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Home My WebLink AboutContract 30790 CITY R CTE TARY CONNO. V �O AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICE This Agreement Regarding Water and Sewer Utility Service ("Agreement") is entered into by and between Aqua Utilities, Inc., formerly known as AquaSource Utility, Inc., a Texas corporation (and/or its corporate successors and assigns) ("Aqua Utilities"), Aperion Communities, LLLP, an Arizona limited liability limited partnership ("Aperion"), Eladio Properties, LLLP, an Arizona limited liability limited partnership ("Eladio"), DROOY Properties, LLLP, an Arizona limited liability limited partnership (together with Aperion and Eladio, "AED"), and the City of Fort Worth, a Texas home rule municipality(the "City"). WHEREAS, Aqua Utilities wishes to provide retail water and sewer utility service to the Justin Ranch H development in Denton County, Texas identified on Exhibit "A" to this Agreement ("the Development"), which is being developed by AED and is located within the extra-territorial jurisdiction of the City; WHEREAS, Aqua Utilities currently holds Certificate of Convenience and Necessity ("CCN") No. 11157 issued by the Texas Commission on Environmental Quality ("TCEQ") for retail water service that covers several geographic service areas including the certificated area in Denton and Wise Counties shown on Exhibit "B" to this Agreement (the "Denton-Wise County CCN Area")which includes the Development; WHEREAS, no entity presently holds a CCN for retail sewer service in the area that includes the Development; WHEREAS, the City has an interest in, and certain governmental responsibilities regarding, the regulation of development for the health and safety of residents in its extra- territorial jurisdiction; WHEREAS Aqua Utilities, AED and the City wish to cooperate in providing water and sewer service to the Development; NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows: 1. Aqua Utilities will submit a retail water utility service plan for the Development to the City for review and approval, which approval shall not be unreasonably withheld. The City will make reasonable efforts to complete its review within 120 days. To obtain City approval,the plan must at a minimum meet the following requirements: a. Aqua Utilities shall demonstrate that it can provide an adequate supply of potable water meeting all TCEQ public water system requirements for each phase of the Development. Such demonstration shall be made prior to the City's approval and release of a plat for each phase of the Development. Aqua Utilities may obtain water supplies from any source, including but not limited to (i) groundwater sources, (ii) third party wholesale suppliers, or (iii) water from the City pursuant to a treated water delivery contract to be agreed upon between the City and Aqua Utilities. AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICEq 0 II b. The water utility system infrastructure shall meet all City and applicable TCEQ public water system design and construction standards at the time of initial construction by Aqua Utilities, including City fire protection requirements such as water line sizing, number of connections, minimum water pressure, and number of fire hydrants. For the first 1,000 connections Aqua Utilities shall utilize the same type, or a compatible type, of meters, valves, meter boxes and service lines used by the City for its municipal water system; provided, however,Aqua Utilities may utilize automated meter reading ("AMR")-compatible meter boxes. For additional connections beyond the first 1,000 connections, Aqua Utilities may utilize meters, valves, meter boxes and service lines of its choosing. All plans and specifications proposed. by Aqua Utilities for water utility system infrastructure, including all meters, valves, meter boxes and service lines, shall be submitted to the City as part of the retail water utility service plan. 2. Upon City approval of the retail water utility service plan for the Development, the City will not seek to challenge the water CCN for the Development. 