HomeMy WebLinkAboutContract 32903 CITY SECRETARY �l
CONTRACT NO. I�
WHOLESALE WASTEWATER SERVICE AGREEMENT
This Wholesale Wastewater Service Agreement ("Agreement') is entered into by and
between Aqua Utilities, Inc., formerly known as Aqua Source Utility, Inc., a Texas corporation
(and/or its corporate successors and assigns) ("Aqua Utilities") and the City of Fort Worth, a
Texas home rule municipality(the"City').
RECITALS
A. Aqua Utilities wishes to provide retail wastewater utility service to the land
shown on Exhibit A and more particularly described in Exhibit B to this
Agreement, and consisting of approximately 431.303 acres in Denton County,
Texas (the "Development"), located entirely within the City's extraterritorial
jurisdiction("ETJ").
B. The City and Aqua Utilities are parties to the"Superseding Agreement Regarding
Water and Wastewater Utility Service," dated December 21, 2005, City Secretary
Contract No. 32899, ("Superseding Utility Agreement'), which sets forth the
rights and obligations of the parties to that agreement with respect to the provision
of retail and wholesale water and wastewater service to the Development, and
provides, among other things, for the City and Aqua Utilities to enter into a
contract for the provision of wholesale wastewater service to the Development.
C. The City and the Trinity River Authority of Texas ("TRA") are parties to the
"Trinity River Authority of Texas - Denton Creek Regional Wastewater
Treatment System Contract," dated October 28, 1987, City Secretary Contract No.
16054, attached as Exhibit C, as amended from time to time ("TRA Contract"),
pursuant to which the City may obtain certain services from TRA for the
transportation, treatment and disposal of sanitary sewage, industrial waste and
other wastes generated in the drainage area of Denton Creek through the Denton
Creek Regional Wastewater System(the"TRA System").
D. The Development is located in the drainage area of Denton Creek.
E. Aqua Utilities has considered its various alternatives for treatment of the
Development's wastewater and has elected to seek to obtain such services from
the City.
F. Aqua Utilities and the City have reached a mutually satisfactory agreement by
which Aqua Utilities will purchase from the City certain collection and treatment
services for wastewater generated within the Development to be collected and
transported from sewer lines within the Development, to sewer lines owned by the
City, to the City's point of entry into the TRA System as authorized by the TRA
Contract and subject to the Superseding Utility Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements, covenants and
conditions hereinafter set forth, the Parties contract and agree as follows:
Wholesale Wastewater Service Agreement Page 1
ARTICLE I
DEFINITIONS
"Advisory Committee"means the Advisory Committee of the TRA.
"Agreement" means this Wholesale Wastewater Service Agreement between the City and Aqua
Utilities.
"Aqua Utilities" means Aqua Utilities, Inc., a Texas corporation(and/or its corporate successors
and assigns).
"Biochemical Oxygen Demand" ("BOD") means the quantity of oxygen utilized in the
biochemical oxidation of organic matter under standard laboratory procedure in five days at 20
degrees Centigrade, expressed in milligrams per liter.
"Ciff"means the City of Fort Worth, Texas, a home rule municipality.
"City Council"means the City Council of the City.
"Cure Period"means the period of time to cure a material breach, as defined in Section 9.04.
"Development" means that certain 431.303-acre tract located in Denton County, Texas as shown
on Exhibit A and more particularly described in Exhibit B, which Development is located
entirely within the ETJ of the City.
"Development's Capacity" means the wastewater capacity that the City has allocated to serve the
Development pursuant to Section 2.01.
"Development's System" means the wastewater collection facilities (whether owned by Aqua
Utilities or third parties) located on the Development, or those facilities located outside the
Development but constructed and operated to serve the Development, and on the Development's
side of the Point of Entry into the Fort Worth System shown on Exhibit D.
"Director"means the City Water Department Director or designee.
"Discharee"means any solid or liquid waste, regardless of its source, nature or composition,that
enters a wastewateF collection or treatment system.
"Effective Date"means the effective date as defined in Section 9.03.
"EPA"means the U.S. Environmental Protection Agency.
"ETJ"means the extraterritorial jurisdiction of a city as defined by the Texas Local Government
Code, as amended, with the City's ETJ being an unincorporated area presently extending five
miles from the City's corporate limits, excluding other incorporated municipalities and their
.- respective,extraterritorial jurisdictions.
i -
J i wh6l--e 4w service Agreement
Page 2
"Fort Worth System'means those sewer lines and associated facilities owned by the City.
"General Benefit Capital Facilities" means wastewater facilities that provide utility services and
benefits common to all City customers, including but not limited to wastewater treatment
facilities, Metering and Sampling Facilities, control systems and appurtenances, and all major
collectors and interceptors that are eighteen inches(18")and greater in diameter.
"Infiltration"means water that has migrated from the ground into a wastewater system.
"Inflow" means water other than wastewater that enters a wastewater system (including sewer
service connections)from sources such as,but not limited to,roof leaders,cellar drains,yard drains,
area drains, drains from springs and swampy areas, manhole covers, cross connections between
storm sewers and sanitary catch basins, cooling towers, storm waters, surface runoff, street wash
waters or drainage. Inflow does not include, and is distinguished from,Infiltration.
"Metering and Sampling Facilities"means the meter, meter vault, and all metering and telemetry
equipment required to measure and/or sample wastewater flows from the Development at the
Point of Entry.
"Notice"means notice as defined in Section 11.02 of this Agreement.
"Eggf'means, individually,the City or Aqua Utilities, and each of its successors and its assigns,
as permitted by this Agreement.
"Point of Entry 5 means the location where Discharge from the Development's System enters the
Fort Worth System, as reflected on the attached Exhibit D.
"Prohibited Discharlre' means a Discharge from outside the Development's System or otherwise
not in compliance with this Agreement, as defined in Section 2.02.
"Significant Industrial User" ("SIU") means any User connected to the Development's System
that meets at least one of the following criteria:
a. Average industrial wastewater discharge rate greater than 50,000 gallons per day.
b. Biochemical Oxygen Demand and/or suspended solids concentrations in
industrial wastewater greater than 250 mg/L.
C. Meets any of the criteria used by the Environmental Protection Agency ("EPA")
to define SIU in 40 C.F.R § 403.3(t) as amended from time to time (for purposes
of the EPA definition of SIU relating to the "Control Authority," the Control
Authority currently refers to the TCEQ).
"Superseding_Utility AgEeement"means the agreement defined in Recital B above.
"System Cost" means operating expenses and capital related costs incurred by the City pursuant
to the provision of wastewater collection and treatment service to the wholesale class of sewer
customers. Such costs are to be collected by the City as a component of the annual cost of
providing wholesale wastewater service.
Wholesale Wastewater Service Agreement
"TCEQ"means the Texas Commission on Environmental Quality or its successor state agency.
"TRA"means the Trinity River Authority of Texas.
"TRA Contract"means that agreement defined in Recital C above and attached as Exhibit C, as
it may be amended from time to time.
"TRA System" means the Denton Creek Regional Wastewater System owned and operated by
the TRA, including the Denton Creek Regional Wastewater System treatment plant as well as
those sewer lines and associated facilities owned by TRA which transport wastewater to that
plant.
"TSS" (also referred to as Total Non-Filterable Residue)means total suspended solids, measured
in mg/L, that either float on the surface of, or are in suspension in, water, wastewater or other
liquids, and which are largely removable by a laboratory filtration device.
"User"means any person or entity that owns or operates any facility or other point from which a
Discharge enters the Development's System, either directly or indirectly.
ARTICLE H
GENERAL
2.01 Development's Capacity. The City has allocated to the Development a portion of
its available TRA Contract treatment capacity sufficient to accept the wastewater from the
Development's System pursuant to this Agreement. Aqua Utilities shall have the right, in
accordance with the terms and conditions of this Agreement, to deliver wastewater collected by
the Development's System, in volumes not to exceed the Development's Capacity, to the Point
of Entry for further transport by the City and TRA and treatment at the TRA System plant
pursuant to the City's rights under the TRA Contract. The Development's Capacity shall not
exceed a peak flow of 1,357 gallons per minute and an average daily flow of 430 gallons per
minute. Thus, the combined maximum rate of discharge from the Development's System into
the Fort Worth System may not exceed a rate which, if continued for a period of twenty-four
hours would equal 3.16 times the 430 gallon per minute average daily flow.
2.02 Prohibited Discharges. Any waste generated outside the Development or any
Discharge not in compliance with this Agreement is a Prohibited Discharge that is not authorized
to enter the Development's System pursuant to this Agreement. The City shall be under no
obligation to accept,transport or treat any Prohibited Discharge.
2.03 TRA Approvals and TRA Contract. The TRA Contract requires approval of this
Agreement by both the TRA and by a majority vote of the Advisory Committee and is not valid
until such required approvals are obtained. The Agreement is subject to the TRA Contract, as
amended from time to time, and all standards contained therein. This Agreement is a
"subcontract"as that term is used in, and for purposes of, Section 9(c)of the TRA Contract.
a
Wholesale Wastewater Service Agreement
� Page 4
2.04 Connection to the Fort Worth System. The City hereby grants to Aqua Utilities,
upon compliance with the terms and conditions of this Agreement, permission to connect the
Development's System to the Fort Worth System at the Point of Entry as agreed to and designated
on Exhibit D. Other Point(s)of Entry may be mutually agreed upon at a later date.
2.05 Construction and Maintenance of Development's System. Aqua Utilities agrees that
the Development's System, including all sewer connections,shall be constructed in accordance with
the standards set forth in the Superseding Utility Agreement. Aqua Utilities agrees to maintain the
Development's System in good condition and to make repairs in a timely manner, and in the
manner it determines in its sole discretion, so as to comply with this Agreement,the Superseding
Utility Agreement and applicable federal, state and local laws. The City shall not have any
responsibility or liability for the maintenance and operation of the Development's System,unless
and until the City takes title to the Development's System. Aqua Utilities shall not have any
responsibility or liability for the maintenance and operation of the Fort Worth System, except as
otherwise expressly provided herein.
2.06 Extension of Facilities. The City's wastewater collection Be is approximately
5,000 feet from the Development. In order for Aqua Utilities to receive wastewater service from
the City pursuant to this Agreement, the City's wastewater collection line will have to be
extended to the Development. The City has no obligation to extend such line.
2.07 Prevention of Sewer System Overflows. Aqua Utilities agrees to develop, and to
implement upon commencement of operation of the Development's System, an ongoing capacity
management, operation and maintenance plan for the prevention of sewer system overflows.
The plan shall include rehabilitation, operation and maintenance for the Development's System
and shall comply with any written directives from TRA applicable to the Fort Worth System.
2.08 Compliance with Laws. Aqua Utilities shall operate the Development's System
in compliance with all applicable federal, state and local laws, including but not limited to the
regulations, permits and orders adopted or issued by EPA, TCEQ or other regulatory authorities
with jurisdiction over the Development's System. Aqua Utilities shall send to the City, pursuant
to the procedures required for Notice, copies of any reports or other communications to or from
the TCEQ, the EPA, Denton County or other political subdivisions of the State of Texas, that
contain data from or analyses of, or otherwise expressly discuss, the Development's System. In
addition, upon request from TRA or the City, Aqua Utilities shall provide copies of any
documents or data, to the extent that they are not legally privileged, that are necessary for the
operation of the TRA System or the Fort Worth System.
ARTICLE III
WASTEWATER QUALITY, STANDARDS and ENFORCEMENT
3.01 Influent Quality and Pretreatment Standards. Aqua Utilities agrees that all
Discharge into the Development's System shall comply with influent quality and pretreatment
standards contained in both Section 4 of the TRA Contract, as amended from time to time, and
Article VI of Chapter 12.5 of the Fort Worth City Code, as amended from time to time,
excluding standards that do not apply to the TRA System. Aqua Utilities further agrees to
impose and reasonably enforce, through its tariff or otherwise, these influent quality and
Wholesale Wastewater Service Agreement v ��,f;t�l ' G1� �✓
Page 5
pretreatment standards within the Development's System. In addition to compliance at the point
of discharge into the Development's System, any Discharge shall comply with these influent
quality and pretreatment standards at the Point of Entry into the Fort Worth System.
3.02 Industrial Wastewater. Aqua Utilities shall obtain the written consent of the City
prior to any Discharge into the Development's System generated by an SIU. Consent will not be
granted unless (i) the proposed Discharge will meet all influent quality and pretreatment
standards of Section 3.01 and (ii) the SIU submits a permit application ninety (90) days prior to
commencing discharge in accordance with Article VI of Chapter 12.5 of the Fort Worth City
Code, as amended from time to time, and such permit is granted. As a condition for granting the
permit,the City may require the pretreatment of the Discharge as specified in relevant sections of
the Fort Worth City Code.
3.03 Infiltration and Inflow. Connections that allow surface drainage (including storm
water run-off from rainwater spouts, rainwater collection areas, streets and gutters), abnormal
seepage, and Infiltration or Inflow to enter the Development's System are prohibited. Aqua
Utilities will supervise and maintain the Development's System using best management practices
to prevent such Prohibited Discharges and, if any are discovered within the Development's
System, shall, to the extent permitted by law, immediately take the necessary steps to disconnect
them.
3.04 Compliance with Permit Conditions. Aqua Utilities acknowledges that both the
City and TRA are holders of Texas Pollutant Discharge Elimination System permits issued by the
State of Texas and subject to oversight by EPA. Aqua Utilities agrees that it will comply with all
permit conditions that relate in any way to the Development's System and to any Discharge into the
Development's System that ultimately enters the Fort Worth System. Aqua Utilities agrees that, in
the event a fine is assessed against the City or TRA for any violation of any permit condition, and
the violation is directly attributable, in whole or in part, to the Development's System or to a
Prohibited Discharge, then such fine is included in the matters indemnified by Aqua Utilities
pursuant to Article VII.
3.05 Fort Worth City Code. Aqua Utilities agrees to abide by all other provisions
contained in Article VI of Chapter 12.5 of the Fort Worth City Code that apply to customers or
other users in the City's ETJ, as amended from time to time, including, but not limited to, those
provisions that relate to influent quality or pretreatment standards.
