HomeMy WebLinkAbout20-022 - Highline Water District - Tolling Agreement20-022(d)
Council Approval N/A
FOURTH AMENDMENT TO TOLLING AGREEMENT
This Fourth Amendment to Tolling Agreement ("Fourth Amendment") is made and entered
into by and between Highline Water District, a Washington municipal corporation ("District"),
and the City of Tukwila, a Washington municipal corporation ("City") (individually a "Party" and
collectively the "Parties") for the purposes set forth herein.
RECITALS
WHEREAS, the District and the City have an intertie connection of their water systems
located at or in the vicinity of So. 180th St. and Andover Park West in Tukwila, Washington
(referred to herein as the "Intertie").
WHEREAS, the Intertie is the subject of an Agreement for Emergency Sale of Water
between the District and the City dated March 31, 2000.
WHEREAS, the District and the City have a dispute relating to District water that was
conveyed to the City through the Intertie (the "Dispute").
WHEREAS, the Parties entered into a Tolling Agreement, effective as of February 24,
2020, that was intended to allow them to devote their energies to efforts to resolve the Dispute
rather than engaging in immediate litigation.
WHEREAS, due in part to delays relating to the COVED -19 pandemic and related federal,
state and local declarations of emergency, the Parties entered into the First Amendment to Tolling
Agreement dated October 13, 2020, to allow the Parties to engage in discussions and related efforts
explore whether there are reasonable opportunities to resolve the Dispute without litigation.
WHEREAS, the District and the City entered into a Second Amendment dated June 3,
2021, and a Third Amendment dated December 10, 2021, which provided additional time for the
Parties to review and consider a mechanism to resolve the Dispute which involved the installation
of a pump that will allow for the reconveyance of water from the City to the District through the
Intertie. The First, Second and Third Amendments to Tolling Agreement are referred to herein
collectively as the "Amendments to Tolling Agreement."
WHEREAS, since entering into the Amendments to Tolling Agreement, the Parties have
made significant progress on a possible mechanism to be used to resolve the Dispute, and with the
support of the Cascade Water Alliance, are seeking review of the contemplated water
reconveyance arrangement with Seattle Public Utilities.
WHEREAS, both Parties remain committed to the original goal of the Tolling Agreement
and additional time is necessary to finalize the settlement agreement(s) to document the terms of
settlement.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the
1615235.1 - 356659 -0226
1
Parties agree as follows:
AMENDMENT
1. Incorporation of Recitals. The Recitals are incorporated herein in full by reference
into this Tolling Agreement.
2. Fourth .....Amendment ...of Tolling Ag -eement. Paragraph 2 of the Tolling Agreement
,m„ ....mm .,.
is amended to read as follows:
2. Effective and Expiration Dates. The effective date ("Effective
Date") of this Tolling Agreement shall be 12:00 a.m. (Pacific Time) on February
24, 2020. This Tolling Agreement shall expire at 11:59 p.m. (Pacific Time) on
December 31, 2022 December 31, 2021 ("Expiration Date"); provided, however,
that either Party may terminate the Tolling Agreement prior to the Expiration Date
upon sixty (60) days' advance written notice. The 60 -day notice period shall begin
on the date the Party sent the written notice as provided by Paragraph 7, below. In
the case of a termination by written notice, the "Expiration Date" shall be the
expiration date of the 60 -day notice period.
3. Remaining Terms Unchangd. Except as otherwise provided in this Fourth
Amendment, all other terms and conditions of the Tolling Agreement, shall remain unchanged.
IN WITNESS WHEREOF, the Parties have caused this Fourth Amendment to Tolling
Agreement to be executed by their duly authorized representatives on the dates listed below.
