HomeMy WebLinkAboutContract 16480 CONTRACT FOR WATER SERVICE BETWEEN CITY SECRETARY
THE CITY OF FORT WORTH, TEXAS, AND CONTRACT
DALWORTHINGTON GARDENS, TEXAS
STATE OF TEXAS
COUNTY OF TARRANT g
This contract and agreement is made and entered into this ,
day of Za
I , 19.&1 by and between the City of
Fort Wort , a municipal corporation located in Tarrant County,
Texas , acting by and through Ruth Ann McKinney , its duly
authorized Assistant City Manager , hereinafter called "Fort
Worth , " and the City of Dalworthington Gardens , a municipal
corporation located in Tarrant County, Texas , acting by and
through Albert A . Taub , its duly authorized Mayor ,
hereinaftercalled "Customer. "
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; and,
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 its boundaries , and,
WHEREAS , Customer does not have and cannot provide
economically and within a reasonable period of time , any other
source of water supply , fully adequate to meet its present
and/or future needs or potential emergency needs; and,
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WHEREAS , it is deemed to be in the best interest of both
Fort Worth and Customer that said parties do 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; and,
WHEREAS , by the execution of this contract , neither Fort
Worth nor Customer will surrender any of its rights to the
ownership and operation of its present water production and
distribution facilities ; and,
WHEREAS , Customer desires to contract for the purchase of
treated water and Fort Worth desires to sell treated water
to Customer; and
WHEREAS , Article 4413 ( 32c) (the Interlocal Cooperation Act)
and Article 1108 , §3 of the Revised Civil Statutes of Texas ,
authorize Fort Worth and Customer to enter into this agreement;
NOW, THEREFORE, KNOW ALL MEN 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:
1.
Terms and Conditions
1 . 1 Fort Worth agrees to furnish and sell to Customer treated
water of potable quality meeting all applicable governmental
standards , delivered under the normal operating pressure
prevailing in Fort Worth ' s water distribution system at the point
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or points of delivery mutually agreed upon. Customer agrees to
accept delivery under the conditions of this agreement and to pay
for the same in accordance with the terms hereof .
1 . 2 In accordance with the terms of Fort Worth City Secretary
Contract No. 12720 between Fort Worth, City of Arlington , City of
Mansfield, Trinity River Authority and the Tarrant County Water
Control and Improvement District No. 1 , this contract shall be
deemed subordinate in all respects to the water requirements of
the above contracting parties as specified in Section 3 of that
contract.
1 . 3 If Fort Worth shall ration the use of water throughout its
corporate limits or issue water conservation measures or restrict
the use of water in any way , Customer agrees to institute and
apply 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 . Fort Worth agrees to consult with the
Water System Advisory Committee, hereinafter created , in the
development of any conservation or rationing plans that may be
necessary to address operational constraints whether or not same
are required by any state or federal regulatory agency, or are
deemed advisable by the Water System Advisory Committee to manage
long term system costs , except where emergency conditions may
dictate short-term conservation or rationing requirements as may
be determined by the Director to meet all necessary water
demands.
2 .
Location and Maintenance of Measuring Devices
2 . 1 All water furnished under this agreement by Fort Worth shall
be measured by one or more suitable meters equipped with
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continuous flow, chart-recording devices , and telemetering
equipment tied-in to Fort Worth control center . All meters ,
recording devices, telemetering equipment and appurtenances 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 . Charges for the telelink line and
microwave transmitter , as well as the power to operate same ,
shall be a system cost paid by Fort Worth.
2 . 2 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 said point shall be the responsibility of
Customer . The location of each meter shall be mutually agreed
upon in writing by and between the parties hereto , and the meter
or meters shall not be moved or relocated except by mutual
consent in writing.
2 . 3 For the cost of each additional Customer connection to the
Fort Worth System, Customer will pay an amount not less than
that which would be paid by a developer to Fort Worth under its
then existing connection and line extension policy , or an amount
agreed upon mutually by Fort Worth, Customer , and the Water
System Advisory Committee.
2 . 4 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 meter being tested.
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3.
