HomeMy WebLinkAboutContract 42140 CITY SECRETARY
CONTRACT NO. a j
WHOLESALE TREATED WATER SERVICE AGREEMENT
BETWEEN THE CITY OF FORT WORTH, TEXAS,AND AQUA UTILITIES, INC.
STATE OF TEXAS §
COUNTY OF TARRANT §
This Contract and Agreement ("Agreement") is made and entered into this,;Z! day of
201 , by and between the City of Fort Worth, a municipal corporation located in
T County, Texas, acting by and through , its duly authorized Assistant City
Manager, hereinafter called "Fort Worth," and Aqua Utilities, Inc., a Texas corporation doing
business as Aqua Texas, Inc., 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 has provided at its own expense and now owns, operates, and
maintains a distribution system, and furnishes water service to the customers within the boundaries
of Certificate of Convenience and Necessity("CCN")No. 11157;
WHEREAS, Customer, Fort Worth, and Brookfield Acquisitions, L.P., a Texas limited
partnership, have entered into that certain Brookfield Water and Wastewater Utility Service
Agreement (City Secretary Contract No. _) with respect to water service to the approximately
231.579-acre Brookfield development in the City's extraterritorial jurisdiction (the "Development")
pursuant to which Customer will enter into this Agreement with the City to purchase water to serve
the Development;
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 the Development;
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 continue to sell treated water to Customer;
WHEREAS, Customer and Fort Worth desire to provide for reasonable wholesale contract
rates for the purchase of treated water sufficient to assure confidence in the financial soundness of
the Fort Worth utility, adequate to maintain and support the utility's credit and sufficient to
enable Fort Worth to raise the money necessary for the proper discharge of its public duties in the
provision of water service: and 1-- -- 1
OFFICIAL RECORD
Agreement for Water Service i CITY SECRETARY
For Special Water Utility Districts i
1198845.1 FT. WORTH, TX 0 g_1 ;_—1 1 P =+ 5 I N
08-17-1 "1 A09 :49 1N
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........................................................................................................... 6
1.1 Annual Consumption.................................................................................................... 6
1.2 Average Daily Use........................................................................................................ 6
1.3 Calendar Day ................................................................................................................ 6
1.4 Capital Improvements................................................................................................... 6
1.5 Chapter 395............... 6
1.6 Customer's Service Area..............................................................................................
1.7 Customer System.......................................................................................................... 6
1.8 Delivery Facility........................................................................................................... 6
1.9 Director......................................................................................................................... 6
1.10 Emergency................... 6
........................
1.11 Equivalent Meters or EM.............................................................................................. 6
1.12 Facility Expansion ........................................................................................................ 7
1.13 Fiscal Year.................................................................................................................... 7
1.14 Fort Worth..................................................................................................................... 7
1.15 Fort Worth System........................................................................................................ 7
1.16 Impact Fee................. 7
..............................................
1.17 Maximum Day Demand.......................................:........................................................ 7
1.18 Maximum Hour Demand.............................................................................................. 7
1.19 MG and MGD............................................................................................................... 7
1.20 Parties....................
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...........................
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.........
1.21 Rate of Use Charge....................................................................................................... 7
1.22 Raw Water Charge........................................................................................................ 7
1.23 Return Water................................................................................................................. 7
1.24 Service Charge.............................................................................................................. 7
1.25 Street Rental.................................................................................................................. 8
1.26 Stand-by Charge............................................................................................................ 8
1.27 System Cost .................................................................................................................. 8
1.28 TCEQ........................... 8
...................................................
1.29 Treatment, Pumping and Transmission Charge............................................................ 8
1.30 Volume Charge............................................................................................................. 8
ARTICLE 2. Delivery of Water ............................................................................................... 8
2.1 Delivery..................... 8
..................................................
2.2 Acceptance and Payment.............................................................................................. 8
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2.3 Operations..................................................................................................................... 8
2.4 Raw Water Contract...................................................................................................... 9
2.5 Water Use Restrictions and Conservation.................................................................... 9
2.6 Requirements of 30 Tex. Admin. Code Chapter 288.................................................... 9
2.7 Consultation with WCAC........................................................................................... 10
ARTICLE 3. Location and Maintenance of Measuring Devices.............................................. 10
3.1 Metered Water ............................................................................................................ 10
3.2 Point(s) of Delivery..................................................................................................... 10
3.3 Cost of New or Additional Connections..................................................................... 10
3.4 Check Meter................................................................................................................ 11
ARTICLE4. Meters................................................................................................................ 11
4.1 Testing......................................................................................................................... 11
4.2 Corrections............................................................................................................. 11
4.