CITY OF TUKWILA
By
Dated
Key: U,ae51,5,5f0K.eeSKIUS,Yddiebree,c
Allan Ekberg, Mayor
ATTEST
06/22/2022
?h4za C32(ahe 1
Key: JCI,MCSallheC0.2.1.5151050J5ec1251.51D
Christy O'Flaherty, City Clerk
HIGHLINE WATER DISTRICT
AS
By For
verett, General Manager
Dated 21 Zz,
APPROVED AS TO FORM APPROVED AS TO FORM
Key: UOKK3oft,aclIDS.066,16,DKJ,KlalcUaY
Kari L. Sand, City Attorney
1615235.1 - 356659 -0226
2
5,14 99dmodt
Eric Frimodt, District
............................................................................. ._
legal counsel
20-022(c)
Council Approval: N/A
THIRD AMENDMENT TO TOLLING AGREEMENT
This Third Amendment to Tolling Agreement ("Third Amendment") is made and entered
into by and between Highline Water District, a Washington municipal corporation ("District"),
and the City of Tukwila, a Washington municipal corporation ("City") (individually a "Party" and
collectively the "Parties") for the purposes set forth herein.
RECITALS
WHEREAS, the District and the City have an intertie connection of their water systems
located at or in the vicinity of So. 180th St. and Andover Park West in Tukwila, Washington
(referred to herein as the "Intertie").
WHEREAS, the Intertie is the subject of an Agreement for Emergency Sale of Water
between the District and the City dated March 31, 2000.
WHEREAS, the District and the City have a dispute relating to District water that was
conveyed to the City through the Intertie (the "Dispute").
WHEREAS, the Parties entered into a Tolling Agreement, effective as of February 24,
2020, that was intended to allow them to devote their energies to efforts to resolve the Dispute
rather than engaging in immediate litigation.
WHEREAS, due in part to delays relating to the COVID-19 pandemic and related federal,
state and local declarations of emergency, the Parties entered into the First Amendment to Tolling
Agreement dated October 13, 2020, to allow the Parties to engage in discussions and related efforts
explore whether there are reasonable opportunities to resolve the Dispute without litigation.
WHEREAS, the District and the City entered into a Second Amendment dated June 3,
2021, which provided additional time for the Parties to review and consider a mechanism to resolve
the Dispute which involved the installation of a pump that will allow for the reconveyance of water
from the City to the District through the Intertie.
WHEREAS, since entering into the First and Second Amendments to Tolling Agreement,
the Parties have made significant progress on a possible mechanism to be used to resolve the
Dispute, and with the support of the Cascade Water Alliance, is seeking review of the
contemplated water reconveyance arrangement with Seattle Public Utilities.
WHEREAS, both Parties remain committed to the original goal of the Tolling Agreement
and additional time is necessary to finalize the settlement agreement to document the terms of
settlement.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the
Parties agree as follows:
1489698.2-356659-0226
1
AMENDMENT
1. Incorporation of Recitals. The Recitals are incorporated herein in full by reference
into this Tolling Agreement.
2. Third Amendment of Tolling Agreement. Paragraph 2 of the Tolling Agreement is
amended to read as follows:
2. Effective and Expiration Dates. The effective date ("Effective
Date") of this Tolling Agreement shall be 12:00 a.m. (Pacific Time) on February
24, 2020. This Tolling Agreement shall expire at 11:59 p.m. (Pacific Time) on June
30, 2022December 31, 2021 ("Expiration Date"); provided, however, that either
Party may terminate the Tolling Agreement prior to the Expiration Date upon sixty
(60) days' advance written notice. The 60 -day notice period shall begin on the date
the Party sent the written notice as provided by Paragraph 7, below. In the case of
a termination by written notice, the "Expiration Date" shall be the expiration date
of the 60 -day notice period.
3. Remaining Terms Unchanged. Except as otherwise provided in this Third
Amendment, all other terms and conditions of the Tolling Agreement, shall remain unchanged.
IN WITNESS WHEREOF, the Parties have caused this Third Amendment to Tolling
Agreement to be executed by their duly authorized representatives on the dates listed below.
