HomeMy WebLinkAboutContract 48651� -� .
�y� �
;�
RF�F/�� �,;
� �' MqR � 2 20
' �jTj•��. li �
� clrys��RET RyrH
�
VII � �+"Vf�G,•"'" � 1
Ct�'�`�'�� �'
AGREEMENT FOR WATER SERVICE BETWEEN
THE CITY OF FORT WORTH, TEXAS, AND
AQUA TEXAS, INC.
STATE OF TEXAS §
COUNTY OF TARRANT §
This Contract and Agreement ("Agreement") is made and entered into this � day of
K.�1�1 t'�, , 20 t�, by and between the City of Fort Worth, a municipal corporation located in
Tarrant unty, Texas, acting by and through � h� �t�c;_�7i v , its duly authorized Assistant City
Manager, hereinafter called "Fort Worth," and Aqua Texas, Inc., a Texas corporation, acting by
and through �`� . L- L�i�1�; A�rdM1� its duly authorized {�r-e s ��i e« r, hereinafter called "Customer," and
hereinafter collectively referred to as the "Parties".
WHEREAS, Fort Worth has provided at its own expense, and now owns, operates and
maintains facilities for processing and distributing a large supply of surface water, and at the present
time, is qualified to furnish and deliver treated water, both within and without the corporate
boundaries of Fort Worth;
WHEREAS, Customer is an investor owned retail water and wastewater utility regulated
by the Texas Commission on Environmental Quality ("TCEQ") and the Texas Public Utility
Commission ("PUC"); and
WHEREAS, TCEQ issued Certificate of Convenience and Necessity ("CCN") No.
11157, to Custoiner authorizin� it to provide retail water service to various service areas within
Denton and Wise Counties, including the property described on Exhibit A, consisting of
approximately 120.271 acres of the Shale Creek development, comprised of Shale Creek, Phase
1(approximately 78.608 acres), Shale Creek, Phase 2A (15.249 acres) and Shale Creek, Phase
2B (approximately 26.414 acres) located north of Highway 114 in Fort Worth's extra-territorial
jurisdiction (the "Property"), hereafter further defined as "Customer's Service Area"; and
WHEREAS, it is deemed to be in the best interest of both Fort Worth and Customer that the
Parties enter into a mutually satisfactory agreement by means of which Customer may obtain from
Fort Worth a supply of treated water at a reasonable rate to serve a maximum of 493 single-family
residences, subject to Fort Worth's right to become the retail water provider to the Property pursuant
to that certain Agreement Concerning Water and Sewer Service to Shale Creek Development dated
�-���,trt n,; I }, .� 1�1 � (City Secretary Contract No. � � �P�_5 );
WHEREAS, by the execution of this Agreement, neither Fort Worth nor Customer will
surrender any of its rights to the ownership and operation of its present water production and
distribution facilities;
WHEREAS, Customer desires to continue to contract for the purchase of treated water and
Fort Worth desires to sell treated water to Customer;
i--==—�— -�
OFFICIAL RECORD
CITY gECRETqRY
�'�'• WORTH, TX I
WHEREAS Customer and Fort Worth desire to provide for reasonable wholesale con�ract
rates for the purchase of treated water sufficient to assure confidence in the financial soundne::s of
the Fort Worth utility, adequate to maintain and support the utility's credit and sufficierat to
enable Fort Worth to raise the money necessary for the proper discharge of its public duties iri the
provision of water service and
WHEREAS, Chapter 552 of the Texas Local Government Code authorizes Fort Worth and
Customer to enter into this Agreement.
NOW, THEREFORE, KNOW ALL BY THESE PRESENTS that for and in consideration
of the mutual covenants, promises and agreements contained herein, Fort Worth and Customer
do hereby covenant and agree as follows:
Table of Contents
ARTICLE1. Definitions ...........................................................................................................5
1.1 Annual Consumption .....................................................................................................5
1.2 Average Daily Use .........................................................................................................5
1.3 Calendar Day .................................................................................................................5
1.4 CapitalIinproveinents ....................................................................................................5
1.5 Chapter 395 ....................................................................................................................5
1.6 Custoiner's Service Area ...............................................................................................5
1.7 Customer System ...........................................................................................................5
1.8 Delivery Facility ............................................................................................................6
1.9 Director ..........................................................................................................................6
1.10 Emergency .....................................................................................................................6
1.11 Equivalent Meters or EM ..............................................................................................6
1.12 Facility Expansion .........................................................................................................6
1.13 Fiscal Year .....................................................................................................................6
1.14 Fort Worth .....................................................................................................................6
1.15 Fort Worth System .........................................................................................................6
1.16 Impact Fee .....................................................................................................................6
1.17 Maxiinum Day Demand ................................................................................................6
1.18 Maximum Hour Demand ...............................................................................................6
1.19 MG and MGD ................................................................................................................6
1.20 Parties ............................................................................................................................6
1.21 Rate of Use Charge ........................................................................................................6
1.22 Raw Water Charge .........................................................................................................7
1.23 Return Water ..................................................................................................................7
1.24 Service Charge ...............................................................................................................7
1.25 Street Rental ..................................................................................................................7
1.26 Stand-by Charge ............................................................................................................7
1.27 Systein Cost ...................................................................................................................7
1.28 TCEQ .............................................................................................................................7
1.29 Treatment, Pumping and Transmission Charge ............................................................7
Agreement far Water Service 2
1.30 Volume Charge ..............................................................................................................7
ARTICLE2. Delivery of Water ................................................................................................7
2.1 Delivery .........................................................................................................................7
2.2 Acceptance and Payment ...............................................................................................8
2.3 Operations ......................................................................................................................8
2.4 Raw Water Contract ...................................?..................................................................8
2.5 Water Use Restrictions and Conservation .....................................................................8
2.6 Requirements of 30 Tex. Admin. Code Chapter 288 ....................................................9
2.7 Consultation with WCAC ..............................................................................................9
ARTICLE 3. Location and Maintenance of Measuring Devices ................................................9
3.1 Metered Water ............................................................................................................... 9
3.2 Point(s) of Delivery .....................................................................................................10
3.3 New or Additional Connections Prohibited ................................................................10
3.4 Check Meter ................................................................................................................10
ARTICLE4. Meters ................................................................................................................10
4.1 Testing .........................................................................................................................10
4.2 Corrections ...................................................................................................................10
4.3 Requested Testing ........................................................................................................11
4.4 Out of Service Meter ...................................................................................................11
ARTICLE 5. Meter Reading and Billing .................................................................................. l 1
5.1 Reading Meters ............................................................................................................1 l
5.2 Records ........................................................................................................................11
5.3 DELETED ...................................................................................................................11
5.4 October Billing ............................................................................................................11
5.5 Billing and Payment ....................................................................................................12
5.6 Billing Disputes ...........................................................................................................12
ARTICLE6. Rates ..................................................................................................................12
6.1 Method of Rate Determination . ...................................................................................12
6.2 Rates to be Used . .........................................................................................................13
ARTICLE 7. Payment for Water .............................................................................................14
7.1 Annual Payment ..........................................................................................................14
7.2 Withdrawal Rate ...........................................................................................................15
7.3 Monthly Payments .......................................................................................................15
7.4 Total Annual Payments ...............................................................................................16
7.5 Rate of Use Charge .......................................................................................................16
7.6 Applicability of Stand-by Charge .................................................................................16
ARTICLE8. Effective Date ....................................................................................................17
ARTICLE9. Term ...................................................................................................................17
ARTICLE10. Rights-of-Way ....................................................................................................17
ARTICLE 11. TCEQ Public Water Supply Approval ................................................................18
ARTICLE 12. Resale of Water ..................................................................................................18
12.1 Outside Service Area .........................................:.........................................................18
12.2 Exceptions ...................................................................................................................18
ARTICLE 13. Sanitary Sewer Facilities ....................................................................................18
ARTICLE 14. Additional Wholesale Customers ........................................................................18
ARTICLE 15. Wholesale Customer Advisory Committee .........................................................19
Agreement for Water Serviee 3
ARTICLE16. Impact Fees ........................................................................................................19
16.1 Calculation and Payment of Impact Fees ....................................................................19
16.2 DELETED ...................................................................................................................19
16.3 Use of Iinpact Fees ......................................................................................................19
16.4 Impact Fee Report .......................................................................................:...............20
16.5 No Waiver ....................................................................................................................20
16.6 CIFC ............................................................................................................................20
16.7 Capital Improvements Plan .........................................................................................20
16.8 Dissemination of Documents .......................................................................................20
16.9 Audited Financial Statement .......................................................................................21
16.10 Current Impact Fees .....................................................................................................21
16.11 Changes to Chapter 395 ...............................................................................................21
ARTICLE 17. Breach, Termination and Other Remedies ..........................................................21
17.1 Termination by Mutual Consent ..................................................................................21
17.2 Termination for Material Breach .................................................................................21
17.3 Termination for Repeated Breach ................................................................................21
17.4 Material Breach ...........................................................................................................22
17.5 Notice and Cure ...........................................................................................................22
17.6 Notice and Cure for Nonpayment of Impact Fees .......................................................22
17.7 Notice and Cure for Breach of Water Use Restrictions and Conservation .................22
17.8 Failure to Provide Notice of Withdrawal Rate under § 7.2 .........................................22
17.9 Effect of Termination ..................................................................................................23
17.10 No Waiver by Fort Worth ............................................................................................23
17.11 No Waiver by Customer ..............................................................................................23
ARTICLE 18. Ownership and Liability .....................................................................................23
18.1 No Joint Venture ..........................................................................................................23
18.2 Liabilities .....................................................................................................................23
18.3 Contractors .............................................................................................. :....................24
ARTICLE19. Force Majeure ....................................................................................................24
19.1 Notice and Suspension .................................................................................................24
19.2 Definition .....................................................................................................................24
ARTICLE20. Notices ...............................................................................................................24
20.1 Required Notice ...........................................................................................................24
20.2 Delivery and Receipt ...................................................................................................25
20.3 Change of Address Notices .........................................................................................25
ARTICLE 21. Inspection and Audit ...........................................................................................25
ARTICLE22. Miscellaneous .....................................................................................................25
22.1 Favored Nations ...........................................................................................................25
22.2 Suspension of Rate of Use Charges ...........:..................................................................25
22.3 Water to Adjacent Areas ..............................................................................................26
22.4 Subject to Laws and Permits .......................................................................................26
22.5 Entry on Customer's Premises ....................................................................................26
22.6 Alternative Dispute Resolution ...................................................................................26
22.7 Information ..................................................................................................................27
22.8 Assignment ..................................................................................................................27
22.9 No Waiver ....................................................................................................................27
Agreement for Water Service 4
22.10
22.11
??,1?
22.13
22.14
22.15
22.16
�ENUE ..........................................................................................................................2g
Construction.................................................................................................................28
Severability..................................................................................................................28
Useof Return Water ....................................................................................................28
SystemRegulatory Actions .........................................................................................28
Additional Contract Terms ..........................................................................................28
Exhibits........................................................................................................................28
ARTICLE 1. Definitions
The following definitions, when capitalized, apply throughout this Agreement:
1.1 Annual Consumption. The total quantity of water purchased under the terms of this
Agreement by Customer during the Fiscal Year as determined by the difference in the annual
October meter readings.
1.2 Average Daily Use. The Annual Consumption divided by the number of calendar
days in the Fiscal Year.
1.3 Calendar Day. The period from midnight of one day to 11:59 PM of the next day.
1.4 Capital Improvements. Any of the following facilities which provide utility services
and benefits common to all customers (both retail and wholesale) and that have a life expectancy
of three (3) or more years, whether such improvements are located within the jurisdictional limits
(including the extra-territorial jurisdiction) of Fort Worth or Customer, and consisting of: water
treatment facilities; inetering facilities; control systems and appurtenances; storage facilities;
puinping facilities; and all mains that are sixteen inches (16") and greater in diameter. Capital
Improvements include the initial construction or the expansion of such facilities, as necessary to
serve new developinent.
1.5 Chapter 395. Chapter 395 of the Texas Local Government Code, as it may be
amended or re-codified from time to time.
1.6 Custoiner's Service Area. A portion of Customer's CCN No. 11157 as described
and shown on Exhibit A, consistin� of approximately 120.271 acres of the Shale Creek
development, comprised of Shale Creek, Phase 1(approximately 78.608 acres), Shale Creek,
Phase 2A (15.249 acres) and Shale Creek, Phase 2B (approximately 26.414 acres) located north
of Highway 114 in Fort Worth's extra-territorial jurisdiction, up to a m�imum of 493 single-
family connections.