3 Requested Testing....................................................................................................... 11
4.4 Out of Service Meter................................................................................................... 12
ARTICLE 5. Meter Reading and Billing................................................................................. 12
5.1 Reading Meters........................................................................................................... 12
5.2 Records ....................................................................................................................... 12
5.3 Multiple Meters........................................................................................................... 12
5.4 October Billing............................................................................................................ 12
5.5 Billing and Payment.................................................................................................... 12
5.6 Billing Disputes .......................................................................................................... 12
ARTICLE6. Rates............................ .................................................................... 13
6.1 Method of Rate Determination. .................................................................................. 13
6.2 Rates to be Used.......................................................................................................... 14
ARTICLE 7. Payment for Water............................................................................................ 15
7.1 Annual Payment.......................................................................................................... 15
7.2 Withdrawal Rate.......................................................................................................... 16
7.3 Monthly Payments...................................................................................................... 16
7.4 Total Annual Payments............................................................................................... 16
7.5 Rate of Use Charge...................................................................................................... 17
7.6 Applicability of Stand-by Charge................................................................................. 17
ARTICLE8. Effective Date ................................................................................................... 17
ARTICLE9. Term.................................................................................................................. 18
ARTICLE10. Rights-of-Way................................................................................................... 18
ARTICLE 11. TCEQ Public Water Supply Approval............................................................... 18
ARTICLE12. Resale of Water.................................................................................................. 18
12.1 Outside Service Area.................................................................................................. 18
12.2 Exceptions................................................................................................................... 19
ARTICLE 13. Sanitary Sewer Facilities.................................................................................... 19
ARTICLE 14. Additional Wholesale Customers....................................................................... 19
ARTICLE 15. Wholesale Customer Advisory Committee........................................................ 19
ARTICLE16. Impact Fees........................................................................................................ 19
16.1 Calculation and Payment of Impact Fees.................................................................... 19
16.2 Multiple Surface Water Providers .............................................................................. 20
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16.3 Use of Impact Fees...................................................................................................... 20
16.4 Impact Fee Report....................................................................................................... 20
16.5 No Waiver................................................................................................................... 20
16.6 CIFC............................................................................................................................ 20
16.7 Capital Improvements Plan......................................................................................... 21
16.8 Dissemination of Documents...................................................................................... 21
16.9 Audited Financial Statement....................................................................................... 21
16.10 Current Impact Fees....................................................................................................21
16.11 Changes to Chapter 395........................................................................
ARTICLE 17. Breach, Termination and Other Remedies.......................................................... 21
17.1 Termination by Mutual Consent................................................................................. 21
17.2 Termination for Material Breach................................................................................22
17.3 Termination for Repeated Breach...............................................................................22
17.4 Material Breach........................................................................................................... 22
17.5 Notice and Cure.......................................................................................................... 22
17.6 Notice and Cure for Nonpayment of Impact Fees......................................................23
17.7 Notice and Cure for Breach of Water Use Restrictions and Conservation................. 23
17.8 Failure to Provide Notice of Withdrawal Rate under § 7.2 ........................................ 23
17.9 Effect of Termination..................................................................................................23
17.10 No Waiver by Fort Worth...........................................................................................23
17.11 No Waiver by Customer.............................................................................................24
ARTICLE 18. Ownership and Liability.....................................................................................24
18.1 No Joint Venture......................................................................................................... 24
18.2 Liabilities ....................................................................................................................24
18.3 Contractors.................................................................................................................. 24
ARTICLE19. Force Majeure.................................................................................................... 24
19.1 Notice and Suspension................................................................................................ 24
19.2 Definition................................................................................
ARTICLE20. Notices...............................................................................................................25
20.1 Required Notice..........................................................................................................25
20.2 Delivery and Receipt................................................................................................... 25
20.3 Change of Address Notices......................................................................................... 25
ARTICLE 21. Inspection and Audit.......................................................................................... 26
ARTICLE22. Miscellaneous.................................................................................................... 26
22.1 Favored Nations.......................................................................................................... 26
22.2 Suspension of Rate of Use Charges.............................................................................. 26
22.3 Water to Adjacent Areas............................................................................................. 26
22.4 Subject to Laws and Permits.......................................................................................26
22.5 Entry on Customer's Premises.................................................................................... 27
22.6 Alternative Dispute Resolution................................................................................... 27
22.7 Information ................................................................................................................. 27
22.8 Assignment ................................................................................................................. 28
22.9 No Waiver................................................................................................................... 28
22.10 VENUE......................................................................................................................... 28
22.11 Construction................................................................................................................ 28
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22.12 Severability................................................................................................................. 28
22.13 Use of Return Water................................................................................................... 28
22.14 System Regulatory Actions......................................................................................... 29
22.15 Additional Contract Terms ......................................................................................... 29
22.16 Exhibits....................................................................................................................... 29
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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 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; metering facilities; control systems and appurtenances; storage facilities;
pumping 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 development.
1.5 Chanter 395. Chapter 395 of the Texas Local Government Code, as it may be amended
or re-codified from time to time.
1.6 Customer's Service Area. The area inside the Customer's Certificate of Convenience and
Necessity within the Brookfield Development as shown on Exhibit A, except that the Customer
may, with written notice to the Director, exclude a contiguous area that receives its entire water
service from provider(s) other than Fort Worth.
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.
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 large-use customer with a base
(residential) use customer. Fort Worth Water Department uses 5/8 x '/4 inch meter capacity as an
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EM. The ratio of larger meter's capacity to the 5/8 x 3/4 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 may 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 1St 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 the Director.
1.15 Fort Worth S sy tem. The Fort Worth water treatment and distribution system.
1.16 Impact Fee. A capital contribution funding or recouping the cost of Capital
Improvements necessitated by and attributable to new development, subject to and as provided in
Article 16 of this Agreement.