CITY OF TUKWILA HIGHLINE WATER DISTRICT
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By I. . tar.benavrv.414.‘1;12.x;Srcs.ia4
Allan Ekberg, Mayor
Dated
ATTEST
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- Rory. 0.7411.0041k4H01.0.1haeh..11.<03
Christy O'Flaherty, City Clerk
By
Matt Everett, General Manager
Dated / 27 /0
APPROVED AS TO FORM APPROVED AS TO FORM
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651.7...MILLOcuounua$6.6.,02,
Kari L. Sand, City Attorney
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1489698.2 - 356659 -0226
2
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Eric Frimodt, District legal counse
20-022(b)
Council Approval N/A
SECOND AMENDMENT TO TOLLING AGREEMENT
This Second Amendment to Tolling Agreement ("Second Amendment") is made and
entered into by and between Highline Water District, a Washington municipal corporation
("District"), and the City of Tukwila, a Washington municipal corporation ("City") (individually
a "Party" and collectively the "Parties") for the purposes set forth herein.
RECITALS
WHEREAS, the District and the City have an intertie connection of their water systems
located at or in the vicinity of So. 180th St. and Andover Park West in Tukwila, Washington
(referred to herein as the "Intertie").
WHEREAS, the Intertie is the subject of an Agreement for Emergency Sale of Water
between the District and the City dated March 31, 2000.
WHEREAS, the District and the City have a dispute relating to District water that was
conveyed to the City through the Intertie, the cost of which remains unpaid (the "Dispute").
WHEREAS, the Parties entered into a Tolling Agreement effective as of February 24,
2020 that was intended to allow them to devote their energies to efforts to resolve the Dispute
rather than engaging in immediate litigation.
WHEREAS, due in part to delays relating to the COVID-19 pandemic and related
federal, state and local declarations of emergency, the Parties entered into the First Amendment
to Tolling Agreement dated October 13, 2020 which provided additional time through June 30,
2020 for the Parties to engage in discussions and related efforts to explore whether there are
reasonable opportunities to resolve the Dispute without litigation.
WHEREAS, since entering into the First Amendment to Tolling Agreement, the Parties
have made significant progress on the mechanism to be used to resolve the Dispute which
involves the installation of a large pump that will allow for the repayment of water through the
Interie.
WHEREAS, both Parties remain committed to the original goal of the Tolling Agreement
and additional time is necessary to install the required pump and to otherwise allow the Parties
time to negotiate and enter into a settlement agreement to document the terms of settlement.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the
Parties agree as follows:
AMENDMENT
1. Incorporation of Recitals. The Recitals are incorporated herein in full by
reference into this Tolling Agreement.
1190237.4 • 356659 -0226
1
2. Second Amendment of Tolling Agreement. Paragraph 2 of the Tolling Agreement
is amended to read as follows:
2. Effective and Expiration Dates. The effective date ("Effective
Date) of this Tolling Agreement shall be 12:00 a.m. (Pacific Time) on February
24, 2020. This Tolling Agreement shall expire at 11:59 p.m. (Pacific Time) on
December 31, 2021 June 30, 2021 ("Expiration Date"); provided, however, that
either Party may terminate the Tolling Agreement prior to the Expiration Date
upon sixty (60) days' advance written notice. The 60 -day notice period shall
begin on the date the Party sent the written notice as provided by Paragraph 7,
below. In the case of a termination by written notice, the "Expiration Date" shall
be the expiration date of the 60 -day notice period.
3. Remaining Terms Unchanged. Except as otherwise provided in this Second
Amendment, all other terms and conditions of the Tolling Agreement, shall remain unchanged.
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to Tolling
Agreement to be executed by their duly authorized representatives on the dates listed below.
CITY OF TUKWILA HIGHLINE WATER DISTRICT
By
C7/(Leu 6A-Ge/cg
Ke}: U.,,,Kie,aJJ.2ee,leJbJcleacSolD2J7
Allan Ekberg, Mayor
Dated 06/03/2021
ATTEST
Chircv �.6/GezhPAzg
Christy O'Flaherty, City Clerk
By
Matt Everett, General Manager
Dated div /2. / c) /
APPROVED AS TO FORM APPROVED AS TO FORM
Cl�a/tG oe. (1,5)a i-eK
Kari L. Sand, City Attorney Eric Frimodt, District legal counsel
1190237.4 - 356659 -0226
2
20-022(a)
Council Approval N/A
FIRST AMENDMENT TO TOLLING AGREEMENT
This First Amendment to Tolling Agreement ("Amendment") is made and entered into by
and between Highline Water District, a Washington municipal corporation ("District"), and the
City of Tukwila, a Washington municipal corporation ("City") (individually a "Party" and
collectively the "Parties") for the purposes set forth herein.