Meters
3 . 1 Fort Worth shall routinely test for accuracy, and service
and calibrate if necessary, the meters 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, it so
desired.
3 . 2 Upon any calibration, 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 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-halt
( 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.
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3 . 3 If any meter used to determine volume from Customer is out
of service or out of repair so that the amount of water metered
cannot be ascertained or computed from the reading thereof, the
water delivered through the period such meter is out of service
or out of repair shall be estimated and agreed upon by the
parties hereto 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 said metering station
under similar conditions . In the event that the parties hereto
cannot agree on the extrapolated estimate of water volume
delivered , agreement on the flow volume will be determined by
third party arbitration, as hereinafter provided.
4.
Meter Reading and Billing
4 . 1 Fort Worth will read all meters provided for herein at
monthly intervals, and the parties to this agreement shall have
free access to read these respective meters daily , if either
party so desires . It shall be the duty of the parties to give
immediate notice , each to the other , should any meter be found
not functioning properly , and upon such notice repairs to such
meter shall be made promptly.
4 . 2 All readings of meters will be entered in ink upon bound
journals 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.
4 . 3 The meter readings and rates of flow shall be added together
when more than one meter is in service and the sums thereof shall
be used for the purpose of calculating charges for water volume
and excess maximum hour and excess maximum day demand.
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4 . 4 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 rates of use charges which have not
been previously billed and paid. A copy of the rate of flow
charts or other records showing the maximum day and the peak hour
of the year shall be furnished to Customer with the October
billing.
4 . 5 Bills for water service shall be rendered to Customer
monthly by Fort Worth. All such bills 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 . Current charges shall be the amount due for water
treatment and transmission service provided since the prior
billing period. 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 .
4 . 6 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 third
party arbitration , as hereinafter provided . Dispute of a bill
shall not be grounds for non-payment. In the event a payment is
not paid as specified in this agreement, a finance charge of ten
percent ( 10% ) per annum will be calculated from the date which
the payment was required to be made. In the event the final
agreed bill is less than the disputed bill , 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.
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5.
Definitions
5 . 1 " Annual consumption " is the total quantity of water
purchased under the terms of this contract by Customer during the
fiscal year of Fort Worth as determined by the difference in the
annual October meter readings.
5 . 2 "Average daily use" is the total annual consumption divided
by 365 days.
5 . 3 "Maximum day demand" is the maximum quantity of water used
during one calendar day of the fiscal year of Fort Worth.
5 . 4 "MGD" is million gallons per day.
5 . 5 "GPD" is gallons per day.
5 . 6 "Fiscal year" is the fiscal year of Fort Worth from October
1 through September 30 .
5 . 7 "Maximum hour demand" or "peak hour rate" is the quantity of
water used during the one hour of the year that more water passed
through the meter or meters serving the customer than during any
other hour of the fiscal year of Fort Worth multiplied by 24
hours.
5 . 8 "Commodity charge" is that part or the rate charged for
1 , 000 gallons used, regardless of rate of use. The commodity
charge shall include the maintenance and operation costs , the
capital facilities cost on the part of the production and
transmission system related to annual use and the raw water cost.
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5 . 9 "Raw water charge" is a part of the commodity charge and
represents the rate for 1 , 000 gallons charged by the Tarrant
County Water Control and Improvement District No. 1 to Fort Worth
for raw water to be sold to the Customer plus eight percent ( 8% )
of said rate , representing Fort Worth system losses of four
percent (4% ) , and the street rental charge of four percent ( 4% ) .
5 . 10 "Rate of use charge" is the fixed charge determined for the
maximum daily demand in excess of average daily usage and the
maximum hourly demand in excess of maximum day demand rates of
use.
5 . 11 "General benefit facilities" are water facilities that
provide utility services and benefits common to all customers
which include water treatment facilities , metering facilities,
control systems and appurtenances , storage facilities , pumping
facilities and all major mains that are sixteen inches ( 1611 ) and
greater in diameter.
5 . 12 "Customer System" is all necessary Customer mains and
distribution facilities on Customer side of meter from and beyond
point of delivery of treated water by Fort Worth.