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 water 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 Charge. 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.
1.22 Raw Water Charge. 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 system losses of four percent(4%).
1.23 Return Water. All water that 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 Charge. A fixed monthly charge per wholesale meter, as set forth in the annual
cost-of-service rate study, designed to include a portion of Fort Worth Water Department's cost
for wholesale customer billing and accounting.
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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 starting 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 Charge. 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 System Cost. System Cost, as provided in § 6.1.2.
1.28 TCEQ. The Texas Commission on Environmental Quality or its successor agency.
1.29 Treatment Pumping and Transmission Charge. 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 Charge. The combined total of the Treatment, 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 water 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 minimum pressure. Mutually agreed point(s) of delivery on the Effective
Date are shown on Exhibit A.
2.2 Acceptance and Payment. 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
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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 manner, and shall not unreasonably interrupt, withhold or delay service to
Customer.
2.4 Raw Water Contract. In 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 being 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
customers 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 Fort 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 copy 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 remedies available under Article 17, Fort Worth may install or adjust any
rate of flow controllers necessary to physically achieve compliance, regardless of
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.
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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 comply 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 agrees to consult with the Wholesale Customer Advisory Committee, in
the development of any restriction, conservation, rationing, or drought contingency plans that the
Director determines may 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 meet all necessary water demands.
ARTICLE 3. Location and Maintenance of Measuring Devices
3.1 Metered Water. All water furnished under this Agreement by Fort Worth shall be
measured by one or more suitable meters equipped with continuous flow, chart recording
devices, and telemetering equipment connected with the Fort Worth control center. All meters,
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 transmitter and the power to operate same, shall be a System Cost.
3.2 Point(s) of Delivery. The point or points 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.
3.3 Cost of New or Additional Connections. Customer shall pay the cost of each new,
enlarged or additional Customer connection to the Fort Worth System, 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 under Fort Worth's
then-existing Water and Wastewater Installation Policy, as determined by the Director. The
Customer will pay that amount to Fort Worth before making the new or additional connection to
the Fort Worth System, and the amount shall not be a System Cost. This Section 3.3 is subject to
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the terms and conditions of Exhibit F hereto and Exhibit F shall control with respect to any
conflict between the terms and conditions of this section and Exhibit F.
3.4 Check Meter. Either Party, at its own expense, may install a check meter to check or
measure 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 meter being tested.
ARTICLE 4. Meters
4.1 Testing. Fort Worth shall routinely test for accuracy, and service and calibrate if
necessary, the master meter at each point of delivery no less than once during each twelve (12)
month period. Copies of the results of such calibration and all related information shall be
provided to Customer. Customer shall have access to the metering facilities at all reasonable
times; provided, however, that any reading, calibration or adjustment to such metering
equipment 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. Notification 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
meter, the registration of the flow as determined by such defective meter shall be corrected for a
period extending back to the time such inaccuracy 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) months.
All meters 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 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 malfunctioning. 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 Testing. Customer shall have the right to request Fort Worth to test any
meter(s), but no more frequently than quarterly. Upon any such request, Fort Worth agrees to
perform its testing and calibration of the meter(s) with notice to Customer, and the Parties shall
be entitled to jointly observe any testing, calibration, and adjustments that are made to the
meter(s), 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 any meter(s) if the
test shows that the meter(s) is accurate (within five percent (5%) registration), but Fort Worth
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shall pay the costs of the additional test if the results indicate that the meter(s) 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
Customer 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 Billi n
5.1 Reading Meters. Fort Worth will read all meters 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 of any meter that it finds is
not functioning properly. Upon such notice, repairs to such meter shall be made promptly.
5.2 Records. All readings of meters 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 Multiple Meters. If Customer has more than one point of connection to the Fort Worth
System, the sum of all meter readings and rates of flow shall be used for the purpose of
calculating the water Volume Charge and the Rate of Use Charge.
5.4 October Billing. 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.
5.5 Billing and Payment. Bills for water service shall be rendered to Customer monthly by
Fort Worth, and shall be due and payable by Customer not more than thirty (30) days from the
billing date. The bills will show current charges, as well as past-due charges, if any. Past-due
charges shall be the total amount 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
unable 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
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annum will be calculated from the date which the payment was required to be made. If a billing
adjustment 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 firms 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 charges
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
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 earn and recover in rates 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.
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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
the rate consultant so selected. In the interim Fiscal Years 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 30th 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 majority 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
accordance with Fort Worth City Secretary Contract 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
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 produce 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
resolutions authorizing its revenue bonds or other obligations now or hereafter
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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-service 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 Committee 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. Payment for Water
Payment of charges to Fort Worth for water used by Customer shall be made as follows:
7.1 Annual Payment. 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 Year 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 Volume Charge times the current Fiscal Year Annual
Consumption, plus the Service Charge, plus the current Fiscal Year Rate of Use
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
Demand 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;
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(b) times the total number of EM units for all of the Customer's
wholesale meters 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
will 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 example 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 MonthlPayments. The monthly payment will be the sum of(a)plus (b)plus (c):
(a) the greater of:
(i)one-twelfth (1/12) of the amount 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 Service Charge.
