HomeMy WebLinkAbout4951RESOLUTION NO. 4 9 5 1
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR
AND CITY CLERK TO NEGOTIATE A WHOLESALE
WATER SUPPLY AGREEMENT BETWEEN THE CITY OF
AUBURN AND CASCADE WATER ALLIANCE AND
TACOMA PUBLIC UTILITIES
WHEREAS, in 2010 the four Cities of Auburn, Bonney Lake, Buckley, and
Sumner entered into the 2010 Lake Tapps Area Water Resources Agreement among
the Cities of Auburn, Bonney Lake, Buckley, and Sumner and Cascade Water Alliance
CWA); and
WHEREAS, the agreement relied upon the need for an agreement between
CWA and Tacoma Public Utilities (TPU) to make use of the infrastructure under TPU's
ownership to deliver water to the four cities; and
WHEREAS, CWA and TPU have now reached an agreement as to the policies
process whereby the four cities and Cascade can utilize TPU's infrastructure to
deliver Firm supply under a direct two party contract between each city and TPU; and
WHEREAS, CWA and TPU have now made an offer with certain Terms &
Conditions to the four cities whereby, CWA can for a limited time offer to sell certificates
of purchase from CWA to pay for System Development Charges at a 25% discount of
the price that CWA purchased the water supply from TPU; and
WHEREAS, providing each City can satisfy the Terms & Conditions of the
CWA/TPU offer, TPU is willing to accept the Certificates for SDC payments that would
be provided by CWA; and
WHEREAS, in accordance therewith, it is advantageous for the City of Auburn to
enter into such an agreement for water supply services.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Resolution No. 4951
May 6, 2013
Page 1
Section 1. The Mayor is hereby authorized to prepare and send a satisfactory
and sufficient qualified response to the offer and to designate staff to negotiate an
agreement that meets the City's future needs.
Section 2 That the Mayor, is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation, and the
City Clerk is authorized to insert the Animal License Fees in the City of Auburn Fee
Schedule at an appropriate location therein.
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this day of 2012.
C
PETER B. LEWIS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APP ED OR
M
Daniel B. Heid, bfty Attorney
Resolution No.4951
May 6, 2013
Page 2
WHOLESALE WATER SUPPLY AGREEMENT
This WHOLESALE WATER SUPPLY AGREEMENT("Agreement"),by and
between the City of Tacoma,Department of Public Utilities, Water Division ("Tacoma"), and
the City of City")is made and entered into as of this day of ,
201_)("Effective Date"). Tacoma and City are sometimes referred to collectively as the
Parties"and individually as a Party." This Agreement is made with reference to the
following facts:
RECITALS
WHEREAS,Tacoma is a municipality organized and operating under the laws of the
State of Washington and is a public water purveyor selling water to customers in accordance
with the laws of the State of Washington;
WHEREAS,is a[[charter/noncharter]]code city organized and operating as a
municipal corporation under the laws of the State of Washington;
WHEREAS,Tacoma and Cascade Water Alliance, a joint municipal utilities services
authority("Cascade"),have heretofore entered into an"Amended and Restated Agreement for
the Sale of Wholesale Water"dated (the "Cascade/Tacoma Agreement");
WHEREAS,pursuant to Section 6 of the Caseade/Tacoma Agreement, Tacoma is
willing to sell to City all or a portion of a 4 MGD wholesale water supply(less any portion of
such wholesale water supply as may have previously been sold in accordance with Section 6
of the Cascade/Tacoma Agreement),]
WHEREAS,pursuant to Section 7 of the Cascade/Tacoma Agreement, Tacoma is
willing to sell to City all or a portion of a 6 MGD wholesale water supply(less any portion of
such wholesale water supply as may have previously been sold in accordance with Section 7
of the Cascade/Tacoma Agreement;.J
WHEREAS,pursuant to Section 8 of the Cascade/Tacoma Agreement, Tacoma is
willing to sell, on a first-come,first served basis, to City all or a portion of a wholesale water
supply(less any portion of such wholesale water supply as may have previously been sold in
accordance with Section 8 of the Cascade/Tacoma Agreement);]
WHEREAS,Tacoma is willing to make such wholesale water supply available to City
as a direct wholesale customer of Tacoma in accordance with the terms and conditions of this
Agreement; and
WHEREAS, City is willing to purchase and accept delivery of such wholesale water
supply from Tacoma as a direct wholesale customer of Tacoma in accordance with the terms
and conditions of this Agreement.
Page 1 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
NOW,THEREFORE, IN CONSIDERATION of the mutual covenants and conditions herein
contained,the Parties agree as follows:
AGREEMENT
1. DEFINITIONS
For purposes of this Agreement,the following terms defined herein shall have the
following meanings,whether singular or plural:
Affiliate"means,with respect to any Person, another Person that is controlled by,
controls, or is under common control with, such Person. For purposes of this definition,
control"with respect to any Person shall mean the ability to effectively control,directly or
indirectly, the operations and business decisions of such Person.
Applicable Law"means any applicable and binding statute, law,rule,regulation,
code,ordinance,judgment,decree, writ, legal requirement or order, and the written
interpretations thereof,of any national, federal, state or local Governmental Authority having
jurisdiction over the Parties or the performance of this Agreement.
Cascade"shall have the meaning set forth in the Recitals.
Cascade/Tacoma Agreement" shall have the meaning set forth in the Recitals.
City" shall have the meaning set forth in the preamble of this Agreement.
City Hazardous Substances"means any Hazardous Substances generated,
transported,kept,handled, stored;placed,discharged or released by City, or by anyone
directly or indirectly retained or employed by City,in connection with the performance of this
Agreement.
City Isolation Valve"means a positive shut-off valve owned and operated by City as
part of the Interconnection Facilities.
Delivery Date"shall have the meaning set forth in Section 6.2.
Disuute" shall have the meaning set forth in Section 15.
Diversion Rights"means,collectively, the second diversion right or permit and the
first diversion claim that authorize Tacoma to divert and use water from the Green River.
Draft Operating Plan"means a non-binding informational plan intended to advise
Tacoma of the amount of the Wholesale Water Supply that City anticipates it will use during
the Peak Season.
Effective Date" shall have the meaning set forth in the preamble of this Agreement.
Page 2 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
Interconnection Facilities"means all facilities,other than the Wholesale Service
Connection,that are necessary for City to take delivery of the Wholesale Water Supply at the
Wholesale Service Connection and convey such water to the City's transmission and
distribution systems. Interconnection Facilities include the City Isolation Valve and such
other pressure-reducing valves,controllers,pedestals, and boxes operated by City as part of
the Interconnection Facilities. For avoidance of doubt, Interconnection Facilities do not
include the Wholesale Service Connection or any other facilities owned and operated by
Tacoma that are necessary to deliver the Wholesale Water Supply to the Wholesale Service
Connection.