3.06 City's Right to Revise Wastewater Quality Standards. The City reserves the right
to revise influent quality and pretreatment standards contained in the Fort Worth City Code, and
shall provide Notice to Aqua Utilities of the adoption of such revision within a reasonable time
after revision thereof. Aqua Utilities shall be responsible for integrating such changes into its
agreements with Users and for notifying all affected Users of the change within sixty (60) days
following such Notice.
3.07 Enforcement. Aqua Utilities will reasonably inspect all connections at the time
made and will routinely monitor the Development's System as a whole as reasonably necessary
to detect and prevent any Prohibited Discharge. If any Prohibited Discharge is discovered, Aqua
Utilities shall immediately take actions necessary to eliminate the Prohibited Discharge or,
Wholesale Wastewater Service Agreement
Page 6
following notice and to the extent permitted by law, to disconnect the User from the
Development's System. In addition to Aqua Utilities' obligation to enforce influent quality and
pretreatment standards under this Article III, the City has the right, within the Development's
System, to enforce the same using methods including, but not limited to, those enforcement
procedures contained in Chapter 12.5, Article I, Division 3 of the Fort Worth City Code, as
amended from time to time, and the Enforcement Response Plan agreed to by the City and the
TRA, as amended from time to time; however, such enforcement by the City does not relieve
Aqua Utilities of its enforcement obligations under this Agreement.
ARTICLE IV
RATES and CHARGES
4.01 Calculation of Rates Pursuant to this Agreement. The Parties agree that the rates to
be charged pursuant to this Agreement will be calculated using the methodology set forth in
Exhibit E. This methodology also serves as the basis for the wholesale wastewater rates that the
City charges to each municipality that is a wholesale wastewater customer of the City, pursuant to
each of their separate contracts. The City will send Aqua Utilities a copy of any finally adopted
wastewater rate study performed pursuant to this methodology. The majority of those separate
contracts with the City's wholesale customers who are municipalities will expire in 2017 and the
City expects to enter into negotiation for new wholesale contracts with those wholesale customers
who are municipalities. The City shall provide Aqua Utilities at least ten(10) days prior Notice
of the commencement of the negotiations between the City and the Wastewater Advisory
Committee. If this Agreement is renewed pursuant to Section 9.02(A), and if the renegotiated
contracts with the City's wholesale customers who are municipalities include a rate methodology
that differs from Exhibit E,then Aqua Utilities and the City expressly understand and agree that for
the renewal term of this Agreement the rate methodology described in Exhibit E will be
automatically superseded and replaced with a new Exhibit E that adopts the same rate methodology
used to calculate the rates for those wholesale customers of the City who are municipalities, subject
to the provisions of Articles IV and IX herein.
4.02 Initial Rate. The initial rates for this Agreement shall be those adopted by the City
Council on effective October 1,2005,which are as follows:
Volume Charge $0.8296 per 1000 gallons
BOD Strength Charges $0.2906 per pound of BOD
TSS Strength Charges $0.1871 per pound of TSS
Monthly Billing Charges $75.00
4.03 Adjustment of Rates. Aqua Utilities agrees that the City shall have the right to
unilaterally adjust the rates charged for the wastewater services provided pursuant to this
Agreement, from time to time, so long as the adjustment is based on the agreed methodology set
forth Exhibit E and in effect pursuant to Section 4.01, and otherwise in compliance with this
Agreement. Aqua Utilities' agreement that the City has the right to unilaterally adjust the rates
charged pursuant to this Agreement is an essential part of the consideration given by Aqua
Utilities in exchange for the City's entering into this Agreement to provide wholesale wastewater
service to the Development, which is in the City's ETJ, and without which consideration the City
would not have provided wholesale sewer services to Aqua. Utilities, either by entering into this
Wholesale Wastewater Service Agreement
Page 7
Agreement or otherwise. Furthermore, in exchange for the City's right to unilaterally adjust the
rates charged hereunder, in addition to other rights under this Agreement, should Aqua Utilities
object to any unilateral rate adjustment, Aqua Utilities shall have the right to terminate this
Agreement with one year's Notice and the following rate relief. Upon any rate adjustment
pursuant to this Article IV and Exhibit E,Aqua Utilities has the following options:
A. Agree to pay the adjusted rate; or
B. Give Notice (i) that it wishes to terminate this Agreement one year after the
effective date of the proposed rate adjustment and (ii) that it rejects the rate
change, in which case the City will continue to charge Aqua Utilities the contract
rates that were in effect immediately prior to the proposed rate adjustment.
If Aqua Utilities elects to terminate this Agreement under this Section 4.03, then the Agreement
will expire at the earlier of the one-year Notice period or the Section 9.01 expiration date. If
Aqua Utilities continues to deliver wastewater to the City at the Point of Delivery and has not
disconnected the Development's System from the Fort Worth System on the date this Agreement
is to expire pursuant to this Section 4.03, then the Agreement shall not expire pursuant to this
Section 4.03 and Aqua Utilities shall immediately pay the City the difference between the
amount that would have been charged pursuant to this Agreement under the rate Aqua Utilities
rejected, and the amount actually charged to Aqua Utilities during the preceding year, with
interest, and subject to any other rate adjustment, past or future, pursuant to this Article IV and
Exhibit E. Aqua Utilities agrees that the remedy provided by this Section 4.03 provides its sole
and exclusive remedy, in law and equity, for any rate adjustments pursuant to this Agreement,
and that it will not pursue a wholesale rate appeal of such rates at any regulatory agency.
4.04 Payment and Finance Charge. Bills for services provided pursuant to this
Agreement shall be rendered to Aqua Utilities monthly by the City. All such bills shall be due and
payable by Aqua Utilities 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
wastewater collection, treatment and disposal service provided since the prior billing period. Past-
due
astdue charges shall be the total amount unpaid from all prior billings as of the current billing date.
Payments received by the City shall first be applied to the past-due charges, if any, and thereafter to
the current charges. Any payment required herein not made within thirty (30) days of the billing
date shall be subject to a finance charge of ten percent (101/6) per annum to be calculated from the
date which the payment was required to be made.
4.05 Billing Disputes. If Aqua Utilities disputes a bill and is unable to resolve the
difference informally, Aqua Utilities shall give Notice to the Director. The Director and Aqua
Utilities shall use their best efforts to resolve the disputed bill; however, dispute of a bill is not
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.
4.06 Minimum Revenue Collection. Aqua Utilities agrees, throughout the term of this
Agreement, to fix and collect such rates and charges for wastewater service to be supplied to the
Development as will produce revenues in an amount equal to at least all of operation and
Wholesale Wastewater Service Agreement
Page 8
maintenance expenses of the Development's System,including specifically the payments under this
Agreement.
ARTICLE V
METERING AND SAMPLING FACILITIES
5.01 Construction and Title. Aqua Utilities or its agents or assigns shall construct or
cause to be constructed the Metering and Sampling Facilities. All construction shall be in
accordance with plans and specifications meeting City standards and shall be approved in advance
by the City. All construction costs, including, but not limited to, site acquisition and preparation,
design and engineering, construction and equipment for such facilities, together with the costs of
necessary easements and rights-of-way, and including any and all necessary modifications to
accommodate a complete initial installation satisfactory to the City, shall be provided free of charge
to the City and be paid for pursuant to the Superseding Utility Agreement. Upon acceptance of the
Metering and Sampling Facilities, the City shall own and have title to the Metering and Sampling
Facilities along with the exclusive right to use, operate, and maintain such facilities; however, such
metering and sampling facilities shall serve the Development only and no Discharge from
outside the Development will be connected to the Fort Worth System in a manner that would
allow it to pass through such facilities.
5.02 Operation and Maintenance. The City shall become solely responsible for the
operation and maintenance responsibilities associated with the Metering and Sampling Facilities.
Aqua Utilities, to the extent that access is under its control, will continuously provide a route of
ingress and egress to said Metering and Sampling Facilities for the City. The City shall have the
discretion to construct improvements, expansions, and replacements to said facilities as a System
Cost and at the timing of the City's needs. Aqua Utilities will also grant and provide to the City
such permits or easements as are necessary for the continuous operation and maintenance of all
Metering and Sampling Facilities. All costs incurred by the City for operation, maintenance, or
replacement of the Metering and Sampling Facilities shall be considered a System Cost.
5.03 Expenses. Expenses incurred by the City for the operation and maintenance of the
Metering and Sampling Facilities shall be a System Cost and shall include, but not necessarily be
limited to,the following:
A. Cost of electricity at the facility;
B. Cost of the initial installation of the telemetry service at the facility and to the control
center and cost of monthly lease charge for the telephone line;
C. Cost of calibration;
D. Cost of parts, materials and supplies required for repairs, calibrations and upgrading
of the facilities;
E. Labor cost plus fringe benefits and indirect costs for repairs, calibrations and
upgrading of the facilities;and
F. Maintenance of ingress and egress and meter facility site.
5.04 Replacement Facilities. Replacement of the Metering and Sampling Facilities
described in this Article V or the equipment therein, occasioned as a result of obsolescence due to
age, excessive maintenance, growth or other reasons as determined by the Director, shall be a
Wholesale Wastewater Service Agreement O ICIM ROO
� I-Nffi ' Page 9
cir
System Cost Any replacement facility or equipment therein shall comply with the City's standards
and specifications.
ARTICLE VI
METERING AND SAMPLING
6.01 Requirement of Metering and Sampling. Any Discharge into the Fort Worth System
from the Development's System shall be metered and sampled as set forth in this Article VI.
6.02 Access to Facilities. Aqua Utilities shall have access to the Metering and Sampling
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 the City, or other mutually
approved third party calibration agent, in the presence of representatives of Aqua Utilities and the
City, if so requested by Aqua Utilities. Notice of any proposed tests shall be provided to Aqua
Utilities at least seventy-two(72)hours prior to such tests being conducted.
6.03 Access to Records. All readings of meters will be maintained by the City in its usual
and customary manner. Aqua Utilities shall have access to such records during reasonable business
hours and shall be furnished with monthly totalizer readings for each Point of Entry metering and
sampling facility.
6.04 Service and Calibration. The City shall calibrate and routinely service the meters no
less than once during each six (6) month period. Copies of the results of such calibration and all
related information shall be provided to Aqua Utilities. The City shall notify Aqua Utilities at least
seventy-two (72) hours in advance of the date and time for any calibration and Aqua Utilities may
observe the calibration.
6.05 Corrections. 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 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.
6.06 Out of Service Meter. If any meter used to determine volume from the
Development's System is out of service or out of repair so that the amount of wastewater metered
cannot be ascertained or computed from the reading thereof, the wastewater 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.
6.07 Monitoring of Quantity and Quality. All Discharge from the Development's System
shall be monitored for volume. In addition,the City shall periodically determine the quality of the
Discharge from the Development's System at the Metering and Sampling Facilities or other agreed
upon sampling points for the purposes of billing for the strength of the wastewater. The sampling
Wholesale Wastewater Service Agreement
Page 10
and testing shall be performed up to two times per year until build-out of the Development and
thereafter one time per year. To determine the quality of the wastewater, the City shall collect
twenty-four (24) hour flow-weighted composite samples for a period of not less than five (5)
consecutive twenty-four (24) hour periods. The City will provide Aqua Utilities with a Notice at
least seven (7) days in advance of its intent to sample, or sufficiently in advance of the sampling to
allow Aqua Utilities to arrange the services of a qualified laboratory. If, at the request of Aqua
Utilities or at the request of the Director, more extensive monitoring is desired, such additional
monitoring shall be paid for by the Party making the request and shall be done in compliance with
this Article VI. If Aqua Utilities requests such additional monitoring, the City shall invoice Aqua
Utilities and payment shall be made within thirty(30)days after receipt of invoice. The Notice shall
include the planned dates, times, and location(s) of sampling. The City shall analyze the samples
collected in accordance with standard methods. Aqua Utilities may be present during the initial
setup of sampling equipment and at the time of pickup for each twenty-four (24) hour composite
sample. The City agrees,if requested,to split the wastewater samples with Aqua Utilities.
6.08 Compliance Monitoring. If,in the opinion of the Director,compliance monitoring is
required, the Director may order that additional monitoring be performed with or without prior
Notice to Aqua Utilities. Such compliance monitoring is to be in addition to the routine monitoring
and periodic sampling set forth in Section 6.07. All information obtained as a result of this
compliance monitoring shall be provided to Aqua Utilities upon request. The City will provide
Notice of such compliance monitoring to Aqua Utilities within a reasonable time thereafter.
ARTICLE VII
OWNERSHIP,LIABILITY and INDEMNIFICATION
7.01 Liability and Ownership. Liability for damages arising out of the transportation,
delivery, receipt, treatment, or disposal of any Discharge into the Development's System shall
remain in Aqua Utilities, together with ownership of the Discharge, until such Discharge passes
through the Point of Entry to the Fort Worth System, at which point ownership of the Discharge and
any liability arising thereafter shall pass to the City, save and except that liability arising out of and
ownership of any Prohibited Discharge shall not pass to the City, and shall remain with Aqua
Utilities. No provision of this Agreement shall be construed to create any type of joint or equity
ownership of any property, any partnership or any joint venture. Payments by Aqua Utilities
(whether past, present, or future) will not be construed as granting Aqua Utilities partial ownership
of,pre-paid capacity in,or equity in the Fort Worth System or the TRA System.
7.02 Indemni1y. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA
UTILITIES AGREES TO INDEMNIFY AND DEFEND CITY, TRA, AND EACH OF THEIR RESPECTIVE
OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS,
CONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "INDEMNITEES") WITH REGARD
TO ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS,
ADMINISTRATIVE PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS,
ENFORCEMENT ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION
THEREWITH (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, COSTS OF
INVESTIGATION AND EXPENSES, INCLUDING THOSE INCURRED BY CITY IN ENFORCING THIS
INDEMNITY), DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY OR RESULTING FROM(IN
WHOLE OR IN PART) ANY BREACH OF THIS AGREEMENT, ANY PROHIBITED DISCHARGE, OR
Wholesale Wastewater Service Agreement ED
Page 11
FT, ,706PTH, TEX.
ANY CONNECTION OF THE DEVELOPMENT'S SYSTEM TO THE FORT WORTH SYSTEM,
(COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED
TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNffEE.