7.4 Total Annual Payments. 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
determined by meters, 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
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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 Demand (expressed as MGD) in excess of Maximum Day Demand (in MGD).
Exhibit C presents example Rate of Use Charge calculations. Rate of Use Charges 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 through 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 Hour and Maximum Day Demands) for the Fiscal Year just ended, during which the
water usage occurred.
7.6 Applicability of Stand-by Charge. Customer is subject to the Stand-by Charge if the
amount of the Stand-by Charge is the greater of the Annual Payment options listed in § 7.1.
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 Customer's obligations under this
Agreement include the requirements of§ 3.1 for the location, approval and installation of meters.
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 Agreement; 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 Emergency 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.
ARTICLE 8. Effective Date
The effective date and time of this Agreement for all purposes is January 1, 2011 at 12:01
a.m. Upon the Effective date, the wholesale water service agreement then in effect between Fort
Worth and the Customer is terminated and superseded by this Agreement.
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ARTICLE 9. Term
This Agreement expires on September 30, 2031. It 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 maintain mains or facilities within the Customer's Service Area to provide
water to Customer and to other areas. Upon notice from Customer and at Fort Worth's expense
incurred as a System Cost, Fort Worth will move such water mains or facilities located in such
street rights-of-way, or other property owned by Customer when reasonably necessary to the
performance 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 Fort 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
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 similar 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 further conflicts insofar as is reasonably practicable.
ARTICLE 11. TCEQ Public Water Supp_lyApproval
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 Outside 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 without
the express written consent of Fort Worth, which consent shall not be unreasonably withheld.
Fort Worth neither recognizes nor approves any existing agreements entered into by Customer
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with other governmental or corporate entities outside of Customer's Service Area, unless
expressly approved in writing by the Director before the Effective Date.
12.2 Exceptions. Only those existing connections outside of the Customer's Service Area
shown in Exhibit E may continue. Customer agrees that it will not enter into any resale or
transportation agreement other than as a part of its normal offering and supply of water to
existing and future subscribers to its Customer System without the recommendation of the
Wholesale Customer Advisory Committee and express written consent of Fort Worth.
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 Customers
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 that 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 customers.
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, administration, 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 Payment of Impact Fees. On a quarterly basis, Customer agrees to pay to
Fort Worth an Impact Fee for each new or enlarged connection for water service made within
Customer's Service Area served by the Fort Worth System. The Impact Fee to the Customer for
each such connection shall be based upon the size of water meter and shall be assessed and
collected by the City at 100% of the total maximum assessable amount of applicable impact fees
as adopted by the City Council. Subject to the foregoing, 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 successor statute) that are associated with Capital
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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. This Section
16.1 is subject to the terms and conditions of Exhibit F hereto and Exhibit F shall control with
respect to any conflict between the terms and conditions of this section and Exhibit F.
16.2 Multiple Surface Water Providers. If Customer receives surface water from more than
one water provider for use by potable water customers within its Service Area, then the
Customer's impact fees due to Fort Worth shall be proportionately reduced. The charge will be a
fractional part of the Impact Fee imposed within Fort Worth for the same size of meter based on
the ratio of the annual amounts of water purchased from Fort Worth to the total annual combined
amount of surface water purchased from Fort Worth and the Customer's other surface water
provider(s). For purposes of calculating this fractional part, this ratio will be the greater of the
most recent prior annual ratio or the most recent 3 year average ratio occurring after the first
Fiscal Year after the Effective Date.
16.3 Use of Impact Fees. As required by Chapter 395, Fort Worth agrees that all money
remitted to it pursuant to this Article 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
improvements plan, and will not be used for operation and maintenance 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.
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 Article 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 Customer 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 Committee 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 Impact 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
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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 consultants 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
improvements 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 calculation of any
Impact Fees. The CIFC shall recommend to the Wholesale Customer Advisory Committee
which Capital Improvements should be included in the calculation of any Impact Fees. The
CIFC shall also meet with Fort Worth's citizen advisory committee as such citizen's advisory
committee 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
improvements 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.
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 100% of the maximum
assessable 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. This Section 16.10 is subject to the terms and
conditions of Exhibit F hereto and Exhibit F shall control with respect to any conflict between
the terms and conditions of this section and Exhibit F.
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 amendments to this Agreement to conform it to such amendment or new
statute. The reasonable cost of such legal counsel shall be a System Cost.
ARTICLE 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
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consent to termination remains within it's 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. Notwithstanding 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
manner 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 Agreement if the
breaching Party fails to cure such breach within ninety (90) days from the date of the notice. The
notice must 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 breaching 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 such breach, the non-breaching Party may, after
six (6) months notice to the breaching Party, terminate this Agreement. That notice must be
provided within a reasonable time after the repeated breach that is the basis for the termination.
17.4 Material Breach. The 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. Making any connection to the Fort Worth System at any point except as
provided in §3.2;
d. Failure to correct 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;
E 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-material 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 may 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
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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
amount developed and calculated by Fort Worth intended to reimburse Fort Worth for any
damages each month, including 10% interest, until Customer cures that breach. Because failure
to perform obligations under this Agreement cannot be adequately compensated in money
damages 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 o�pact 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 Impact 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, may, 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 to 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, 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 make any claim of any kind whatsoever against the other Party,
its agents or representatives, by reason of termination or any act incident to termination, if the
terminating 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 court 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
termination.