Interest Rate"means the interest rate that is the lesser of,for each day that it is
applied,the rate that is equal to(a)one three hundred and sixty-fifth(1/365)of the prime
interest rate for preferred customers established from time to time by the Bank of America,or
such other bank as may be designated by the Parties,plus two(2)percentage points; or(b)the
highest rate permitted by Applicable Law.
Flow Control Valve"means the valve that controls the volume of water that is
delivered to City and is more particularly described in Exhibit A.
Governmental Authority" means(a)any federal,national, state,tribal,county,
municipal or local government(whether domestic or foreign),or any political subdivision
thereof; (b)any court or administrative tribunal; (c)any other governmental,quasi-
governmental,judicial,public or statutory instrumentality, authority, body,agency,bureau or
entity of competent jurisdiction; or(d)any nongovernmental agency,tribunal or entity that is
vested by a governmental agency with applicable jurisdiction.
Hazardous Substances"means any substance or material regulated or governed by
Applicable Law; any substance, emission or material now or hereafter deemed by any
Governmental Authority or Applicable Law to be a "regulated substance," "hazardous
material," "hazardous waste," "hazardous constituent," "hazardous substance," "dangerous
material," "dangerous waste," "dangerous substance," "toxic substance," "radioactive
substance,"or a"pesticide'; and any other substance with properties that are harmful or
deleterious to human health or to the environment.
Meter"means the delivery metering equipment determined by Tacoma to be
necessary for the implementation of this Agreement.
Notice of Confirmation of System Development Charge Credit"means a notice,
given by Cascade to Tacoma at the request of City,confirming the amount of the System
Development Charge Credit(if any)to be applied to the System Development Charge
otherwise due and payable by City to Tacoma in connection with the Wholesale Water
Service provided pursuant to this Agreement.
Operating Protocols" shall have the meaning set forth in Section 9.3.
Page 3 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
Party" and"Parties" shall have the meaning set forth in the preamble of this
Agreement.
Peak Season"means the period starting June 1 and ending September 31 each year
during the Term.
Peaking Factor"actor"means a peak day delivery limitation,which such limitation is a not
to exceed quantity of water(expressed in million gallons of water per day or"MGD")and that
is determined by multiplying the uniform daily delivery rate by 1.33 (i.e., Peaking Factor
1.33 x uniform daily delivery rate). The uniform daily delivery rate established by this
Agreement for the Wholesale Water Supply is_MGD. The Peaking Factor applies to all
peak day wholesale water deliveries made by Tacoma to City pursuant to this Agreement and
limits a maximum peak day delivery to`MGD.
Person"means any individual,corporation,municipal corporation,company,
voluntary association,partnership,incorporated organization,trust, limited liability company,
or any other entity or organization,including any Governmental Authority.
Project"means that certain water supply project commonly referred to as the Second
Supply Project,which is owned and operated by Tacoma in order to meet Tacoma's future
water supply requirements and to increase regional supply,with the participation of the City
of Kent,the Covington Water District and the Lakehaven Utility District in accordance with
the terms and conditions of the 2002 Second Supply Project Partnership Agreement.
Prudent Utility Practices"means, at any particular time,any of the practices,
methods,decisions and acts that, in the exercise of a Party's reasonable judgment in light of
the facts known at the time, would have been expected to accomplish the desired result
consistent with Applicable Law,reliability, efficiency, economy, safety and expedition
commonly engaged in or approved by the water supply industry in the United States prior
thereto, and in the case of Tacoma, includes all practices and methods needed to comply with
the Wholesale Water Regulations. It is recognized that the term Prudent Utility Practices is
not intended to be limited to the optimum practices,methods or acts to the exclusion of all
others,but rather refers to a spectrum of possible practices,methods or acts that could have
been expected to accomplish the desired result consistent with Applicable Law,reliability,
efficiency, economy, safety and expedition.
Schedule"shall have the meaning set forth in Section 9.2.
If Development Charge"means the system development charge imposed upon
wholesale customers by the Wholesale Water Regulations.
If Development Charge Credit"means a credit,in an amount determined in
accordance with the applicable terms and conditions of the Cascade/Tacoma Agreement and
confirmed by Cascade in a Notice of Confirmation of System Development Charge Credit,
against the System Development Charge otherwise due and payable by City to Tacoma
pursuant to the Wholesale Water Regulations.
Page 4 of 26 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
Tacoma" shall have the meaning set forth in the preamble of this Agreement.
Tacoma Indemnitees"means Tacoma and Tacoma's Affiliates, directors,officers,
employees,agents,servants and representatives, and the respective successors and assigns of
each and all of the foregoing.
Tacoma Isolation Valve"means a positive shut-off valve installed at the Wholesale
Service Connection and is more particularly described in Exhibit A.
Teletnegy Eguinrnent"means a data acquisition system owned and operated by
Tacoma that is used to send signals from the Meter in support of operations and all
appurtenances thereto.
Temporary Wholesale Water Supylv" shall have the meaning set forth in
Section 17.1.
Term"shall have the meaning set forth in Section 19.1.
Uncontrollable Force"means any event or circumstance(or combination thereof)and
the continuing effects of any such event or circumstance(whether or not such event or
circumstance was foreseeable or foreseen by the Parties)that delays or prevents performance
by a Party of any of its obligations under this Agreement. An Uncontrollable Force shall
include the following:
i) flood, earthquake,drought,climate change,storm, fire,
lightning and other natural catastrophes;
ii) acts of public enemies, armed conflicts, acts of foreign
enemies, acts of terrorism(whether domestic or foreign, state-sponsored or
otherwise),war(whether declared or undeclared),blockade, insurrection,riot,
civil disturbance,revolution or sabotage;
iii) any form of compulsory government acquisition or
condemnation or change in Applicable Law(other than such acquisition,
condemnation or change by City)that affect the performance of the Parties'
obligations under this Agreement;
iv) accidents or other casualty, damage,loss or delay during
transportation, explosions, fire, epidemics,quarantines or criminal acts that
affect the performance of the Parties'obligations under this Agreement;
v) labor disturbances, stoppages, strikes,lock-outs or other
industrial actions affecting the Parties or any of their contractors,
subcontractors(of any tier),agents or employees;
vi) inability, after the use of commercially reasonable efforts,to
obtain any consent or approval from any Governmental Authority(other than
Page 5 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
City)that affects the performance of the Parties'obligations under this
Agreement;
vii) inability, after the use of commercially reasonable efforts,to
obtain any consent or approval from any Person required by a Party in
connection with this Agreement; and
viii) third-party litigation contesting all or any portion of the right,
title and interest of a Party in any service,property or other item to be
provided to the other Party in connection with this Agreement.