ARTICLE VIII
REPORTS AND RECORDS
8.01 Required Records. As required by the City's agreement with TRA, Aqua Utilities
shall provide the following data upon 30 days Notice from the City:
A. Actual number of customer accounts discharging into the Development's System;
B. Classification of domestic and non-domestic accounts within its service area by
number and percentage of accounts discharging directly or indirectly into the
Development's System;
C. The number of SIU connections subject to Section 3.02 of this Agreement to be
served by the Development's System,with name and location of each; and
D. Additional data which may assist the City in developing methodology for cost of
service studies,planning studies for analyzing federal grants, and system access fees;
provided,however,that the City shall not request data that will require Aqua Utilities
to incur unreasonable expenses in providing such data.
8.02 Inspection and Audit. 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 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.
ARTICLE IX
TERM and RELATED PROVISIONS
9.01 Term of Agreement. This Agreement shall expire upon the sooner of (i) the date
upon which Aqua Utilities ceases to be the retail wastewater provider for the Development, (ii)
termination in accordance with this Article IX;or(iii)April 30,2018.
9.02 Extension. Where expiration of this Agreement occurs pursuant to Section 9.01(iii),
the City will offer to continue to sell wholesale water to Aqua Utilities under one of two options,to
be chosen by the City in its sole discretion:
A. A renewal of this Agreement, in its entirety, amending only Section 9.01(iii) to
state"December 31,2025" and Section 4.02 to state initial rates that are those in
effect on the first day of the renewal term for the City's wholesale customers
who are municipalities.
B. A wholesale wastewater agreement with terms that are the same as the terms of
the renegotiated contracts with the City's wholesale customers whose contracts
now expire in 2017, and subject to all the terms and conditions of those
contracts, except that the expiration date of the wholesale agreement with Aqua
Utilities shall not extend beyond the earlier of the date on which Aqua Utilities
Wholesale Wastewater Service Agreement
Page 12
ceases to be the retail wastewater provider for the Development or December 31,
2025.
The City will advise Aqua Utilities of the City's selected option by providing Notice one hundred
eighty (180) days before the Section 9.01(iii) expiration date. Aqua Utilities can then either (i)
agree to accept the option offered by the City in its Notice,in which case Aqua Utilities and the City
will execute the documents necessary to formalize the terms of such agreement within 60 days of
Aqua Utilities' receipt of Notice; or(ii) elect not to continue to purchase wastewater from the City,
in which case this Agreement terminates on the Section 9.01(iii) expiration date and thus the City
shall have no further service obligation thereafter. If the City's wholesale customers' 2017
expiration dates are extended, then the Section 9.01(iii) expiration date of this Agreement will be
extended for the same number of years or months,but in no event beyond December 31,2025.
9.03 Effective Date. This Agreement, together with all terms and conditions and
covenants, shall be effective December 21,2005.
9.04 Termination. In addition to termination pursuant to Article IX and Section 4.03,
this Agreement may be terminated in whole or in part by the mutual consent of Aqua Utilities and
the City. Notwithstanding anything contained herein to the contrary, any material breach by Aqua
Utilities in the performance of any of the duties or the obligations assumed by Aqua Utilities
hereunder, or to faithfully keep and perform any of the terms, conditions and provisions hereof,
shall be cause for termination of this Agreement by the City in the manner set forth in this Section
9.04. If Aqua Utilities commits a material breach, then the City shall deliver to Aqua Utilities
ninety (90) days prior Notice of its intention to so terminate this Agreement, including in such
Notice a reasonable description of the breach. Aqua Utilities shall commence curing such breach
within fourteen (14) calendar days after receipt of such Notice and shall diligently pursue and
complete such cure without unreasonable cessation of activities within ninety (90) days from the
date of the Notice; however, if the breach is not reasonably susceptible to cure by Aqua Utilities
within such ninety (90) day period, the City agrees that it will not terminate this Agreement so
long as Aqua Utilities has diligently pursued such cure within the foregoing ninety (90) days and
diligently completes the work, without unreasonable cessation, within a reasonable time
thereafter. The time authorized by this Agreement to cure the breach is the "Cure Period." If
Aqua Utilities shall fail or refuse to cure such material breach to the satisfaction of the City
within the Cure Period,then and in such event, the City shall have the right with additional sixty
(60) days advance Notice to Aqua Utilities and without any liability whatsoever on the part of the
City to declare this Agreement terminated, and the Agreement will immediately expire at the end of
such Notice period. The City shall give Notice to Aqua Utilities immediately upon acceptance of
the cure of any default. A material breach of this Agreement includes,but is not limited to:
a. Failure to comply with and enforce any wastewater quality or pretreatment
standards required by this Agreement,
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 other than
those authorized by this Agreement;
d. Failure to permit any sampling of wastewater as provided for herein;
e. Failure to disconnect a Prohibited Discharge pursuant to Section 3.07;
Wholesale Wastewater Service Agreement
Page 13
f. Failure of Aqua Utilities to comply with Sections 2.01,2.05,2.07,2.08, 4.03
or 5.01 or Article X hereof.
9.05 Non-Material Breach. In the event of any nonmaterial breach, default or failure to
perform duties under this Agreement, the City shall deliver to Aqua Utilities thirty (30) days
advance Notice of such default. If Aqua Utilities fails to cure such breach, default or failure, then
the City shall give Aqua Utilities Notice of such failure to cure and may surcharge Aqua Utilities
Five Thousand Dollars ($5,000)per month until such time as Aqua Utilities cures such nonmaterial
default.
9.06 Effect of Termination. In the event of termination of this Agreement, except to the
extent provided in Section 9.07, all rights, powers, and privileges of Aqua Utilities hereunder shall
cease and terminate and Aqua Utilities shall make no claim of any kind whatsoever against the City,
its agents or representatives, by reason of such termination or any act incident thereto, provided the
City acted reasonably and such termination was not unreasonable,arbitrary and capricious.
9.07 SurvivingProvisions. As part of, or in addition to, survival rights to which the
Parties may be entitled in law or equity, the following provisions shall survive the termination of
this Agreement for any reason: (a) any payment obligation of any Party under the terms of this
Agreement that has accrued prior to such termination; (b) Section 7.02 (Indemnity); (c) Article
VIII(Reports and Records);and(d)Article XI(Miscellaneous).
9.06 Effect of Opportunit�to Cure. The opportunities provided in the Agreement to cure
a material or non-material breach do not relieve or diminish any obligation of Aqua Utilities to
indemnify the City pursuant to Article VII for any Liabilities.
ARTICLE X
PERFORMANCE PURSUANT TO SUPERSEDING UTILITY AGREEMENT
This Agreement is executed pursuant to, and shall be performed consistent with the terms
of, the Superseding Utility Agreement. Accordingly, all construction, operation and
maintenance activities undertaken pursuant this Agreement shall be performed in compliance
with the Superseding Utility Agreement, including the standards for construction, operation and
maintenance set forth in Article V of that agreement. In the event of a conflict between this
Agreement and the Superseding Utility Agreement, the Superseding Utility Agreement shall
control.
ARTICLE XI
MISCELLANEOUS
11.01 Governing: Law, Jurisdiction and Venue. THIS AGREEMENT MUST BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS
THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD
TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND
HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, TEXAS, AND
Wholesale Wastewater Service Agreement
Page 14
HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION
OF ANY DISPUTE ARISING HEREUNDER.
11.02 Notice. Any notices, certifications, approvals, or other communications required
to be given by one Party to another under this Agreement (a"Notice") shall be given in writing
addressed to the Party to be notified at the address set forth below and shall be deemed given: (a)
when the Notice is delivered in person to the person to whose attention the Notice is addressed;
(b) when received if the Notice is deposited in the United States Mail, certified or registered
mail, return receipt requested, postage prepaid; (c) when the Notice is delivered by Federal
Express, UPS, or another nationally recognized courier service with evidence of delivery signed
by any person at the delivery address; or(d) five business days after the Notice is sent by FAX
(with electronic confirmation by the sending FAX machine) with a confirming copy sent by
United States mail within 48 hours after the FAX is sent. If any date or period provided in this
Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the
Notice shall be extended to the first business day following the Saturday, Sunday, or legal
holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below.
The Parties may change the information set forth below by sending Notice of such changes to the
other Party as provided in this section.
To the City:
City of Fort Worth, Texas
1000 Throclanorton Street
Attn: City Secretary
Fort Worth,Texas 76102
FAX: (817) 392-6196
City of Fort Worth,Texas
1000 Throclanorton Street
Attn: City Manager
Fort Worth, Texas 76102
FAX: (817) 392-6134
City of Fort Worth, Texas
1000 Throckmorton Street
Attn: Water Director
Fort Worth, Texas 76102
FAX: (817) 392-2398
To Aqua Utilities:
1421 Wells Branch Pkwy., Ste. 105
Pflugerville, TX 78660
Attn: Vice President
FAX: (512)989-9891
Wholesale Wastewater Service Agreement � '�j
Page 15
762 West Lancaster Ave.
Bryn Mawr,Pennsylvania 19010
Attn: Chief Legal Officer
FAX: (610) 520-9127
11.03 Consent Required for Assignment & Binding on Successors and Assigns. All of
the terms of this Agreement shall be binding upon, shall inure to the benefit of, and shall be
severally enforceable by and against each Parry to this Agreement, individually, and such Party's
respective personal representatives, successors, trustees, receivers, and assigns. However, no
Parry shall assign this Agreement without the written consent of the other Party. It is specifically
intended that this Agreement and all terms, conditions and covenants herein shall survive a
transfer, conveyance or assignment occasioned by the exercise of foreclosure of lien rights by a
creditor or a parry hereto, whether judicial or non judicial.
11.04 Amendment. This Agreement may be amended only with the written consent of
all Parties and with approval of the governing body of the City.
11.05 No Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the
Party shall have the right at any time thereafter to insist upon strict performance of any and all
provisions of this Agreement. No provision of this Agreement may be waived except by writing
signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes
for which it is given. No waiver by any Parry 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.
11.06 Severability. The provisions of this Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, 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 provision shall be deemed severed from this Agreement
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement or the application of such provision to other persons, entities or circumstances, and a
new provision shall be deemed substituted in lieu of the provision so severed which new
provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the
provision so severed.
11.07 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
11.08 Interpretation. The parties acknowledge that each party and, if it so chooses, its
counsel have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits hereto. As used in this
Agreement the term "including" means "including without limitation" and the term "days"
means calendar days, not business days. Wherever required by the context, the singular shall
Wholesale Wastewater Service Agreement
Page 16
include the plural, and the plural shall include the singular. Each defined term herein may be
used in its singular or plural form whether or not so defined.
11.9 Conspicuous Provisions. The City and Aqua Utilities acknowledge that the
provisions of this Agreement that are set out in bold, CAPITALS (or any combination thereof)
satisfy the requirements for the express negligence rule and/or are conspicuous.
11.10 No Third Party Beneficiary. This Agreement is solely for the benefit of the
Parties, and neither the City nor Aqua Utilities intends by any provision of this Agreement to
create any rights in any third-party beneficiaries or to confer any benefit upon or enforceable
rights under this Agreement or otherwise upon anyone other than the City and Aqua Utilities.
11.11 Force Majeure. No Party shall be considered to be in default in the performance of
any of the obligations hereunder(other than obligations of either Parry to pay costs and expenses)if
such failure of performance shall be due to an uncontrollable force beyond the control of the Parties,
including but not limited to, the failure of facilities, flood, earthquake, tornado, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material
shortage, sabotage, or restraint by a court order or public authority, which by the exercise of due
diligence and foresight such Party could not have reasonably been expected to avoid. Either Parry
rendered unable to fulfill any obligation by reason of an uncontrollable force shall exercise due
diligence to remove such inability with all reasonable dispatch. In the event the proper operation of
the Fort Worth System, as a result of the above, requires the City to temporarily interrupt all or part
of the services to Aqua Utilities, no claims for damage shall be made by Aqua Utilities against the
City. The City will exercise its best efforts to insure that such interruptions will not adversely affect
the health and welfare of the Users.
11.12 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement
are incorporated into this Agreement by reference for the purposes set forth herein, as follows:
Exhibit A Map of the Development
Exhibit B Legal Description of the Development
Exhibit C Original TRA Contract
Exhibit D Map showing the Development's Point of Entry into the Fort
Worth System and Fort Worth's Point of Entry to the TRA System
Exhibit E Rate Methodology
Wholesale Wastewater Service Agreement
Page 17
ATTEST: CIO OR WOR
z By:
Marty Hendr' Marc A.Ott
City Sectary (print name) Assistant anagen
. -- Title:
APPROV �\S TO FORM AND MAL— .
LEGALTT �_ontract Author' z ioa
7t
Assis t Citto ey pate
ATTEST: AQUA UTILI IE JN .
ICruQ
By-:—
Corporate
y;Corporate Secretary LauoAxnah
rin nF�P%r4jlt-74
Titleer
Wholesale Wastewater Service Agreement Grp M�,.
Off �RAIV Page 18
FY. K1:V+H, T��K.
Exhibit A
Map of the Development
Exhibit Ato OFFIvlkA HMO
Wholesale Wastewater Service Agreement Cit u �ECVT V Page 1
Ff. W"ORTH, TEX.
r
,
• Iltt p y�,
t
"k
y � +, i ,} � • � � 4,�e i, .t�� r �'m. T � irr �',.., '! aw�" r rr _ .
l
r � �
"
r
,
P , -
110,
211
17,
„
Y e
. r
rW
A
a
Y.
”
r
jib r 1
-
. d
te.
4� �1.
Exhibit B
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperion Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed
to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86E 14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E3422" E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44E08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36" E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2" iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west line of
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron -in found, said iron in
Exhibit B to I i
Wholesale Wastewater Service Agreement F1' WORTH,
TH, TEX. P e I
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
THENCE N 47E15'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set;
THENCE N OOE 11'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S 00E 11'12" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land, more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
way line of State Highway No. 114, said brass monument also being on the west line of a tract
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
Exhibit B to END
Wholesale Wastewater Service Agreement rCO
,MI!, �gRY
Yf �'���0�� 1�daPaget
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land, more or less.