17.10 No Waiver by Fort Worth. Any failure by Fort Worth to terminate this Agreement, or the
acceptance by Fort Worth of any benefits under this Agreement, for any period of time after a
material breach, default or failure by Customer shall not be determined to be a waiver by Fort
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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 Customer 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 terminate 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 may 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 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 Ma'el ure
19.1 Notice and Suspension. If by any reason of force majeure either Party shall be rendered
unable, 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 affected 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 inability with all reasonable dispatch.
Agreement for Water Service 24
For Special Water Utility Districts
1198845-1
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 military authority,
insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods,
washouts, droughts, 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.
ARTICLE 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 Utilities, Inc. dba Aqua Texas, Inc.
Attn: Vice-President
1106 Clayton Lane, Ste. 400W
Austin, Texas 78723
Aqua Utilities, Inc. dba Aqua Texas, Inc.
Attn: Chief Legal Officer
762 West Lancaster Ave.
Bryn Mawr, Pennsylvania 19010
With an additional copy to be given to a Customer representative, if designated in writing by
Customer.
20.2 Delivery and Recent. 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) transmission. 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.
Agreement for Water Service ')5
For Special Water Utility Districts
1198845-1
ARTICLE 21. Lection 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
times 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 responding 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 Agreement 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
terms and conditions with respect to the sale of treated water to Customer.
22.2 Suspension of Rate of Use Charges. 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
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 Customer 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 Adjacent 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 metered 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 Subject 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 forum having jurisdiction. Customer agrees to abide by any changes in this Agreement
Agreement for Water Service 26
For Special Water Utility Districts
1198845-1
made necessary by any new, amended, or revised state or federal regulation; however the Parties
may not enact 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
Customer 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 amicable negotiations.
22.6.2 Any and all disputes arising out of or relating to this Agreement that cannot be
resolved informally will be submitted to mediation. The place of mediation 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
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 mediation is not successful, either Party may commence litigation to resolve the
dispute. Fort Worth's litigation costs shall be a System Cost.
22.7 Information. 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 indirectly 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;
Agreement for Water Service 27
For Special Water Utility Districts
1198845-I
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 Assignment. 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
Agreement 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 effective 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.
22.10 VENUE. THE PARTIES AGREE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT
COUNTY,TEXAS AND THAT THE COURTS OF TARRANT COUNTY ARE A PROPER FORUM FOR THE
DETERMINATION OF ANY DISPUTE ARISING UNDER THIS 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 Sever, 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 seek or receive any compensation, credit, or offset
from Fort Worth for making the Return Water available to Fort Worth through discharges into
Agreement for Water Service 28
For Special Water Utility Districts
1198845-1
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 System Regulatory 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 F "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 Map of Existing Connections Outside Customer's Service
Area [if any].
Exhibit F Additional Terms
[THIS SPACE INTENTIONALLY BLANK]
Agreement for Water Service 29
For Special Water Utility Districts
1198845-1
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.
ATTEST:
��av CITY OF FORT WORTH
0p°Q�U (J �4�Z4
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Y ry, of Fort W o o$ ��Asstser
�0 $x ity OAPPROVED AS TO FORM A ALi � la--o
c CityAttoy, Cty of ort Wo Ch�riza►tioaDate: � ���APPROVAL RE OMMENDED: t
irector
City of Fort Worth Water Depai t
ATTEST: AQUA UTILITIES, INC. dba AQU TEXAS,
INC.
Corporate Secretary Rob . L ughman, Presid t
Date: January 13, 2011
EWORTH,
ORD
ARY
TX
Agreement for Water Seryice 30
For Special Water Utility Districts
1198845-1
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EXHIBIT B
SECTION 7.1.3
Stand-by Charge Example Calculation
1) Stand-bCharge Calculation Inputs
• 10 inch meter=210 EMs
• 1 EM =20 Gal per Minute X 60 Minutes per Hour X 24 Hours per
Day or 28,800 Gallons per Day
• Does not include Cost of Raw Water
3-Year Average Treatment,Pumping and Transmission Charge(14,000 Gals)Calculation:
FY05 FY06 FY07
$0.5398 $0.6829 $0.6291
Three Year Average
2) Stand-by Charge Calculation•
Monthly Standby Charge = 28,800 Gallons per Day X 210 1'M X $0.6173 per
1,000 Gallons or$3,733 per Month.
Annual Standby Charge= 12 Months X $3,733 per Month or$44,801.
STANDBY CHARGE
ASSUMPTION AND DEFINITIONS:
The Minimum Standby Charge is based on the maximum amount of water a connection
could draw in a 24-hour period.
The calculation assumes that any usage would be temporary and of an emergency basis.
The calculation is also based on the number and size of each connection.
The Transmission Charge is the 3-year average for that charge as calculated in the most
recent independent cost-of-service study.
Reserved Capacity is defined as the maximum amount of water a connection could draw
in a 24-hour period.