Notwithstanding the foregoing, the insufficiency of funds,the financial inability to perform or
changes in such Party's cost of performing its obligations hereunder shall not constitute an
Uncontrollable Force, and neither Party may raise a claim for relief hereunder, in whole or in
part,in connection with such event or circumstance.
Wholesale Service Connection"means a physical connection between water mains of
the Parties and is the point of delivery of the Wholesale Water Supply. The Wholesale
Service Connection is more particularly described in Exhibit A,and includes the Tacoma
Isolation Valve and the Flow Control Valve.
Wholesale Water Regulations"means all applicable terms and conditions of the
Tacoma Municipal Code, including Chapters 12.01 and 12.10 thereof,as such terms and
conditions may now exist or may hereafter be changed,deleted, supplemented,modified,or
amended. The Wholesale Water Regulations include Tacoma's "Customer Service Policies"
and such other rules,regulations,policies and guidelines as Tacoma shall, from time to time,
adopt and apply on a uniform basis to Tacoma's wholesale customers.
Wholesale Water Service" shall have the meaning set forth in Section 3.2.
Wholesale Water S=ly"means an average annual_MGD wholesale water
supply,subject to the Peaking Factor.
2. EXHIBITS TO THIS AGREEMENT
2.1 This Agreement includes the Exhibits listed below, and any reference in this
Agreement to an "Exhibit"by letter designation or title shall mean one of the Exhibits
identified below. If there is an express conflict between the provisions contained within the
body of this Agreement and the provisions of any Exhibit hereto, then the body of this
Agreement shall take precedence,except that with respect to technical specifications and
requirements pertaining to the design, engineering,operation or testing of the Wholesale
Service Connection,the conflicting Exhibit shall take precedence.
Exhibit A("Wholesale Service Connection")
Exhibit B ("Dispute Resolution Procedures")
Page 6 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
3. WHOLESALE WATER SERVICE
3.1 Subject to the terms and conditions of this Agreement,during the Term, Tacoma
agrees to sell and deliver the Wholesale Water Supply to City, and City agrees to purchase
and take delivery of the Wholesale Water Supply from Tacoma. The Wholesale Water
Supply may be resold by City to another water purveyor, subject to the terms and conditions
of this Agreement. [The Wholesale Water Supply must be used by City on a year-round basis
where the average summer day use divided by the average winter day use results in a
summer/winter ratio of 2.5 or less.][Alternative language for Peak Season only sales: The
Wholesale Water Supply shall be made available to City during any Peak Season occurring
during the Term,may be used by City only during the Peak Season and at no other time of the
year,and is subject to any peak day delivery limitations that Tacoma may apply, from time to
time,in accordance with the Wholesale Water Regulations]
3.2 The Wholesale Water Supply shall be provided to City as wholesale water
service subject to and in compliance with the Wholesale Water Regulations,Applicable Law,
Prudent Utility Practices and the terms and conditions of this Agreement("Wholesale Water
Service"). The Wholesale Water Service shall be provided to City with the same degree of
reliability and certainty of supply as water provided by Tacoma to its existing wholesale
customers(including limitations thereof,such as provisions of the Wholesale Water
Regulations pertaining to interruption of service). The Parties acknowledge that Wholesale
Water Service is inherently subject to disruption, interruption, suspension,curtailment and
fluctuation. Tacoma shall not have any liability to City or any other Person for any
disruption, interruption, suspension, curtailment or fluctuation in the Wholesale Water
Service.
3.3 The water sold by Tacoma to City pursuant to this Agreement is water available
from the Diversion Rights. City's use of such water is subject to the restrictions on the place
of use set forth in the Diversion Rights,copies of which have been provided to the City by
Tacoma. City assumes sole and exclusive responsibility for ensuring that City's use of the
Wholesale Water Supply pursuant to this Agreement is consistent with the place of use and
any other applicable restrictions set forth in the Diversion Rights.
4. WHOLESALE WATER SERVICE CHARGES AND FEES
4.1 Except as otherwise provided by Section 4.2,City shall pay Tacoma all charges,
fees and other amounts for the Wholesale Water Service as shall be due and payable,from
time to time,pursuant to the Wholesale Water Regulations. Amounts due shall include a
monthly ready-to-serve charge based on Meter size and consumption charges based on water
used. All rates,charges, fees and other amounts due Tacoma for the Wholesale Water Service
pursuant to the Wholesale Water Regulations are subject to periodic adjustment by the Public
Utility Board and Tacoma City Council. At any time during the Term,the applicable rate,
charge,fee or other amount due Tacoma from City for the Wholesale Water Service shall be
the rate,charge,fee or amount as shall then be in effect.
Page 7 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
41 [For sales of 4 MGD Wholesale Water Supply pursuant to Section 6.4 of the
Cascade/Tacoma Agreement] Subject to Tacoma's receipt of a Notice of Confirmation of
System Development Charge Credit from Cascade that confirms City's eligibility for a full
System Development Charge Credit pursuant to Section 6.3(a)of the Cascade/Tacoma
Agreement,the System Development Charge otherwise due and payable for the Wholesale
Water Service is hereby deemed to have been fully paid by Cascade pursuant to the terms and
conditions of the Cascade/Tacoma Agreement. (Note: For this provision to apply, the System
Development Charge Credit received by the City must be calculated at a rate of
4,121,000/MGD. City shall otherwise pay the full System Development Charge due Tacoma
for the Wholesale Water Supply pursuant to the terms and conditions of the Wholesale Water
Regulations)
For Peak Season only sales of 4 MGD Wholesale Water Supply pursuant to Section
6.5 of the Cascade/Tacoma Agreement] Subject to Tacoma's receipt of a Notice of
Confirmation of System Development Charge Credit from Cascade that confirms City's
eligibility for a System Development Charge Credit pursuant to Section 6.3(a)of the
Cascade/Tacoma Agreement, City shall receive a System Development Charge Credit in the
amount of$1,373,667.00 per MGD. (Note: For this provision to apply, the System
Development Charge Credit received by the City must be calculated at a rate of
1,373,667.00/MGD. City shall otherwise pay the full System Development Charge due
Tacoma for the Wholesale Water Supply pursuant to the terms and conditions of the
Wholesale Water Regulations)
For sales of 6 MGD Wholesale Water Supply pursuant to Section 7.4 of the
Cascade/Tacoma Agreement] Subject to Tacoma's receipt of a Notice of Confirmation of
System Development Charge Credit from Cascade that confirms City's eligibility for a System
Development Charge Credit pursuant to Section 7.3(a)of the Cascade/Tacoma Agreement,
City shall receive a System Development Charge Credit of$ Such System
Development Charge Credit shall be applied to the System Development Charge otherwise
due and payable by City to Tacoma pursuant to the Wholesale Water Regulations. (Note:
For this provision to apply, the System Development Charge Credit received by the City must
be calculated at a rate of$1,570,074.00 per MGD. City shall otherwise pay the full System
Development Charge due Tacoma for the Wholesale Water Supply pursuant to the terms and
conditions of the Wholesale Water Regulations.