Exhibit Bto
Wholesale Wastewater Service Agreement (VIEUMCI MY
U 1. FWOUN, TEX. Page 3
Exhibit C
Original TRA Contract
Exhibit C to
Wholesale Wastewater Service Agreement Page 1
Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/13/2005
DATE: Tuesday, December 13, 2005
LOG NAME: 60TRADITION REFERENCE NO.: C-21198
SUBJECT:
Approval of Strategic Partnership Agreement, Development Agreement, Tradition Project Special
Regulations Agreement, and Agreements Concerning Water and Wastewater Service for the First
Phase of the Tradition Development
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 Fort Worth Municipal Utility District No. 1 of
Denton County (the "District");
2. Development Agreement between the City and Aperion Communities, LLLP, Eladio Properties, LLLP
and Drooy Properties, LLLP ("AED");
3. Tradition Project Special Regulations Agreement between the City and AED;
4. Superseding Agreement Regarding Water and Wastewater Utility Service between the City, Aqua
Utilities, Inc., AED and the District;
5. Buy-Out Option Contract between the City, Aqua Utilities, Inc., AED and the District;
6. Memorandum of the Buy-Out Option Contract;
7. Agreement for Sale of Treated Water between the City and Aqua Utilities, Inc.; and
8. Wholesale Wastewater Service Agreement between the City and Aqua Utilities, Inc.
DISCUSSION:
AED owns and intends to develop approximately 2,663 acres in Denton County in Fort Worth's
extraterritorial jurisdiction as a mixed-use development to be known as "Tradition". AED intends to develop
the southernmost 431 acres as the first phase (the "Development") and has requested that the City Council
consent to creation of a municipal utility district over the Development. (M & C C-21197).
The documents listed above, which have been provided to the City Council and 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 approximately 107 acres within the
Development designated for commercial 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 after annexation. The City's share will increase to 75% in year 19.
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 3/21/2006
Page 2 of 2
The Development Agreement provides for the enforcement of municipal building codes and establishes
land use and development regulations for the Development. Special Regulations, which govern design
issues such as block lengths and street, right-of-way and sidewalk widths, are attached to the agreement as
Exhibit E.
The Tradition Project Special Regulations Agreement provides that the Special Regulations attached to the
Development Agreement as Exhibit E will be deemed to be incorporated in any other development
agreements for the remainder of Tradition for the next 10 years. The agreement recognizes that approval of
any future development agreements for Tradition is within the sole discretion of the City Council.
The five remaining agreements identified as items 4 through 8 above relate to utility service for the
Development. Aqua Utilities will provide the retail water and wastewater service to customers within the
Development through an operations contract with the District which will finance and own the facilities. The
agreements provide for the City to sell treated water service and wastewater service to Aqua Utilities. The
City has the option to purchase the water and wastewater facilities in the Development from Aqua Utilities
for $10 and to become the retail provider at any time after 17 years and within 15 to 17 years if the City
annexes during that period.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that approval of this Agreement will not require the expenditure of City funds.
TO Fund/Account/Centers FROM Fu nd/Accou nt/C enters
Submitted for City Manager's Office by: Marc Ott (8476)
Originating Department Head: S. Frank Crumb (8207)
Additional Information Contact: S. Frank Crumb (8207)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 3/21/2006
Exhibit C CITY SECRET
C*-�
TRINITY RIVER AUTHORITY OF TEXAS -
DENTON CREEK REGIONAL WASTEWATER TREATMENT SYSTEM CONTRACT
THE STATE OF TEXAS
TRINITY RIVER AUTHORITY OF TEXAS
THIS TRINITY RIVER AUTHORITY OF TEXAS - DENTON CREEK
REGIONAL WASTEWATER TREATMENT SYSTEM CONTRACT (the "Contract")
made and entered into as of the 28th day of OCTOBER, 1987 (the
"Contract Date") , by and among TRINITY RIVER AUTHORITY OF TEXAS
(the "Authority") , an agency and political subdivision of the
State of Texas, being a conservation and reclamation district
created and functioning under Article 16, Section 59, of the
Texas Constitution, pursuant to Chapter 518, Acts of the 54th
Legislature of the State of Texas, Regular Session, 1955, as
amended (the "Authority Act") , and the following:
CITY OF FORT WORTH, IN TARRANT COUNTY, TEXAS,
CITY OF HASLET, IN TARRANT COUNTY, TEXAS, and
CITY OF ROANOKE, IN DENTON COUNTY, TEXAS,
(collectively the "Initial Contracting Parties") .
W I T N E S S E T H•
WHEREAS, each of the Initial Contracting Parties is a duly
created city and political subdivision of the State of Texas
operating under the Constitution and laws of the State of
Texas; and
WHEREAS, the Authority and the Initial Contracting Parties
are authorized to enter into this Contract pursuant to the
FL RLCORD k
1CR1TIRY
RTH, TEX.
rt
Authority Act, Chapter 30, Texas Water Code, Vernon's Ann. Tex.
Civ. St. Article 4413 (32c) (the "Interlocal Cooperation Act") ,
and other applicable laws; and
WHEREAS, the Authority proposes to acquire and construct a
regional Wastewater treatment system to serve the Initial Con-
tracting Parties within the watershed or drainage area of
Denton Creek, a tributary of the Trinity River, located in
Denton and Tarrant Counties, Texas (the "System") ; and
WHEREAS the System initially proposed to be acquired and
constructed is described in an engineering report of Rady &
Associates, Fort Worth, Texas, entitled "Comprehensive
Feasibility Study on Denton Creek Regional Wastewater System",
dated August, 1987; and
WHEREAS, such report, including all amendments and supple-
ments thereto made prior to the execution of acquisition and
construction contracts for the System and as changed by change
orders entered after acquisition and construction contracts for
the System have been executed, is hereinafter called the
"Engineering Report"; and
WHEREAS, it is expected by the- parties hereto that as soon
as practicable after the execution of this Contract the Author-
ity will issue an installment of Bonds to provide part of the
money to acquire and construct the System, and thereafter will
issue a subsequent installment or installments of Bonds to
complete the acquisition and construction of the System, with
2
all of said Bonds to be payable from and secured by Annual
Payments made under this Contract by the Initial Contracting
Parties.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained, the Authority agrees to
provide Wastewater treatment services of the System to the
Initial Contracting Parties under this Contract, and to issue
its Bonds and to acquire and construct the System, upon and
subject to the terms and conditions hereinafter set forth,
to-wit:
Section 1. DEFINITION OF TERMS. The following terms and
expressions as used in this Contract, unless the context
clearly shows otherwise, shall have the following meanings:
(a) "Additional Contracting Party" means any party not
defined as one of the Initial Contracting Parties with which
the Authority makes a contract similar to this Contract for
providing services of the System, provided that after execution
of any such contract such party shall become one of the Con-
tracting Parties for all purposes of this Contract, unless
otherwise specifically provided herein.
(b) "Adjusted Annual Payment" means the Annual Payment,
as adjusted during or after each Annual Payment Period, as
provided by this Contract.
(c) "Advisory Committee" means the committee to be
created to consult with and advise the Authority with respect _
to the System as provided in Section 10 of this Contract.
(d) "Annual Payment" means the amount of money to be paid
to the Authority by each of the Contracting Parties during each-
Annual
achAnnual Payment Period as its proportionate share of the Annual
Requirement.
(e) "Annual Payment Period" means the Authority-'s Fiscal
Year, .which currently begins on December 1 of each calendar
year and ends on the last day of November of the next calendar
year, and the first Annual Payment Period under this Contract
is estimated to be the period of December 1, 1989, through
November 30, 1990.
(f) "Annual Requirement" means the total amount of money
required for the Authority to pay all Operation and Maintenance
Expenses of the System, to pay the debt service on its Bonds,
to pay or restore any amounts required to be deposited in any
special, contingency, or reserve funds required to be estab-
lished and/or maintained by the provisions of the Bond Resolu-
tions, all as further described in Section 11 (a) of this
Contract.
(g) "B.O.D. " (denoting Biochemical Oxygen Demand) means
the quantity of oxygen utilized in the biochemical oxidation of
organic matter under standard laboratory procedure in five days
at 20' C. , expressed in milligrams per liter.
4
(h) "Bond Resolution" means any resolution of the Author-
ity which authorizes any Bonds.
(i) "Bonds" means all bonds hereafter issued by the
Authority, expected to be in two or more series or issues, and
the interest thereon, to acquire and construct the System
(including all bonds issued to complete the acquisition and
construction of the System) , and/or all bonds issued subse-
quently to improve and/or extend the System, and any bonds
issued to refund any Bonds or to refund any such refunding
bonds.
(j) "Contracting Parties" means the "Initial Contracting
Parties", as defined in the first paragraph of this Contract,
together with any other party or parties which hereafter
becomes one of the Contracting Parties by becoming an Addi-
tional Contracting Party.
(k) "Contracting Party" means any one of the Contracting
Parties.
(1) "Engineering Report" means the "Engineering Report"
as defined in the preamble to this Contract.
(m) "Garbage" means solid wastes from the preparation,
cooking, and dispensing of food, and from handling, storage,
and sale of produce.
(n) "Grease" means fats, waxes, oils, and other similar
nonvolatile materials in Wastewater, which are extracted by
5
freon from an acidified sample using the Partition-Gravimetric
method.
(o) "Industrial User (III) " means any person, including
but not limited to, any individual, firm, partnership,
corporation, association, or any other group or combination
acting as a unit, or any other legal entity, who discharges or
desires to discharge industrial wastes into the System.
(p) "Infiltration water" means the water which leaks into
a sewer.
(q) "Operation and Maintenance Expenses" means all costs
and expenses of operation and maintenance of the System and the
Wastewater Interceptor System, including (for greater certainty
but without limiting the generality of the foregoing) repairs
and replacements for which no special fund is created in the
Bond Resolutions, operating personnel, the cost of utilities,
the costs of supervision, engineering, accounting, auditing,
legal services, supplies, services, administration of the
System and the Wastewater Interceptor System, including the
Authority's general overhead expenses attributable to the
System and the Wastewater Interceptor System, insurance
premiums, equipment necessary for proper operation and
maintenance of the System and the Wastewater Interceptor
System, and payments made by the Authority in satisfaction of
judgments resulting from claims not covered by the Authority's
6
insurance arising in connection with the operation and mainte-
nance of the System and the Wastewater Interceptor System. The
term does not include depreciation.
(r) "pH" means the common logarithm of the reciprocal of
the weight of hydrogen ions in grams per liter of solution.
(s) "Project" means the "Project" as defined in the
preamble to this Contract, and as generally described in the
Engineering Report.
(t) "POTW" means Publicly Owned Treatment Works as
defined in 40 CFR 403.
(u) "Properly Shredded Garbage" means garbage that has
been shredded to such degree that all particles will be carried
freely under the flow conditions normally prevailing in public
sewers, with no particle greater than 1/2 inch in any dimen-
sion.
(v) "Significant Industrial User (SIU) " means any indus-
trial user who is connected or desires to connect to the City's
domestic wastewater collection system and meets at least one of
the following criteria:
(1) Average industrial wastewater discharge
rate greater than 50,000 gpd.
(2) BOD and/or suspended solids concentrations
in industrial wastewater greater than 250 mg/1.
(3) Industrial category regulated by National
Pretreatment Standards as promulgated by the United
States Environmental Protection Agency.
7
(w) "Suspended Solids" means solids that either float on
the surface or are in suspension in water, sewage, or other
liquids, and which are removable by laboratory filtering,
expressed in milligrams per liter.
(x) "System" means the regional wastewater treatment
system described in the preamble to this Contract and in the
Engineering Report, and all improvements and additions to and
extensions, enlargements, and replacements of such facilities
which are deemed necessary and feasible by the Authority in
order to receive, treat, and dispose of Wastewater from Con-
tracting Parties and to comply with the requirements of the
Wastewater regulatory agencies of the State of Texas and the
United States of America. Said term does not include any
facilities acquired or constructed by the Authority with the
proceeds from the issuance of "Special Facilities Bonds", which
are hereby defined as being revenue obligations of the Author-
ity which are not secured by or payable from Annual Payments
made under this Contract and similar contracts with Additional
Contracting Parties, and which are payable solely from other
sources.
(y) "Total Toxic Organics" means the sum of all detected
concentrations greater than 10 micrograms per liter for all
organic compounds classified as priority pollutants by the
United States Environmental Protection Agency.
8
(z) "Trunk Sewer" means any sewer in which sewage from
collecting and lateral sewers is concentrated and conveyed to
the System.
(aa) "Wastewater" means Sewage, Industrial Waste, Munici-
pal Waste, Recreational Waste, and Agricultural Waste, as
defined in the Texas Water Code, together with Properly Shred-
ded Garbage and such Infiltration Water that may be present.
(bb) "Wastewater Interceptor System" means the
"Interceptor System" as defined in the "Trinity River Authority
of Texas - Denton Creek Wastewater Interceptor System
Contract" , dated October 28, 1987, executed by the parties to
this Contract concurrently with the execution hereof (the
"Interceptor Contract") , and being facilities intended to
collect and transport Wastewater into the "System", as defined
in this Contract, together with any other Wastewater collection
and transporation facilities which are not part of the System
as herein defined, and which are intended to collect and
transport the Wastewater of any Additional Contracting Party
into the System as herein defined.
Section 2. CONSULTING ENGINEERS; CONSTRUCTION OF SYSTEM.
The Authority and the Contracting Parties agree that the
Authority will choose the Consulting Engineers for the System,
provided that the Consulting Engineers may be changed at the
option of the Authority. The Authority agrees to issue its
Bonds, payable from and secured by Annual Payments made under
9
this Contract, to acquire and construct the System, and agrees
that the System will be acquired and constructed in general
accordance with the Engineering Report. It is anticipated that
such acquisition and construction will be financed by the
Authority through the issuance of two or more series or issues
of its Bonds payable from and secured by Annual Payments made
under this Contract, and the Authority agrees to issue its
Bonds for such purpose. The proceeds from the sale and de-
livery of such Bonds also will be sufficient to fund to the
extent deemed advisable by the Authority a debt service reserve
fund, a contingency fund, and interest on the Bonds during
construction; and such proceeds also will be used for the
payment of the Authority's expenses and costs in connection
with the System (including all engineering and design costs and
expenses, and the cost of the land and interests therein
related to the System) and the . Bonds, including, without
limitation, all financing, legal, printing, and other expenses
and costs related to the issuance of such Bonds and the System.