1.7 Customer System. All necessary Customer mains and distribution facilities on the
Customer's side of the meter from and beyond the point of delivery of treated water by Fort
Worth.
Agreement for Water Service 5
1.8 Delivery Facility. Any facility necessary for the transmission of water from the Fort
Worth System that is on the Customer's side of the point of delivery that is constructed
specifically to allow Fort Worth to serve Customer.
1.9 Director. The Director of Fort Worth Water Department or his designee.
1.10 Emergency. A situation, event or condition created by unforeseeable mechanical
failure, unprecedented high rate of treated water usage (such as might result from a major fire or
a major water main break) or circumstances beyond the Party's reasonable control.
1.11 Equivalent Meters or EM. A means of relating a laxge-use customer with a base
(residential) use customer. Fort Worth Water Department uses 5/8 x 3/a inch meter capacity as an
EM. The ratio of larger meter's capacity to the 5/8 x'/4 inch meter capacity is the number of
EMs for each meter size.
1.12 Facility Expansion. The expansion of the capacity of an existing facility that serves
the same function as an otherwise necessary new capital improvement, in order that the existing
facility inay serve new development. The term does not include the repair, maintenance,
modernization, or an expansion of an existing facility to better serve existing development.
1.13 Fiscal Year. The fiscal year of Fort Worth, which is from October lst through
September 30th.
1.14 Fort Worth. The City of Fort Worth, acting by and through its duly authorized
Assistant City Manager, who may delegate to ihe Director.
1.15 Fort Worth System. The Fort Worth water treatment and distribution system.
1.16 Iinpact Fee. A capital contribution funding or recouping the cost of Capital
Iinprovements necessitated by and attributable to new development, subject to and as provided in
Article 16.
1.17 Maximum Day Demand. The maximum quantity of water used by Customer during
one calendar day of the Fiscal Year.
1.18 Maximum Hour Demand. The quantity of water used by Customer during the one
hour of the Fiscal Year that more waier passed through the meter or meters serving the Customer
than during any other hour of the Fiscal Year, multiplied by 24 hours and expressed as MGD.
1.19 MG and MGD. MG is million gallons; MGD is million gallons per day.
1.20 Parties. Fort Worth and the Customer, or each individually.
1.21 Rate of Use Char�e. The charge for Maximum Day Demand in excess of Average
Daily Use and for Maximum Hour Demand in excess of Maximum Day Demand, as provided in
§ 7.5 and Exhibit C.
Abreement for Water Service 6
1.22 Raw Water Char�e. The rate for 1,000 gallons charged by the Tarrant Regional Water
District to Fort Worth for raw water to be sold to the Customer plus four percent (4%),
representing Fort Worth systein losses of four percent (4%).
1.23 Return Water. All water thai is returned to Fort Worth via discharge into Fort Worth's
wastewater system for treatment by Fort Worth's Village Creek Wastewater Treatment Plant or
another wastewater treatment plant that is owned or operated (directly or through contract) by
Fort Worth.
1.24 Service Char�e. A fixed monthly charge per wholesale meter, as set forth in the
annual cost-of-service rate study, designed to inelude a portion of Fort Worth Water
Department's cost for wholesale customer billin� and accounting.
1.25 Street Rental. The Street Rental charged to the wholesale customers of the Fort Worth
System is intended to be compensation for use of public rights-of-way. The Street Rental is
established at five percent (5%)of the revenue requirements, excluding Payment in Lieu of Taxes
(PILOT). The Street Rental can not be decreased without the consent of Fort Worth in its sole
discretion and, in the event of an increase, can only be increased in one percent (1%) increments
once every five (5) years startin� on the anniversary date of this Agreement in 2016, and shall
never exceed the rate being collected from the natural gas franchised utility serving the City of
Fort Worth or the rate collected from the retail water customers of Fort Worth, whichever is less.
1.26 Stand-by Char�e. The fee set forth in § 7.1.3 and Exhibit B. The Stand-by charge is
intended to allow a wholesale customer to rely on the Fort Worth System for stand-by delivery of
water for the Customer's Emergency use only, as provided in §'7.6.
1.27 Svstem Cost. System Cost, as provided in § 6.1.2.
1.28 TCE . The Texas Commission on Environmental Quality or its successor agency.
1.29 "I'reatment Puinpin� and Transmission Char�e. The rate, per 1,000 gallons used,
regardless of rate of use, as determined by the annual cost-of-service rate study, and which shall
include the maintenance and operation costs, and the capital facilities cost on the part of the
production and transmission system related to annual use.
1.30 Volume Char�e. The combined total of the Treatmeni, Pumping and Transmission
Charge plus the Raw Water Charge in effect for the current Fiscal Year.
ARTICLE 2. Delivery of Water
2.1 Delivery. Fort Worth agrees, subject to the amount of raw and treated waier available
to Fort Worth, to furnish and sell to Customer treated water of potable quality meeting all
applicable governmental standards, delivered under the normal operating pressure prevailing in
the Fort Worth System at the Customer point or points of delivery mutually agreed upon, without
guarantee of a specific ininimum pressure, to serve a maximum of 493 single-family
connections in Customer's Service Area. In no event will Fort Worth sell treated water to
Customer to serve any customer outside Customer's Service Area or to serve more than 493
Agreeinent for Water Service 7
connections within Customer's Service Area. Mutually agreed point of delivery on the Effective
Daie is shown on Exhibit A.
2.2 Acceptance and Pa,yment. Customer agrees to accept delivery of and to pay for the
water in accordance with the terms and conditions of this Agreement. Customer understands and
acknowledges that Customer is responsible for maintaining water pressure in the Customer's
System, and that maintaining a certain water delivery pressure requires use of storage or pumps
on Customer's System.
2.3 Operations. Fort Worth is entitled at any and all times to install, repair, maintain, and
replace any equipment or devices in the Fort Worth System. In an Emergency, Fort Worth may
take necessary action (including reduction or cessation of water service to Customer) as
necessary or appropriate to allow Fort Worth at all times to maintain a minimum pressure as
required by law at all retail service locations directly served by Fort Worth, and Fort Worth is
excused from the requirements of § 2.1 to the extent caused by an Emergency or by Force
Majeure or Fort Worth's reasonable efforts to respond to such conditions. In the event of such
service interruptions, Fort Worth shall make every reasonable effort to expedite the restoration of
service in a timely inanner, and shall not unreasonably interrupt, withhold or delay service to
Customer.
2.4 Raw Water Contract. Tn accordance with the terms of Fort Worth City Secretary
Contract No. 12720 between Fort Worth, the City of Arlington, the City of Mansfield, Trinity
River Authority, and the Tarrant Regional Water District, this Agreement shall be deemed
subordinate in all respects to the water requirements of the above contracting Parties as specified
in Section 3 of that contract.
2.5 Water Use Restrictions and Conservation.
2.5.1 If Fort Worth in any way restricts, rations or conserves the use of water
throughout its CCN during an Emergency declared by the Director, then within 24
hours of bein� notified of the action of Fort Worth, Customer shall institute and
apply the same restrictions and/or measures as to the use of the water by the
eustomers of Customer.
2.5.2 If Fort Worth in any way restricts, rations or conserves the use of water
throughout its CCN as authorized by the then �'ort Worth City Council and
adopted by ordinance, then Customer agrees to institute, apply and enforce the
same rationing, conservation measures, or restrictions to the use of water by the
customers of Customer for so long as any part of the total water supply of the
Customer is being furnished by Fort Worth. Customer shall submit to Fort
Worth, within sixty (60) days of the action taken by the City Council of Fort
Worth, a eopy of the Customer's city council and/or governing board resolution
and/or ordinance adopting the same measures as Fort Worth.
2.5.3 If Customer fails to comply with its obligations under this § 2.5 then, in addition
to the reinedies available under Article 17, Fort Worth may install or adjust any
rate of flow controllers necessary to physically achieve compliance, regardless of
Agreement for Water Service
whether the rate of flow controller to be installed or adjusted is on Fort Worth's or
Customer's side of the meter.
2.6 Requirements of 30 Tex. Admin. Code Chapter 288 ("Ch. 288")
2.6.1 As required by 30 Tex. Admin. Code � 288.5(1)(G), this Agreement requires
Customer to develop and implement a water conservation plan or water
conservation measures using the applicable elements of Tex. Admin Code Ch.
288.
2.6.2 As required by 30 Tex. Admin. Code § 288.22(a)(8), this Agreement requires
that, in case of a shortage of water resulting from drought, the water to be
distributed shall be divided in accordance with Texas Water Code § 11.039.
2.6.3 To the extent that Customer fails to comply with § 2.5 above or meet any
additional requirements under 30 Tex. Admin. Code Chapter 288, Customer
agrees to implement and compiy with Fort Worth's water conservation plans and
measures and drought contingency plan until the Customer's own plans and
measures are brought into compliance.
2.7 Consultation with WCAC. Except when the Director determines that emergency
conditions require short-term restriction, conservation or rationing to meet all necessary water
demands, Fort Worth a;rees to consult with the Wholesale Customer Advisory Committee, in
the development of any restriction, conservation, rationing, or drought contingency plans that the
Director deternlines inay be necessary to address operational constraints, whether or not required
by any state or federal regulatory agency, or deemed advisable by the Wholesale Customer
Advisory Committee to manage long term System Costs, except where emergency conditions
may dictate short-term restriction, conservation or rationing requirements as may be determined
by the Director to ineet all necessary water demands.
ARTICLE 3. Location and Maintenance of Measurin� Devices
3.1 Metered Water. All water furnished under this Agreement by Fort Worth shall be
measured by one suitable meter equipped wiih continuous flow, chart recording devices, and
teleinetering equipment connected with the Fort Worth control center. Notwithstanding any
provision of this Agreement to the contrary, including without limitation references to "meters",
only one ineter connecting the Customer's Area to the Fort Worth System shall be permitted. All
ineters, recording devices, telemetering equipment and appurtenances (including any flow
control equipment required by § 7.2) shall be approved and installed by Fort Worth. Customer
shall pay for the meter vault and all metering equipment, including telemetering equipment to the
Fort Worth control center, and appurtenances, plus the installation cost thereof. Fort Worth shall
pay all costs associated with the operation and maintenance of said equipment and shall pay for
the replacement of said equipment as necessary. Such costs, as well as charges for the telelink
line and microwave transinitter and the power to operate same, shall be a System Cost.
Agreement for Water Service
3.2 Point(s) of DeliverX. The point of delivery of treated water by Fort Worth shall be the
meter vault connection to Customer's side of the meter, and all necessary mains and distribution
facilities from and beyond that point shall be the responsibility of Customer. The location of
each meter shall be mutually agreed upon in writing by and between the Parties and the meter or
meters shall not be moved or relocated except by mutual consent in writing by the Parties. The
Fort Worth System shall connect to an existing ground storage tank owned by Customer within
the Customer's Service Area.
3.3 Cost of Connection; Additional Connections Prohibited. Customer shall pay the cost
of the connection to the Fort Worth System described in Section 3.2, including the cost of the
wholesale meter and the Customer's proportionate share of any improvements required for that
connection or related service to be provided at the delivery point. The Customer's cost shall be
calculated in the same manner as the "developer's cost" for special facilities, including pipelines
under Fort Worth's then-existing Water and Wastewater Installation Policy, as determined by the
Director. The Custoiner will pay that amount to Fort Worth before making the connection to the
Fort Worth Systein, and the amount shall not be a System Cost. No other Customer connection
to the Fort Worth System shall be permitted.
3.4 Check Meter. Either Party, at its own expense, may install a check meter to eheck or
ineasure the volume of water passing the master meter, provided that, if such check meter is
installed, the same rules and regulations relative to its operation, maintenance and reading shall
apply as to the master ineter being tested.
ARTICLE 4. Meters
4.1 Testin . Fort Worth shall routinely test for accuracy, and service and calibrate if
necessary, the master meter at the point of delivery no less than once during each twelve (12)
inonth period. Copies of the results of such calibration and all related information shall be
provided to Custoiner. Customer shall have access to the metering facilities at all reasonable
times; provided, however, that any reading, calibration or adjustment to such metering
equipinent shall be done by employees or agents of Fort Worth, or other mutually approved third
party calibration agent, in the presence of representatives of Customer and Fort Worth, if so
requested by Customer. Notiiication of any proposed test shall be provided to the Customer at
least seventy-two (72) hours prior to such test being conducted and Customer may observe such
test, if so desired.