RECITALS
WHEREAS, the District and the City have an intertie connection of their water systems
located at or in the vicinity of So. 180th St. and Andover Park West in Tukwila, Washington
(referred to herein as the "Intertie").
WHEREAS, the Intertie is the subject of an Agreement for Emergency Sale of Water
between the District and the City dated March 31, 2000.
WHEREAS, the District and the City have a dispute relating to District water that was
conveyed to the City through the Intertie, the cost of which remains unpaid (the "Dispute").
WHEREAS, the Parties entered into a Tolling Agreement effective as of February 24,
2020 that was intended to allow them to devote their energies to efforts to resolve the Dispute
rather than engaging in immediate litigation.
WHEREAS, due in part to the COVID-19 pandemic and related federal, state and local
declarations of emergency, the Parties have not been able to fully engage in discussions and
related efforts to explore whether there are reasonable opportunities to resolve the Dispute
without litigation, but both Parties remain committed to the original goal of the Tolling
Agreement.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the
Parties agree as follows;
❑ NT
1. Incorporation of Recitals. The Recitals are
reference into this Tolling Agreement.
2. Amendment of Tolling Agreement. Paragraph
amended to read as follows:
incorporated herein in full by
2 of the Tolling Agreement is
2. Effective and Expiration Dates. The effective date ("Effective
Date") of this Tolling Agreement shall be 12:00 a.m. (Pacific Time) on February
24, 2020. This Tolling Agreement shall expire at 11:59 p.m. (Pacific Time) on
June 30. 2021 ("Expiration Date"); provided, however, that
either Party may terminate the Tolling Agreement prior to the Expiration Date
1190237,1-356659.0225
upon sixty (60) days' advance written notice. The 60 -day notice period shall
begin on the date the Party sent the written notice as provided by Paragraph 7,
below. In the case of a termination by written notice, the "Expiration Date" shall
be the expiration date of the 60 -day notice period.
3. Remaining Terms Unchanged. Except as otherwise provided in this Amendment,
all other terms and conditions of the Tolling Agreement shall remain unchanged.
IN WITNESS WHEREOF, the Parties have caused this First Amendment to Toiling
Agreement to be executed by their duly authorized representatives on the dates listed below.
CITY OF TUKWILA
By
Allan Ekberg, Mayor
Dated 10/13/2020
A1"t'EST
C?hh.e:arj )th&cr-J
Christy O'Flaherty, City Clerk
APPROVED AS TO FORM
cjir Qjartd
Kari L. Sand, City Attorney
1190237.1- 356659 -0226
HIGHLINE WATER DISTRICT
By
Matt Everett, General Manager
Dated
APPROVED AS TO FORM
W���� � UI o� UIIh � ,
Vu
Eric Frimodt, District legal counsel
2
20-022
Council Approval N/A
TOLLING AGREEMENT
This Tolling Agreement ("Tolling Agreement") is made and entered into by and between
Highline Water District, a Washington municipal corporation ("District"), and the City of Tukwila,
a Washington municipal corporation ("City") (individually a "Party" and collectively the
"Parties") for the purposes set forth herein.
RECITALS
WHEREAS, the District and the City have an intertie connection of their water systems
located at or in the vicinity of So. 180th St. and Andover Park West in Tukwila, Washington
(referred to herein as the "lntertie").
WHEREAS, the District and the City have a dispute relating to District water that was
conveyed to the City through the Interne, the cost of which remains unpaid (the "Dispute").
WHEREAS, the Parties desire to devote their energies to efforts to resolve the Dispute
rather than engaging in immediate litigation.