It is now estimated that such Bonds to acquire and construct
the initial System will be issued in an aggregate amount of
approximately $2,800, 000 (whether actually more or less) , which
sum is now estimated to be sufficient to cover all the
aforesaid costs, expenses, and other amounts. Each Bond
Resolution of the Authority shall specify the exact principal
amount of the Bonds issued thereunder, which shall mature
10
within the maximum period, and shall bear interest at not to
exceed the maximum rates, then permitted by law, and each Bond
Resolution shall create and provide for the maintenance of a
revenue fund, an interest and sinking fund, a debt service
reserve fund, and any other funds deemed advisable, all in the
manner and amounts as provided in such Bond Resolution. Each
Contracting Party agrees that if and when such Bonds are
actually issued and delivered to the purchaser thereof, either
for the purpose of initially acquiring and constructing the
System, or subsequently for improving and/or extending the
System, the Bond Resolution authorizing the Bonds shall for all
purposes be deemed to be in compliance with this Contract in
all respects, and the Bonds issued thereunder will constitute
Bonds as defined in this Contract for all purposes.
Section 3. QUANTITY AND POINTS OF ENTRY. (a) In con-
sideration of the payments to be made by each Contracting Party
under this Contract, each such Contracting Party is entitled,
during each Annual Payment Period while the System is in
operation, to discharge into* the System at its Point or Points
of Entry hereinafter described, all of the Wastewater which is
generated within its boundaries which are within the watershed
or drainage area of Denton Creek, subject to the restrictions
hereinafter stated; and provided that each such Contracting
Party must transport such Wastewater to its Point or Points of
Entry. Further, each Initial Contracting Party shall be
ZUEPHY
�. � , TEX.
obligated to transport and discharge into the System at its
Point or Points of Entry all Wastewater which is generated
within its boundaries which are within the watershed or
drainage area of Denton Creek, except for reasonably small
fringe areas which could be more cost effectively served by
other means, and which are approved by a majority vote of the
Advisory Committee and approved by the Authority.
(b) The combined maximum rate at which Wastewater is dis-
charged by each Contracting Party at all of its Points of Entry
shall not exceed a rate which, if continued for a period of
twenty-four hours would equal 3.50 times such Contracting
Party's estimated average daily contributing flow of Wastewater
for the then current Annual Payment Period. The total quantity
of Wastewater discharged into the System shall never exceed the
amount which the System is capable of receiving, treating, and
disposing, unless approved by a majority vote of the Advisory
Committee and approved by the Authority, subject to terms and
conditions to be established by the Authority. Notwithstanding
the foregoing, no Contracting Party shall ever make any dis-
charge into the System which would cause it to be overloaded or
be in violation of its permits from the State of Texas and/or
the United States of America.
(c) Wastewater meeting the quality requirements of
Section 4 of this Contract will be received into the System at
the Points of Entry, respectively, shown for each Initial
12
Contracting Party, respectively, in the Engineering Report, or
at such other or additional Points of Entry that may be estab-
lished by mutual agreement between the Authority and a Con-
tracting Party in the future, if such other or additional
Points of Entry are determined by the Authority to be econom-
ical and beneficial to the System, and such Contracting Party
pays any costs related thereto which the Authority determines
should be paid by such Contracting Party.
(d) It is the intention of the parties hereto that the
System shall be acquired, constructed, extended, and improved
so that at all reasonable times it will be capable of receiv-
ing, transporting, treating, and disposing of all eligible
Wastewater generated within the boundaries of each Contracting
Party which are within the watershed or drainage area of Denton
Creek and which such Contracting Party delivers to its Point or
Points of Entry, and that the Authority will from time to time
issue its Bonds in such amounts as are, within its judgment and
discretion, sufficient to achieve such results.
Section 4. QUALITY. The obligation of the Authority to
receive into the System such Wastewater depends upon compliance
by each Contracting Party with the provisions of this Section.
General Objectives of Quality Recruirements.
In order to permit the Authority to properly treat and
dispose of each Contracting Party's Wastewater; to protect the
public health; and to permit cooperation with other agencies
13
which have requirements for the protection of the physical,
chemical, and bacteriological quality of public water and water
courses, and to protect the properties of the System, each
Contracting Party agrees:
(a) Admissible Discharges into Authority-'s System.
Discharges into the System shall consist only of Wastewater and
other waste free from the prohibited constituents listed in
Subsection (b) and limited in B.O.D. , Suspended Solids, dis-
solved sulfides, and pH as hereinafter provided.
(b) Wastes Not Admissible. Gasoline; cleaning solvents;
non emulsified oils and greases; mineral oils; ashes; cinders;
sand; gravel; tar; asphalt; ceramic wastes; plastics; other
viscous substances; feathers; hair; rags; metal; metal filings;
glass; wood shavings; sawdust; unshredded garbage; toxic,
corrosive, explosive or malodorous gases; acetylene generation
sludge; cyanides or cyanides or cyanogen compounds capable of
liberatling hydrocyanic gas on acidification in excess of 2
mg/1 by weight as CN; radioactive materials which will permit a
transient concentration higher than 100 microcuries per liter;
emulsified oil and grease, exclusive of soaps, exceeding on
analysis an average of 100 mg/1 of ether-soluble matter; acids
or alkalis having a pH value lower than 6. 0 or higher than
10.0; and Wastewater containing specific pollutant concentra-
tions in excess of any of the numerical limitations named
hereunder be prohibited from discharge to the System:
14
Maximum Allowable
Pollutant Concentration (ug/1)
Arsenic 100
Barium 1,000
Cadmium 100
Chromium 1,000
Copper 1,500
Lead 1,000
Manganese 1,500
Mercury 5
Nickel 1,000
Selenium 50
Silver 100
Zinc 2,000
Total Toxic Organics 1,000
(c) Biochemical Oxygen Demand (B.O.D. ) . B.O.D. of
Wastewater delivered to the System, as determined by standard
methods, shall not exceed 250 mg/1.
(d) Total Suspended Solids. Total Suspended Solids
delivered to the System, as determined by Standard methods,
shall not exceed 250 mg/1.
(e) Hydrogen Ion Concentration (PH) . The pH of Waste-
water delivered to the System shall be not lower than 6. 0 nor
higher than 10. 0. No acids shall be discharged into the
Authority's System unless neutralized to a pH of 6.0 or more.
(f) Hydrogen Sulfide Concentration. Dissolved sulfides
in Wastewater at the point of delivery to the System shall not
exceed 0. 1 mg/1.
(g) Prohibited Discharge Limitations Subject to Change.
Notwithstanding the foregoing provisions of this Section, the
`. � 2
15 CIT 4N,,kffiky
FT. W'04Tb, TEX.
parties hereto agree and understand that Federal and State
Regulatory Agencies periodically modify standards on prohibited
discharges; therefore, revisions to, additions to, or deletions
from the items listed in this Section may become necessary in
the future to comply with these latest standards. It is the
intention of this Contract that prohibited discharge require-
ments be reviewed periodically by the Authority and revised in
accordance with the latest standards of any Federal or State
Agency having regulatory powers. Any required revisions shall
be made and written notice thereof given to each Contracting
Party. Each Contracting Party shall be responsible for inte-
grating such changes into the local industrial waste ordinance
and notifying- all affected users of the change within ninety
days following written notice to the Contracting Party of such
changes.
(h) To determine normal quality of Wastewater, the
Authority will collect twenty-four hour composite samples of
Wastewater at each Point of Entry and cause same to be analyzed
in accordance with testing procedures as set forth in the
latest edition of Standard Methods of Examination of Water and
Wastewater, published by American Public Health Association,
Inc. Composite samples will normally be taken once a month, or
at more frequent intervals if necessary to determine Wastewater
quality. As provided above, such Wastewater shall not exceed
16
the limits of concentration specified for Normal Wastewater as
follows:
Normal Wastewater Concentration
BOD 250 mg/1
TSS 250 mg/1
pH, not less than 6 nor greater than 10
Hydrogen Sulfide 0.1 mg/1
Should the analysis disclose concentrations higher than
those listed, the Authority immediately will inform the Con-
tracting Party which made the discharges resulting in the
violation of this Section, and such discharges shall cease
immediately. However, with the approval of the Authority,
Wastewater with concentrations of BOD and TSS greater than
specified above may be discharged by a Contracting Party into
the System on an emergency and temporary basis, subject to the
payment of a surcharge (in addition to all other payments
required by this Contract) , which surcharge shall be determined
by the Authority and shall be in an amount sufficient to cover
and pay for all additional costs of transportation, treatment,
and disposal related to such discharges.
Section 5. METERING OF WASTEWATER. The Authority will
furnish, install, operate, and maintain at its expense the
necessary equipment and devices of standard type required for
measuring properly all Wastewater discharged into the System by
each Contracting Party, respectively, through its Point or
Points of Entry, respectively. Such meters and other equipment
shall remain the property of the Authority. Each Contracting
17
Party shall have access to such metering equipment at all
reasonable times for inspection and examination, but the
reading, calibration, and adjustment thereof shall be done only
by employees or agents of the Authority in the presence of a
representative of the affected Contracting Party or Parties if
requested by such Contracting Party or Parties. All readings
of meters will be entered upon proper books of record main-
tained by the Authority. Upon written request any Contracting
Party may have access to said record books during reasonable
business hours. Not more than three times in each year of
operation, the Authority shall calibrate its meters, if re-
quested in writing by the affected Contracting Party or Parties
to do so, in the presence of a representative of such Contract-
ing Party or Parties, and such parties shall jointly observe
any adjustments which are made to the meters in case any
adjustment is found to be necessary. If, for any reason, any
meters are out of service or out of repair, or if, upon any
test, the percentage of inaccuracy of any meter is found to be
in excess of five (5%) per cent, registration thereof shall be
corrected for a period of time extending back to the time when
such inaccuracy began, if such time is ascertainable, and if
not ascertainable, then for a period extending back one-half
(1/2) of the time elapsed since the date of the last calibra-
tion, but in no event further back than a period of six (6)
months. Any Contracting Party may, at its option and its own
18
expense, install and operate a check meter to check each meter
installed by the Authority, but the measurement for the purpose
of this agreement shall be solely by the Authority's meters,
except as in this Section specifically provided to the con-
trary. All such check meters shall be of standard make, shall
be installed in a location approved by the Authority, and shall
be subject at all reasonable times to inspection and examina-
tion by any employee or agent of the Authority, but the read-
ing, calibration, and adjustment thereof shall be made only by
the Contracting Party or Parties, except during any period when
a check meter may be used under specific written consent by the
Authority for measuring the amount of Wastewater delivered into
the System, in which case the reading, calibration, and adjust-
ment thereof shall be made by the Authority with like effect as
if such check meter or meters had been furnished or installed
by the Authority.
Section 6. UNIT OF MEASUREMENT. The unit of measurement
for Wastewater discharged into the System hereunder shall be
1,000 gallons, U. S. Standard Liquid Measure.
Section 7. LIABILITY FOR DAMAGES AND RESPONSIBILITY FOR
TREATMENT AND DISPOSAL OF WASTEWATER. Liability for damages
arising from the transportation, delivery, reception, treat-
ment, and/or disposal of all Wastewater discharged into the
System hereunder shall remain in each Contracting Party to its
Point or Points of Entry, respectively, and title to such
19 ,
Wastewater shall be in such Contracting Party to such Point or
Points, and upon passing through Points of Entry liability for
such damages shall pass to the Authority. As between the
Authority and each Contracting Party, each party agrees to
indemnify and to save and hold the other party harmless from
any and all claims, demands, causes of action, damages, losses,
costs, fines, and expenses, including reasonable attorney's
fees, which may arise or be asserted by anyone at any time on
account of the transportation, delivery, reception, treatment,
and/or disposal while title to the Wastewater is in such party,
or on account of a prohibited discharge by a Contracting Party.
The Authority has the responsibility as between the parties for
the proper reception, transportation, treatment, and disposal
of all Wastewater discharged into the System, but not for
prohibited discharges discharged by any party at any Point of
Entry.
Section 8 . REPORTING REQUIREMENTS. (a) Approximately
thirty days after the end of each Annual Payment Period each
Contracting Party, respectively, shall furnish in writing to
the Authority the following information with respect to such
Contracting Party:
(1) The number of active domestic sewer connections
tributary to the System and which will be served by the System;
(2) The number of commercial and business sewer connec-
tions to be served by the System;
20
(3) The number of industrial connections to be served by
the System, with name and location of each.
The purpose of this provision is to permit the Authority
to accumulate statistical data which will enable it to render
better service and facilitate plans for betterment and future
facilities expansion.
(b) Industrial Waste. The effects of certain types of
Industrial Waste upon sewers and sewage treatment processes are
such as to require that careful consideration be made of each
industrial connection. This is a matter of concern both to the
Authority and to the Contracting Parties. Accordingly, each
Contracting Party shall regulate the discharge of Industrial
Waste generated by a SIU into its sewer system, and will
authorize discharge of Industrial Waste into its sewers subject
to the general provision that no harm will result from such
discharge and subject to the filing by applicant industry of a
statement, copy of which shall be forwarded to the Authority,
containing the following information:
(1) Name and address of applicant;
(2) Type of industry;
(3) Quantity of plant waste;
(4) Typical analysis of the waste;
(5) Type of pre-treatment proposed.
To facilitate inspection and control of Industrial Waste, each
Contracting Party will require industries to separate
21
Industrial Waste from Sanitary Sewage until such Industrial
Waste has passed through a monitoring portal which shall be
located so as to be accessible at all times to inspectors of
such Contracting Party. If inspection indicates that damage
might result from the discharge the permit shall be revoked
unless and until the industry promptly establishes acceptable
remedial measures. At regular intervals the Authority will
collect twenty-four hours composite samples of all Wastewater
at each Point of Entry and cause same to be analyzed by
American Public Health Association Standard Methods. Such
Wastewater shall not exceed the limits of concentration
specified in Section 4 of this Contract. Should the analysis
disclose concentrations higher than those stipulated the
Authority immediately will inform the affected Contracting
Party of such disqualification. It shall be the obligation of
such Contracting Party to require the offending originator of
said highly concentrated materials to immediately initiate and
undertake remedial pre-treatment or other legal means before
discharge into such Contracting Party's sewers.