4.2 Corrections. Upon any calibration of a Wholesale Customer's meter, if it is
determined that the accuracy envelope of such meter is found to be lower than ninety-five
percent (95%) or higher than one-hundred-five percent (105%) expressed as a percentage of the
full scale of the ineter, the registration of the flow as determined by such defective meter shall be
corrected for a period extending back to the time sueh inaccuraey began, if such time is
ascertainable; or, if such time is not ascertainable, then for a period extending back one-half (1/2)
of the time elapsed since the date of the last calibration, but in no event further back than a
period of six (6) inonths. The meter will be properly sealed, and the seals shall not be broken
unless representatives of both Parties have been notified and given a reasonable opportunity to be
present. If the meter, after testing, is found to be in error outside the parameters established in
Agreement for Water Service 10
this Agreement, the amounts due to or due from Fort Worth shall be determined based upon the
prevailing wholesale rates which were in effect at the time the meter was determined to be
inalfunctioning. The amount due to or due from Fort Worth shall be payable within thirty (30)
days from the date of receipt of the invoice for said amounts by Fort Worth or by Customer, In
addition, the Wholesale Customer's volume and rate of use records shall be corrected, as
determined by the meter testing.
4.3 Requested Testin�. Customer shall have the right to request Fort Worth to test the
meter, but no more frequently than quarterly. Upon any such request, Fort Worth agrees to
perform its testing and calibration of the meter with notice to Customer, and the Parties shall be
entitled to jointly observe any testing, calibration, and adjustments that are made to the meter, in
the event such modifications are necessary. For such additional testing request, Fort Worth shall
give Customer notice forty-eight (48) hours in advance of the time when that testing will occur.
Customer shall pay the cost of the additional test requested for the meter if the test shows that
the meter is accurate (within five percent (5%) registration), but Fort Worth shall pay the costs of
the additional test if the results indicate that the meter is not accurate (in excess of five percent
(5%) registration).
4.4 Out of Service Meter. If any meter used to determine the flow of treated water to
Custoiner is out of service or out of repair so that the amount of water metered cannot be
ascertained or computed from reading the meter, then the water delivered during the period that
the meter is out-of-service or out of repair shall be estimated and agreed upon by the Parties
upon the basis of the best data available. The basis for estimating such flow includes, but is not
limited to, extrapolation of past patterns of flow for that metering station under similar
conditions. If the Parties cannot agree on the extrapolated estimate of water volume delivered,
then agreement on the flow volume will be determined by § 22.6 dispute resolution.
ARTICLE 5. Meter Reading and Billin�
5.1 Reading Meters. Fort Worth will read the meier provided for herein at monthly
intervals, and the Parties shall have free access to read these respective meters daily, if either
Party so desires. Each Party has the duty to give immediate notice to the other if it finds the
meter is not functioning properly. Upon such notice, repairs to such meter shall be made
promptly.
5.2 Records. All readings of the ineter will be entered into the records maintained by Fort
Worth. Customer shall have access to such records during reasonable business hours and shall
be furnished with monthly readings for each point of delivery metering facility.
5.3 DELETED..
5.4 October Billin�. A review of water usage amounts by Customer for the past twelve
(12) months shall be made during the presentation of the October bill each year. The October
statements shall be prepared so as to reflect any and all Rate of Use Charges for the Fiscal Year
just ended which have not been previously billed and paid. A copy of the rate of flow charts or
other records showing the Maximum Day Demand and the Maximum Hour Demand for the
Fiscal Year just ended shall be furnished to Customer with the October billing.
Agreement for Water Service 11
5.5 Billing and Payment. Bills for water service shall be rendered to Customer monthly
by Fort Worth, and shail be due and payable by Customer not more than thirty (30) days from
the billing date. The bills will slzow current charges, as well as past-due charges, if any. Past-
due charges shall be the total ainount unpaid from all prior billings as of the current billing date.
Payments received by Fort Worth shall first be applied to the past-due charges, if any, and
thereafter to the current charges.
5.6 Billing Disputes. If Customer disputes a bill and is unable to resolve the difference
informally, Customer shall notify the Director in writing. If the Director and Customer are
unabie to resolve the disputed bill, agreement on the bill will be determined by § 22.6 dispute
resolution procedures. Dispute of a bill shall not be grounds for non-payment. If a bill or other
payment is not paid as specified in this Agreement, a finance charge of ten percent (10%) per
annum will be calculated from the date which the payment was required to be made. If a billing
adjustinent is agreed upon or otherwise established by dispute resolution, then the amount found
to be incorrect will be credited to Customer's account together with an interest charge of ten
percent (10%) per annum calculated from the date payment of the disputed bill was received.
ARTICLE 6. Rates
6.1 Method of Rate Determination.
6.1.1 Wholesale water rates will be based upon an annual cost-of-service rate study
with a rate study conducted every three years by an independent utility rate
consultant as provided for in § 6.1.4. The independent utility rate consultant shall
be selected by the Director from a list of five qualified iirms submitted to the
Director by the Wholesale Customer Advisory Committee. The cost of any such
study shall be a System Cost. All cost-of-service studies shall be conducted
utilizing the utility cost basis of determining revenue requirements applicable to
the wholesale customer class.
6.1.2 The System Cost (i.e., the cost-of-service for the wholesale class) shall include
allocated reasonable and necessary operation and maintenance expense;
depreciation expense; a fair and reasonable return on allocated capital facilities as
provided in § 6.1.3; general and administrative costs; commodity char�es
including the Raw Water Charge; the cost of treated water; transmission losses;
Street Rental (calculated as provided in § 1.25); and Payment In Lieu of Taxes
("PILOT" calculated as provided in Exhibit D). To determine the allocation and
distribution of costs to the wholesale customer class, the independent utility rate
consultant shall consider at least the following factors: total volume, rate of flow,
metering, and customer related costs such as accounting, billing, and monitoring.
Capital related costs will consist of depreciation expense and return on original
cost rate base. The "rate base" shall consist of all allocated capital facilities, net
of depreciation and contributions, and shall include construction work in progress,
a reasonable allowance for working capital, and a reasonable inventory of
materials and supplies necessary for the efficient operation of the Fort Worth
System. The methodology shall be that used in the most recent wholesale water
Agreement for Water Service 12
rate study completed and approved by the Fort Worth City Council before the
Effective Date, which Customer acknowledges having received prior to executing
this Agreement. Records of the original cost and the accumulated depreciation of
all capital facilities shall be maintained in the Fort Worth Fixed Asset Tracking
System. These records shall be available for inspection at the Fort Worth Water
Department during reasonable business hours upon request by Customer.
6.1.3 Fort Worth shall be allowed to eaxn and recover in raies a rate-of-return on the
rate base as described in § 6.1.2. That rate of return shall be equal to the weighted
average imbedded cost of outstanding debt plus one and one-half percent
(1-1/2%). The parties agree that this rate of return is reasonable.
6.1.4 For the Fiscal Years beginning October 1, 2011, 2014, 2017, 2020, 2023, 2026
and 2029, a detailed wholesale water rate study will be.performed by an
independent utility rate consultant selected by the Director in conformance with §
6.1.1. The same methodology used in the immediate previous rate study will be
utilized by ihe rate consultant so selected, In the interim Fiscal Yeaxs between
detailed rate studies, Fort Worth will adjust wholesale water rates annually, using
the same methodology as the last detailed rate study, and will utilize the actual
operating data for the twelve (12) month period ending September 30`h of the
prior year, adjusted for all known and measurable changes in cost data that may
have occurred since the last audited financial statement. Such adjustments should
allow for year-end trending and the spreading of non-recurring expenses over an
appropriate benefit period.
6.1.5 Changes in the wholesale water rate methodology will be allowed if
recommended by a majority vote of the Wholesale Customer Advisory
Committee and approved by the Fort Worth City Council. For purposes of this
§ 6.1.5, a inajority is defined as any combination of Fort Worth wholesale
customers that took more than fifty percent (50%) of the wholesale water
delivered by Fort Worth during the immediate past Fiscal Year.
6.2 Rates to be Used.
6.2.1 The rates and charges to be effective upon approval of this Agreement shall be
those calculated by the most recent cost of service study and adopted by the Fort
Worth City Council to take effect during the current Fiscal Year.
6.2.2 The Raw Water Charge shall be increased or decreased when the raw water cost
paid by Fort Worth for water available for treatment and sale to Customer is
increased or decreased as determined by the Tarrant Regional Water District in
aecordance with Fort Worth City Secretary Contraet No. 12720.
6.2.3 The Parties agree that services obtained pursuant to this Agreement are essential
and necessary to the operation of Customer's waterworks facilities and that all
payments made by Customer hereunder shall constitute reasonable and necessary
operating expenses of Customer's waterworks and wastewater systems within the
Agreement for Water Service 13
meaning of � 1502.056 of the Texas Government Code, and the provisions of any
and all ordinances of Customer authorizing the issuance of any revenue bonds of
Customer which are payable from its waterworks and wastewater systems.
6.2.4 Customer agrees, throughout the term of this Agreement, to fix and collect such
rates and charges for water service to be supplied as will produee revenues in an
amount equal to at least (i) all of operation and maintenance expenses of such
system, including specifically its payments under this Agreement; and (ii) all
other amounts as required by law and the provisions of the ordinances or
resoluiions authorizing its revenue bonds or other obligations now or hereafter
outstanding, including the amounts required to pay all principal of and interest on
such bonds and other obligations.
6.2.5 Customer understands that Fort Worth City Council has the right to annually
revise the rates charged to cover all reasonable, actual, and expected costs.
Revision of rates shall be pursuant to the provisions set forth in this Agreement.
Fort Worth shall give Customer a minimum of six (6) months notice of intent to
revise rates. Fort Worth will furnish members of the Wholesale Customer
Advisory Committee a draft copy of the cost-of-serviee study of the proposed
rates sixty (60) days prior to Fort Worth submitting a rate increase request to its
City Council. Within thirty (30) days of receiving the draft study, the Wholesale
Customer Advisory Committee will submit its written comments on the draft
study to Fort Worth, and Fort Worth will respond to these comments as soon
thereafter as possible. If the Wholesale Customer Advisory Committee has not
provided its written comments within said period, the Wholesale Customer
Advisory Coinmittee is deemed to have accepted the proposed rates contained in
the draft study, and Customer agrees that it will be bound by the rates as approved
by the Fort Worth City Council. The rates approved by the Fort Worth City
Council shall be the rates to be used in this Agreement for the succeeding Fiscal
Year.
ARTICLE 7. Pavment for Water
Payment of charges to Fort Worth for water used by Customer shall be made as follows:
7.1 Annual Pa�ment. The annual payment will be the charges computed based on all
water delivered by Fort Worth to Customer during the current Fiscal Year at rates set pursuant to
this Agreement. For purposes of calculating the annual payment, the current year will be the
Fiscal Year during which the water usage occurred. However, the minimum annual payment
will be the greater of the following:
7.1.1 the current Fiscal Year Volume Charge times the current Fiscal Yeax Annual
Consumption, plus the Service Charge, plus the current Fiscal Year Rate of Use
Charges (Exhibit C, Example 1); or
7.1.2 the current Fiscal Year Voluine Charge times the current Fiscal Year Annual
Consumption, plus the Service Charge, plus the current Fiscal Year Rate of Use
Agreement for Water Service 14
Charges applied to the average of the Maximum Day Demand above Average
Daily Use and the average of the Maximum Hour Demand above Maximum Day
Deinand for the most recently completed three (3) Fiscal Years (to include the
current Fiscal Year) (Exhibit C, Example 2); or
7.1.3 if applicable to Customer, a Stand-by Charge equal to:
(a) twelve (12) months;
(b) times the total number of EM units for the Customer's wholesale
meter connected to the System;
(c) times 28,800 gallons per day;
(d) times a dollar amount equal to a three (3) year numerical average
of the Treatment, Pumping and Transmission Charge per 1,000
gallons, using the Treatment, Pumping and Transmission Charge
from most recent annual cost-of-service rate study performed by
the independent utility rate consultant as provided in § 6.1.4 and
the two years prior to the year of that study. This dollar average
wili remain in effect for purposes of calculating this § 7.1.3 Stand-
by Charge until the next cost-of-service rate study is performed by
an independent utility rate consultant as provided in § 6.1.4.