5 . 13 "Director" is the Fort Worth mater Department Director or
his designee.
5 . 14 "Fort Worth System" is the Fort Worth water treatment and
distribution system.
5 . 15 "System Access Fee" is a capital contribution ( impact fee,
capital recovery fee , system developement charge ) which
represents a proportional capital cost of general benefit capital
facilities capacity, less depreciation , outstanding debt , and
appropriate contributions paid to Fort Worth, required to provide
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service for new connections , whether located within the
jurisdictional limits of Fort Worth or Customer.
5 . 16 "System cost" is the operating expense and capital related
cost incurred by Fort Worth pursuant to the provision of water
treatment and transmission to the wholesale class of water
customers . Such costs are to be collected by Fort Worth as a
component of the annual cost of providing wholesale water
service.
5 . 17 " Delivery facility" is any facility necessary for the
transmission of water from the Fort Worth System that is on the
Customer ' s side of point of delivery that is constructed
specifically to allow Fort Worth to serve customer.
5.
Rates
6 . 1 Method of Rate Determination
6 . 1 . 1 Wholesale water rates will be based upon cost-of-service
rate studies performed by independent utility rate consultants as
described herein . The independent utility rate consultant shall
be selected by Director from a list of five qualified firms
submitted to the Director by the Water System Advisory Committee.
Cost of such studies 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 cost-of-service for the wholesale class shall
include allocated reasonable and necessary operation and
maintenance expense , depreciation expense and a fair and
reasonable return on allocated capital facilities . To determine
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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 appropriate 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.
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 an adequate opportunity to
earn a reasonable rate of return. The return shall be sufficient
to assure confidence in the financial soundness of the utility,
shall be adequate to maintain and support its credit , shall
enable it to raise the money necessary for the proper discharge
of its public duties , and shall be equal to the weighted
average imbedded cost of outstanding debt plus one and one-half
percent (1-1/2% ) .
6 . 1 . 4 Every five ( 5 ) years , a detailed wholesale revenue
requirement shall be developed on a projected test year basis
allowing for reasonable and necessary expenses of providing such
water service. The wholesale water rate study currently in effect
was completed September 1, 1987 , by Touche Ross and Company, and
shall remain in effect through September 30 , 1992 . Each
subsequent detailed rate study will be performed with the same
methodology used in the previous rate study by an independent
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utility rate consultant as selected by the Director in
conformance with Section 6 . 1 . 1 hereof . Changes in the
methodology will be allowed if recommended by a majority of the
Water System Advisory Committee and approved by the Fort Worth
City Council . In the interim period between complete detailed
rate studies , wholesale water rates shall be adjusted annually by
Fort Worth using the same methoaology adopted at the same time of
the last complete detailed rate study utilizing projected
operating data for the twelve month period ending September 30th
of the year the rates are to be in effect.
6 . 2 Rates to be Used
6 . 2 . 1 The charges for the initial period of this contract
shall be from the date of its execution through September 30 ,
1988, and have been computed as follows :
The commodity charge shall be $0 . 8645 per 1,000 gallons
withdrawn by Customer.
The annual charge per MGD of maximum day demand in
excess of average daily demand shall be $ 54 , 566 per
MGD , and maximum hour demand in excess of the maximum
day demand shall be $29 ,653 per MGD.
The service charge shall be $25. 00 per month per meter.
6 . 2 . 2 The amount charged for raw water 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 County Water Control and
Improvement District No . 1 in accordance with Fort Worth City
Secretary Contract No. 12720.
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6 . 2 . 3 The parties hereto agree that services obtained pursuant
to this contract are essential and necessary to the operation of
Customer ' s waterworks facilities and that all payments made by
each Customer hereunder shall constitute reasonable and necessary
operating expenses of Customer ' s waterworks and wastewater
systems within the meaning of Article 1113 , Vernon ' s Annotated
Texas Statutes , 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 obiligations now or hereafter outstanding , including the
amounts required to pay all principal of and interest on such
bonds and other obligations.
7.