3. Aqua Utilities will submit its retail wastewater utility service plan for the Development to the City for review and approval, which approval shall not be unreasonably withheld. The City will make reasonable efforts to complete its review within 120 days. To obtain City approval,the plan must at a minimum meet the following requirements: a. The sewer utility system infrastructure shall meet all City and applicable TCEQ sewer system design and construction standards at the time of initial construction by Aqua Utilities. All plans and specifications proposed by Aqua Utilities for wastewater utility system infrastructure, including all meters, valves, meter boxes and service lines, shall be submitted to the City as part of the retail wastewater utility service plan. b. For the first 1,000 connections, Aqua Utilities shall provide wastewater service through a master sewer service contract with the City pursuant to which wastewater from the Development will be transported to the Trinity River Authority's ("TRA') Denton Creek Wastewater Treatment Plant. Wastewater sent to the TRA Denton Creek Wastewater Treatment Plant shall meet all applicable regulatory requirements, including pretreatment standards, for such plant. Subject to Aqua Utilities' ability to obtain all necessary easements under acceptable terms and conditions, Aqua Utilities will construct all sewer lines and facilities necessary to connect to the City's or TRA's existing wastewater system. Any such construction shall be at no cost to the City. c. For additional connections within the Development, Aqua Utilities shall provide wastewater service by permitting, constructing, operating and maintaining a local wastewater treatment plant in accordance with all applicable TCEQ requirements, but which in addition shall be permitted to meet effluent limitations no less stringent than 5-5-2-1 (5 parts per million ["ppm"] biochemical oxygen demand; 5 ppm total suspended solids; 2 ppm nitrogen; and 1 ppm phosphorous). The City will not AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICE Page 2 contest any TCEQ or other regulatory approvals sought by Aqua Utilities for such wastewater treatment plant so long as the plant remains in compliance with applicable TCEQ requirements and the foregoing effluent limitations. 4. At such time as City water and/or wastewater meters are installed to provide service on either a retail or wholesale basis within the Development pursuant to this agreement, AED shall be responsible for paying all applicable water and/or wastewater system impact fees and other fees and charges normally assessed by the City on developments within its ETJ in accordance with the City's standard procedures and timelines for paying such fees and charges. The impact fee is due and payable even if the customer was receiving service from Aqua Utilities prior to the installation of the Fort Worth meter. 5. The City shall have the right to provide water on a wholesale basis to the first 1,000 connections being provided with sewer service by the City as described in Section 3.b. Such water service shall be provided pursuant to a treated water delivery contract to be executed between the City and Aqua Utilities. Pursuant to its CCN No. 11157, Aqua Utilities shall have the right and obligation to provide retail water service to the Development; however, after 14 years from the date of Aqua Utilities' initial construction of the water and sewer utility systems serving the first 1,000 connections in the Development, or at an earlier date if agreed by Aqua Utilities, the City may in its sole discretion seek to become the certificated provider of retail water and/or sewer service to such 1,000 connections. To effectuate any transfer of retail water or sewer service from Aqua Utilities to the City, the Parties will enter into a "buy-out agreement" pursuant to which Aqua Utilities agrees to a transfer of retail water and/or sewer service rights to the City and further agrees to convey the Development's water distribution and/or wastewater collection systems for the first 1,000 connections to the City for a nominal charge. Aqua Utilities and AED agree not to contest any applications filed by the City at the TCEQ for a new or amended water and/or sewer CCN to effectuate the transfer of retail water and/or sewer service rights for the first 1,000 connections to the City. Aqua Utilities and AED shall cooperate and assist the City to the extent reasonably necessary in obtaining any regulatory approvals required to effectuate such transfer of water or wastewater utility service rights from Aqua Utilities to the City. 6. Once Fort Worth becomes the retail provider of water and/or wastewater service to the first 1,000 connections of the Development, Aqua Utilities will cease providing water and/or wastewater utility service to such area, and the City shall have no further obligations to Aqua Utilities or AED with regard to the costs, operation, equipment removal or site restoration of Aqua Utilities' water and/or wastewater system operations at the Development. All costs of dismantling, decommissioning and removal of the then- existing Aqua Utilities water and/or wastewater systems not utilized by the City shall be borne by Aqua Utilities. 