"Equivalent Meters"or"EM" is a means of relating a large-use:customer with a base
(residential) use customer. Fort Worth uses 5/8 x 3/4 inch meter capacity as an EM. The
ratio of larger meter's capacity to the 5/8 x 3/4 inch meter capacity is the number of
EMs for each meter. The ratios can be found in the AWWA Standard C700-02.
1 EM delivers 20 Gallons per Minute.
1 EM delivers 28,800 Gallons per Day(20 GPM * 60 Minutes/Hour * 24 Hours/Day).
Maximum Reserved Emergency Usage equals EM * 28,800
EXHIBIT C
SECTION 7.4 Total Annual, Monthly and Rate of Use Example Calculations
The calculations shown below assume a customer drawing water from one metering station.
The volumes,peaks, rates and charges in this Exhibit C are for demonstration
purposes only and are not based on adopted rates or on actual usage for the Customer.
The annual Volume Rate is charged as a rate per 1,000 gallons. The Annual Payment also
includes the monthly service charge.
Volume
Rate Volume Service Rate of
Month Gallons $/1,000 Charges Charges Use Total
Gallons Charges*
Oct 1,000,000 $1.43 $1,430 $25 $2,209 $3,664
Nov 1,000,000 $1.43 $1,430 $25 $2,209 $3,664
Dec 1,000,000 $1.43 $1,430 $25 $2,209 $3,664
Jan 1,000,000 $1.43 $1,430 $25 $2,209 $3,664
Feb 1,000,000 $1.43 $1,430 $25 $2,209 $3,664
Mar 2,000,000 $1.43 $2,860 $25 $2,209 $5,094
Apr 3,000,000 $1.43 $4,290 $25 $2,209 $6,524
May 3,000,000 $1.43 $4,290 $25 $2,209 $6,524
Jun 3,000,000 $1.43 $4,290 $25 $2,209 $6,524
Jul 3,000,000 $1.43 $4,290 $25 $2,209 $6,524
Aug 4,000,000 $1.43 $5,720 $25 $2,209 $7,954
23,000,000 $32,890 $275 $24,299 $57,464
Sep 3,000,000 $1.43 $4,290 $25 $7,021 $11,336
26,000,000 $37,180 $300 $31,320 $68,800
* Example calculation for Rate of Use Charges is on Page 2 of 4.
1 of 4
EXHIBIT C
SECTION 7.4 Total Annual Payment Example Calculation (con't)
Example Calculation for monthly Rate of Use Charges
Gallons
Average Daily Use for the prior year 60,000
Maximum Day Demand for the prior year 175,000
Maximum Hour Demand for the prior year 480,000
(converted to gallons per day)
Maximum Day Demand above Average Daily Use(Max Day-.4vg Day) 115,000
Maximum Hour Demand above Maximum Day Demand(Max Hour-
Max Day) 305,000
Monthly Excess Maximum Day and Excess Maximum Hour Payment Calculation:
Excess Max
MGD Charges/MGD* Total
Max Day Above Avg Day 0.115 $135,000 $15,525
Max Hour Above Max Day 0.305 $36,000 $10,980
$26,505
Monthly Rate of Use Charge Payment(Total Divided by 12) $2,209
*The Excess Max Charges/MGD are the Excess Max Day Charge and the Excess Max Hour
Charge,each in$/MGD,taken from the current Fiscal Year annual cost-of-service rate
study
As shown,the monthly Rate of Use Charges are calculated using the prior year's Average
Daily Use, Maximum Day Demand and Maximum Hour Demand,times the current Fiscal
Year Excess Max Charges/MGD. The final Annual Payment required by Article 7 is
calculated using the current Fiscal Year Average Daily Use,and the Maximum Day
Demand and Maximum Hour Demand for the current Fiscal Year or for the average of the
most recent three(3) Fiscal Years,whichever is greater(as provided in §7.1 and shown in
the following Examples l and 2),times the current Fiscal Year Excess Max Charges/MGD.
2 of 4
EXHIBIT C
SECTION 7.4 Total Annual Payment Example Calculation (con't)
Example 1—Current year exceeds the average of the most recent three Fiscal Years
Gallons
Average Daily Use for the year 71,233
Maximum Day Demand for the current year 215,000
Maximum Hour Demand for the current year 545,000
(converted to gallons per day)
Maximum Day Demand above Average Daily Use 143,767
Maximum Hour Demand above Maximum Day
Demand 330,000
Fiscal Year Average of Most Recent Three Years
Current FY FY
Average FY 2008 2007
Max Day Above Avg Day
(MG) 129,178 143,767 115,000 128,766
Max Hour Above Max Day
(MG) 318,333 330,000 305,000 320,000
Annual Payment Calculation
Volume Rate
Gallons $/1,000 Gallons Total
26,000,000 x $1.43 = $37,180
Service Charge Months
$25 x 12 = $300
Max Day Above Excess Max
Avg Day (MGD) Charges/MGD
0.144 x $135,000 = $19,440
Max Hour
Above Max Day Excess Max
(MGD) Charges/MGD
0.330 x $36,000 = $11,880
Total Annual Payment Due $68,800
Previous Billings for October through August Usage $57,464
October Billing for September Usage $11,336
3 of 4
EXHIBIT C
SECTION 7.4 Total Annual Payment Example Calculation (con't)
Example 2—The average of the most recent three Fiscal Years exceeds Current year.