For sales of 6 MGD Wholesale Water Supply pursuant to Section 7.5 of the
Cascade/Tacoma Agreement) Subject to Tacoma's receipt of a Notice of Confirmation of
System Development Charge Credit from Cascade that confirms City's eligibility for a System
Development Charge Credit pursuant to Section 7.3(a)of the Cascade/Tacoma Agreement,
City shall receive a System Development Charge Credit of$ Such System
Development Charge Credit shall be applied to the System Development Charge otherwise
due and payable by City to Tacoma pursuant to the Wholesale Water Regulations. (Note: For
this provision to apply, the System Development Charge Credit received by the Cite must be
calculated at a rate of one-third(113)of the amount of the System Development Charge
Credit otherwise available(i.e., $523,358.00 per MGD). Peak only sales shall not to extend
beyond 2026, such that the "Term"in Section 19.1 ends on December 31, 2026.)
Page 8 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
For sales of the Residual Wholesale Water Supply pursuant to Section 8 of the
Cascade/Tacoma Agreement]Within (__)days of the Effective Date, City shall pay
Tacoma in full a System Development Charge of Dollars($ which
such System Development Charge shall be calculated at a rate of$4,121,000/MGD. (Note:
Peak only sales shall not to extend beyond 2026, such that the "Term"in Section 19.1 ends on
December 31, 2026)
5. PAYMENTS
5.1 Amounts due Tacoma from City pursuant to Section 4 shall be billed by Tacoma
and paid by City in accordance with the procedures for billings and payments set forth in the
Wholesale Water Regulations. Payment of any and all other amounts due Tacoma from City
pursuant to this Agreement shall be due and payable to Tacoma within thirty(30)days from
and after the date of Tacoma's invoice for such payment. If full payment of any invoice is not
received by Tacoma on or before the date due, such payment shall be considered past due, and
the unpaid amount of such invoice shall accrue interest,from the date due until the date paid,
at a rate per day equal to the Interest Rate.
5.2 City hereby covenants and agrees that it has established and shall maintain and
collect rates or charges for water and other services,facilities and commodities sold,furnished
or supplied to its customers that are adequate to provide revenues sufficient to enable City to
make the payments required to be made pursuant to the terms of this Agreement, and to pay
all other charges and obligations payable from or constituting a charge or lien upon such
revenues.
6. WHOLESALE WATER DELIVERIES
6.1 From and after the Delivery Date,the Wholesale Water Supply shall be made
available to City at the Wholesale Service Connection. The delivery and receipt of water, and
the transfer of title to and custody and control of such water, shall occur at the Wholesale
Service Connection. The quality of water made available to City at the Wholesale Service
Connection shall be in compliance with Applicable Law. Upon City's acceptance of such
water at the Wholesale Service Connection, City assumes full responsibility for such water, its
quality,and the means,methods and facilities necessary to connect,receive,transport,deliver
and use such water as a source of water for resale by City to City's retail customers.
6.2 The"Delivery Date"shall be the date,during the Term,upon which each and all
of the following events have occurred:
a) Tacoma shall have notified City that the Wholesale Service
Connection is available for normal and reliable commercial operations;
b) City shall have notified Tacoma that Interconnection Facilities
are available for normal and reliable commercial operations; and
Page 9 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
c) Tacoma shall have notified City that the Meter has been tested
and calibrated and that Tacoma is ready to commence Wholesale Water
Service pursuant to this Agreement.
7. WHOLESALE WATER CONNECTION AND INTERCONNECTION
FACILITIES
7.1 Tacoma shall provide, at City's expense,for the design,engineering,
construction,testing and permitting of the Wholesale Service Connection,including the water
main, service pipe, automated remote valve shut-off,Meter, appurtenances and vaults, and
Telemetry Equipment. From and after the Delivery Date, Tacoma shall be responsible for the
maintenance and operation of the Wholesale Service Connection in a manner that is consistent
with Applicable Law and Prudent Utility Practices. If at any time during the Term Tacoma
shall determine a need to upgrade,replace or modify the Wholesale Service Connection, in
whole or in part, Tacoma shall so notify City, and cause such upgrade,replacement or
modification to occur at such time, place and manner and with such labor, design,materials
and equipment as Tacoma shall determine, in its sole discretion. No wholesale service
connections other than the Wholesale Service Connection are authorized by this Agreement,
and no other such connections shall be allowed without a subsequent and separate written
agreement between the Parties. Neither Party shall be obligated to agree to or execute any
agreement or permit with the other Party to construct or use any additional wholesale service
connection.
7.2 City shall, at its expense,cause the Interconnection Facilities to be constructed,
tested and available for normal and reliable commercial operations on or before the Delivery
Date. City shall submit to Tacoma for review and approval the designs, specifications and
construction schedule for the Interconnection Facilities. Tacoma will not unreasonably delay
its review of the designs, specifications and construction schedule submitted to it by City and
will not unreasonably withhold its approval of such designs, specifications and construction
schedule. City will not commence construction of the Interconnection Facilities unless and
until Cascade has received from Tacoma approved designs, specifications,and construction
schedule(as such documents may be revised by Tacoma). City shall construct and operate
the Interconnection Facilities in a manner that is consistent with Applicable Law;the
approved designs, specifications and construction schedule;the provisions of all permits,
regulatory approvals and agreements governing the construction and operation of the
Interconnection Facilities; and Prudent Utility Practices. City shall own and operate the
Interconnection Facilities and shall be responsible for the repair and maintenance thereof.
7.3 Without limiting the generality of the foregoing, City shall be responsible for
the operation and control of the City Isolation Valve and any pressure-reducing valves,
controllers,pedestals,and boxes operated by City as part of the Interconnection Facilities.
7.4 If, at any time or from time to time during the Term,Tacoma determines a need
to repair,maintain,replace,renew, expand or improve any of Tacoma's infrastructure,
facilities or systems and such work requires the relocation of all or any portion of the
Interconnection Facilities,Tacoma shall,within a reasonable time prior to the commencement
Page 10 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
of such work,request by written notice to City that City relocate such Interconnection
Facilities so as to accommodate the time,place and manner of Tacoma's work. Upon receipt
of such notice from Tacoma,City shall promptly so relocate such Interconnection Facilities at
City's sole cost and expense.
8. METER AND TELEMETRY EQUIPMENT
8.1 Tacoma shall, at City's expense,provide for the procurement,installation,
repair,replacement,calibration and testing of the Meter and the Telemetry Equipment. City
shall provide,at its expense, a sufficient and reliable source of power to the Meter and the
Telemetry Equipment. Tacoma shall determine the size of the Meter and the flow range
within which the Meter must operate.