7. The City agrees not to contest the Denton-Wise County CCN Area identified in Exhibit "B" so long as Aqua Utilities submits water and wastewater utility service plans to the City for its review and approval for those Denton-Wise County CCN areas within the City's ETJ. To obtain the City's approval, the plans must show that the(water. seice. i AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICE Page.3 facilities will meet all City water design and construction standards, including all fire protection requirements, and all City wastewater design and construction standards, except to the extent Aqua Utilities has a contractual commitment dated January 16, 2004 or earlier calling for or allowing water or wastewater utility system infrastructure that does not comply with City standards ("Prior Contractual Commitment'). Exhibit "C attached hereto identifies all developments within the Denton-Wise County CCN Area for which Aqua Utilities has a contractual commitment dated January 16, 2004 or earlier calling for or allowing water or wastewater utility system infrastructure that does not comply with City standards. Aqua Utilities has identified the locations of the developments identified in Exhibit "C" on Exhibit "C-1" attached hereto. As development occurs, and at the time that Aqua Utilities submits each of Exhibit "C" subdivision water and wastewater utility service plan to the City for its review and approval, Aqua Utilities also will demonstrate to the City the existence of the Prior Contractual Commitment for that subdivision. The City reserves its right to protest any new developments within the Denton-Wise County CCN Area that do not conform to City-approved water and wastewater utility service plans. 8. Aqua Utilities and AED agree not to protest any water or sewer CCN application, or any sale-transfer-merger application, filed by the City to serve the area west of the existing City limits known as Walsh Ranch in Tarrant and Parker Counties as identified in Exhibit "D" to this Agreement ("Walsh Ranch"). Aqua Utilities and AED further agree not to serve areas which will be served by the main water or sewer lines connecting Walsh Ranch to the City's water or wastewater systems. 9. The Parties agree that the designation under this Agreement of areas and customers to be served by water and sewer utility providers is valid and enforceable and may be submitted to the TCEQ for approval at the appropriate time pursuant to Section 13.248 of the Texas Water Code regarding contracts designating areas to be served by retail public utilities. 10. If AED engages or allows any utility other than Aqua Utilities to provide water service to land within the Denton-Wise County CCN Area, then AED will first contractually obligate such provider to the terms and conditions of this Agreement to the same extent that Aqua Utilities is obligated. 11. Any treated water delivery or master sewer service contracts to be entered into by the City pursuant to this Agreement shall not contain terms and conditions more favorable than set forth in the City's uniform wholesale water and wastewater service contracts with its existing wholesale customers. Any agreements or contracts contemplated by or necessary for the implementation of this Agreement shall be subject to the mutual agreement of the parties thereto and this Agreement shall not be deemed to constitute such agreements or contracts nor to imply missing terms of such agreements or contracts. 12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, corporate affiliates, successors and assigns, but AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICE Page 4 shall not inure to the benefit of any other third parties and all parties expressly acknowledge that there are no other third parry beneficiaries of this Agreement. 13. The Parties acknowledge that each Parry and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting parry shall not be employed in the interpretation of this Agreement or exhibits hereto. 