(c) Ordinances. Each Contracting Party, respectively,
agrees that it has enacted or will enact ordinances as neces-
sary to include the following provisions:
(1) For each existing and future SIU, the Contracting
Party shall require said user to complete and submit a permit
application containing that information specified in the sample
22
application form which is attached hereto as Exhibit 1 immedi-
ately following this Section 8 (c) . The Authority shall be
provided a copy of the permit application within thirty days
after receipt by the Contracting Party. The Authority shall
provide comments on said application within thirty days of
receipt and return comments to the Contracting Party. Failure
to comment shall be construed as concurrence by the Authority.
After approval of the Permit Application by both the
Contracting Party and the Authority, the Contracting Party
shall issue a permit to discharge containing the requirements
as shown on the form which is attached hereto as Exhibit 2
immediately following Exhibit 1 at the end of this Section 8
(c) . Said permit to discharge shall be required of all SIUs
before said user will be allowed to discharge industrial wastes
into the sewage system. A copy of the permit to discharge
shall be forwarded to the Authority for approval prior to the
issuance to the SIU.
(2) The Contracting Party shall require significant
industrial users to comply with applicable Federal Categorical
Pretreatment Standards as well as any applicable state and
local standards.
(3) The Contracting Party shall maintain certain informa-
tion contained in permit applications as confidential at SIU's
request.
23
(4) The Contracting Party shall disallow dilution as a
means of reducing pollutant concentrations in an SIU's waste
stream.
(5) The Contracting Party shall be authorized to enter
SIU premises at any time for independent monitoring, inspec-
tion, or review of applicable records to determine compliance.
(6) The Contracting Party shall develop and require
adherence to SIU compliance schedules.
(7) The Contracting Party shall require self-monitoring
and reporting at SIU's expense.
(8) The Contracting Party shall choose or approve labora-
tory to analyze industrial wastes.
(9) The Contracting Party shall require SIU's to pay
applicable fees for:
(i) sampling and testing to determine compliance
(ii) disconnection/reconnection of service resulting
from noncompliance
(iii) abnormal strength wastes
(iv) additional costs incurred by Contracting Party
or POTW in transporting or treating wastes
(v) filing, revision, or renewal of Permit
Application
(10) The Contracting Party shall provide public notifica-
tion for instances of violation.
24
(11) The Contracting Party shall deny/revoke permit,
disallow/disconnect service, assess civil or criminal penal-
ties, and seek other available legal and equitable remedies
against SIU for:
(i) discharge to sewerage system resulting in
violation of POTW's discharge permit conditions
(ii) hazard to health or life of POTW personnel or
users of receiving waters
(iii) violation of any applicable ordinance or
regulation
(iv) false information transmitted to approving
authority through Permit Application, monitoring
reports, etc.
The Contracting Party shall furnish to the Authority all
documents and records, in addition to those outlined herein, as
necessary to demonstrate compliance by all industries.
25
EXHIBIT 1
PERMIT APPLICATION
CITY OF
Date:
To: Significant Industrial Users
From:
Subject: Application for a Permit to Discharge Industrial Wastewaters to the
Sanitary Sewer System.
Ordinance number has been adopted for the purpose of regulating the
quality of industri—sT wastewaters contributed to the sanitary sewer. The
objectives of the Ordinance are to prevent damage or obstruction to the sewer.
to avoid interference with the regional wastewater treatment plant operated by
the Trinity River Authority, and to comply with state and federal regulations
regarding pretreatment of. industrial wastes.
Significant industrial users must obtain a Permit to discharge industrial
wastewaters to the sewer. The Permit authorizes your discharge and sets forth
criteria for discharge quality and requirements for reporting.
The attached application for a Permit must be completed and returned to the
mailing address shown below within 180 days. A fee of must
accompany this Application. The City and the Trinity River thority will
review your application. Additional information such as evidence of
treatability may be requested from either entity. The City will return a
Permit to you upon approval of your application and will either approve or
deny said application within 90 days of its receipt by City.
Please address questions concerning the Industrial Wastewater Ordinance Permit
to: '
I
f
I
EXHIBIT 1 (CONT-D)
APPLICATION FOR A PERKIT TO DISCHARGE
INDUSTRIAL WASTEWATER TO THE SAKITARY SEWER
Note to Signing Official: Please complete and return this application within
180 days. Signing officials must have authorization to provide information on
behalf of the company. Information considered confidential by your company
should be clearly marked so that this information can be maintained In
separate, limited access files.
SECTION A. GENERAL INFORMATION
1. Company name
2. Mailing address ZIP Gode
3. Facility address a ep one Number
(address where sewer service Is requested
4. Is company currently in operation at facility address? YES _ NO
SECTION 8. PRODUCTS OR SERYICE INFORMATION
1. Brief description of manufacturing processes or service activity at the
facility including rate of production. if applicable:
2. Principal raw materials, including chemicals. catalysts. solvents, etc..
used in any phase of the manufacturing process or service activity:
3. Number of employees Hours per day of operation
Days per week of operation
t. Standard Industrial Code Number (t digits).
S. List other environmental control permits held at this time.
I6. Attach a property plat prepared by an engineer or architect showing
{ locations of water and sewer connections. manholes. traps, etc. Also
indicate the locations of an acceptable monitoring station for collecting
samples and measuring flows of the industrial wastewater streams prior to
• discharge to the sanitary sewer.
v 9� 1 k
Iyy S tlo
EXHIBIT Z
PERMIT FORM
CITY DF
PERMIT TO DISCHARGE INDUSTRIAL WASTEWATERS
TO THE SANITARY SEWER
Name of Industry (Per■ittee)
Address
(location of sewer service
Permit No. Account No.
The above named Permittee .is authorized to discharge industrial wastewaters to
the sanitary sewerage system according to the provisions of this Permit.
Authorization is granted for a period beginning until
Authorized lepresentative Date
City of
EXHIBIT 2 (C0NT'D)
A. EFFLUENT LIMITATIUNS
Tne Quality of permittee's industrial discharges will be limited by the
provisions of City Ordinance No. and the Rational Pretreatment
Regulations which include the following numerical limitations:
STANDARDS
Average Concentration
Pollutant or Maximum Allowable and/or Load
Pollutant Property Concentration, mg/l m9/1 or lb/day
The discharge of any pollutant at a level in excess of that identified and
authorized by this permit, shall constitute a violation of the terms and
conditions of this permit. Such a violation may result in permit
revocation and/or the imposition of civil and/or criminal penalties.
B. MORITORING AND REPORTING
1. Permittee shall collect representative samples of the wastewater
discharge and analyze these waters for the pollutants indicated in
Section A. Where feasible, samples shall be obtained using flow
proportional composite sampling techniques specified in the applicable
Categorical Pretreatment Standard. Where composite sampling is not
feasible. grab sampling is acceptable. The permittee shall collect and
analyze sample(s) during a period.
(number) interval)
2. Permittee shall sumoarize monitoring information on a copy of the
attached 'Significant Industrial User Self monitoring Report' form.
i Duplicates of this form shall be submitted during the months of
and of each year to:
City Engineer
City of
with copy to:
Pretreatment Program Manager
Trinity River Authority of Texas
P. 0. Box 240
Arlington, Texas 76010
EXHIBIT 2 (CONT-D)
3. failure to submit any report or information required by this permit
shall constitute a violation.
4. Any changes in the characteristics of the industrial discharges as a
result of modifications to the Industrial processes must be reported.
Modifications to the permit may then be made to reflect any necessary
changes in process conditions. including any necessary effluent
limitations for any pollutants not identified and limited herein.
This permit is not transferrable to companies or processes other than
those to which it is originally issued.
S. Permittee shall immediately notify the treatment plant manager at
(214) 225-3462 in the event of a slug loading of pollutants as a
result of an operational failure of pretreatment facilities or
accidental spills.
6. Pemittee must maintain records of all information resulting from any
monitoring activities for a minimum period of 3 years. Such records
rill include for all samples:
(i) The date, exact place, method. and time of sampling and the names
of the person or persons taking the samples;
(ii) The dates the analyses were performed;
(iii) who performed the analyses;
(iv) The analytical techniques/methods used; and
(v) The results of such analyses.
Records shall be made available for inspection and copying by the
city. or its representatives.
7. Compliance Schedule:
Activity Date
8. Permittee is advised that he may need to comply with additional
regulations listed as follows:
EXHIBIT 1 (CONT'D)
SECTION C. WASTEWATER DISCKkRGE INFORMATION
1. Indicate the types and Quantity of Industrial wastewater by completing the
table below:
Check Industrial Flow Flow Flow
Appropriate Flow Metered Estimated Proposed
Boa For Average Daily/ (check (check For New
Type Of Maximum Daily if yes) if yes) Industry
Wastewater (check if
yes)
(a) Process
Wastewater;
Continuous
Discharge
Batch
Discharge
(b) Boiler Slowdown
(c) Cooling Water
Release
(d) Plant and
Equipment
Washdown
(e) Other
sped y
For each wastewater stream attach a schematic of water flow that depicts
the water source. industrial units where water is used and pretreatment
units.
2. Wastewater Quality. The applicant must present information on the quality
of industrial wastewaters. Samples collected from wastewater streams
should be representative of daily operations. Analytical procedures
should follow those in Standard Methods for the Examination of Water and
Kastewater. APRA-AWWA-WPEF, 14Lh Ldition. 1915.
EXHIBIT 1 (CONT-D)
(a) Conventional Pollutants - In the spaces below, indicate the average
and maximum value of each constituent in the discharge.
kaximum Average
Wastewater Constituent Value Value
Biochemical Oxygen Demand (S day) 09/1
Total Suspended Solids mg/l
PH pH units
Temperature of
Y
EXHIBIT 1 (CONT-D)
M ►rlerttl iflleta,t I,lsrhetlM; ►lee{e Imdltate t1 ►lattml u '7' Ih the
eeereerlete boa by each listed chemical w4ther It it 'Seteetttd to he
obtfst'. 'Lhem■ to be [►%eol,% 'SeteeCte1111 to be I'MOA •. er •theme to be
►ret*.,' Is POOP ■SOUNct.rlwt of %*►rice activity or jemtreted at •
y•e►edeCt.
r r
ITEM =s .y .:
cat■tut IiJ.rtll.+ Q t to. aural M-0010 0
L. asbestos (fi.r.t) ( 1 11 1 1 ( [[• LIdIcH«eethr.r f 1
L create@ (total) ) [l. I.14101
1.rrtheme I I I I I I
7. e.L eJ, (notal) I I ) H. trams-Lidlal.r.tw {tt
.,
.,%* 'a (,stall
i, ber Illi total 7t. l.idlallenf/Mw
1. cart► (tail) it. (cu %trams) l.7dIL11Kwwer
t. L.r:l_ (;.tot!
t. cr (t*or (hall 1 17. dat•rl pthe4a I I I I
t. 1... aa11 � � � � 1r. 1•ndlmetype
lrl ) f
It• r•cv1 (tial1 1S. dlrt•rl ►hthalatr
M
1l. '•+csfl Itaat) ( tt. d1d�d►1 .Weu 1 !
it:
.r tool.. (ta.l1 ( 72. d{dd[ttl rmwla. 1`!
17. {Il.er (1aa11 � � 1t• 1,[d 1.{Lre.trl.tleh.mol � I � I
t.r-d raprrl
tl, nr (*seal) t.tdultnutmeme + I
It• ece..p.taer ( ) tl. 1,1 dl,llraal Mr 1
11. w,ro1.1yler 1 J ( ) ( ( ( ( t7. I.IdI►Mt1.10ra11r 1
It. arolale ` ) ( 1 ( ( t1, hod"ONe 1 1 l
lt•
her ft ( tam ewNrslfa. tl
10• alsrs. tt• wrese{ta. Solt...
U
11. a• racer [[, *memo
it. So.aw *"Pa. alde.rdf ( 1 ( 1 ( 1
t7. bmslatr f ( } 4• oty%boosor ( } 4
im. heal* (1) amlbee[Me I ((( � 1 � I te• r{mYemlrV 1 I (( 1
N• n..aa 1e1 rider 1 10. ttefre•e ! 1
tt. be.to C.1 tb«Sot we ( fl. heeUcae►
ti. hwtf Il. 11 rrtlwd } ( } tt. heftsL.l«ew IN I
Is. Lose (t 1k;..Ka.trr ( ti, heuchl«*Moor
N. .-e-c ((alp►) ( er, eaae[sloresm.afle.a ((
U. ►-hC (heu) } f } t I et. lf.:cll«*ctcieve after 1
it. S.IK (rlt.l ( ( !1 (( f[. .feacslereets.mf
71. t44C({amaze) ( I 1 1 ! or. Im.mr (1.1.7sd)qnr 1 ! 1
77. eh (isllwrtylI Stier 11(( 1 1) ft. Iarsre"
ir, els 11 cel«rtho.71I other ! l 1 ( to. a+cyler chl«1r 1 l 1 ( 1 l )
ria eb 7shlwurrferl)other ( In. rMthalw ( ( ( !