Gallons
Average Daily Use for the year 71,233
Maximum Day Demand for the current year 190,000
Maximum Hour Demand for the current year
(converted to gallons per day) 500,000
Maximum Day Demand above Average Daily Use 118,767
Maximum Hour Demand above Maximum Day Demand 310,000
Fiscal Year Average of Most Recent Three Years
CURRENT FY FY
Average FY 2008 2007
Max Day Above Avg Day
(MG) 120,844 118,767 115,000 128,766
Max Hour Above Max Day
(MG) 311,667 310,000 305,000 320,000
Annual Payment Calculation
Volume Rate
Gallons $/1,000 Gallons Total
26,000,000 x $1.43 = $37,180
Service Charge Months
$25 x 12 = $300
Max Day
Above Avg Day Excess Max
(MGD) Charges/MGD
0.121 x $135,000 = $16,335
Max Hour
Above Max Excess Max
Day (MGD) Charges/MGD
0.312 x $36,000 = $11,232
Total Annual Payment Due $65,047
Previous Billings for October through August Usage $57,464
October Billing for September Usage $7,583
4 of 4
EXHIBIT D
Calculation of PILOT and
Cost of Service Revenue Requirement to Recover the Utility's Cost of PILOT
DESCRIPTION
A payment in lieu of taxes ("PILOT") assessed against the Water Operating Fund is an annual
assessment to offset the ad valorem taxes lost, due to the non-profit status of the Water System.
The Water Operating Fund pays the amount of the assessment into the General Fund.
PILOT assessed against the Water Operating Fund is calculated by applying the most recently
adopted property tax rate per $100 assessed value to the net book value of the applicable assets.
These assets are limited to the assets classified as Plant and Property (in the specific NARUC
accounts listed on the next page), and do not include Transmission Mains, Connections,
Collection Structures and Meters.
The PILOT is a component of the Water Operating Fund Cost of Service. The Cost of Service
Revenue Requirement that is necessary to recover PILOT is allocated between Retail and
Wholesale customer classes according to the volume usage in the most recently completed fiscal
year, prorated between the two customer classes.
The Wholesale Cost of Service component of PILOT is then allocated amongst the wholesale
customers according to each wholesale customer's percentage of the wholesale customer class's
volume usage in the most in the most recently completed fiscal year.
EXAMPLE
The following example further explains the calculation of the City's PILOT, the related revenue
requirement, and its recovery through rates. The methodology applied in this example will
remain in effect for the life of the Agreement; however, the specific dollar figures, volumes and
other numerical values used in the following example will be updated from the sources identified
below for each fiscal year that the contract is in effect.
NET BOOK VALUE CALCULATION FOR PILOT ASSESSMENT
PILOT assessed against the Water Operating Fund is calculated by applying the most recently
adopted property tax rate per$100 assessed value to the net book value of the applicable assets,
calculated as:
Historical Cost of Water System Assets at most recent audited year end;
LESS Historical Cost of Non-Plant and Non-Property Water System assets defined by
NARUC (National Association of Regulatory Utility Commissioners)codes:
316 Raw Water Conduit and Valves
343 Transmission Mains
345 Service Connections
346 Meters
347 Meter Installation
348 Hydrant
372 Structures &Improvements/Collection
(If any of these account codes are amended,the equivalent code will be substituted.)
LESS Accumulated Depreciation on Plant and Property at most recent audited year end;
PLUS Construction Work in Progress on Plant and Property at:most recent audited year end;
Example calculation:
NET BOOK VALUE CALCULATION
LESS
Historical Cost
Total of Non-Plant LESS PLUS
Historical and Non- Life-to-Date Construction EQUALS NET
Cost of Water Property Accumulated Work In BOOK
System Assets Depreciation Progress VALUE
$982,385,273 ($655,261,618) ($105,793,316) $26,990,180 $248,320,519
(Dollar figures from most recent Cost of Service Study.)
NET BOOK VALUE ALLOCATION BETWEEN RETAIL AND WHOLESALE
The Cost of Service Revenue Requirement necessary to recover PILOT is allocated between
Retail and Wholesale customer classes according to the volume usage in the most recently
completed fiscal year, prorated between the two customer classes.
Example Retail/Wholesale allocation calculation:
Volume(MG)
Total Annual Volume(MG) 66,917
Wholesale Volume(MG) 21,639
Wholesale Allocation 32.34%
Retail Allocation 67.66%
(Dollar figures and percentages from most recent Cost of Service Study.)