14. This Agreement constitutes the sole and only agreement of the Parties with respect to the subject matter hereof and supersedes any prior understandings or written or oral agreements among the Parties and their affiliates, including without limitation Recorp Partners, Ltd., concerning the subject matter hereof. This Agreement may be executed in duplicate originals each of equal validity and dignity. [Remainder of this page intentionally left blank.] ' � 'w= AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICE pa :Ur�� :�erefore, re se considered, the Parties hereto have executed this Agreement on the , 2004. ATTEST: CITE � ORTH By. , / Marty Hendrix (print name) Title: City Secretary L-APPROVED AS TO FORM Oa ) LEG TY: Contract Authorization Date Assistant City Attorney ATTEST: AQUA ITIS , INC. By Corporate Secretary R ert L. Lau hman (print name) Title: President APERION ITIES, LLLP By: i Lane, Senior Project Manager ELADIO O RTIES LLLP By: G . Lane, Senior Project Manager DROOY P P TIES LLLP By: 4G . ane, Senior Project Manager AGREEMENT REGARDING WATER AND SEWER UTILITY SERVICE lag 1 E r , Ay =��r ISO 991 Wer I: tj IL IL ILL 4 kk- -__ -rT- -�� - 'I f v r ._ _ •i y' - � S - 11 i _ ,J") SAM R YN.OLD.S RD Fm- LT i .:, ALJ ;'r gv- "E z N 7 U9[BUD T Exhiblt - 7 AquaSource CCN J. P!P- 7 X-7 7 5 r "Y3 L 7, r 77� % ir 'l r y TT L J, 10 V WRS-249 0, N- GENRAL HIGHWAY M4F T g� L WISE COUNTY 'V ' iz Vz m T ERAS 7 f. S1111E rvmrrwi,OF ll*'Asv4vls 41 AND-JPI IC jrAt'lWQRT;-nvv� P J7 .)-3 OMOTWENT(f TRAISMK A -J, N A X", 7-1-1111 VMV MINN 7FxAt 749 • � LEGEND � . • tCCC \ iC 1 ! 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Ic.er.._wk HN;rtrn-,.,, �5g 77 r � - "' (roil L-1ceT{N C04X47Y •T_vaS, <_� l L�1 Exhibit "C" System flame PWS ID# County 1 Diamond Ridge—W 2490052 Wise 2 Elizabeth Creek Estates—W&WW Denton 3 Justin Ranch#1 —W&WW Denton 4 Lexington —W 2490040 Wise 5 Sage Meadows W(2 agreements) 0610222 Denton 6 Shale Creek W&WW 0610238 Denton 7 Sunshine Meadows/By Well—W 2490040 Wise 8 Willow Springs—W 0610237 Denton 9 Scenic Ridge-W 0610245 Denton W—Water W & WW—Water & Wastewater Walsh Ranch "Exhibit D" d�=u Aqj Walsh - - _ -- Ranch r f��f+1Td �•�f�1:.7 �- -'fit-. iI. ,' =- j,. 1171 1 LT12 J\ Legend — - - - - MWalsh RanchPO Fort Worth City Limits t= �ETJ a H I r T! September 2004 4! 1; City of Fort Worth. Texas kel s FIN, IQI 1L c4a�tr Certificates of Convenience & Necessity r I i /� -_ I 'r' } j` / - - t-tAs D€v€WPF�Q r.r i C�•. l „ r S F / Argyle) -� ( 1 . �- _ 4 1 - yd can,wno P 01EJ i Aurora 1 . 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CS-N— N'OWATER VPreL.oPER PG�EeM / ProssumPiano. Holy Eastside 2 Northside 2 Northside 3 _ Northside 4 Northside 5 Southside 2 Kalln� Southside 3 I Southside 4 Pek,m Udy WesN do2 Westside 3 Westside 4 L—"Westside5 A I,. County Boundary North Richland Hills Q Fort Worth CCN Boundary c o ®AquaSource CCN - [ i Justin Area Developer Agreements 111 J i Exhibit!"C-1" - . j� ;,r;;ir��°i •� rUa Ls�JJ IIUU� �LG�:o M&C Review Page 1 of 3 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FOR » COUNCIL ACTION: Approved on 10/26/2004 DATE: 10/26/2004 REFERENCE NO.: C-20370 LOG NAME: 60JUSTIN RANCH CODE: C TYPE: NON-CONSENT PUBLIC NO HEARING: SUBJECT: Agreement with Aqua Utilities, Inc., Aperion Communities, LLLP, Eladio Properties, LLLP, and DROOY Properties, LLLP for the Provision of Water and Wastewater Service to a Portion of Justin Ranch II and Providing for Construction of Certain Water and Wastewater Facilities to City Standards RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an agreement with Aqua Utilities, Inc., Aperion Communities, LLLP, Eladio Properties, LLLP, and DROOY Properties, LLLP for treated water delivery and sewer service to a 1,000-unit development within the Justin Ranch II development and providing for Aqua Utilities, Inc. to construct certain water and wastewater facilities to City standards. DISCUSSION: Justin Ranch II is a proposed development in Denton County in the City's extraterritorial jurisdiction. Aqua Utilities, Inc., formerly known as AquaSource Utility, Inc. holds the water Certificate of Convenience and Necessity (CCN) for a portion of Wise and Denton Counties, including Justin Ranch II. On December 16, 2003, the City Council approved Mayor and Council Communication C-19906 authorizing execution of an agreement with AquaSource Utility, Inc. and Recorp Partners, Ltd., concerning provision of water and sewer service to the development. Subsequently, AquaSource Utility, Inc. changed its corporate name to Aqua Utilities, Inc., and the Justin Ranch II property was purchased by Aperion Communities, LLLP, Eladio Properties, LLLP and DROOY Properties, LLLP, which