Exhibit B presents an exainple calculation of the Stand-by Charge.
7.2 Withdrawal Rate. The rate at which water is withdrawn from the Fort Worth System
by Customer shall be regulated by rate-of-flow controllers, pumps, or other approved methods.
The rate of withdrawal shall be controlled so that the maximum rate shall not exceed 1.35 times
the Maximum Day Demand experienced during the previous year unless Customer has notified
the Director at least (6) months before the date of the anticipated increase in the Maximum Day
Demand; provided, however that in an Emergency such as a line break, Customer shall advise
the Director within 24 hours of the increase in the maximum rate of withdrawal. Customer shall
furnish the Director with all pertinent information regarding the proposed increase in maximum
rate of withdrawal. The Director may waive the notice requirement if, in his sole opinion, that
notice is not necessary to protect the interests of Fort Worth.
7.3 Monthly 1'ayments. The monthly payment will be the sum of (a) plus (b) plus (c):
(a) the greater of:
(i) one-twelfth (1/12) of the ainount calculated in § 7.1, or
(ii) the Volume Charge times the actual volume of water taken that month;
(b) one-twelfth (1/12) of the sum of the annual Rate of Use Charges, determined as
provided in § 7.5 and Exhibit C; and
(c) one-twelfth (1/12) of the sum of the Fiscal Year Serviee Charge.
Agreement for Water Service 15
7.4 Total Annual Pa,�ments. The total annual payment for water delivered to Customer
shall be based on the annual and peak volumes delivered to Customer during the Fiscal Year, as
deterrnined by the meter, flow recording devices or other approved methods, and calculated as
provided in the annual payment provisions set forth above and in Exhibits B and C. The
October monthly payment for September's usage shall contain any adjustments necessary to
update the Rate of Use Charge calculations as necessary to recover the Annual Payment for the
Customer's actual withdrawals from the Fort Worth System (including Rate of Use Charges for
Maximum Hour and Maximum Day Demands) for the Fiscal Year just ended, during which the
water usage occurred. Exhibit C provides examples of the Annual Bill Calculation.
7.5 Rate of Use Char�e. As provided in §§ 7.1, 7.3 and 7.4 and shown in Exhibit C,
Monthly Payments and the Annual Payment shall include Rate of Use Charges, unless the Stand-
by Charge applies. The Rate of Use Charges consist of:
(a) Maximum Day Rate of Use Charge, calculated by multiplying the "Excess Max Day
Charge" per MGD from the annual cost-of-service rate study, times the Maximum Day
Demand (in MGD) in excess of Average Daily Use (in MGD); and
(b) Maximum Hour Rate of Use Charge, calculated by multiplying the "Excess Max
Hour Charge" per MGD from the annual cost-of-service rate study, times the Maximum
Hour Deinand (expressed as MGD) in excess of Maximum Day Demand (in MGD).
Exhibit C presents example Rate of Use Charge calculations. Rate of Use Chaxges are estimated
by applying the current Fiscal Year Excess Max Day and Excess Max Hour Charges to the prior
Fiscal Year's Maximum Day Demand, Maximum Hour Demand and Average Daily Use in the
October tl-u�ough September bills, with adjustments in the October bill as necessary to recover the
Annual Payment based on the Customer's actual withdrawals (including Rate of Use Charges for
Maximum I�our and Maximum Day Demands) for the Fiscal Year just ended, during which the
water usage occurred.
7.6 Applicability of Stand-by Char�e. Customer is subjeet to the Stand-by Charge if the
amount of the Stand-by Charge is the greater of the Annual Payment options listed in §'1.1.
Customer is a Stand-by Customer if it receives water from the System for Emergency use only,
and the Director has approved that use. A Stand-by Cusiomer's obligations under this
Agreement include the requirements of § 3.1 for the location, approval and installation of ineiers.
By execution of this Agreement and approval of the Stand-by service meter, Fort Worth agrees
to provide the wholesale Emergency service through the approved meter to the Stand-by
Customer, subject to the terms of this A�reement; however, notwithstanding § 2.1, delivery of
water to a Stand-by Customer is subordinate to Fort Worth's other delivery obligations. Further,
this Agreement does not grant or imply that the Standby Customer has reserved any water
service, capacity or delivery from the System, other than for Emergency use as provided in this
� 7.6. Any change in the Stand-by Customer's use from Ernergency to non-Emergency must be
approved in writing by the Director. Unless otherwise agreed in writing by Customer and
Director, the Stand-by Customer is not required to pay the Impact Fees required by Article 16
until it requests or takes deliveries of water from the System that exceed the approved
Emergency use.
Agreement for Water Service 16
ARTICLE 8. Effective Date
The effective date and time of this Agreement for all purposes is 12:01 a.m. on the day
after tinal inspection and acceptance by the City of the Off-Site Water Main that is the subject of
that certain Water Infrastructure Agreement between Fort Worth, Brookfield Acquisitions, L.P.,
South Denton County Water Control and Improvement District No. 1, CTMGT Alpha Ranch,
LLC, CTMGT AR II, LLC, Alpha Ranch Water Control and Improvement District, Shale 114,
L.P., and North Fort Worth Water Control and Improvement District No. 1 of Denton and Wise
County effective 4�� �titr� �� �j}�City Secretary Contract No. ��(�'�- ). If the Off-Site
Water Main is not accepted y�Fort Worth within ten (10) years after this Agreement is executed
by Fort Worth and Customer, this Agreement shall automatically be void and without further
force and effect, without any further action by Fort Worth or Customer.
ARTICLE 9. Term
This Agreement expires on September 30, 2031, unless terminated earlier in accordance
with this Agreement; provided, however, at Customer's request, Fort Worth shall, prior to
Septeinber 30, 2031, enter into a new wholesale water agreement with Customer on the same
terins offered to Fort Worth's other inunicipal whole customers, with an expiration date of
September 30, 2033 (the "New Water Agreement"). The purpose of the New Water Agreement
is to enable Customer to continue to serve Customer's Service Area while Fort Worth
determines whether to exercise the option to obtain Customer's certificate of convenience and
necessity rights for Customer's Service Area pursuant to that certain Agreement Concerning
Water and Sewer Service to Shale Creek Development between Fort Worth, Customer and
North Fort Worth Water Control and Improvement District No. 1 of Denton and Wise Counties
(City Secretary Contract No �4�). If Fort Worth does not exercise such option by
September 30, 2033, Fort Worth will extend the New Water Agreement to provide the same
termination date as Fort Worth's standard municipal wholesale water agreements, provided,
however, by extending the New Water Agreement Fort Worth will not waive any rights to obtain
Customer's certificate and convenience and necessity rights for Customer's Service Area during
the terin of such agreement. In addition, this Agreement may be renewed on terms mutually
agreeable to the Parties.
ARTICLE 10. Rights-of-Way
Customer shall grant, without charge to Fort Worth, such easements and rights-of-way
along public highways or other property owned by Customer, as requested by Fort Worth, in
order to construct or inaintain mains or facilities within the Customer's Service Area to provide
water to Custoiner and to other areas. Upon notice from Customer and at Fort Worth's expense
incurred as a System Cost, Fort Worth will inove such water mains or facilities located in such
street rights-of-way, or other property owned by Customer when reasonably necessary to the
pertormance of essential governmental duties by Customer. Fort Worth shall grant, without
charge to Customer, such easements and rights-of-way along public highways or other property
owned by Port Worth, as requested by Customer, in order to construct and maintain water mains
or facilities within Fort Worth to provide water to Customer. Upon notice from Fort Worth and
Agreement for Water Service 17
at Customer's expense, Customer will move such water mains or facilities when located in such
street rights-of-way or other property owned by Fort Worth when reasonably necessary to
performance of essential governmental duties by Fort Worth. All work done by or on behalf of
Fort Worth under this paragraph will be performed in accordance with specifications equal to
those applying to work of a siinilar nature performed within Fort Worth, and the applicable Party
will use its best efforts to restore the others property to as near original condition as feasible
unless otherwise mutually agreed in writing. Fort Worth and Customer agree to coordinate the
location of the mains and/or facilities in the other's easements and rights-of-way in order to
prevent fiirther conflicts insofar as is reasonably practicable.
ARTICLE 11. TCEQ Public Water Suppl�Approval
The Customer System shall be approved by the TCEQ during the life of this Agreement.
If, at any time, the Customer System is not approved by the TCEQ, or if Customer does not have
an active cross-connection control program, there shall not be any direct physical connection
between the Fort Worth System and the Customer System unless an approved backflow
prevention device has been provided and installed and this installation has been approved by the
TCEQ. All expenses to provide and install backflow prevention device(s) will be borne by
Customer.
ARTICLE 12. Resale of Water
12.1 Service Area. Customer agrees that it will not share facilities for water system use
with any other governmental or corporate entity outside of Customer's Service Area. Customer's
Service Area is limited to the boundary shown on Exhibit A and may not be amended.
12.2 �xceptions. None applicable.
ARTICLE 13. Sanitary Sewer Facilities
The Customer agrees that it will require all of its customers, who are provided water from
the Fort Worth System, to have adequate sanitary sewage facilities meeting TCEQ requirements.
ARTICLE 14. Additional Wholesale Cusiomers
Fort Worth will use its best efforts to provide an adequate water supply for all of its
customers. Prior to the approval of additional wholesale customers, Fort Worth will obtain in
writing reasonable assurances from the Tarrant Regional Water District ihat the projected ten
(10) year water demands of the then-existing wholesale customers being served and any
proposed additional customers can be fulfilled, and will charge the new customer an appropriate
connection fee pursuant to § 3.3. Fort Worth will consult with the Wholesale Customer
Advisory Committee and the Tarrant Regional Water District before contracting with additional
new wholesale water custoiners.
Abreement for Water Service 18
ARTICLE 15. Wholesale Customer Advisory Committee
Customer's governing body shall annually appoint a representative to be a voting member
of the Wholesale Customer Advisory Committee, whose purpose shall be to consult with and
advise Fort Worth, through the Director, on matters pertaining to conservation, wholesale
planning, improvements, grants, wholesale rate studies, administraiion, budgets, and additional
wholesale customers, whether same be wholesale customers of Customer or Fort Worth. The
Wholesale Customer Advisory Committee may establish bylaws governing the election of
officers, meeting dates and other matters pertinent to its functioning.
ARTICLE 16. Impact Fees
16.1 Calculation and Pavment of Impact Fees. Customer is currently providing water
service within Custoiner's Service Area using groundwater or other sources. Fort Worth shall
not deliver any water to Customer pursuant to this Agreement, until North Fort Worth Water
Control and Improvement District No. 1 or Shale 114, L.P. pays, or causes to be paid, to Fort
Worth an Impact I'ee for each existing customer receiving water service from Customer as of
the Effective Date. Custoiner has no obligation to pay such Impact Fees. Thereafter, if there
are any new or enlarged connections for water service made within Cusiomer's Service Area
served by the Fort Worth System, Fort Worth shall not sell water to Customer to serve such new
and enlarged connections until North Fort Worth Water Control and Improvement District No. 1
ar Shale 114, L.P. pays, or causes to be paid, to Fort Worth an Impact Fee for such new or
enlarged connection. Customer shall have no obligation to pay Impact Fees for any new or
enlarged connection. The Impact Fee for each such connection shall be based upon the size of
water meter and shall be equal to the Impact Fee adopted by Fort Worth and collected for the
saine size water meter and type of connection within the jurisdiction of Fort Worth. The
calculation of the Impact Fee shall be consistent with the Fort Worth ordinance adopting the
Impact Fee in accordance with all applicable state and federal regulations, including Chapter
395, and shall include only those costs allowed under § 395.012 (or its amended or suceessor
statute) that are associated with Capital Improvements necessary to provide service to new
development. Nothing within this Agreement shall be deemed to prevent either Fort Worth or
Customer from charging their own retail customers' Impact Fees in excess of the Impact Fee
authorized by this Agreement.
16.2 DELETED
16.3 Use of Impact Fees. As required by Chapter 395, Fort Worth agrees that all money
remitted to it pursuant to this Artiele 16 will be placed in an interest bearing account to pay only
for the cost of constructing Capital Improvements included in the Chapter 395 capital
iinproveinents plan, and will not be used for operation and maintenanee expenses. Once
expended, such funds and all interest earned thereon will be considered a"contribution" for rate
setting purposes only. To the extent that the cost of any Capital Improvement is recovered
through Impact Fees, it shall not be included in the System Cost.