Total Net Book Value Base $248,320,519
Wholesale Net Book Value Base $80,299,602
CALCULATION OF WHOLESALE REVENUE REQUIREMENT
(PILOT COST OF SERVICE COMPONENT)
FY 2010 Tax Rate per$100 Value $0.8550
Total PILOT Cost of Service $2,123,140
Wholesale Allocation 3.2.34%
Wholesale PILOT Cost of Service $686,562
EXHIBIT E
Exhibit Intentionally Omitted
EXHIBIT F
ADDITIONAL TERMS
The Parties acknowledge and agree that Impact Fees pursuant to Article 16 and Cost of New or
Additional Connections pursuant to Section 3.3 shall be paid to Fort Worth as required by the
Brookfield Water and Wastewater Utility Service Agreement as entered into by the City of Fort
Worth, the Customer, Brookfield Acquisitions, L.P., and South Denton County Water Control
and Improvement District No. 1. To the extent the terms and conditions of Article 16 conflict
with the terms and conditions of the Utility Service Agreement, the terms and conditions of the
Utility Service Agreement shall control.
Agreement for Water Service 31
For Special Water Utility Districts
1198845-1
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoR H
COUNCIL ACTION: Approved on 1/25/2011
DATE: 1/25/2011 REFERENCE NO.: C-24720 LOG NAME: 60BROOKFIELD
CODE: C TYPE: NOW PUBLIC CONSENT HEARING:
NO
SUBJECT: Authorize the Execution of the Strategic Partnership Agreement, Development Agreement,
Agreement Concerning Operation of South Denton County Water Control and
Improvement District No. 1 and Agreements Concerning Water and Wastewater Utility
Service for the Brookfield Development Located Contiguous to State Highway 114 in the
Extraterritorial Jurisdiction of the City of Fort Worth
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager or a designee to execute the
following agreements:
1. Strategic Partnership Agreement between the City and South Denton County Water Control and
Improvement District No. 1;
2. Development Agreement between the City and Brookfield Acquisitions, L.P.;
3. Agreement Concerning Operation of the District between the City and the South Denton County
Water Control and Improvement District No. 1
4. Water and Wastewater Utility Service Agreement between the City, South Denton County Water
Control and Improvement District No. 1, Brookfield Acquisition L.P., and Aqua Utilities, Inc.;
5. Wholesale Water Service Agreement between the City and Aqua Utilities, Inc.;
6. Buy-Out Option Contract between the City, Aqua Utilities, Inc., Brookfield Acquisition L.P., South
Denton County Water Control and Improvement District No. 1
7. Wholesale Wastewater Service Agreement between the City and Aqua Utilities, Inc.
DISCUSSION:
Brookfield owns and intends to develop approximately 231 acres in Fort Worth's extraterritorial
jurisdiction as a mixed use development (the Development). The property fronts on State Highway
114 and is in Aqua Utilities, Inc.'s, water certificate of convenience and necessity (CCN). The
property is in South Denton County Water Control and Improvement District (District) created by
order of the Texas Commission on Environmental Quality dated April 19, 2007. The City Council
consented to creation of the District by adoption of Resolution No.3157-01-2005 on January 4, 2005.
The District and Brookfield have requested the City to consent to the issuance of bonds by the District
to fund roads to serve the Development and have asked the City to provide water service to the
Development in order to provide fire protection for residents. As consideration for approval of the
documents listed above, Brookfield will extend 4.3 miles of 24-inch and 30-inch off-site water mains
and 4.7 miles of 24 inch off-site sewer mains to connect the Development to the City's water and
wastewater systems. The facilities will be constructed to City standards and will be over-sized at
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=14623&councildate=l/25/2011 8/15/2011
M&C Review
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Page 2 of 2
Brookfiield's expense, to serve other proposed developments in the area, subject to reimbursement
pursuant to City policies. The Development will also be subject to City land use and development
regulations.
The documents, which are available for public inspection and copying in the City Secretary's Office,
can be summarized as follows:
The Strategic Partnership Agreement authorizes the City to annex property within the Development
designated for retail development for the limited purpose of imposing sales and use tax. The
agreement provides that the City and the District will divide the sales tax proceeds equally for the first
19 years. The City's share will increase to 75 percent commencing in year 20.
The Development Agreement provides for the enforcement of municipal building codes and
establishes land use and development regulations for the Development.
The Agreement Concerning Operation of the District establishes conditions for operation of the
District, including conditions on issuance of bonds and requirements to provide information
concerning the District to the City.
The four remaining agreements identified as items 4 through 7 above relate to utility service for the
Development. Aqua Utilities, Inc., (Aqua Utilities) will provide the retail water and wastewater service
to customers within the Development. Aqua Utilities will provide wholesale water and wastewater
agreement for the first 190 residences constructed in the Development. Commencing with the 191 st
residence constructed, the City will sell treated water service and wastewater service to Aqua Utilities
on a wholesale basis. The City has the option to purchase the water and wastewater facilities in the
Development from Aqua Utilities for$10, and to obtain the CCN for the Development and become the
retail water and wastewater provider for the Development at any time after 17 years after the
Development is connected to Fort Worth's water system.
The Infrastructure and Transportation Committee received a presentation concerning the
Development on October 12, 2010 and recommended approval of the documents.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on
City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Officebv• Fernando Costa (6122)
Originating Department Head: S. Frank Crumb (8207)
Additional Information Contact• Paul Bounds (8567)
ATTACHMENTS
60Brookfield WCID-FWSD ITC 10-7-2010.ppt
�ittp://apps.cfwnet.org/council_packet/mc_review.asp?ID=14623&councildate=1/25/2011 Qn cion, ,