8.2 Tacoma shall perform the calibration and testing of the Meter. During the
Term,Tacoma shall periodically test the Meter for accuracy, and the results of such testing
shall be made available to City. City may also test the Meter at any reasonable time and at
City's expense. The results of any Meter test conducted by the City shall be made available to
Tacoma at no charge.
8.3 City hereby grants Tacoma the right of access,upon reasonable notice and at
reasonable times and in a reasonable manner,to any area under the care,custody or control of
City for purposes of this Section 8.
9. WATER MANAGEMENT AND SCHEDULING
9.1 On or before May I of each year during the Term, City shall provide Tacoma
with a Draft Operating Plan.
9.2 Prior to 10:00 a.m. on any Thursday during the Tenn,City may submit to
Tacoma,in the manner and in the form established by Tacoma, a schedule for wholesale
water deliveries for the following seven(7)days("Schedule"). The Schedule shall contain at
a minimum a uniform rate of water deliveries for each day of the Schedule, and shall take
effect on the day following the Thursday the Schedule is submitted. Schedules so submitted
shall remain in effect until replaced by a subsequent Schedule submitted in accordance with
this Section 9.2
9.3 The Parties agree to jointly develop and maintain operating protocols for items
including the scheduling of water demand to assure consistent flow control and treatment,
routine operational communication,emergency shutdown,emergency contacts, and other
items the Parties determine appropriate("Operating Protocols"). The Operating Protocols
shall be subject to Tacoma's approval.
9.4 Tacoma reserves the right to modify, suspend,change or amend Schedules and
Operating Protocols as necessary to comply or conform with this Agreement,the Wholesale
Water Regulations,Applicable Law,or Prudent Utility Practices,or to respond to
Page 11 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
Uncontrollable Forces. Tacoma will provide City with as much notice as is practicable under
the circumstances of any such modifications, suspensions, changes or amendments.
10. CONSERVATION AND PLANNING
10.1 The Parties will seek to coordinate regional supply,planning,scheduling and
operational programs that promote efficient use of water supplies, facilities, finances and staff
resources. If requested by Tacoma, City shall participate in the planning and implementation
process for conservation programs as they are developed and will share available conservation
resources where beneficial to both Parties.The Parties agree to meet every two years to
review and evaluate operational experience with regards to water use and conservation. In the
event there is a water shortage or drought that requires Tacoma to institute water rationing or
water use restrictions,Tacoma may institute reductions to deliveries of the Wholesale Water
Supply consistent with the Wholesale Water Regulations and Prudent Utility Practices.
10.2 During the Term,City shall implement and maintain a water conservation and
water curtailment program substantially equivalent to Tacoma's program. Tacoma reserves
the right to reduce or discontinue Wholesale Water Service in the event City fails to adopt and
conform its use of the Wholesale Water Supply to Tacoma's Water Shortage Response Plan.
11. RISK OF LOSS
11.1 Title to and risk of loss of water delivered by Tacoma to City pursuant to
Section 6 shall pass from Tacoma to City at the Wholesale Service Connection.
11.2 Title to the Wholesale Service Connection,the Meter,and the Telemetry
Equipment shall be vested in Tacoma. Except as otherwise provided by Section 8.2,City
shall have no right to operate, suspend,curtail,design,construct,test,maintain,repair,
improve,replace and use the Wholesale Service Connection,the Meter and the Telemetry
Equipment. Title to the Interconnection Facilities shall be vested in City. Tacoma shall have
no right or responsibility to operate, suspend,curtail, design,construct, test, maintain,repair,
improve,replace or use the Interconnection Facilities.
12. INDEMNIFICATION AND WAIVER
12.1 City shall defend, indemnify and hold each and all of the Tacoma Indemnitees
harmless from and against any and all claims,liens,demands, actions, losses, damages,costs,
expenses and liabilities(including attorneys'fees) arising directly or indirectly from or in
connection with:
a) the transportation, storage, sale,delivery and use of any water
delivered to City in accordance with this Agreement;
b) the negligent,reckless,or otherwise tortious acts or omissions
of City,or of anyone directly or indirectly retained or employed by City,in
performance of this Agreement;
Page 12 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
c) any failure of City to perform or comply with any one or more
obligations made or arising under this Agreement;
d) any material breach, failure,inconsistency,inaccuracy or
default of any one or more representations made to Tacoma in Section 18;
e) the use or resale of the Wholesale Water Supply for fire
suppression purposes,or
f) City Hazardous Substances.
To the fullest extent permitted by Applicable Law,City's obligation to so release,defend,
indemnify and hold harmless shall apply regardless of the negligence or strict liability of any
one or more of the Tacoma Indemnitees. As between the Parties and solely for the purpose of
the indemnities contained in this Section 12.1,City expressly waives any immunity,defense
or protection that may be granted to it under the Washington State Industrial Insurance Act,
Title 51 RCW,or any other industrial insurance,workers'compensation or similar laws of the
State of Washington to the fullest extent permitted by Applicable Law. This Section 12.1
shall not be interpreted or construed as a waiver of City's right to assert such immunity,
defense or protection directly against any of its own employees or any such employee's estate
or other representatives. This Section 12.1 has been mutually negotiated by the Parties and
shall survive the expiration or termination of this Agreement.
City's Initials
12.2 Neither Party shall be monetarily liable to the other Party or its respective
customers for failure to supply and deliver the Wholesale Water Supply at any time or for any
reason.
12.3 EXCEPT WITH RESPECT TO THIRD-PARTY CLAIMS AS TO WHICH
CITY HAS ASSUMED OBLIGATIONS ARISING UNDER SECTION 12.1 AND
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE
CONTRARY,NEITHER PARTY SHALL BE LIABLE AS A RESULT OF ANY ACTION
OR INACTION UNDER THIS AGREEMENT OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION,NEGLIGENCE OR OTHER FAULT, STRICT LIABILITY
WITHOUT REGARD TO FAULT, BREACH OF CONTRACT OR WARRANTY,FOR
ANY LOSS OF PROFITS OR LOSS OF REVENUE OR ANY CONSEQUENTIAL,
SPECIAL,INCIDENTAL,EXEMPLARY,PUNITIVE OR INDIRECT LOSSES OR
SIMILAR DAMAGES OF ANY NATURE WHATSOEVER, WHETHER ARISING
UNDER THE LAW OF CONTRACTS,TORTS(INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE OF EVERY KIND AND STRICT LIABILITY, WITHOUT FAULT)OR
PROPERTY, OR AT COMMON LAW OR IN EQUITY,OR OTHERWISE,
IRRESPECTIVE OF WHETHER SUCH LOSSES OR SIMILAR DAMAGES ARE
REASONABLY FORESEEABLE AND IRRESPECTIVE OR WHETHER SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OR EXISTENCE OF SUCH DAMAGES.