Payment for Water
Payment of charges to Fort Worth for water used by Customer
shall be made as follows :
7 . 1 Minimum annual payment
The minimum annual payment shall be the charges computed for
all water delivered by Fort Worth to Customer during the fiscal
year based on rates provided herein. However , the minimum annual
payment shall never be less than the payment calculated on the
basis of the volume of water taken and the highest maximum day
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and maximum hour during any previous fiscal year within the most
recent five year period.
7. 2 Maximum rate of delivery
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 in
writing at least ( 6 ) months prior to the date of the anticipated
increase in the maximum day demand . The Director shall be
furnished with all pertinent information regarding the proposed
increase in maximum rate of withdrawal . The Director may waive
all notice requirements if , in his sole opinion, said notice is
not necessary to protect the interest of Fort Worth.
7. 3 Monthly payment
The monthly payment shall be based upon the actual volume of
water taken and one-twelfth of the estimated rate of use charges .
For purposes of estimating the rate of use charges , the prior
year ' s maximum day demand, maximum hour demand and average daily
demand shall be used . For the initial fiscal year of this
contract, or for such period during which a history of maximum
day and maximum hour demands of Customer is unavailable, monthly
payments shall be based on a rate of $1 . 10 per thousand gallons.
7 . 4 Annual payment
The total annual payment for water by Customer shall be
related to the annual and peak volumes used by Customer during
the fiscal year , as determined by meters , flow recording devices
or other approved methods, subject to the minimum annual payment
provisions set forth above . The October bill shall reflect any
necessary adjustment to the annual payment due to actual rates of
withdrawal from the Fort Worth System.
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Example
The rate used in the example is based on Customer not being
in Tarrant County Water Control and Improvement District No. 1
and water being withdrawn at one metering station.
Excess
Maximum Monthly
Usage Volume Day & Hour Service
Month Consumption Charges Charges Charges Total
Oct. 1, 000 , 000 $ 864 . 50 $ 1 , 276 . 61 $25 $ 2, 166 . 11
Nov. 1, 000 , 000 864 . 50 1, 276 . 61 25 2,166 . 11
Dec. 1, 000 , 000 864. 50 1, 276 . 61 25 2, 166 . 11
Jan. 1, 000, 000 864. 50 1,276 .61 25 2, 166 . 11
Feb. 1, 000 , 000 864 . 50 1, 276. 61 25 2,166.11
March 2, 000, 000 1,729 . 00 1, 276 . 61 25 3 , 030 . 61
April 3, 000, 000 2, 593. 50 1, 276 . 61 25 3 ,895 . 11
May 3, 000 , 000 2, 593 . 50 1, 276 . 61 25 3, 895 . 11
June 3 , 000, 000 2, 593 .50 1, 276 . 61 25 3 , 895 . 11
July 3,000,000 2,593.50 1, 276 . 61 25 3 , 895. 11
August 4 , 000, 000 3 , 458. 00 1 , 276 . 61 25 4 ,759.61
Subtotal 23, 000 , 000 $19 , 883 . 50 $14 ,042 . 71 $275 $34 ,201. 21
Sept. 3 , 000, 000 2 ,593 . 50 2 , 474 . 35 25 5 , 092 . 85
26 , 000 , 000 $22, 477. 00 $16 , 517 . 06 $300 $39 , 294 . 06
Prior Year Rate Of Use Calculation
( for use in estimated monthly rate-of-use charge)
Average daily use for the prior year = 60, 000 gallons
Maximum day for the prior year = 175 , 000 gallons
Maximum hour for the prior year = 480, 000 gallons
Maximum day rate above average daily use = 115, 000 gallons
Maximum hour rate above maximum date rate= 305, 000 gallons
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Monthly Excess Maximum Day and Hour Payment Calculation
.115 mg X $54, 566 $ 6, 275 . 09 (Maximum day)
. 305 mg X $29,653 9,044. 17 (Maximum hour)
Total $15, 319 . 26
Monthly Payment (Total Divided by 12) _ $1, 276. 61
Current Year Rate Of Use Calculation
Average daily use for the year = 71, 233 gallons
Maximum day for the year = 200, 000 gallons
Maximum hour for the year = 520, 000 gallons
Maximum day rate above average daily use = 128 , 766 gallons
Maximum hour rate above maximum day rate = 320, 000 gallons
Annual Payment Calculation FY 188 Rates
26 , 000 X . 8645 $22, 477 . 00
. 1288 mg X $54 , 566 7 , 028 . 10
. 3200 mg X $29 , 653 9 , 488 . 96
12 X $25 X 1 300 . 00
Total Annual Payment $39 , 294 . 06
Previous Billings for
October through August 34 , 201. 21
September Billing $ 5 , 092. 85
8.