Agreement for Water Service 19
16.4 Impact Fee Report. Customer shall provide to Fort Worth information that relates to
the making of new and/or enlarged connections within its jurisdiction as may be requested by the
Director, including building permits, with each quarterly payment required in this Artiele 16.
16.5 No Waiver. Neither Fort Worth nor Customer shall waive any Impact Fee due from
new or enlarged connections to its respective system within its jurisdiction. However, either Fort
Worth or Custoiner may pay such Impact Fee into the interest bearing Impact Fee account
required by § 16.3.
16.6 CIFC. The Wholesale Customer Advisory Committee created pursuant to Article 15
shall select five (5) of its members to a subcommittee to be known as the Customer Impact Fee
Committee ("CIFC"). As required by Texas Local Government Code § 395.052, at least every
five (5) years, beginning June, 2014, or sooner, Fort Worth will update the land use assumptions
and capital improvements plan upon which the Fort Worth Impact Fees are based, or make the
determination under Chapter 395 that no update is required. Fort Worth shall submit a copy of
the annual report of Fort Worth Impact Fee projects and expenditures to the Wholesale Customer
Advisory Coinmittee Rate Subcommittee. In June 2014 and at least every five years thereafter,
the CIFC shall submit a list of five qualified engineers or planning consultants to the
Director. The Director shall select a consultant from such list to assist Fort Worth in developing
land use assumptions, identifying capital improvements, and formulating capital improvement
plans and Iinpact Fees. The consultant shall be responsible to Fort Worth and its citizen's
advisory committee, but shall also report to the CIFC. The cost of the consultant shall be deemed
a System Cost, except to the extent that such cost is recovered through Impact Fees. If the CIFC
fails to submit a list of five consultanis to Fort Worth, Fort Worth shall select the consultant.
16.7 Capital Improvements Plan. Fort Worth agrees that only the Capital Improvements as
defined in § 1.4 shall be included in the capital improvements plan for the purpose of
determining Impact Fees; provided however, Fort Worth may include other capital
improveinents for the purpose of determining Impact Fees to its own retail customers. Fort
Worth shall not be required to include all of its capital improvements in its Chapter 395 capital
improvements plan. The CIFC shall be responsible for working with Fort Worth and its
consultants to determine the Capital Improvements to be included in the ealculation of any
Iinpact Fees. The CIFC shall recommend to the Wholesale Customer Advisory Committee
which Capital Improveinents should be included in the calculation of any Impact Fees. The
CIFC shall also ineet with Fort Worth's citizen advisory committee as such citizen's advisory
cominittee reviews and considers land use assumptions, the capital improvements plan and
Impact Fees.
16.8 Dissemination of Documents. Prior to the adoption of any land use assumptions,
capital iinprovements plan, or Impact Fees assessed by Fort Worth, the CIFC shall be furnished a
copy of the proposed land use assumptions, capital improvement plans or Impact Fees at least
thirty (30) days prior to any scheduled hearing thereon. Any revised Impact Fee adopted
pursuant to such updated capital improvements plan shall not take effect for a period of at least
ninety (90) days after adoption by Fort Worth.
Agreement for Water Service 20
16.9 Audited Financial Statement. Upon request, Fort Worth shall make available to the
Wholesale Customer Advisory Committee the most recent audited financial statement of the Fort
Worth Water Department's records.
16.10 Current Impact Fees. Customer agrees to pay Impact Fees in the amounts determined
pursuant to this Article 16. On the Effective Date, those impact fees are the Impact Fees most
recently adopted by the Fort Worth City Council before the Effective Date. Thereafter the
Impact Fees are those in effect by Fort Worth ordinance at the time the new or enlarged
connection is made.
16.11 Changes to Chapter 395. Fort Worth and Customer agree that the methodology for the
calculation of Impact Fees required by this Agreement shall be consistent with the methodology
prescribed by Chapter 395. If that statutory methodology is amended or replaced by a new
statute, the Wholesale Customer Advisory Committee may engage legal counsel to work with
Fort Worth to propose amendinents to this Agreement to conform it to such amendment or new
statute. The reasonable cost of such legal counsel shall be a System Cost.
ARTICL� 17. Breach Termination and Other Remedies
17.1 Termination by Mutual Consent. This Agreement may be terminated in whole or in
part by the mutual consent of Customer and Fort Worth, Fort Worth's decision on whether to
consent to terinination reinains within its sole discretion; however, before consenting to
termination, Fort Worth shall consult with WCAC regarding the circumstances of the proposed
termination.
17.2 Termination for Material Breach. Notwithsianding anything in this Agreement to the
contrary, any material breach by either Party to perform any of its duties or obligations under this
Agreement, or to faithfully keep and perform any of the terms, conditions and provisions of this
Agreement, shall be cause for termination of this Agreement by the non-breaching Party in the
inanner set forth in this § 17.2. Upon such breach, the non-breaching Party may notify the
breaching Party of the non-breaching Party's intention to terminate this A�reement if the
breaching Party fails to cure such breach within ninety (90) days from the date of the notice. The
notice inust include a reasonable description of the breach. The non-breaching Party shall notify
the breaching Party in writing upon acceptance of the cure of any breach. If by the ninetieth
(90th) day the breachin� Party fails or refuses to cure such breach pursuant to the terms and
conditions of this Agreement, then the non-breaching Party shall have the right to terminate this
Agreement with six months additional notice to the breaching Party.
17.3 Termination for Repeated Breach. Upon a second (or any repeated) breach of a
similar nature by a Party and irrespective of any cure of sueh breach, the non-breaching Party
inay, after six (6) months notice to the breaching Party, terminate this Agreement. That notice
inust be provided within a reasonable time after the repeated breach that is the basis for the
termination.
Agreement for Water Service 21
17.4 Material Breach. Z'he following breach, default or failure to perform a duty or
obligation under this Agreement is a material breach:
a. Failure to comply with §§ 2.5 or 2.6 requirements regarding rationing,
conservation measures or restrictions;
b. Failure to pay any bill, charge, or fee as required by this Agreement,
including fees required under Article 16;
c. Makinb any connection to the Fort Worth System at any point except as
provided in § 3.2;
d. Failure to conect any potentially hazardous connection in accordance with
the terms of Article 11, after notice delivered by certified mail;
e. Failure to provide Fort Worth ingress and egress for purposes of operation
and maintenance of any metering facility;
f. Failure to provide Fort Worth rights-of-way as required herein; or
g. Failure to provide Fort Worth an Impact Fee report as required in Article 16.
All other breaches are deemed to be non-material.
17.5 Notice and Cure. In the event of a material or non-maierial breach, default or failure
to perform a duty under this Agreement, the non-breaching Party may send a notice of such
default to the breaching Party. The notice must include a reasonable description of the breach.
If the breaching Party fails to cure the breach, default or failure within 60 days of that notice,
then the non-breaching Party inay give the breaching Party a second notice of its failure to cure
the breach. Failure to cure the breach within 30 days after the second notice shall constitute a
repeated breach, and may result in termination of this Agreement as provided in § 17.3 for
repeated breach. Fort Worth may, upon breach by a Customer, surcharge the Customer an
ainount developed and calculated by Fort Worth intended to reimburse Fort Worth for any
damages each inonth, including 10% interest, until Customer cures that breach. Because failure
to perform obligations tuzder this Agreement cannot be adequately compensated in money
dainages alone, the Parties shall have available to them the equitable remedy of specific
performance in addition to any other legal or equitable remedy as may be provided by law.
17.6 Notice and Cure for Nonpayment of Impact Fees. If the breach is based on the non-
payment or underpayment of Impact Fees, then the Customer shall pay Fort Worth the amount of
the non-payment or under-payment within 60 days of the notice required by §§ 17.2 or 17.5, plus
interest at a rate of 10% of the amount owed, accruing from the time at which the payment was
due. An additional charge of $500.00 will be added if no Tmpact Fee report was filed.
17.7 Notice and Cure for Breach of Water Use Restrictions and Conservation. If Customer
breaches §§ 2.5 or 2.6, then the § 17.2 notice provisions do not apply and the Director, in his
sole discretion, inay, in writing, set such time in which the Customer shall cure the breach. If .
Customer fails or refuses to cure the breach within the stated time, then Fort Worth shall have the
right to declare this Agreement terminated after six (6) months additional notice io Customer.
17.8 Failure to Provide Notice of Withdrawal Rate under & 7.2. Failure to provide § 7.2
notice, provided the Director did not waive notice requirements, will be considered a non-
material breach of the Agreement and, in addition to other remedies available under this
Agreement for Water Service 22
Agreement, shall result in an automatic surcharge in the amount specified in § 17.5 for such non-
material breaches of the Agreement, without further notice requirements.
17.9 Effect of Termination. Upon termination of this Agreement under this Article 17, all
rights, powers, and privileges of Customer and Fort Worth under this Agreement shall cease and
terminate, and neither Party shall inake any claim oi any kind whatsoever against the other Party,
its agenis or representatives, by reason of termination or any act incident to termination, if the
ierminating Party acted reasonably and the termination was not unreasonable, or arbitrary and
capricious. If this Agreement is not renewed before it expires, and the Parties are negotiating in
good faith regarding the provisions of a new agreement, then the Parties may extend the date for
termination, in writing that refers to this § 17.9 and is signed by both Parties. If this Agreement
is not renewed, or if the Agreement is terminated by one of the Parties pursuant to this Article
17, then, as authorized by Texas Water Code � 11.036, this Agreement requires the Customer to
develop alternative or replacement supplies before the expiration or termination of this
Agreement; this requirement may be enforced by the equitable remedy of specific performance,
sought by coui-t order, in addition to any other legal or equitable remedy as may be provided by
law. No continuation of the service obligation exists or will be implied after expiration or
terinination.
17.10 No Waiver b,y Fort Worth. Any failure by Fort Worth to terminate this Agreement, or
the acceptance by Fort Worth of any beneiits under this Agreement, for any period of time after a
inaterial breach, default or failure by Customer shall not be determined to be a waiver by Fort
Worth of any rights to terminate this Agreement for any subsequent material breach, default or
failure.
17.11 No Waiver by Customer. Any failure by Customer to terminate this Agreement, or the
acceptance by Custoiner of any benefits under this Agreement, for any period of time after a
material breach, default or failure by Fort Worth shall not be determined to be a waiver by
Customer of any rights to teiminate this Agreement for any subsequent material breach, default
or failure.
ARTICLE 18. Ownership and Liability
18.1 No Joint Venture. No provision of this Agreement shall be construed to create any
type of joint or equity ownership of any property, any partnership or joint venture, nor shall same
create any other rights or liabilities and Customer payments (whether past, present, or future)
shall not be construed as granting Customer partial ownership of, pre-paid capacity in, or equity
in the Fort Worth System.
18.2 Liabilities. Liabilities for damages arising from the proper treatment, transportation
and delivery for all water provided hereunder shall remain with Fort Worth to the point of
delivery and, upon passing through the meter, liability for such damages shall pass to the
Customer, save and except that Fort Worth's sole responsibility is to provide to Customer water
of a quality which meets state and federal drinking water standards. Each Party agrees to save,
release and hold harmless the other Party from all claims, demands, and causes of action which
inay be asserted by anyone on account of the quality, transportation and delivery while water is
in the control of such Party. This covenant is not made for the benefit of any third party. Fort
Agreeinent for Water Service 23
Worth takes the responsibility as between the Parties for the proper treatment, quality,
transportation, and delivery of all such water provided by it to the point of delivery.
18.3 Contractors. Agreements made and entered into by either Customer or Fort Worth for
the construction, reconstruction or repair of any Delivery Facility shall include the requirement
that the independent contractor(s) must provide adequate insurance protecting both the Customer
and Fort Worth as co-insured. Such Agreement must also provide that the independent
contractor(s) covenant to indemnify, hold harmless and defend both the Customer and Fort
Worth against any and all suits or claims for damages of any nature arising out of the
performance of such Agreement.