are affiliates of Recorp Partners. Because of such changes in the parties, it is necessary to seek Council approval of execution of an agreement with Aqua Utilities, Inc., Aperion Communities, LLLP, Eladio Properties, LLLP, and DROOY Properties, LLLP relating to provision of water and wastewater service to Justin Ranch II and construction of certain water and wastewater facilities to City standards, on substantially the same terms previously approved by the City Council. For each phase of Justin Ranch II, Aqua Utilities will submit retail water and wastewater utility service plans to the City demonstrating that Aqua Utilities can provide an adequate water supply and that the utility system infrastructure will meet all applicable Texas Commission on Environmental Quality (TCEQ) system design and construction standards. The wastewater service plan must provide service to the first 1,000 connections through a master sewer service contract allowing for the http://apps.cfwnet.org/council_packet/mc_review.asp?ID=2923&councildate=10/26/2004 1/11/2017 M&C Review Page 2 of 3 transport of wastewater from the development to the Trinity River Authority's (TRA) Denton Creek Wastewater Treatment Plant. Aqua Utilities, Inc. will construct all sewer lines and facilities necessary to connect to the City's or TRA's existing wastewater system at no cost to the City. Upon City approval of the retail water utility service plan for Justin Ranch 11, the City agrees it will not seek to challenge the water CCN for the development. The City will be authorized to provide water on a wholesale basis to the first 1,000 units of the development. After 14 years from the date of Aqua Utilities, Inc.'s initial construction of the water and sewer utility systems serving the first 1,000 connections in the development, or at an earlier date if agreed by Aqua Utilities, Inc., the City may seek to become the certificated provider of retail water and/or sewer service to such 1,000 connections. To carry out transfer of retail water or sewer service from Aqua Utilities, Inc. to the City, the parties will enter into a "buy-out agreement" pursuant to which Aqua Utilities, Inc. agrees to a transfer of retail water and/or sewer service rights to the City and further agrees to convey the water distribution and/or wastewater collection systems for the 1,000 units to the City for a nominal charge. Aqua Utilities, Inc., Aperion Communities, LLLP, Eladio Properties, LLLP and DROOY Properties, LLLP, agree not to contest any applications filed by the City at the TCEQ for a new or amended water and/or sewer CCN to effectuate the transfer of retail water and/or sewer service rights to the City for this portion of the development. Aqua Utilities, Inc. will cooperate and assist the City to the extent reasonably necessary in obtaining any regulatory approvals required for transfer of water or wastewater utility service rights from Aqua Utilities, Inc. to the City. The agreement also provides the City will not contest the Denton-Wise County CCN so long as Aqua Utilities, Inc. submits water and wastewater utility service plans to the City for review and approval for portions of the Denton-Wise County CCN in the City's extraterritorial jurisdiction. To obtain the City's approval the plans must show the facilities will meet all City design and construction standards, except to the extent Aqua Utilities has a contractual commitment for certain specified developments to construct water or wastewater system infrastructure that does not comply with City standards. Construction of water and wastewater facilities to City standards will be beneficial in the event the City annexes territory in the Denton-Wise County CCN at some future date. The City reserves its right to protest any new developments within the Denton-Wise County CCN area that do not conform to City-approved water and wastewater utility service plans. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Water Department Customer Service Division is responsible for the billing and collection of revenues under this agreement. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office by: Marc Ott (6122) Originating Department Head: Frank Crumb (Acting) (8243) http://apps.cfwnet.org/council_packet/mc_review.asp?ID=2923&councildate=10/26/2004 1/11/2017 M&C Review Page 3 of 3 Additional Information Contact: Frank Crumb (Acting) (8243) ATTACHMENTS 60JUSTIN RANCHMAP.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=2923&councildate=10/26/2004 1/11/2017