It• Ns f c.IKometyl) ether } I ( t Nt. •ltroo mcw I ( I
71. el. ((((t•tattherrl)) Mthetate } ! 1st. t+lanMsrt 1 ( 1 ( ()
[r....Ir.I.�..w } f } IO7. .rt.rmrm.mel } } f I
19. «saner. ter. erltrseurlylrlr
•e. =61hw 1 tn• ealtresed l ot yryrl emir I
mmoseetl/.eglmalp.rlr/r
i, e.Ktlhe.arl ►•&.ae[i '153,1[
U. caare. tStrac.l.rlN I (1 11
1 1 I I 1 1 lee. ►[[•1121
! l 1
.t, cMKsor 1 I Ire. rp.lil!
a%. sd.IKs•I=tyleme.sl I I f I I I ; It., PCs.t7t7
va, calerve"s v ( ! 1 l l i( 1 I11. rte•lice
at. c.l«rthwl 1 l Ili. ►ChatISA
u. 1•c.l«vetyt.sor{ other I I I I I ( ( '112 rct.1260
s*.•col«sirs ►f.tac.isnfherl ( 1 l 1 l 1 l 1
H. [alerrothaom ( Ili. peme.tbefr ( I ( I ( I
1i• idhlKwemthelrr ` Ile• marl ( ((( l
It. td;loro~rt (( } Its. otnr l l l 1 l 1
17, stmt"'N.glmr.rl other I I I I I I I I lit. 1.7.7•t•tetrorN«rlhru.
tam chrrter ed In lm
ts. .,a•.me ( 1 1 1 1 Ili. 1.1.1.1-nftra.l.weelhar
[[. roe•• m( I I l I 1 I #
am ices;., to~
u. ..e•.ml 111
M. f1a..n (a..) .•t►..aw l l 1 1 1 tot. tour+..*
tf. a/ re•mc•1«e..t•er 117. latae-trl[.IKshemu 0
[.. 1.s1•.ar.lereh.ma... I I I I ! I f I ti.. l.l.t•..,[.lKrthw 11 t } f 1 E i
et. 1.7dlts{«w.1.r 1 1 1 1 1 1 1 Its. t.l•1•trlthl.•rwr 1 1 l 1 1 1 ( 1
{elt.lo"Wthe.f
t1. I,1'rtc.lr+.•rsolr f Iii. trlaml«SI1.«e.rth•v
es, nret«rin...raher � } l l l } } IN. i.a.t.trlr.lowper{ ( 1 ( 1 l I l 1
St. t.td/t.IKrthar ( 1 l ) I l 1 1 R*. •sort a1«1N l l ( 1 ( l 1 1
EXHIBIT 1 (CONT-D)
For Oemica1 compounds which are indicated to be 'Known Present' please list and
provide the following data for each (attach additional sheets if needed).
Estimated Average Maximum
Annual Loss To Concentration Concentration
Item Usage Sewer In Discharge in Discharge
No. Chemical Compound (lbs) (lbs/year) (mg/1) (mg/1)
EXHIBIT 1 (CONT'D)
3. is your discharge subject to national Pretreatment Standards established
under 40 CFR, Chapter 1. Subchapter N.
YES NO
The above question must be answered with certainty. For additional
information regarding National Pretreatment Standards. applicant should
contact Region Y1 of the Environmental Protection Agency at (214) 767-2630
or the Trinity River Authority. Northern Region Office at (817) 467-4223.
4. For existing significant industrial users, if the answer to the above
question is yes. please indicate the applicable pretreatment standards in
the space provided below and attach a statement reviewed by applicant's
authorized representative and certified by a qualified . professional.
indicating whether applicable pretreatment standards are being net on a
consistent basis. If applicable pretreatment standards are not being met
on a consistent basis. certified statement should indicate the following:
a. Whether additional operation and maintenance (06M) and/or additional
pretreatment is required for applicant to meet pretreatment standards;
and
b. The shortest schedule by which applicant will provide additional O&M
or pretreatment. The completion date in this schedule must not be
later than compliance date established for applicable pretreatment
standard.
Applicable Standards
Constituent Limit(s)
I
EXHIBIT 1 (CONT-D)
S. For new significant industrial users describe the pretreatment processes
proposed for your facility to meet the requirements listed in item 4.
(Examples: neutralization, materials recovery, grease traps, sand traps.
etc.)
1 the undersigned applicant. being the authorized representative of the herein
named company. do hereby request a Permit to continue to use or to establish an
industrial sewer connection at the location indicated herein and do agree to
comply with provisions of City Ordinance
Signature of Applicant Date
Name of S1 gnee
(Please rent
Name and phone number of person to contact regarding Permit information.
CORPORATE ACtROWLEDGKENT
THE STATE OF TEXAS
COUNTY OF
Before me. the undersigned authority. on this day personally appeared
of
a corporation. known to me to be the person whose name is subscribed to the
foregoing instrument. and acknowledged to me that he executed the same for
purposes and considerations therein expressed. in the capacity therein stated
and as the act and deed of said corporation.
Given under my hand and seal of office on this day of
19
Notary Public in and for
County, Texas
PT Commission Expires:
Section 9. OTHER CONTRACTS. (a) The Authority reserves
the right, with the approval of a majority vote of the Advisory
Committee, to enter into contracts to provide the Wastewater
services of the System to Additional Contracting Parties under
contracts similar to this Contract, subject to the requirements
concerning "minimums" as hereinafter provided. Each contract
with any Additional Contracting Party shall comply with the
requirements of this Contract, shall substantially restate the
essential provisions of this Contract, and shall be structured
to be similar hereto to the fullest extent applicable and
practicable, with such additions or changes as are necessary to
meet the actual circumstances, with the effect that each
Additional Contracting Party will substantially adopt the
provisions of this Contract, as supplemented and necessarily
changed by its contract. However, the Authority shall not
obligate itself to receive Wastewater into the System from any
future Additional Contracting Party if, in the judgment and
discretion of the Authority, such obligation would jeopardize
the Authority's ability to meet its obligation to receive,
transport, treat, and dispose of Wastewater discharged into the
System by prior Contracting Parties, including specifically the
Initial Contracting Parties.
(b) It is further recognized and agreed that in the
future the Authority may provide services of the System to
parties which are not Additional Contracting Parties, provided
26 1IFFIC]AA BOND
G1I kETAkY
T, TM
that all such services of the System to parties which are not
Additional Contracting Parties shall in all respects be sub-
ordinate to the prior rights of the Contracting Parties, and
all contracts or other arrangements relating to such services
shall recognize, and be made subordinate to, such prior rights.
(c) Each Contracting Party shall have the right, with the
approval of a majority vote of the Advisory Committee and the
approval of the Authority, to negotiate and enter into subcon-
tracts with any other city or other entity under which such
other city or entity may discharge Wastewater generated within
the drainage area of Denton Creek, but outside the boundaries
of such Contracting Party, into such Contracting Party's
sewers, to be transported into the System at such Contracting
Party's Point or Points of Entry along with such Contracting
Party's Wastewater generated within the drainage area of Denton
Creek. In such case such additional Wastewater shall be
regarded as being the Wastewater of such Contracting Party for
all purposes of this Contract. The consideration as between or
among such cities or other entities may be determined by such
parties, but no such transaction shall relieve the Contracting
Party of its obligations to the Authority under the terms of
this Contract.
Section 10. ADVISORY COMMITTEE. (a) The governing body
of each of the Contracting Parties annually shall appoint one
of the members of its governing body or one of its employees as
ti a 27
fur.+nw..+♦..rV.ay�r.o......nsurwx..i..,...P
a voting member of the Advisory Committee for the System, which
Advisory Committee is hereby created and established. The
Advisory Committee, at its first meeting, shall elect a
Chairman, a Vice Chairman, and a Secretary. The Advisory
Committee may establish bylaws governing the election of
officers, meeting dates, and other matters pertinent to the
functioning of the Advisory Committee. The Advisory Committee
shall consult with and advise the Authority, through its
General Manager or his designated representative, with regard
to the following matters pertaining to the System:
(i) The issuance of Bonds;
(ii) The operation and maintenance of the System;
(iii) Additional Contracting Parties and the terms and
conditions of the contracts with such parties,
consistent with the provisions of this Contract;
(iv) Contracts for services to entities which are not
Additional Contracting Parties, and the prices,
terms, and conditions of such contracts consistent
with the provisions of this Contract;
(v) The Authority's Annual Budget, prior to its
submission by the Authority's General Manager to the
Authority's Board;
(vi) Review of the Authority's Annual Audit;
(vii) All other pertinent matters relating to the
management of the System; and
28
(viii) Improvements and extensions of the System.
The Advisory Committee shall have access to and may inspect at
any reasonable times all physical elements of the System and
all records and accounts of the Authority pertaining to the
System. A copy of the minutes of the meetings of the Advisory
Committee and all other pertinent data, shall be provided to
the members of the Advisory Committee.
(b) The term of membership on the Advisory Committee
shall be at the pleasure of each governing body represented,
respectively, and each member shall serve until replaced by
such governing body. All expenses of the Advisory Committee in
discharging its duties under this Section shall be considered
as an Operation and Maintenance Expense of the System.
Section 11. FISCAL PROVISIONS. (a) Subject to the terms
and provisions of this Contract, the Authority will provide and
pay for the cost of the acquisition and construction of the
System and all System facilities, by issuing its Bonds in
amounts which will be sufficient to accomplish such purposes,
and the Authority will own and operate the System. It is
acknowledged and agreed that payments to be made under this
Contract and similar contracts with Additional Contracting
Parties, if any, will be the primary source available to the
Authority to provide the Annual Requirement, and that, in
compliance with the Authority's statutory duty to fix and from
time to time revise the rates of compensation or charges for
29
services of the System rendered and made available by the
Authority, the Annual Requirement will change from time to
time, and that each such Annual Requirement shall be allocated
among the Contracting Parties as hereinafter provided, and that
the Annual Requirement for each Annual Payment Period shall be
provided for in each Annual Budget and shall at all times be
not less than an amount sufficient to pay or provide for the
payment of:
(A) An "Operation and Maintenance Component" equal to the
amount paid or payable for all Operation and Mainte-
nance Expenses of the System and the Wastewater
Interceptor System. It is understood and agreed that
although the Wastewater Interceptor System will not
be a part of the System as defined in this Contract,
it will consist of facilities which are ancillary to
and integrated into the operation of the System, and
therefore will be operated and maintained in effect
as a part of the System under the provisions of this
Contract, consistent with the terms of the
Interceptor Contract; and
(B) A "Bond Service Component" equal to:
(1) the principal of, redemption premium, if any,
and interest on, its Bonds, as such principal,
redemption premium, if any, and interest become
due, less interest to be paid out of Bond
proceeds or from other sources if permitted by
30
any Bond Resolution, and all amounts required to
redeem any Bonds prior to maturity when and as
provided in any Bond Resolution, plus the fees,
expenses, and charges of each Paying
Agent/Registrar for paying the principal of and
interest on the Bonds, and for authenticating,
registering, and transferring Bonds on the
registration books; and
(2) the proportionate amount of any special,
contingency, or reserve funds required to be
accumulated and maintained by the provisions of
any Bond Resolution; and
(3) any amount in addition thereto sufficient to
restore any deficiency in any of such funds
required to be accumulated and maintained by the
provisions of any Bond Resolution.
Section 12. ANNUAL BUDGET. Each Annual Budget for the
System shall always provide for amounts sufficient to pay the
Annual Requirement. The Annual Budget for the System for all
or any part of the Annual Payment Period during which the
System is first placed into operation shall be prepared by the
Authority based on estimates made by the Authority after
consultation with the Advisory Committee. On or before August
1 of each year after the System is first placed in operation,
the Authority shall furnish to each Contracting Party a
31
preliminary estimate of the Annual Payment required from each
Contracting Party for the next following Annual Payment Period.
Not less than forty days before the commencement of the Annual
Payment Period after the System is first placed into operation,
and not less than forty days before the commencement of each
Annual Payment Period thereafter, the Authority shall cause to
be prepared as herein provided its preliminary budget for the
System for the next ensuing Annual Payment Period, which budget
shall specifically include the Operation and Maintenance
Component and the Bond Service Component. A copy of such
preliminary budget shall be filed with each Contracting Party.
The preliminary budget shall be subject to examination, at
reasonable times during business hours, at the office of the
City Secretary of' 'each Contracting Party. If no protest or
request for a hearing on such preliminary budget is presented
to the Authority within ten days after such filing of the
preliminary budget by one or more Contracting Parties or by the
owners of a minimum of 25% in principal amount of the Bonds
then outstanding, the preliminary budget for the System shall
be considered for all purposes as the "Annual Budget" for the
next ensuing Annual Payment Period. But if protest or request
for a hearing is duly filed, it shall be the duty of the
Authority to fix the date and time for a hearing on the prelim-
inary budget, and to give not less than ten days notice thereof
to the Contracting Parties. An appropriate Committee of the
32 "J ���caSM� NJ
C!Tf SR(,�'kETAIY
Fy. NUTH, TEX.
Authority shall consider the testimony and showings made in
such hearing and shall report its findings to the Board of
Directors of the Authority. The Board of Directors may adopt
the preliminary budget or make such amendments thereof as to it
may seem proper. The budget thus approved by the Board of
Directors of the Authority shall be the Annual Budget for the
next ensuing Annual Payment Period. The Annual Budget (includ-
ing the first Annual Budget) may be amended by the Authority at
any time to transfer from one division thereof to another funds
which will not be needed by such division. The amount for any
division, or the amount for any purpose, in the Annual Budget
may be increased through formal action by the Board of Direc-
tors of the Authority even though such action might cause the
total amount of the Annual Budget to be exceeded; provided that
such action shall be taken only in the event of an emergency or
special circumstances which shall be clearly stated in a
resolution at the time such action is taken by the Board of
Directors. Certified copies of the amended Annual Budget and
resolution shall be filed immediately by the Authority with
each Contracting Party.
Section 13. PAYMENTS BY CONTRACTING PARTIES. (a) For
the Wastewater services to be provided to the Contracting
Parties under this Contract, each of the Contracting Parties
agrees to pay, at the time and in the manner hereinafter
provided, its proportionate share of the Annual Requirement,
33
which shall be determined as herein described and shall consti-
tute a Contracting Party's Annual Payment. Each of the Con-
tracting Parties shall pay its part of the Annual Requirement
for each Annual Payment Period directly to the Authority, in
monthly installments, on or before the 10th day of each month,
in accordance with the schedule of payments furnished by the
Authority, as hereinafter provided.
(b) For each Annual Payment Period each Contracting
Party's proportionate share of the Annual Requirement shall be
a percentage obtained by dividing the number of gallops of
contributing flow of Wastewater estimated to be discharged into
the System by such Contracting Party during such Annual Payment
Period, as determined by the Authority after consultation with
such Contracting Party, by the aggregate total number of
gallons of contributing flow of Wastewater estimated to be
discharged into the System by all Contracting Parties during
such period, as determined by the Authority after consultation
with all of the Contracting Parties. It is provided, however,
that in estimating costs for services the Authority is specifi-
cally authorized, in its discretion, to estimate such costs
based on an arbitrary assumption that the Annual Payment Period
for which the calculation is being made will be an extremely
dry year, rather than a normal or average year, and that
accordingly the contributing flow of Wastewater discharged into
the System will be less than expected normally or on an
34
average, all with the result that the monthly payments made by
the Contracting Parties may be higher than would have been
required on the basis of a normal or average year, and with the
further result that the total amount required to meet the then
current Annual Budget for the System may be collected by the
Authority before the end of the then current Annual Payment
Period. This result is expressly approved by the Contracting
Parties and is deemed by the parties hereto to be beneficial in
the fiscal management of the System, and will assure the timely
availability of funds even under unexpected circumstances.