ARTICLE 19. Force Majeure
19.1 Notice and Suspension. If by any reason of force majeure either Party shall be
rendered L7nable, wholly or in part, to carry out its obligations under this Agreement, other than
the obligation of the Customer to make payments required under the terms hereof, then if such
Parties shall give notice and full particulars of such force majeure in writing to the other Party
within a reasonable time after the occurrence of the event or cause relied on, the obligation of the
Party giving such notice, so far as it is af%eted by such force majeure, shall be suspended during
the continuance of the inability then claimed, but for no longer period, and such Party shall
endeavor to remove or overcome such inabiliiy with all reasonable dispatch.
19.2 Definition. The term "force majeure," as employed herein, shall mean acts of God,
strikes, lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the
government of the United States or the State of Texas, or any civil or miliiary authority,
insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods,
washouts, drou�hts, arrests, restraints of government and people, civil disturbances, explosions,
breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply,
and inability on the part of Fort Worth to deliver water hereunder or the Customer to receive
water hereunder on account of any other cause not reasonably in the control of the Party claiming
such inability.
ARTICL,E 20. Notices
20.1 Required Notice. Except in the case of an Emergency, any notice or other
communication that is required, given or provided for under this Agreement shall be in writing,
and addressed as follows:
To Fort Worth: Water Director
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
To Customer: Aqua Texas, Inc.
1106 Clayton Lane, Ste 400W
Agreeinent for Water Service 24
Austin, TX 78723
Attn: Vice President
FAX:
Aqua Texas, Inc.
762 West Lancaster Ave.
Bryn Mawr, PA 19010
Attn: Chief Legal Officer
FAX: (610) 520-9127
With an additional copy to be given to a Customer representative, if designated in writing by
Customer.
20.2 Delivery and Receipt. Notice shall be either (a) delivered personally, (b) sent by
United States certified mail, postage prepaid, return receipt requested, (c) placed in the custody
of a nationally recognized overnight carrier for next day delivery, or (d) sent via telecopy or
facsimile (fax) transinission. Notice shall be deemed given when received if delivered
personally or sent via telecopy or facsimile transmission with written confirmation of receipt;
forty-eight (48) hours after deposit if sent by mail; and twenty-four (24) hours after deposit if
sent by nationally recognized overnight carrier for next day delivery.
20.3 Change of Address Notices. Each Party shall provide notice in writing, as provided in
� 20.1 of any change in its address.
ARTICLE 21. Inspection and Audit
Complete records and accounts required to be maintained by each Party shall be kept for
a period of five (5) years. Each Party shall at all times, upon notice, have the right at reasonable
tiznes to examine and inspect said records and accounts during normal business hours; and
further, if required by any law, rule or regulation, make said records and accounts available to
federal and/or state auditors. The respondin� Party shall make the records available promptly
upon request.
ARTICLE 22. Miscellaneous
22.1 Favored Nations. Fort Worth and Customer agree that if Fort Worth should enter into
any future Agreeinent for supplying treated water to any municipality under more favorable'
terms or conditions than set forth herein, this Agreement shall be amended to provide the same
terins and conditions with respect to the sale of treated water io Customer.
22.2 Suspension of Rate of Use Char�es. During an Emergency it may be necessary that
water be withdrawn from the Fort Worth System at a rate of usage in excess of the Customer's
contractually established Maximum Daily Demand and Maximum Hour Demand. It is agreed
that extra Rate of Use Charges that would normally be applicable shall not apply for such bona
Agreement for Water Service 25
fide emergency withdrawals provided that Fort Worth is notified in writing within forty-eight
(48) hours of the occurrence of the Emergency. In any event, the normally applicable Rate of
Use Charges the Custoiner would have incurred had it not been an Emergency, plus the Volume
Charges for all water delivered, shall be due and payable as described elsewhere in this
Agreement.
22.3 Water to Adiacent Areas. At the request of the Director, Customer agrees to furnish
water to areas and premises situated adjacent to the boundary of Customer and within the
boundaries of Fort Worth, subject to the Texas Water Code and TCEQ regulations regarding
service areas. The inetered quantity of water used in this area each month by Fort Worth shall be
the total of all individual customer meter readings. At the option of Customer or Fort Worth, a
master meter may be installed where practicable at the expense of Fort Worth to meter all water
used by Fort Worth under the terms of this § 22.3. The metered quantity of water furnished by
Customer to Fort Worth shall be deducted from the total quantity of water withdrawn from the
Fort Worth System by Customer before the charge for water service to Customer is computed in
accordance with the payment computations set forth and based on the Volume Charge, the
quantity of water so withdrawn from the Fort Worth System and, if the meter serving those
customers has been equipped to measure it, Maximum Day Demand and Maximum Hour
Demand.
22.4 Subiect to Laws and Permits. This Agreement is subject to all applicable federal and
state laws and any applicable permits, amendments, orders, or regulations of any state or federal
governmental authority having or asserting jurisdiction, but nothing contained herein shall be
construed as a waiver of any right to question or contest any such law, order, rule or regulation in
any foruin having jurisdiction. Customer agrees to abide by any changes in this Agreement
made necessary by any new, amended, or revised state or federal regulation; however the Parties
may not enaet rules or laws that conflict with this Agreement.
22.5 Entry on Customer's Premises. Upon prior notice by the Director, Customer shall
allow any duly authorized employee of Fort Worth who presents proper credentials to access any
premises located within Customer's Service Area or served by Customer as may be necessary for
the purpose of inspections and observation, measurements, sampling and testing and/or auditing,
in accordance with the provisions of this Agreement. Customer may elect to accompany the Fort
Worth representative. To the extent permitted by law, Fort Worth agrees to be responsible to
Custoiner for any damage or injury to person or property caused by the negligence of such duly
authorized employee while such employee is in the course and scope of their employment.
22.6 Alternative Dispute Resolution.
22.6.1 The parties shall endeavor, but only to the extent permitted by applicable law and
at no additional cost to Customer, to settle all disputes arising out of or relating to
this Agreement by ainicable negotiations.
22.6.2 Any and all disputes arisin� out of or relating to this Agreement that cannot be
resolved informally will be submitted to mediation. The plaee of inediation shall
be in Tarrant County, Texas. A mediator shall be jointly agreed to by both
Parties, and the mediator selected shall have expertise in the sale and supply of
Agreement for Water Service 26
treated water. Either Party may apply for injunctive relief until the mediation
decision is rendered or the controversy is otherwise resolved. Either party may,
without waiving any remedy under this Agreement, seek from any court having
jurisdiction any interim or provisional relief that is necessary to protect the rights
or property of that Party, pending the mediator's determination of the merits of
the controversy. Each Party shall initially bear its own costs and expenses;
however, unless otherwise agreed in mediation, Fort Worth's costs in mediation,
including expenses, reasonable attorneys' fees and other costs, shall be a System
Cost. Nothing occurring during mediation shall be considered evidence in court.
22.6.3 If inediation is not successful, either Party may commenee litigation to resolve the
dispute. Fort Worth's litigation costs shall be a System Cost.
22.7 Infonnation. If requested by the Director, Customer shall provide quarterly the
following data or information:
22.7.1 Actual number of customer accounts consuming directly or indireetly from the
Customer System within Customer's Service Area;
22.7.2 Classification of domestic and nondomestic accounts within its Customer's
Service Area by number and percentage of accounts consuming directly or
indirectly from Customer System within its Customer's Service Area;
22.7.3 Customer water usage from all sources other than the Fort Worth System,
including ground water, other surface water, and water supply agreements with
other entities; and
22.7.4 Additional data which may assist Fort Worth and/or Customer in developing
methodology for cost of service studies, planning studies for analyzing federal
grants, and Impact Fees; provided, however, that neither Party shall request data
that will require either Party to incur unreasonable expenses in providing such
data.
22.8 Assi�nment. Customer may not assign this Agreement without the prior written
consent of Fort Worth. Fort Worth may not assign this Agreement without the prior written
consent of Customer, except that if Fort Worth's water utility is designated as a regional water
agency by a duly authorized regulatory body, or if Fort Worth elects to contract with or assign
this Agreement to a regional water authority or utility to provide all or part of the services
covered by this Agreement, the Customer hereby agrees and grants Fort Worth the right to assign
this A�reeinent under the following conditions. The regional water authority or utility shall
assume and receive the same obligations, responsibilities and benefits as Fort Worth, and Fort
Worth or the regional authority or utility will notify the Customer of such assignment at least
ninety (90) days prior to its effeetive date.
22.9 No Waiver. No waiver by either Party of any term or condition of this Agreement, or
failure to give notice of any breach, shall be deemed or construed to be a waiver of any other
term or condition or subsequent waiver of the same term or condition.
Agreement for Water Service 27
22.10 VENUE. THL PAI2TTES AGREE THAT THIS AGREEMENT IS PERFORMABLE 1N TARRANT
COUNTY, TEXAS AiVD THAT THE COURTS OF TARRANT COUNTY ARE A PROPER FORUM FOR THE
DETERMINATION OF ANY DISPUTE ARISTNG UNDER THTS AGREEMENT.
22.11 Construction. As used in this Agreement, the term "including" means "including
without limitation," the words "shall" and "will" are mandatory and the word "may" is
permissive, and the term "days" means calendar days, not business days. Wherever required by
the context, the singular shall include the plural, and the plural shall include the singular.
22.12 Severabilitv. If any term or provision in this Agreement is held to be invalid or
unenforceable by any legislative act or court of competent jurisdiction, and the extent of such
invalidity or unenforceability does not cause substantial deviation from the underlying intent of
the parties as expressed in this Agreement, then such invalid or unenforceable provision shall be
deemed severed from this Agreement without invalidating the remainder of this Agreement, and
a new provision shall be deemed substituted in lieu of the provision severed, which new
provision shall, to the extent possible, accomplish the intent of the parties as evidenced by the
provision severed, and without affecting any other term or provision in this Agreement.
22.13 Use of Return Water. Customer agrees that Fort Worth has the right to own and to use
or sell any Return Water. Customer will not seelc or receive any compensation, credit, or offset
from Fort Worth for making the Return Water available to Fort Worth through discharges into
Fort Worth's wastewater collection and treatment system(s), and agrees that it will not provide
water service under any ordinance or agreement that conflicts with Fort Worth's rights under this
§ 22.13.
22.14 Svstein Re ulatory Actions. Customer agrees, upon the request of Fort Worth, to give
reasonable consideration to supporting Fort Worth, and shall not oppose Fort Worth, on any
permit applications or governmental approvals related to the Fort Worth System.
22.15 Additional Contract Terms. Additional contract terms that apply to the Customer, but
not Fort Worth's other wholesale customers, are contained in Exhibit E"Additional Terms."
22.16 Exhibits. All exhibits attached to this Agreement are incorporated into this Agreement
by reference, for all intents and purposes of this Agreement, as follows:
Exhibit A Customer Service Area and mutually agreed point(s) of
delivery on the Effective Date.
Exhibit B Stand-by Charge (Example Calculation)
Exhibit C Example of the Annual Bill Calculation
Exhibit D Calculation of PILOT and Cost of Service Revenue
Requirement to Recover the Cost of Pilot
Exhibit E Additional Terms
Agreement for Water Service 28
IN TESTIMONY WHEREOF, after proper action by the respective governing bodies of the Parties,
this Agreement has been executed in quadruplicate copies, each of which is considered to be an
original. ���j,���>���:��_1
�� ������
-S. ; ..
ATTEST: . �` ��` �"� � CITY OF FORT WORTH
- � . � �; � � "��� �
✓ � � ` By�
City Secr� , C ty o rt.orth •°' "� Assistant City Manager
°� ��'y.�:'fl�� ��` City of Fort Worth
; �,-�`'=•y'\�'a�� ,>_ �••
APPROVED AS TO FORM AND LEGALITY:
1
� � . � �v, a
(�, ��C;ity A torney, City o Fort W rth
o�
Date:
APPROVAL RECOMMENDED:
Director
City of Fori Worth Water Department
ATTEST:
�-`� � J �� ��
. _.._ ---- — - ----
���t���i, a����.A��t�atio�
�,�_ � � _ � _ _ � -
�a�.e
CUSTOMER
�
�FFICIAL RECORB
CITY SECRETARY
FT.1iV�1RT�l, Tl�
Agreement for Water Service 29
Contract Compliance Manager for the Wholesale Water Agreement between Aqua Texas, Inc. and the
City of Fort Worth
By sib ing I aclmowledge that I am the pei•son responsible for the inonitoring and administration of this
contract, including ensuring all performance and i-eporting i•equir•einents.
