANK#2-1 MG(SOUTH TANK)11580 BAYLOR ST- (TIGARD) 1963
12475 SW BULL MOUNTAIN RD Tigard Water District 2S110BC00900
BULL MOUNTAIN RESERVOIR-10 MG 12475 SW BULL MOUNTAIN RD- (TIGARD) 1978
BULL MOUNTAIN RESERVOIR BOOSTER PUMP STATION 12475 SW BULL MOUNTAIN RD- (TIGARD) 010 520
BULL MOUNTAIN RESERVOIR WELL HOUSE 12475 SW BULL MOUNTAIN RD- (TIGARD) 006 1440
BULL MOUNTAIN RESERVOIR INLINE VAULT 12475 SW BULL MOUNTAIN RD- (TIGARD) 010 20
LAND IMPROVEMENTS-PER 10/31/16 APPRAISAL 12475 SW BULL MOUNTAIN RD- (TIGARD) 010
12980 SW 135TH AVE Tigard Water District 2S104DB05300
WELL HOUSE 12980 SW 135TH AVE- (TIGARD) 1959 70
SW 135TH-RESERVOIR#1-2.5 MG(SOUTH)(W/PIO VALUE)12980 SW 135TH AVE- (TIGARD) 1983
SW 135TH-RESERVOIR#2-800,000 G 12980 SW 135TH AVE- (TIGARD) 1972 TO
13001 SW BULL MOUNTAIN RD City of Tigard 2S109ACO2500
PRICE RESERVOIR-3 MG(W/PIO VALUE) 13001 SW BULL MOUNTAIN RD- (TIGARD) 2008 0
13425 SW 154TH AVE Tigard Water District 2S105DB00400
MENLOR RESERVOIR-3.5 MG(W/PIO VALUE) 13425 SW 154TH AVE- (TIGARD) 1998 0
CONTROL BUILDING 13425 SW 154TH AVE- (TIGARD) 1998 108
WATER SHED BOOSTER STATION 13425 SW 154TH AVE- (TIGARD) 2011 150
14201 SW 119TH PLACE Tigard Water District 2S110BB00500
RESERVOIR SITE#2-280,000 G(W/PIO VALUE)14201 SW 119TH PL- (TIGARD) 1992 0
WELL HOUSE 14201 SW 119TH PL- (TIGARD) 1970 100
BOOSTER PUMP STATION 14201 SW 119TH PL- (TIGARD) 1992 50
GENERATOR VAULT 14201 SW 119TH PL- (TIGARD) 1992 135
DIESEL TANK-400 G 14201 SW 119TH PL- (TIGARD) 1992 0
14255 SW HIGH TOR DR Tigard Water District 2S109BB02902
RESERVOIR#1-HI-TOR NORTH 1 MG(W/PIO VALUE)14255 SW HIGH TOR DR- (TIGARD) 1971 0
RESERVOIR#2-HI-TOR SOUTH 1 MG 14255 SW HIGH TOR DR- (TIGARD) 1990 0
RESERVOIR#3-HI-TOR NORTH 200,000 G 14255 SW HIGH TOR DR- (TIGARD) 1964 0
Kelly Burgoyne
From: Shelby Rihala
Sent: Monday, December 31, 2018 9:45 AM
To: Kelly Burgoyne
Subject: IGA
Attachments: TigardDurhamTWD IGA FINAL DRAFT (TWD approved).docx
Follow Up Flag: Follow up
Flag Status: Flagged
Hi Kelly,
There are a few typos to the IGA noted in the attachment. The resolution approved the agreement"in substantially the
form as attached," so I have no problem hand-writing in these changes now. Can you please make those corrections to
the final version? Please ignore the part about the date line to the signature page and the signing ceremony—we're not
doing that. I'll get you the signature page from TWD as soon as they send it to me.
Thanks,
Shelby
From: Eileen Eakins<eileen@eakinslaw.com>
Sent: Friday, December 28, 2018 11:23 AM
To:Shelby Rihala <shelbyr@tigard-or.gov>; David <david@gov-law.com>; Clark Balfour<cbalfour@cablehuston.com>
Cc:Tigard Water District<KHenschel@TigardWaterDistrict.org>
Subject: It Is Finished
Hi, Everybody:
The Tigard Water District Board met last night and approved the IGA, subject to a few housekeeping corrections shown
on the attached.The changes in paragraphs 8.6 and 18.5 correct typographical errors. Paragraph 18.1 included the City
of Durham in a prior draft, but the final draft didn't include them, so we need to add them back in. Finally, Chair
Henschel noted that there was no place for a date in the signature block, which may be important for posterity,so that
was also added.
In that vein,the board would like the respective signatories and their lawyers–at least–to meet to for a signing
ceremony. For this reason, I left the date blank on the attached until we agree on a time to do this.
Finally, at last night's meeting the board also approved allowing King City to join the agreement if they and the other
parties agree that this should happen, so no additional approval of the TWD board should be needed if we move in that
direction.
Congratulations to all for your work on this historic agreement. Happy New Year!
Eileen G. Eakins
Law Office of Eileen Eakins, LLC
7455 SW Bridgeport Road
Suite 205
Tigard, OR 97224
(503) 607-0517
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