Effective date of contract for billing
8 . 1 The effective date of this contract for billing purposes
shall be the fifteenth ( 15th ) day of the month following the
month in which water is first delivered to Customer under this
agreement.
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9.
Life of contract
9 . 1 The life of this contract shall be for thirty ( 30 ) years
from the date of execution hereof and may be renewed on terms
mutually agreeable to the parties hereto.
10.
Rights-of-way
10 . 1 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 corporate
limits of Customer to provide water to Customer and to other
areas. Upon notice from Customer and at Fort Worth ' s expense ,
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 the 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 or
a similar nature performed within Fort Worth , but neither party
hereto will be required to restore the other ' s property to a
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condition exceeding its original condition , 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.
11.
State Health Department Approval
11 . 1 The Customer Water System shall be approved by the Texas
State Department of Health during the life of this contract . If
at any time the Customer Water System is not approved by the
Texas State Department of Health, or if Customer does not have an
active cross-connection control program, there shall not be any
direct physical connection between the Fort Worth Water System
and the Customer Water System unless an approved backflow
prevention device has been provided and installed and this
installation has been approved by the Texas State Department of
Health . All expenses to provide and install backflow
prevention device( s ) will be borne by Customer.
12.
Resale of Water
12 . 1 Customer agrees that it will not share facilities for water
system use with any other governmental or corporate entity
outside of the certificated area of Customer, commonly known and
referred to as its 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 with other
governmental or corporate entities outside its service area
unless such agreements have been reviewed and approved by Fort
Worth, and made a part of this contract as Exhibit( s)
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12 . 2 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 water system without the recommendation of the Water
System Advisory Committee and express written consent of Fort
Worth . Existing connections outside of the Customer ' s Water
System shall be allowed to continue, as shown in Exhibit ( s)
13 .
Sanitary Sewer Facilities
13 . 1 The Customer covenants that adequate sanitary sewage facili-
ties meeting state health department requirements will be
provided for users of water obtained from the Fort Worth System.
14 .
Additional Parties
14 . 1 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 provide
reasonable assurances that the projected five-year water demands
of the then-existing wholesale customers so served and the
proposed additional customer can be adequately fulfilled. Fort
Worth will consult with the Water System Advisory Committee prior
to contracting with additional parties. For the purposes of this
section , Lake Turner MUD, Roanoke, and Haslet shall be deemed to
be existing contracting parties.
15.
Water System Advisory Committee
15. 1 Customer ' s governing body shall annually appoint a represent-
ative to be a voting member of the Water System Advisory
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Committee which Committee is hereby created and established and
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 .
Said Committee , at its first meeting , shall elect a Chairman ,
Vice-Chairman and Secretary. The Committee may establish bylaws
governing the election of officers , meeting dates and other
matters pertinent to its functioning.
16.
System Access Fees
16 . 1 In the event Fort Worth adopts an ordinance which will
provide for a water system access fee, for new development within
the jurisdictional limits of Fort Worth, Customer agrees to pay
to Fort Worth on a quarterly basis a charge for each new or
enlarged connection for water service made within Customer ' s
jurisdiction served by the Fort Worth System. The charge to
Customer for such connections shall be based upon the size and
type of connection and shall be equal to the charge imposed for
the same size and/or type of connection made within the
jurisdiction of Fort Worth . The calculation of said access fees
shall be consistent with all applicable state and federal
regulations, and shall include only those costs associated with
general benefit capital facilities as herein defined.