�
Name o Employee
i`t?'Jiul•ri s%Y1�T� vd .S�s2.v,'u:: s' �•'�•�-�fG�u
Title
Exhibit A
Customer's Service Area and mutually agreed point(s) of delivery on the Effective Date
Exhibit A — Page 1
_ - -.......- - - - - - � -- - - ... ................................ .. -� ---��----�--� -- --------_.....__.......-- �---- - - ......
�
s
N
\
O
L
N
cD
N
O
�
O
N
I
s
�
�
U
N
O
L
N
a
0
a`
�
�
�
i� �
- --- - -•----• - ------------- - -..._..__.---•-•----_.....----...--•--------------._._.......-----............._._ _ .__._.._...--------� - -'
� �� s
S�C`�'���I 7.I.3
S�arad-b� �harge ]�xamp�e Calct���fiat�
�� S�.s�c�-�v ��a��e ���e��at��_n �n��fs:
� 1� inch meter = 21 D�Ms
n 1�Iv� = 20 Cr�l per Niin�te x b0 Minutes per �our � 24 Hours }�er
D�y �r 2�,8fl0 fJ�Ilo�s per 3�ay
6��� not irsciude Cost af R.aw W�ter
3-Year AZ<erage ireatmen�, Pumping an� �'ransmi�sion Charge (ail,fla0 CraIs� Ca1c�Iat.iQn:
F`Y45 F�Y'05 FY07
�0.5398 ��.S8Z9 �' ��.625�
Thxee Year �verage �7 +�
2) ���€�-�v ��8�� ��:lc�fat�a�a:
�1ont��y Stari�by C�ar�e = 28,8Q{1 C`ra7lons per Day X 2I'U EN1 X$O,bI73 p�z-
1,OOfl Gallons or $3,733 per Nfonth.
�rinuaI S�ndby Cha�ge = IZ MQ��s X$3,733 per I�c3mth ar $44,801.
Exhibit B — Page 1
s��rt��� c�x��
ASS�3�u�'���r �?�ID DEF7N�ONS;
TI�e MiIlimum Standby C�arg� �s bas$d on ih� maximurr� arnaunt af �vater a. conrz�eiion
could �raw �� a24-hour period_
The ca�cu�a#io� assu�nes �:h�t any �ge would be ternparary a:nci� of an ernergency basis.
T�e calc�la�ion is also based on f�e �umber and: si2e of e�.ch connec�ion.
T�e Tra�sa�issio� C�arge is the 3-yea.r av�r�ge £or #ha+ charge as caiculated in tize mast
recent i�:deperidenrt cost-of-service si�dy.
Reserved �Cap�city is defined as the rria.ximum ax��unt of w�ter a cannec#�on could draw
iai a 24-�our periad.
"Eq�ivalent Meters" or "Eivl" is a rr�eans o� relating a 1arg�-use custamer with a tias�
tres?de�t'sai) �ase customer. Fart i�ortl� uses 5/8 x 3I4 inch meter capacity as an �M. 'i'he
ratia o�' Iarges r�eter's capacity to the 5/8 x 3/4 �nc}i m�te� capacity i5 the number of
E1Viis for eac�t sriefer. T�:a rat�os can `be found in t�e �VijWA Standar� C7t30-02.
1 Eivi deliv�rs 20 �'a.�lo�s �er Minute.
1�El1h c�e�iv�s 2S,$00 Gailons per Day {20 �Pivi * 6E} Iv,�inutes/H:our'� 24 Hours/Day).
Yiax.�tn��n Reserved Emezgency Usa�� equals Eh�f * 28,8`00
Exhibit B — Page 2
Exhibit C
Example of the Annual Bill Calculation
E�H1BI'� C
SECITOI`' 7.4 Total Annual, Monthiy and Rate of Use E�camp2e Calcuiations
The calculations shown be[ow assume a customer drawing waier from one metering station.
The vol�uaes, pea4cs, rates and charges in�this F.shibit C are for demonstra#ion
}�ur�osQs oniy aud are nof based on adoptecl raies or an aci�ai usage for t�e Custoruer.
The anrivai Volwne Ra#e is charged .as a r�te per I,040 gallons. The A.nnual Payment aiso
includes t�he monthly service charge,
Volurrte �� o�
Rate �1'olume Service
Nionth Gallons Use Total
$/I,000 Charges ��iarges Charges�`
Gallons '
Oct 1,000,0�0 $1.43 $1,430 $25 $2,209 $3;664
?�Tov 1,0OO,OQO $I.43 $1,430 $25 �2,209 �3,G64
�3ec 3,OOO,a00 �1.43 $F;430 $25 $2,209 �3,b64
Jan Z,000,000 ��.43 $1,430 $25 �2,209 $3,b69
Feb 1,000,000 51.43 �1,�30 �25 �2,209 �3,664
lv1a.T 2,000,000 $1.43 �2,860 $25 $2,209 �5,094
Apr 3,00�,000 �1.�€3 v�4,290 $25 $2,209 $6,524
May 3,000,000 $1.43 $4,290 $25 $2,209 $6,524
7un 3,000,000 $1.�3 $4,290 $25 $2,209 $6,524
Jul 3,000,000 �1.43 $4,290 $25 $2,209 $fi,524
Aug 4,Q�0,000 $1.43 $5,720 $25 �,209 $7,954
23,QOO,Q00 �32;890 $275 Sz4,299 �5�,454
Sep 3;004,000 �1,43 �4,290 $25 $7,021 S11,336
26,000,000 �37,180 �3�fl �31,32Q S68,800
* Example calcula�ion �or Rate of Usc Charges is on Page 2 of 4.
1 of 4
Exhibit C - Page 1
EX�7.1IiTT C
SECPION 7.4 Total Annual Payment Exarnple Caicalation (con'tj
�.sample Calculation for manthly R�te of7Jse Charges
Average Da.i1y Usr for the prior year
Maximtun Day Demand for the pr�or year
Vl�cimurri Hour De�nand for t3�e prior year
(convertsd #o gallons per day)
�ximum I3ay �Jemand above Average Daily'Clse {Ivfax Day - Avg Day)
Maximum Hotzr Demand above Iv�imum Day Demand {Iviax Ho�r -
Uiax Day)
GaIlons
60;000
175,000
�$o>000
1 i 5,(300
305,000
iUlonthly Excess M2ximzun Da.y and Bxeess Maximum Hour Payrnent Calculation:
Excess Max
MGD Chargcs(MGD* Total
Max. Day Above Avg TJay 0.1 i 5 �135;000 $15,525
�Utax Ho�r Above Max Day 0.305 �36,Q0a
ty`ionthly iiate of �1se Charge payment (�'otal Bivided by 12)
$i0,980
$26,505
$2,Z09
*The Excess Max ChargeslIvlGD �re the Excess Ivlax Day Charge and the Excess Nia7c I�our
Chazge, each in $IIviGD, taken fram the curxent Fiscat Year annuai cost-of-service rate
stuc3y
As shown, the monthly Rzte of Use Charges are calculated using �.hc priar year's Average
Daily Use, Maaimum Day Demand aud Maximum Hour Demand, times ihe citcTent Fiscai
Year Excess Max Gharg�slMGD. Tbe f7nai Annual �?ayment required:by Article 7 is
calcuiated �ssing ihe curren# Fiseal Year Averagc Dai1y L7se, and the Maximum-Day
I�emand and lvla}cimurn Hour Demand for the ciurent Fiscal Year or for tize average of the
most recent three (3) Fiscal Years, whiche�er is gm,a#er (as provided in § 7:1 and shown :in
the foiiowing Exarnples 1 and 2), times the current Fiscal 'Year Excess ivlax ChargeslMG'D-
2of4
Exhibii C — Page 2
. e:
SECTION 7.9 'i'otal Anrtual Payment F�ampie Calculation (con'tj
�xamp2c 1— Curreut year ezceeds the average of fhe most recenf three RY�caI Years
Avezage Daily Use for the year
Ivlaximum Day Demand fax xhe current year
Maximum Hour l�emand far the current year
tconverted to gallons per day}
Nlaximum bay Demand above Average DaiIy Use
tVlaximum Hour Demand above ivla�cimum Day
Dernand
Galions
71,233
215;000
545,000
3.43,7b7
330,000
Fisc�l Year Average of Masi Recent Three Years
Current FY FY
Average FY 2008 ZQO�
Iv�ax Day Above Avg Day
{MCr) 129,178 �43,767 115;00{3 228,766
IV�� I�our Above Max Day
(MG) 318,333 330,400 305;000 32a,000
Annual Payment Caicutation
Volume Rste
Gaiions $JI,000 Gallans
26,04Q;000 x �I.�3 =
Service Char�e Months
$2S x 12 —
Max Day A�ove Excess Max
Avg Day (iviGD) ChargeslMGcD
0.144 x $135,000 =
Ma�t Hour
Above Vlex Day Excess :l�ax
(MGD} ChargesliviGD
0.330 x $36,Q{30 =
Total
�37,180
$300
$19,440
$i 3,88Q
T'otai Annual Payment Duc $68,840
Previous BilIings for Octobcr through August Usxge $57,4b4
October Billing for September CJsage $1 I,336
3 of 4
Exhibit C — Page 3
EXEilBTT C
SECITON 7.4 TotaI Annual Payment Exampie Calctslaiion (con'tj
�xamp�e 2— The average of the most receizt ihree Fiscai Years exceeds Curren# year.
Avecxge Dzily Use for tt�e year
Maximum Day Demand for the eurrent year
I�sa�cimam Hour Demand for ihe aunent year
(converted to gailans per day)
Maximum Day Deina�d above Average I>aily Use
Ivfa.ximum Hour Demaz�d above Maximum Day�Demand
Fiscal Year Average of Most Recent Three Years
GUR:R�NT
Average FY
Msx Day Above Avg Day
(MG) 120,844 118,767
Max Hour 1�bove Max Day
(NIG) 311,667 3i0,000
Annua3 Payment Calcuiation
Valume Raze
Gallons $/I,R00 Gailons
26,000;000 x $I.43 =
Service Charge Months
$25 x 12 =
Max 2�ay
Above Avg Day Excess 2vlax
(MGD) ChargesLlVIGD
0.12I X �135,000 s
Max Hour
Above Max F.xeess M�
Dey (MGD) Gharges�MGD
0.312 X $36,000 =
Toial Annual Paymcnt l7ue
1'revious Bil3ings for October throu� Aub st Usage
October Billing for September Usage
4 of 4
Exhibit C — Page 4
Galions
71,233
190;000
5t}0,000
118,76?
310;0�0
�Y FY
2008 2007
II5,OOQ 12$,766
305,Ofl0 320,000
Total
�3?,180
$300
$16,335
$I i,232
$65;047
$57,464
�7,5&3
Cafcuiatiou otPTLOT and
Cosi of Service �2even r�e Requi3-emettt fo iZecover fhe Utilify's Cosf of PIIAT
D�;SCRI�'TIdI�T
A payment in lieu of taxes ("PIL�T') assessad against the Water Operating Rand is an annua3
assessment ta offset the ad vaforem t�es lost, due to fhe non-profit.statt�s ofthe Water System.
The Water O�erating Fund pays the amount ofthe assessmentinto the Gencral Fund.
PILOT asse,ssed against the Wa.ter Operating k�nd is ealeulated b� appiying the most recently
adopted property tax rate per � 1 Oa assessed vatua to fhe net book v21ue of the appliealife assets,
These assets are limi�ed to the assets ciassifed as Plant and Property (in the spccific NARUC
accounts Iisted on the next page}, and do aot inciude Transrtiissian ivlains, Conneetions,
Coltection Structures snd Meters.
The PIIOT is a component of ttie �TJater Operating Rund Cost of Service. The Gost of Service
Revenue Itequirement that is necessary to reeover PILOT is ailoc�ted between Rctait and
Wholesale customer classes according to the volume usagc in #he most recent�y eompletod fiscal
year, prorated between the two customer classes,
i'he Wholesale Cost of Sen%ice cornponemt of PILOT is then alIocated amongsi t�e whoIesale
custarr�ers according to each whofessl� .customer's pereentage of the wholesale customer c�ass's
vo�ume usage in t�te rnost in the most rec�ntIy completed fiseal yeaT.
EXA:ti�'�;E
The foliowing ex�nple furiher eacptains the calculation of the City's P1I.OT, the reiated revenue
requirement, and its recovery �uough rates. The methodolagy appIied in this example will
rer*main in effect for the life of the Agreement; however, tiie sgecific dolJar figures, volumes and
other nurrfericai vaIues nsed in the following exampte will be updated fxom ttie sources identified
below for each fisca� year that the contract is in effect.