Page 13 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
THIS SECTION 12.3 HAS BEEN MUTUALLY NEGOTIATED BY THE PARTIES AND
SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
Tacoma's Initials City's Initials
13. REGULATORY COMPLIANCE
13.1 The Wholesale Water Service is provided subject to Applicable Law(including
permits,authorization and the jurisdiction of a Governmental Authority to issue orders and
regulations regarding the Wholesale Water Service,the Wholesale Water Supply, the Project
and the Diversion Rights). City understands and agrees that Tacoma must comply with all
such Applicable Laws,permits, authorizations,orders and regulations, and that such laws,
permits, authorizations, orders and regulations are an Uncontrollable Force to the extent that
they affect the ability of Tacoma to fulfill its obligations under this Agreement.
14. NO RIGHT OR CLAIM TO WATER RIGHTS
14.1 By this Agreement,City secures a contractual right to receive Wholesale Water
Service and to accept delivery from Tacoma of the Wholesale Water Supply as a wholesale
customer. By this Agreement,City acquires no right,title or interest in or to(a)the Project,
the Wholesale Service Connection,the Meter,or the Telemetry Equipment; or(b)any water
rights,water claims,water permits or water certificates(including the Diversion Rights).
15. DISPUTE RESOLUTION
15.1 Any and all claims, controversies or disputes arising out of or relating to or in
connection with this Agreement(each, a"Dispute") as between the Parties shall be resolved in
accordance with the Dispute resolution procedures set forth in this Section 15.
15.2 The Parties shall inform one another promptly following the occurrence or
discovery of any item or event that would reasonably be expected to result in a Dispute
required to be resolved in accordance with this Dispute resolution procedure. The initial
mechanism to resolve Disputes will involve negotiations between the Parties'representatives,
so designated by the Parties by notice given pursuant to Section 21.
15.3 If the Parties cannot resolve a Dispute satisfactorily within ten(10)days after
receipt of the initial notice in accordance with Section 15.2,either Party may deliver to the
other Party notice of the Dispute with a detailed description of the underlying circumstances
of such Dispute. The Dispute notice shall include a schedule of the availability of the
notifying Party's senior officers duly authorized to settle the Dispute during the thirty(30)day
period following the delivery of the Dispute notice. The recipient Party shall,within three(3)
business days following receipt of the Dispute notice,provide to the notifying Party a parallel
schedule of availability of the recipient Party's senior officers duly authorized to settle the
Dispute. Following delivery of the respective senior officers'schedules of availability,the
senior officers of the notifying Party and the recipient Party shall meet and confer as often as
Page 14 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
they deem reasonably necessary during the remainder of the thirty(30) day period in good-
faith negotiations to resolve the Dispute to the satisfaction of both Parties.
15.4 If at any time during the good-faith efforts to resolve any Dispute arising under
this Agreement either of the Parties determines that such informal discussions will not result
in a resolution of the issue or issues in Dispute, such Party may initiate the Dispute resolution
process in accordance with the provisions of Exhibit B.
15.5 Pending resolution of any Dispute,the Parties shall continue to fulfill their
respective duties under this Agreement.
16. DEFAULT AND REMEDIES
16.1 If a Party fails to perform its obligations hereunder,then it shall be in default
hereunder unless the defaulting Party cures:
a) a monetary event of default within thirty(30)days after
receiving written notice from the other Party of such monetary default; and
b) a non-monetary event of default within sixty(60)days after
receiving a notice of default from the non-defaulting Party;provided,
however,that if the nature or extent of the obligation or obligations is such
that more than sixty(60)days are required,in the exercise of commercially
reasonable diligence,to cure such non-monetary default,then the defaulting
Party shall not be in default if it commences such performance within such
sixty(60)day period and thereafter pursues the same to completion with
commercially reasonable diligence.
16.2 Except as otherwise provided by Section 12.3 and subject to the procedures set
forth in Section 15, if a Party is in breach or default of its obligations arising under this
Agreement, the other Party shall have and shall be entitled to exercise any and all remedies
available to it at law or in equity(including the right to specifically enforce this Agreement),
all of which remedies shall be cumulative. If either Party elects to pursue singularly any
remedy available to it under this Section 16,then such Party may at any time thereafter
continue to pursue or cease pursuing that remedy and simultaneously elect to pursue any other
remedy available to it under this Section 16.
17. A.DDITIONA.L WATER
17.1 During the Term, City may request that Tacoma supply City wholesale water on
a temporary basis in addition to the Wholesale Water Supply("Temporary Wholesale Water
Supply"). The availability of the Temporary Wholesale Water Supply for sale by Tacoma to
City at any time, or from time to time,during the Term shall be determined by Tacoma in its
sole discretion. If Tacoma shall determine that some or all of the Temporary Wholesale
Water Supply is available for sale to City, it may be sold, scheduled,priced and delivered to
City on such terms and conditions as may then be acceptable to the Parties. Without limiting
Page 15 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
the generality of the foregoing, any such sales shall be subject to the Wholesale Water
Regulations(as applicable), the availability of resources, and the disruption, interruption,
suspension and curtailment of the Temporary Wholesale Water Supply by Tacoma at any
time.
18. REPRESENTATIONS OF THE PARTIES
18.1 Each Party is duly authorized and validly existing under the laws of,is
authorized to exercise its powers,rights and privileges under the laws of,and is in good
standing in the State of Washington, and has full power and authority to carry on its business
as presently conducted,to execute this Agreement and to perform the transactions on its part
contemplated by this Agreement.
18.2 The execution,delivery and performance of this Agreement,and the
consummation of the transactions contemplated hereby,have been duly authorized by the
appropriate board or council, and no other act or proceeding on the part of any Party is
necessary to authorize this Agreement,or the transactions contemplated hereby.
18.3 The execution,delivery and performance by each of the Parties of this
Agreement does not(a) contravene Applicable Law; or(b)conflict with or result in a breach
of or default under any material agreement or instrument to which any Party is a party or by
which it is bound.
18.4 There are no actions, suits, claims or proceedings pending or, to the best of each
Party's knowledge,threatened against either Party that is likely to impair the consummation or
the transactions contemplated hereby.
19. TERM
19.1 The term of this(the"Term")Agreement shall commence as of the Effective
Date and shall remain in full force and effect until the date that Tacoma ceases making
wholesale water sales in accordance with the Wholesale Water Regulations. (Note: See
Term"limitations referenced in 4.2 for certain Peak Season only sales).
20. UNCONTROLLABLE FORCES
20.1 If performance of this Agreement or of any obligation hereunder(other than the
insufficiency of funds,the financial inability to perform or changes in a Party's cost of
performing its obligations)is prevented or substantially restricted or interfered with by reason
of an Uncontrollable Force,the affected Party,upon giving notice to the other Party, shall be
excused from such performance to the extent of and for the duration of such prevention,
restriction or interference. The affected Party shall use its reasonable efforts to avoid or
remove such causes of nonperformance and shall continue performance hereunder whenever
such causes are removed.