16 . 2 Fort Worth agrees that all monies remitted to it pursuant to
this section will be placed in a separate account to be used
exclusively for treatment plant , metering and system general
benefit improvements , and will not be used for operation and
maintenance expenses or distribution system improvements . Such
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funds and all interest earned thereon will be considered a
"contribution" for rate setting purposes only.
16 . 3 Customer shall provide to Fort Worth information pertaining
to building permits as such permits relate to the making of new
and/or enlarged connections within Customer ' s jurisdiction with
each quarterly payment required in this section. Customer further
agrees to provide such other information relating to new and/or
enlarged connections as may be requested by the Director.
16 . 4 Fort Worth will cause to be deposited into the proper
revenue account the appropriate charge required by any future
ordinance for each new or enlarged connection for water service
made within Fort Worth' s jurisdiction.
16 . 5 Following the establishment of a water system access fee,
there will be created and established a Water System Access Fee
Advisory Committee whose purpose shall be to consult with and
advise Fort Worth, through the Water System Advisory Committee ,
on matters pertaining to the methodology of calculating access
fees . Said Committee shall be composed of nine ( 4 ) members ,
three ( 3 ) of which shall be members of , and appointed by, the
Fort Worth City Council. The remaining six ( 6 ) members shall be
members of the City Council of Customers and shall be appointed
by the Tarrant County Mayor ' s Council . The Chairman of said
committee shall be a Fort Worth member elected by the membership
of the committee at its first , annual called meeting . All
committee members shall serve terms of one year but may be
reappointed by the appropriate bodies for subsequent terms . On
an annual basis beginning with the first meeting of the calendar
year the committee shall consider adjustments to the access fee
amounts and the administration of such charges through the Water
System Advisory Committee.
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17 .
Termination
17 . 1 This agreement may be terminated in whole or in part by the
mutual consent of Customer and Fort Worth . Notwithstanding
anything contained herein to the contrary, any material breach by
either party hereto to perform any of the duties or the
obligations assumed by such party hereunder or to faithfully keep
and perform any of the terms , conditions and provisions hereof
shall be cause for termination of this agreement by either party
in the manner set forth in this paragraph . Fort Worth shall
deliver to Customer ninety ( 90 ) days prior written notice of its
intention to so terminate this agreement if Customer fails to
cure or adjust such material breach , including in such notice a
reasonable description of the breach. If within said ninety ( 90 )
days Customer shall fail or refuse to cure such material breach
to the satisfaction of Fort Worth , then and in such event , Fort
Worth shall have the right within six months additional advance
written notice to Customer and without any liability whatsoever
on the part of Fort Worth to declare this agreement terminated.
In the event of termination of this agreement , all rights ,
powers , and privileges of Customer hereunder shall cease and
terminate and Customer shall make no claim of any kind whatsoever
against Fort Worth, its agents or representatives, by reason of
such termination or any act incident thereto, provided Fort Worth
acted reasonably and such termination was not unreasonable ,
arbitrary and capricious . Fort Worth shall advise Customer in
writing immediately upon acceptance of the cure of any
breach.
17 . 2 The following breach , default or failure to perform a duty
or obligation shall be considered to be a material breach:
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a. Failure to adopt and enforce any ordinance required to
be adopted and enforced herein;
b. Failure to make any payment of any bill, charge or fee
as provided for in this agreement;
C. Making any connection to the Fort Worth System at any
point except as provided in Section hereof;
d. Failure to correct any potentially hazardous connection
in accordance with Section 11 after reasonable written
notice.
e. Failure to provide Fort Worth ingress and egress for
purposes of operation and maintenance of any metering
facility;
f. Failure to provide Fort Worth rights-of-way as required
herein.
17 . 3 In the event of any other non-material breach, default or
failure to perform duties under this agreement, Fort Worth shall
deliver to Customer sixty ( 60 ) days advance written notice of
such default. If Customer fails to cure such breach, default or
failure, then Fort Worth shall give Customer written notice of
such failure to cure and may surcharge Customer Five Thousand
Dollars ( $5 , 000 ) per month until such time as Customer cures such
non-material breach.