Exhibit D — Page 1
r�r Baax vaLrr� e�s,cu�A�orr �ox P�o� AssEss��rrr
P7'LOT 2ssessed against the Water Operating 1 und•is calculated�by appiying the most recentIy
adopted propertytax�rate per $I04 assessed value to tha netbciok vatue'o€the appticatiie assets,
calculazed as:
�Iisfarical �ost of Water System �issets at most recent avdited year.end;
LESS �Iistorical Gost af Nou-Piant at►d Non-Pro��rfy Water System assets defined by
NARL'C (�Iaiionat Association of Regulaiory UtiIity Commissioners) cocIes:
31b
343
345
346
347
34$
J�I2
Raw Wzter Conduit and Vaives
Transirlission 2viains
Service Connections
iYleters
�lieter Instaliation
�iydran:
Structures & Improvements I Collection
(Ff any oFthese account codes are amended, the equivatent code will be substituted.)
LESS Accumufafed g3epreciation on Plant and Property aCmost recent a�di#ed year end;
pLUB Consfruction i�'ork in pragress on Flaz�t and 1?roperty at most recent sudited year end;
Example caIcuiation:
?�I�T BOOK VALUE CALCUT:.ATION
g,�SS
H3sfaricsI Cost
Rot�! of Noa-Plant LESS P�US
$istorieA3 aad Non- T.ife-to-Dste Construction EQT3ALS 2QF.T
Cast of FVatar Property Accamulatod Work In �0��
System Assets Depreciation Pro�ress 'VALCTE
�982,385,273 (3655,261,618) (�105,793,31�
(Doilas �iguc'es from mostaecent Cost of Service Study.)
Exhibit D — Page 2
526,99�,I84 �'L48,320,519
1VET BOOK VAL� ALL�CATIOl\' B�T�'S�E�I RETA.IZ� A.h�D WHOLESAiE
The Cost of Service ?Zevenue Requirement necessary to recover FILO'I' is aIIocated between
Retaii and W}zo:esate customer cfasses according to tt2e volume usage in the most recently
compleied fiscal year, pror�ted between the two customer classes. -
�ample Retail/iVholesale allocation calcutation:
'd'otai Anu�ai VoIume (IV1G)
Whoiesale Vaiucrse (M(',)
Whodesale AliocaEion
Rataii AYfosatiort
_ Volume {IVF�)
66,917
21;639
32.34%
b�.66%
(Doilar figures and perceniages from most recent Cost of Service Sfudy,}
�'oiai l�'et$ook'ValUe�ase $248,320,SI9
WhoJesaIe 2�Tet Book Value Base $80,249;602
CA 'LCUZ,AT'TON �F WH4LESALE �tE'V�?�tiTE iqEQ7�IltENTgNT
(PILC)T COST OF SERVTCE C4MPOI+IE1\T`17
3� Y 2010 Taz Rate per 3itI0 Value
TotaI PITAT Gost of Service
PPhoIesa[e A1locat�on
1�'hoiFsale PTLpT CostoTScrvice
Exhibit D — Page 3
34:8550
52,323,T40
3234%
$686,562
I+�xhibit E
Additional Terms
If Fort Worth exercises the option to become the retail provider of water service to the
Property by purchasing and accepting from Customer all rights under CCN No. 11157
for the Property and purchasing water facilities and related assets to serve the Property
pursuant to that certain Agreement Concerning Water and Sewer Service to Shale Creek
Development dated i�t�x l:1 w�t (�k .'��'4� (City Secretary Contract No. `ib' ��i� Fort
Worth may terminate this Agr ement on thirty (30) days written notice to Customer.
Custoiner hereby waives all claims against Fort Worth, its agents and representatives, for
such ternlination.
2. Fort Worth shall not sell water to Customer to serve any customer within Customer's
Service Area until water main capacity charge for NS II 42-inch water transmission main
supplying the Sendera Ranch Pump Station is paid to Fort Worth by North Fort Worth
Water Control and Improvement District No. 1 or Shale 114, L.P. in accordance with
Section 3.05(c) of that certain Water Infrastructure Agreement between Fort Worth,
Broolcfield Acquisitions, L.P., South Denton County Water Control and Improvement
District No. 1, CTMGT AR II, LLC, Alpha Ranch Fresh Water Supply District of Denton
and Wise Counties, Shale 114, L.P., and North Fort Worth Water Control and
Improvement District No. 1 of Denton County dated 4��� c����,�201� �City Secretary
Contract No. n^ . The water main capacity charge shal�� be �i5ased on the maximum
daily demand fo 493 lots at a cost of $180,932 per MGD. Customer shall have no
obligation to pay such water main capacity charge.
Exhibit E — Page 1
41566.7
M&C Review
Page 1 of 3
Official site of the City of Fort Worth, Texas
F�t1RT�ORTH
��
COUNCIL ACTION: Approved on 12/13/2016 - Resolution No. 4725-12-2016 & 4726-12-2016
REFERENCE 12BROOKFIELD, ALPHA
DATE: 12/13/2016 N� : L-15980 LOG NAME: RANCH, SHALE CREEK
AGREEMENTS
CODE: L TYPE: NON- PUB�IC NO
CONSENT HEARING:
SUBJECT: Adoption of Resolutions Consenting to the Expansion of the Alpha Ranch Fresh Water
Supply District and Authorize the Execution of Various Agreements and Amended
Agreements Relating to Development, Construction, Water and Wastewater Service,
Wholesale and Utility Transfer for South Denton County Water Control Improvement
District No.1, Alpha Ranch Fresh Water Supply District of Denton and Wise County and
North Fort Worth Water Control Improvement District No. 1(ETJ/DENTON COUNTY and
COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council adopt the attached resolutions consenting to the addition of
approximately 183 acres into the Alpha Ranch Fresh Water Supply District and authorize the City Manager
or a designee to execute the following Agreements and to take any actions to carry out such Agreements:
1. Wholesale Water Agreement between Aqua Texas and Fort Worth
2. Water and Wastewater Utility Services Transfer Agreement
3. Agreement Concerning Water and Sewer Service to Shale Creek Development
4. Agreement Terminating Brookfield Water and Wastewater Utility Service Agreement and
Buy-Out Option Agreement
5. Agreement Terminating Brookfield Wholesale Water and Wastewater Agreements
6. Agreement Concerning Sewer Service to Alpha Ranch and Brookfield Developments
7. Water Infrastructure Agreement
8. Sewer Infrastructure Agreement
9. Brookfield Development (South Denton County Water Control Improvement District No.
1) Agreement
10. Alpha Ranch Development Agreement
11. Shale Creek Development Agreement
12. South Denton County (Brookfield Development) Creation and Operation Agreement
13. Alpha Ranch Creation and Operation Agreement
14. Agreement for Construction of Sendera Ranch Blvd
DISCUSSION:
Entities affiliated with Centurion American Development Group (Developer) own approximately 2,000 acres of
land in the City's Extraterritorial Jurisdiction in proximity to State Highway 114, as shown on the attached map
(the Property). The Property is undeveloped and is located within the Alpha Ranch Fresh Water Control and
Improvement District, consisting of the Elizabeth Creek and Alpha Ranch developments (collectively, the
Alpha Ranch development), the South Denton County Water Control and Improvement District No. 1(the
Brookfield development), and the North Fort Worth Water Control and Improvement District No. 1 of Denton
and Wise Counties (the Shale Creek development) (the Districts), which districts were created with the City's
consent. The Developer agreed to develop the Property with a mixture of residential, commercial and
recreational uses in accordance with City standards. The Districts were created and approved by the City
Council as follows: Alpha Ranch, consisting of approximately 1,294 acres on February 15, 2007; Brookfield,
http://apps.cfwnet.org/council�acket/mc review.asp?ID=22358&councildate=l2/13/2016 3/2/2017
M&C Review
Page 2 of 3
consisting of approximately 231 acres on April 19, 2007; and Shale Creek, consisting of approximately 251
acres on August 21, 2006. On January 25, 2011, the City Council approved operation, development and
utility Agreements for the Brookfield District. (M&C C-24720, CSC Nos. 42127, 42128 and 42120
respectively.)
When the Development and Utility Agreements were approved, the Property was located in an area for
which Certificate of Convenience and Necessity (CCN) had been issued by TCEQ to Aqua Texas to provide
retail water. The Agreements contemplated that Aqua Texas would provide retail water and sewer service
to the Property for a term of 17 years, after which the City had an option to become the retail water and
sewer provider and to purchase, for a nominal amount, water and wastewater infrastructure to serve the
Property. Aqua Texas, the City, the Districts desire to enter into an Agreement providing, among other
terms, for Aqua Texas to transfer to the City all of its rights and obligations in connection with retail water
service to the Property under their CCN and to transfer to the Districts all of its rights and obligations in
connection with retail sewer service to the Property superseding the original utility agreement and ancillary
agreements concerning water and sewer service to the Property.
On September 23, 2014, the City Council adopted Resolution No. 4361-09-2014 which authorized the city
staff to negotiate Agreements with the Developer, Aqua Texas and the Districts for: 1) the transfer the CCN
to the City from Aqua Texas; 2) to negotiate for the provision of water and sewer service to the Property to
include a Wholesale Water Agreement to serve part of the Shale Creek Development with no infrastructure
or meter cost to the City; 3) to negotiate for the construction of water and sewer infrastructure to include a
water line to connect Sendera Ranch pump station to existing City infrastructure and a wastewater
treatment plant; 4) negotiate for the construction of a sewer line connecting to the City's system, and at the
City's discretion, discontinuance of by the Districts of the wastewater treatment plant upon the City
becoming the retail sewer service provider to the property; 5) to negotiate for the construction, consistent
with the City's Master Thoroughfare Plan, of a four-lane extension of Sendera Ranch Boulevard from its
existing terminus to SH 114 outside the City limits, at no cost to the City, and to be reimbursed less any
proportional share required for the portion of the extension located within the City limits with roadway
impact fees or fee credits in accordance with the City's transportation impact fee policy; and construction of
a portion of Sendera Ranch Boulevard outside of the City limits, at no cost to the City and to be reimbursed
less any proportional share required for the portion of the extension; and 6) to amend the Development
Agreement for Brookfield and enter into Development Agreements for the Alpha Ranch District and Shale
Creek to reflect the new arrangements for providing water and sewer service to the Property and to address
other outstanding issues. This M&C does not request approval of a contract with a business entity.
Aqua Texas has agreed to transfer to the City Aqua Texas' CCN and contract rights and obligations
governing retail water utility service to Brookfield, Alpha Ranch and Shale Creek and to include land
immediately adjacent to Alpha Ranch provided that the land is annexed by the Alpha Ranch District. Alpha
Ranch District has submitted two petitions to annex the area for Council's approval. Staff recommends
approving the attached resolutions to allow Alpha Ranch to annex the area which will transfer the CCN from
Aqua Texas to the City.
The parties have the authority to enter into this Agreement pursuant to Section 212.172 of the Local
Government Code.
The property is located in the City's extraterritorial jurisdiction adjacent to CITY COUNCIL DISTRICT 7.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that this agreement will have no immediate material effect on City
funds. Any effect on expenditures and revenues will be budgeted in future fiscal years.
Fund Department
ID
�M
Fund Department
ID
Account Pro�ect
ID
Account Project
ID
Program ( Activity
Program � Activity
Budget Reference # Amount
Year (Chartfield 2)
Bud et Reference # Amount
Year (Chartfield 2)
http://apps.cfwnet.org/council�acket/mc review.asp?ID=22358&councildate=l2/13/2016 3/2/2017
M&C Review
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
Jesus (Jay) Chapa (5804)
Sarah J. Fullenwider (7606)
Melinda Ramos (7631)
ATTACHMENTS
Alpha Ranch Resolution Consent to Annex 12.doc
Alpha Ranch Resolution Consent to Annex 171.doc
Aqua Texas 1295.pdf
Exhibit for 12 acres resolution.pdf
Exhibit for 171 acres resolution.pdf
Forms (3) 1295.pdf
Rvan Dynasty Trust 1295.pdf
Water district alpha Ranch shale creek brookfield Map.pdf
Page 3 of 3
http://apps.cfwnet.org/council�acket/mc review.asp?ID=22358&councildate=l2/13/2016 3/2/2017