Page 16 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
21. NOTICES
21.1 All notices or other communications required or permitted by this Agreement
must be in writing and be personally delivered,delivered by recognized overnight courier
service or given by mail or via facsimile. Any notice given by mail must be sent,postage
prepaid,by certified or registered mail,return receipt requested. All notices must be
addressed to the Parties at the following addresses or at such other addresses as the Parties
may from time to time direct in writing:
Tacoma: Water Superintendent
P.O.Box 11007
Tacoma,WA 98411
Phone: (253) 502-8245
Fax: (253) 502-8694
City:
Fax No.
with a copy to:
Fax No.
21.2 Any notice will be deemed to have been given,if personally delivered,when
delivered,and if delivered by courier service,one(1)business day after deposit with the
courier service, and if mailed, two(2)business days after deposit at any post office in the
United States of America,and if delivered via facsimile,the same day as verified;provided
that any verification that occurs after 5 p.m.on a business day, or at any time on a Saturday,
Sunday or holiday, will be deemed to have occurred as of 9 a.m. on the following business
day.
22. MISCELLANEOUS
22.1 The rights and obligations of the Parties arising under this Agreement may not
be sold, assigned or otherwise transferred in whole or in part by a Party without the prior
written consent of the other Party,which consent shall not be unreasonably withheld or
delayed. Subject to the foregoing, this Agreement shall be binding upon the Parties'
respective successors and permitted assigns.
22.2 The Parties agree that in taking actions or making determinations required or
provided for under this Agreement,each Party shall act in fairness and in good faith. The
Parties will cooperate and use commercially reasonable efforts to facilitate the
Page 17 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
implementation of all aspects of this Agreement. During the Term, each Party,upon the
request of the other Party, shall,without further consideration, execute, deliver and
acknowledge all such further documents and do and perform all such other acts and things as
either Party may reasonably request to effectively carry out the intent of this Agreement.
22.3 A Party shall not have the right to offset any amounts owed to the other Party
pursuant to this Agreement against any amounts due from the other Party pursuant to this
Agreement,nor may a Party offset any amounts due to the other Party pursuant to this
Agreement against any amounts owed by the other Party pursuant to this Agreement. A Party
may not withhold any payment due the other Party by reason of a Dispute; such payment shall
be paid "under protest" and any and all Disputes with respect to such payment shall be
resolved pursuant to Section 15.
22.4 Any of the terms or conditions of this Agreement may be waived at any time
and from time to time, in a signed writing,by the Party or Parties entitled to the benefit of
such terms or conditions. Any waiver given by a Party shall be narrowly construed to
specifically waive, in time and subject, only the express matter contained in such waiver. The
failure of either Party to insist on or enforce strict performance of any provision of this
Agreement or to exercise any right or remedy under this Agreement or Applicable Law will
not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon
any such provision,right or remedy in that or any other instance; rather,the same will be and
remain in full force and effect. Tacoma's review,revision or approval of or comment upon
any matter arising under this Agreement, or Tacoma`s failure to review,revise,approve or
comment upon any matter arising under this Agreement,shall not in any way(i)relieve or
release City from any of its obligations arising under this Agreement, or(ii) subject Tacoma
to any liability with respect to such matter.
22.5 This Agreement shall be governed by and construed in accordance with the laws
of the State of Washington(regardless of the laws that might otherwise govern under
applicable principles of conflict of laws of such state). Except with respect to a lawsuit or
judicial action or proceeding commenced by a third party in another jurisdiction and subject
to Exhibit B,the Parties will(i)agree that any lawsuit,judicial action or proceeding arising
out of or relating to this Agreement must be heard in the Superior Court of the State of
Washington,in and for the County of Pierce,or the United States District Court for the
Western District of Washington in Tacoma; (ii)waive any objection to the laying of venue of
any such suit, action or proceeding; and(iii)irrevocably submit to the jurisdiction of any such
court in any such lawsuit,judicial action or proceeding.
22.6 Terms defined in a given number,tense, or form shall have the corresponding
meaning when used in this Agreement with initial capitals in another number, tense,or form.
References containing terms such as "hereof," "herein," "hereto," "hereinafter" and other
terms of like import are not limited in applicability to the specific provision within which such
references are set forth but instead refer to this Agreement taken as a whole. "Includes"or
including"shall not be deemed limited by the specific enumeration of items,but shall be
deemed without limitation. The term "or"is not exclusive. The headings contained in this
Agreement are included solely for the convenience of the Parties. Accounting terms used but
Page 18 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
not defined herein have the meanings given to them under generally accepted accounting
principles in the United States consistently applied throughout the specified period and in the
immediately prior comparable period.
22.7 Any provisions of this Agreement prohibited or rendered unenforceable by
Applicable Law shall be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement. In such event,the
remainder of this Agreement will remain valid and enforceable. Upon such determination
that any term or other provision is prohibited or rendered unenforceable,the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner to the end that transactions
contemplated under this Agreement are fulfilled to the greatest extent possible.
22.8 This Agreement may be amended only by an instrument in writing executed by
the Parties that expressly refers to this Agreement and states that it is an amendment hereto.
This Agreement constitutes the entire agreement between the Parties and supersedes all other
prior agreements and understandings,oral and written,between the Parties,with respect to the
subject matter hereof. No amendment,modification or waiver of any provision of this
Agreement will be valid unless set forth in a written instrument signed by both Parties. If a
Party becomes aware of a conflict between this Agreement and any other agreement in place
between such Party or its Affiliates and another Person,it will promptly notify such other
Party,and the Parties will work in good faith to resolve the conflict.
22.9 Nothing contained in this Agreement shall be deemed or construed by the
Parties,or by any third party, as creating the relationship of principal and agent,or of
partnership or ofjoint venture,between the Parties. Neither Party shall enter into any
contract,agreement or other commitment,or incur any obligation or liability,in the name of
or otherwise on behalf of the other Party. This Agreement shall create no rights,
responsibilities and/or obligations in,to or from any Persons other than Tacoma and City.
22.10 Sections and all other terms and conditions of this Agreement that
must be reasonably construed to survive the expiration or termination of this Agreement in
order to give full force and effect to the intent of the Parties as set forth herein shall survive
the expiration or termination of this Agreement,regardless of whether such survival is
expressly specified herein.
22.11 This Agreement may be executed in several counterparts,each of which shall be
deemed to be an original and all of which together shall constitute one and the same
instrument.
22.12 This Agreement has been negotiated on an arm's-length basis by the Parties and
their respective counsel and shall be interpreted fairly in accordance with its terms and
without any strict construction in favor of or against either Party.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective
Date.