17 . 4 Any failure by Fort Worth to so terminate this agreement or
the acceptance by Fort Worth of any benefits under this agreement
for any period of time after such material breach , default or
failure by Customer shall not be determined to be a waiver by
Fort Worth of any rights to terminate this agreement for any
subsequent material breach, default or failure.
17 . 5 Any failure by Customer to so terminate this agreement or
the acceptance by Customer of any benefits under this agreement
for any period of time after such breach, default or failure by
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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.
18.
Ownership and Liability
18 . 1 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 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
hereto agrees to save and hold the other party harmless 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 parties hereto for the proper
treatment , quality, transportation , and delivery of all such
water provided by it to the point of delivery.
18 . 3 Contracts made and entered into by either Customer or Fort
Worth for the construction , reconstruction or repair of any
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delivery facility shall include the requirements that the
independent contractor ( s ) must provide adequate insurance
protecting both the Customer and Fort Worth as co-insureds. Such
contract 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 contract.
19 .
Force Majeure
19 . 1 If by any reason of force majeure either party hereto 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 to
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
countinuance 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.
19 . 2 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
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hereunder or the Customer to receive water hereunder on account
of any other causes not reasonably in the control of the party
claiming such inability.
20.
Notices
20 . 1 Any notice, communication , request, reply or advice herein
provided or permitted to be given , made or accepted by either
party to the other party must be in writing to:
City of Fort Worth: Water Director
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
Customer:
The parties hereto shall indicate in writing any change that may
occur in such respective addresses from time to time.
21.
Inspection and Audit
21 . 1 Complete records and accounts required to be maintained by
each party hereto 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
-26-
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.
22.
Miscellaneous
22 . 1 Fort Worth and Customer agree that if Fort Worth should
enter into any future contract for supplying treated water to any
municipality under more favorable terms or conditions than set
forth herein, this contract shall be amended to provide the same
terms and conditions with respect to the sale of treated water to
Customer
22 . 2 During a temporary emergency condition created by
unforeseeable mechanical failure or by unprecedented high rate of
water usage such as might result from a major fire or a major
water main break, it may be necessary that water be withdrawn
from the Fort Worth System at a rate of usage in excess of that
required for the usual peak requirements of Customer . 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 48 hours of the occurrence of an emergency condition. In
any event, the commodity charge for all water delivered shall be
due and payable as described elsewhere herein.
22 . 3 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 . 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
-27-
installed where practicable at the expense of Fort Worth to meter
all water used by Fort Worth under the terms of this section.
22 . 4 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 the Customer before the
charge for water service to Customer is computed in accordance
with the payment computations set forth and based on the
commodity charge described herein and the quantity of water so
withdrawn from the Fort Worth System.
22 . 5 This agreement terminates and supersedes that certain
contract(s) known as City of Fort Worth City Secretary Contract
No.
22 . 6 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.
22 . 7 Customer agrees to abide by any changes in this agreement
made necessary by any amendment or revision to state or federal
regulations.
22 . 8 Upon prior notice by Fort Worth , any duly authorized
employee of Fort Worth bearing proper credentials and
identification shall notify Customer of need for access to any
premises located within Customer ' s city limits 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 contract. Customer may
-28-
elect to accompany the Fort Worth representative. To the extent
permitted by law, Fort Worth agrees to indemnify 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 his employment.
22 . 9 Whenever any disputed matter herein is to be specifically
determined by the use of an arbitrator , the following procedure
is to be followed . The party requesting that the dispute be
settled by arbitration shall serve on the other party a request
in writing that such matter be handled by arbitration. Customer
and Director shall mutually agree in writing on the selection of
impartial arbitrator . Such agreement shall be made within ten
( 10 ) days from the date that the request for arbitration is
received. If an agreement is not reached on the selection of the
impartial arbitrator on or before the tenth ( 10th ) day after the
date that notice is received, the Director shall immediately
request a list of seven qualified neutral arbitrators from the
American Arbitration Association or the Federal Mediation and
Conciliation Service , or their successor in function . The
Customer and Director may mutually agree on one of the seven
arbitrators on the list . If they do not agree within five ( 5 )
working days after the receipt of the list, Customer and Director
shall alternate striking a name from the list and the name
remaining shall be the impartial arbitrator . Customer and
Director shall mutually agree on a date for the arbitration
hearing . The decision of the arbitrator shall be final , and
judgment may be entered upon it in accordance with applicable law
in any court having jurisdiction thereof . All costs of
arbitration shall be considered a system cost.