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the
Parties agree as follows:
AGREEMENT
1. Incorporation of Recitals. The Recitals are incorporated herein in full by reference
into this Tolling Agreement.
2. Effective and Expiration Dates. The effective date ("Effective Date") of this
Tolling Agreement shall be 12:00 a.m. (Pacific Time) on February 24, 2020. This Tolling
Agreement shall expire at 11:59 p.m. (Pacific Time) on December 31, 2020 ("Expiration Date");
provided, however, that either Party may terminate the Toiling Agreement prior to the Expiration
Date upon sixty (60) days' advance written notice. The 60 -day notice period shall begin on the
date the Party sent the written notice as provided by Paragraph 7, below. In the case of a
termination by written notice, the "Expiration Date" shall be the expiration date of the 60 -day
notice period.
3. Tolling of Statutes of Limitation. The Parties hereby agree that in any litigation
between them relating to or arising out of the Dispute described in the Recitals above, no Party, in
asserting any affirmative defense based on any limitations period, including, without limitation,
statutes of repose and limitation, laches, or bar to action for failure to timely make demand or to
timely file (collectively, "Statutes of Limitation"), shall in its computation of time for such defense
include any time which elapses between and including the Effective Date and the Expiration Date
(the "Tolling Period"). Notwithstanding the foregoing, each Party hereby expressly reserves its
right to assert a defense (a) based upon the expiration of any of the Statutes of Limitation prior to
the Effective Date or (b) which is otherwise available to such Party.
996825.1- 356659 -0226
1
4. Effect on Prejudgment Interest. If a Party obtains a judgment against the other
Party with respect to the Dispute described in the Recitals above, the prevailing Party shall exclude
the Tolling Period in the computation of any prejudgment interest. The provisions of this
Paragraph 4 shall survive the Expiration Date.
5. No Admission of Fault. No Party admits any breach, fault, or liability of any kind,
and no Party waives or concedes any claim or defense, relating to or arising out of the Intertie
Agreement or otherwise related to the Dispute.
6. Fees and Costs. The rights of any prevailing Party to recover attorneys' fees and
costs incurred in enforcing the Intertie Agreement pursuant to the terms thereof, if any, is
unmodified by this Tolling Agreement.
7. Notice. Formal notice under and official communications between the Parties
regarding this Tolling Agreement shall be sent by first class mail as follows:
To the City: To the District:
City of Tukwila Highline Water District
Attn. Mayor Attn. General Manager
6200 Southcenter Blvd. 23828 30"' Ave. S.
Tukwila, WA 98188 Kent, WA 98032
8. Justifiable Reliance. The City acknowledges and agrees that the District is
justifiably and reasonably relying upon the terms and conditions set forth in this Tolling
Agreement, that the Statutes of Limitation are subject to being tolled, and that this Tolling
Agreement is enforceable in accordance with its terms.
9. Authority. Each Party represents that this Tolling Agreement has been duly and
validly authorized, executed and delivered by such Party and no other action is requisite to the
valid and binding execution, delivery and performance of this Tolling Agreement by such Party.
10. Counterparts. This Tolling Agreement may be executed in counterparts, and
delivered via facsimile or other means of electronic image transmission, all of which counterparts,
together, shall constitute one and the same instrument, be deemed an original for all purposes and
be binding on the Parties as if all signatures were affixed to a single document.
996825.1-356659-0226
2
IN WITNESS THEREOF, the parties have caused this Tolling Agreement to be executed
by their duly authorized representatives on the dates list below,
CITY OF TUKWILA
Allan Ekberg, Mayor
Dated 3/ I f Zvzo
ATTEST
�" If
Christy O'Flaherty, City Clerk
APPROVED AS TO FORM
City Attorney's • ' toe
Counsel
HIGHLINE WATER DISTRICT
By
Matt Everett, General Manager
Dated 3 /9'12'_02.o
APPROVED AS TO FORM
°t
.. � '. .A.AA44417>
Eric Friamodt, District Legal