Page 19 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
Dated this day of 20_.
City of Tacoma: City of
Department of Public Utilities
Water Division
Linda A. McCrea
Water Superintendent
Approved as to form: Approved as to form:
Page 20 of 20 Exhibit A to the Amended and Restated Agreement for the Sale of Wholesale Water
WHOLESALE WATER SUPPLY AGREEMENT
Exhibit A
Wholesale Service Connection
To be added upon establishment of the physical point of connection)
Exhibit A to the Wholesale Water Supply Agreement
WHOLESALE SERVICE CONNECTION
Exhibit B
Dispute Resolution Procedures
The following procedures shall govern the resolution of any dispute arising under the
Wholesale Water Supply Agreement dated the"Agreement")between the
Parties that cannot be resolved by good-faith negotiations between the Parties,unless the
Parties mutually agree to use different procedures to resolve a specific dispute by executing a
document setting forth such different procedures. The Parties agree that these dispute
resolution procedures are intended to be used in conjunction with and governed by
Chapter 4.48 RCW,and both Parties hereby waive their right to a trial by jury for any dispute
arising under the Agreement.
1. The Party that believes that continued good-faith negotiations will not produce a
resolution of the issue or issues that are the subject of such negotiations will notify the
other Party in writing that it is invoking the dispute resolution procedures of this
Exhibit B.
2. Within twenty(20)days of the date of such notice invoking the dispute resolution
procedures of this Exhibit B, the Parties shall meet and select an individual to
recommend to the court as referee of the dispute resolution process in accordance with
RCW 4.48.020. The Parties shall select an individual who is qualified as a juror as
provided by statute, is competent as a juror between the Parties,is a duly admitted and
practicing attorney, and has experience presiding over civil litigation of contract
disputes. The Parries will use the following procedure to select the recommended
referee:
2.1 Each Party will make a list of three individuals that are qualified pursuant to
Paragraph 2 to serve as referee and exchange such list with the other Party. If
the Parties agree upon a person from either list,or if both Parties list the same
person,that person will be the recommended referee.
2.2 If the Parties are unable to agree upon a referee after exchanging their
respective lists, they will make a joint list setting forth all six candidates from
the two lists.
3. Upon the selection of the recommended referee,or the creation of the joint list
pursuant to Subparagraph 2.2 of this Exhibit B, the Party that invoked the dispute
resolution procedures shall file a complaint,in the superior court of the appropriate
county as set forth in Section 22.5 of the Agreement;setting forth the issue or issues in
dispute, and the other Party shall file an answer to such complaint. Not later than
twenty(20)days after the filing of the answer, the Parties shall jointly file a motion,
with the Agreement(including this Exhibit B)attached,with the court requesting an
order of reference that:
Exhibit B to the Wholesale Water Supply Agreement
DISPUTE RESOLUTION PROCEDURES
3.1 Directs that the issue or issues raised by the complaint and answer be resolved
pursuant to Chapter 4.48 RCW by reference to a referee;
3.2 Appoints,pursuant to RCW 4.48.020,either the recommended referee selected
by the Parties pursuant to Subparagraph 2.1 of this Exhibit B, or a single
referee from the joint list prepared pursuant to Subparagraph 2.2 of this Exhibit
B; and
3.3 Directs the referee to conduct the proceeding in accordance with the
procedures set out in Paragraphs 4-10 of this Exhibit B.
4. In accordance with RCW 4.48.060,the Parties hereby waive their rights to discovery
and cross-examination, and direct that the proceeding be conducted in the same
manner as a motion for summary judgment as follows:
4.1 The Parties shall present their respective positions by written briefs and
affidavits, and without testimonial evidence or cross-examination;
4.2 Oral argument will be conducted before the referee; and
4.3 The burdens of proof and persuasion that pertain in a civil trial shall apply,
rather than those that apply to motions for summary judgment.
5. After appointment of the referee,the Parties shall endeavor in good faith to prepare for
the referee a joint statement of facts and the questions to be decided in the proceeding.
In the absence of an agreed-to joint statement of facts and questions to be decided,
each Party may include its own statement of facts and questions to be decided in its
initial brief.
6. Within ninety(90)days after the submission of the joint statement of facts and
questions to be decided, or within ninety(90)days after the appointment of the referee
if the Parties cannot agree to a joint submission of facts and questions to be decided,
each Party shall submit to the referee a one-page statement of the proposed resolution
and/or award it seeks for each issue in dispute, and its initial brief. The statement and
initial brief(excluding any attached affidavits or evidentiary documents)shall not
exceed fifty(50) 8'/s"x 11" double-spaced pages with 1'/z-inch margins and 12-point
typeface. The statement and initial brief shall be filed simultaneously by e-mail and
regular mail with the referee and opposing Party.
7: Within thirty(30)days after the date the Parties filed their initial briefs,the Parties
shall file their respective reply briefs with the referee and the opposing Party. The
reply briefs(excluding any attached affidavits or evidentiary documents)shall not
exceed twenty-five(25) 8!/2" x 11" double-spaced pages with 1%z-inch margins and 12-
point typeface. The reply briefs shall be filed simultaneously by e-mail and regular
mail with the referee and opposing Party.
Exhibit B to the Wholesale Water Supply Agreement
DISPUTE RESOLUTION PROCEDURES
8. After the reply briefs have been filed, if the referee deems that additional responses are
needed,then the referee may request that the Parties file a supplemental brief only as
to those specific matters or questions raised by the referee. Such supplemental briefs
shall be limited to fifteen(15) 8%s"x 11"double-spaced pages with 1%-inch margins
and 12-point typeface, and shall be filed at such time requested by the referee. Any
such supplemental briefs shall be filed simultaneously by e-mail and regular mail upon
the referee and opposing Party.
9. When all briefs have been filed,the referee will schedule oral argument on the issue or,
issues in dispute.
10. After the completion of oral argument,the referee will prepare his or her proposed
report in accordance with RCW 4.48.70 and shall provide a copy of the proposed
report to the Parties,who shall have the right to suggest changes and modifications to
the proposed report,all in accordance with RCW 4.48.110. The referee will file the
final report with the court within twenty(20)days of the completion of the process
under RCW 4.48.110.
11. Either Party may move the court to modify or set aside,in whole or in part,the final
report of the referee. If the court modifies or sets aside,in whole or in part, the final
report of the referee and makes another reference, then this Exhibit B shall also apply
to such reference.
12. Each Party shall be responsible for its own costs of the dispute resolution process
including any judicial proceedings), and the Parties shall each pay one-half of the
other costs of the dispute resolution proceeding,including the fees of the referee. The
fees of the referee shall be established in accordance with RCW 4.48.100.
Exhibit B to the Wholesale Water Supply Agreement
DISPUTE RESOLUTION PROCEDURES