-29-
23.
Waiver, Remedy, Severability
23 . 1 No waiver by either party hereto of any term or condition of
this agreement shall be deemed or construed to be a waiver of any
other term or condition or subsequent waiver of the same term or
condition.
23 . 2 In addition to any other remedy as may be provided by law,
this agreement shall be specifically enforceable by the parties ,
hereto. Venue for any action shall be in Tarrant County, Texas.
23 . 3 It is agreed that, in the event any term or provision herein
contained is held to be invalid by any court of competent
jurisdicition , the invalidity of such term or provision shall in
no way affect any other term or provision contained herein ;
further , this agreement shall then continue as if such invalid
term or provision had not been contained herein.
IN TESTIMONY WHEREOF, after proper action by the respective
governing bodies of the parties hereto , we have caused these
presents to be executed in quadruplicate copies, each of which is
considered to be an original and the seals of the respective
parties to be hereto affixed on the date above written.
-30-
ATTE / CITY OF FORT WORTH
By:
Ruth Howard, Ruth Ann McKinney
City Secretary Assistant City Ma ger
APPROVED AS TO FORM AND LEGALITY:
�--City Attorney
/ Contract Authorization
Date:
Date
APPROVI�L ECOMM DED:
Richard W, a ey, Dir for
Water Department
ATTEST: CITY OF DA WORTHINGTON G RDENS
By:
,,-,City Sec tary Mayor
APPROVED AS TO FORM AND LEGALITY:
City Att rney
Date:
— �ft
APPROVAL RECOMMENDED:
Jloe�. xlx�
J n L. Moffat, P. E.
ity Engineer/Public Works Director
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City of Fort Worth, Texas
a yor and Council Com7nunication
DATL REFERENCE SUBJECr: CONTRACT FOR WATER SERVICE BETWEE14 PAGE
6/21/88 NUMBER FORT WORTH AND DALWORTHINGTON GARDENS 1
**C-11043 I of—1
Recommendation:
It is recommended that the City Council approve a contract between the City of
Fort Worth and Dalworthington Gardens for wholesale water service.
Discussion
In a letter dated November 24, 1987, the Mayor of Dalworthington Gardens, Al
Taub, requested from the Water Department information regarding criteria to
execute a contract for water service with Fort Worth. Mayor Taub stated that
Dalworthington Gardens desired to enter into formal contract negotiations to
obtain approximately .250 million gallons per day average flow of potable water
from Fort Worth.
Dalworthington Gardens has planned to build a 12" diameter transmission main to
extend from the Fort Worth distribution main at Boswell Street to Dalworthing-
ton Garden 's proposed new elevated storage and pump station site in the vicin-
ity of Michigan Avenue and Arkansas Lane. All construction is to be completed
by March 1, 1989.
Subsequent to the receipt of this information, the Fort Worth Water Department
met with representatives of Dalworchington Gardens in contract negotiations. In
addition, the Water Department Engineering staff has reviewed the report on the
water supply main to Dalworthington Gardens, and a contract for Council consid-
eration is attached.
RAM:cI
I
Qc
r�
.�.._.
s Y;
:tLXCA
SUBMITTED FOR I Mt
CITY MANAGER'S DISPOSITION BY COUNCIL: PROCESSED BY
OFFICE BY: Ruth Ann McKinney APPROVED
CRIGiNATING p OTHER (DESCRIBE)
DFPARTMENT HEAD: Richard Sawey 0220 CITY SECRETARY
F.-,R ADDITICrNAL INFORMAT N
C`INTACT Sawey 8220 DATE