However, upon receipt during any Annual Payment Period of an
amount sufficient to meet the then current Annual Budget of the
System for the remainder of the then current Annual Payment
Period, the Authority immediately shall notify the Contracting
Parties, and they shall not be obligated to make further
payments under this Section for the remainder of that Annual
Payment Period, unless otherwise specifically hereinafter
provided in the event of unexpected or additional Annual Budget
requirements. It is further provided that the Authority may
revise its estimates of contributing flow either monthly or for
any other period within an Annual Payment Period, as determined
by the Authority, and such revised estimates may be made on the
basis of actual metered contributing flow during the preceding
month or other period, to the end that the Authority may use
its best efforts to avoid to the extent practicable unnecessary
35
final adjustments among the Contracting Parties for each Annual
Payment Period. All such payments for each Annual Payment
Period shall be made in accordance with a written schedule of
payments for the appropriate Annual Payment Period which will
be supplied to each of the Contracting Parties by the
Authority. Such schedule of payments may be revised by the
Authority periodically based on any changes in its estimates of
contributing flow as provided above, and each revised schedule
of payments shall be supplied to each Contracting Party before
the beginning of the period to which it is applicable. At the
close of each Annual Payment Period the Authority shall
determine the actual metered number of gallons of contributing
flow of Wastewater discharged into the System by each
Contracting Party during said period and determine each
Contracting Party's actual percentage of the Annual Requirement
by dividing such Contracting Party's actual metered
contributing flow by the actual metered contributing flow of
all Contracting Parties. Each Contracting Party's Adjusted
Annual Payment shall be calculated by multiplying each such
Contracting Party's redetermined percentage times the actual
Annual Requirement. The difference between the amounts which
actually have been paid by each Contracting Party and the
amounts actually due from such Contracting Party hereunder
shall be applied as a credit or a debit to such Contracting
Party's account with the Authority and shall be credited or
36
debited to such Contracting Party's next monthly payment, or as
otherwise agreed between the Authority and the affected Con-
tracting Party, provided that all such credits and debits shall
be made in a timely manner not later than the end of the next
following Annual Payment Period.
(c) Notwithstanding the provisions of (b) , above, and as
an exception thereto, it is agreed that if, during any Annual
Payment Period, the estimated and/or actual metered contribut-
ing flow of Wastewater into the System of any Contracting Party
is, for any reason whatsoever, less than the minimum amount
hereinafter prescribed and provided for it, such Contracting
Party shall pay its share of each Annual Requirement as if its
estimated and/or actual metered contributing flow of Wastewater
into the System were such minimum amount. However, if such
Contracting Party's estimated and/or actual metered contribut-
ing flow of Wastewater into the System is equal to or in excess
of such minimum amount, its share of all of each Annual Re-
quirement shall be calculated on the basis of estimated and
actual contributing flow as provided in (b) , above. All
contracts with Additional Contracting Parties shall provide for
equitable minimums similar to those provided for below. Such
minimums shall be fixed in amounts at least sufficient, as
determined by the Authority, to assure an initial annual
payment by such Additional Contracting Party for not less than
the amount of its estimated contributing flow of Wastewater
37
into the System during the first year of service under such
contract. For the purpose of calculating the minimum per-
centage of each Annual Requirement for which each Initial
Contracting Party is unconditionally liable, without offset or
counterclaim (also see Section 16 hereof) , the contributing
flow of Wastewater into the System of each Initial Contracting
Party, during each Annual Payment Period, shall be deemed to be
not less than the minimum amount (regardless of whether or not
such amount was actually discharged into the System) specified
for such Initial Contracting Party as follows:
City of Fort Worth: 43, 158, 695 gallons
City of Haslet: 22, 082,500 gallons
City of Roanoke: 40,150,000 gallons.
(d) Notwithstanding the foregoing, the Annual Require-
ment, and each Contracting Party's share thereof, shall be
redetermined, after consultation with each of the Contracting
Parties, at any time during any Annual Payment Period, to the
extent deemed necessary or advisable by the Authority, if:
(i) The Authority commences furnishing services of the
System to an Additional Contracting Party or Parties;
(ii) Unusual, extraordinary, or unexpected expenditures
for Operation and Maintenance Expenses are required
which are not provided for in the Authority's Annual
Budget for the System or in any Bond Resolution;
(iii) Operation and Maintenance Expenses are substantially
38 OKICIM WON
Fy, 110,ON10.
less than estimated;
(iv) The Authority issues Bonds which require an increase
in the Bond Service Component of the Annual Payment;
or
(v) The Authority receives either significantly more or
significantly less revenues or other amounts than
those anticipated.
(e) During each Annual Payment Period all revenues
received by the Authority from providing services of the System
to parties which are not Contracting Parties, and all sur-
charges collected from any Contracting Party under Section 4 ,
above, shall (i) first be credited to the Operation and Mainte-
nance Component of the Annual Requirement, and (ii) then any
remainder credited to the Bond Service Component of the Annual
Requirement, with the result that such credits under (i) and
(ii) , respectively, shall reduce, to the extent of such
credits, the amounts of such Components, respectively, which
otherwise would be payable by the Contracting Parties pursuant
to the method prescribed in (b) and (c) , above. The Authority
may estimate all such credits which it expects to make during
each Annual Payment Period in calculating each Annual Payment.
(f) Each Contracting Party hereby agrees that it will
make payments to the Authority required by this Section on or
before the 10th day of each month of each Annual Payment
Period. If any Contracting Party at any time disputes the
39
amount to be paid by it to the Authority, such complaining
party shall nevertheless promptly make such payment or pay-
ments, but if it is subsequently determined by agreement or
court decision that such disputed payments made by such com-
plaining party should have been less, or more, the Authority
shall promptly revise and reallocate the charges among all
Contracting Parties in such manner that such complaining party
will recover its overpayment or the Authority will recover the
amount due it. All amounts due and owing to the Authority by
each Contracting Party or due and owing to any Contracting
Party by the Authority shall, if not paid when due, bear
interest at the rate of ten (10) percent per annum from the
date when due until paid. The Authority shall, to the extent
permitted by law, discontinue the services of the System to any
Contracting Party which remains delinquent in any payments 'due
hereunder for a period of sixty days, and shall not resume such
services while such Contracting Party is so delinquent. It is
further provided and agreed that if any Contracting Party
should remain delinquent in any payments due hereunder for a
period of one hundred twenty days, and if such delinquency
continues during any period thereafter, such Contracting
Party's minimum amount of gallons of Wastewater specified and
described in (c) , above, shall be deemed to have been zero
gallons during all periods of such delinquency, for the purpose
of calculating and redetermining the percentage of each Annual
40
Payment to be paid by the non-delinquent Contracting Parties,
and the Authority shall redetermine such percentage on that
basis in such event so that the non-delinquent Contracting
Parties collectively shall be required to pay all of the Annual
Requirement. However, the Authority shall pursue all legal
remedies against any such delinquent Contracting Party to
enforce and protect the rights of the Authority, the other
Contracting Parties, and the holders of the Bonds, and such
delinquent Contracting Party shall not be relieved of the
liability to the Authority for the payment of all amounts which
would have been due .hereunder, in the absence of the next
preceding sentence. It is understood that the foregoing
provisions are for the benefit of the holders of the Bonds so
as to insure that all of the Annual Requirement will be paid by
the non-delinquent Contracting Parties during each Annual
Payment Period regardless of the delinquency of a Contracting
Party. If any amount due and owing by any Contracting Party to
the Authority is placed with an attorney for collection, such
Contracting Party shall pay to the Authority all attorneys
fees, in addition to all other payments provided for herein,
including interest.
(g) If, during any Annual Payment Period, any Contracting
Party's Annual Payment is redetermined in any manner as pro-
vided or required in this Section, the Authority will promptly
41
furnish such Contracting Party with an updated schedule of
monthly payments reflecting such redetermination.
Section 14. SPECIAL PROVISIONS. (a) The Authority will
continuously operate and maintain the System in an efficient
manner and in accordance with good business and engineering
practices, and at reasonable cost and expense.
(b) The Authority agrees to carry fire, casualty, public
liability, and other insurance (including self-insurance to
the extent deemed advisable by the Authority) on the System for
purposes and in amounts which ordinarily would be carried by a
privately owned utility company owning and operating such
facilities, except that the Authority shall not be required to
carry liability insurance except to insure itself against risk
of loss due to claims for which it can, in the opinion of the
Authority's legal counsel, be liable under the Texas Tort
Claims Act or any similar law or judicial decision. Such
insurance will provide, to the extent feasible and practicable,
for the restoration of damaged or destroyed properties and
equipment, to minimize the interruption of the services of such
facilities. All premiums for such insurance shall constitute
an Operation and Maintenance Expense of the System.
(c) It is the intent of the parties that the System will
be placed in operation in 1989, and the Authority agrees to
proceed diligently with the design and construction of the
System to meet such schedule, subject to the other terms and
42
conditions in this Contract. It is expressly understood and
agreed, however, that any obligations on the part of the
Authority to acquire, construct, and complete the System and to
provide the services of the System to the Contracting Parties
shall be conditioned (i) upon the Authority's ability to obtain
all necessary permits, material, labor, and equipment, (ii)
upon the ability of the Authority to finance the cost of the
System through the actual sale of the Authority's Bonds, and
(iii) subject to all present and future valid laws, orders,
rules, and regulations of the United States of America, the
State of Texas, and any regulatory body having jurisdiction.
(d) The Authority shall never have the right to demand
payment by any Initial Contracting Party of any obligations
assumed by it or imposed on it under and by virtue of this
Contract from funds raised or to be raised by taxes, and the
obligations under this Contract shall never be construed to be
a debt of such kind as to require any of the Initial Contract-
ing Parties to levy and collect a tax to discharge such obli-
gation.
(e) Each of the Initial Contracting Parties, respect-
ively, represents and covenants that all payments to be made by
it under this Contract shall constitute reasonable and neces-
sary "operating expenses" of its combined waterworks and sewer
system, as defined in Vernon's Ann. Tex. Civ. St. Article 1113,
and that all such payments will be made from the revenues of
43
its combined waterworks and sewer system. Each of the Con-
tracting Parties, respectively, represents and has determined
that the services to be provided by the System are necessary
and essential to the present and future operation of its
aforesaid system, and that the System constitutes the only
available and adequate method for discharging, receiving,
treating, and disposing of its Wastewater from the Denton Creek
drainage area, and, accordingly, all payments required by this
Contract to be made by each Contracting Party shall constitute
reasonable and necessary operating expenses of its systems,
respectively, as described above, with the effect that the
obligation to make such payments from revenues of such systems,
respectively, shall have priority over any obligation to make
any payments from such revenues of principal, interest, or
otherwise, with respect to all bonds or other obligations
heretofore or hereafter issued by such Contracting Party.
(f) Each of the Contracting Parties agrees throughout the
term of this Contract to continuously operate and maintain its
combined waterworks and sewer system, and to fix and collect
such rates and charges for water and sewer services and/or
sewer services to be supplied by its system as aforesaid as
will produce revenues in an amount equal to at least (i) all of
the expenses of operation and maintenance expenses of such
system, including specifically its payments under this Con-
tract, and (ii) all other amounts as required by law and the
44 If ��i�G;11 WORD
� �AtY
FT. O-STH, TEX.
provisions of the ordinances or resolutions authorizing its
revenue bonds or other obligations now or hereafter outstand-
ing, including the amounts required to pay all principal of and
interest on such bonds and other obligations.
(g) The Authority covenants and agrees that neither the
proceeds from the sale of the Bonds, nor the moneys paid to it
pursuant to this Contract, nor any earnings from the investment
of any of the foregoing, will be used for any purposes except
those directly relating to the System, the Wastewater
Interceptor System, and the Bonds as provided in this Contract;
provided that the Authority may rebate any excess arbitrage
earnings from such investment earnings to the United States of
America in order to prevent any Bonds from becoming "arbitrage
bonds" within the meaning of the IRS Code of 1986 or any
amendments thereto in effect on the date of issue of such
Bonds. Each of the Contracting Parties covenants and agrees
that it wil not use or permit the use of the System in any
manner that would cause the interest on any of the Bonds to be
or become subject to federal income taxation under the IRS Code
of 1986 or any amendments thereto in effect on the date of
issue of such Bonds.
Section 15. FORCE MAJEURE. If by reason of force majeure
any party hereto shall be rendered unable wholly or in part to
carry out its obligations under this Contract, other than the
obligation of each Contracting Party to make the payments
45
required under Section 13 of this Contract, then if such party
shall give notice and full particulars of such force majeure in
writing to the other parties within a reasonable time after
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 any such
party shall endeavor to remove or overcome such inability with
all reasonable dispatch. 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, hurri-
canes, storms, floods, washouts, droughts, arrests, restraint
of government and people, civil disturbances, explosions,
breakage or accidents to machinery, pipelines or canals,
partial or entire failure of water supply, or on account of any
other causes not reasonably within the control of the party
claiming such inability.
Section 16. UNCONDITIONAL OBLIGATION TO MAKE PAYMENTS.
Recognizing the fact that the Contracting Parties urgently
require the facilities and services of the System, and that
such facilities and services are essential and necessary for
actual use and for standby purposes, and recognizing the fact
46 w � �� �
-CI$V 6L/-_jP.L 11ff
that the Authority will use payments received from the Con-
tracting Parties to pay and secure its Bonds, it is hereby
agreed that each of the Contracting Parties shall be uncon-
ditionally obligated to pay, without offset or counterclaim,
its proportionate share of the Annual Requirement, as provided
and determined by this Contract (including the obligations for
paying for "minimums" as described in Section 13 hereof) ,
regardless of whether or not the Authority actually acquires,
constructs, or completes the System or is actually operating or
providing services of the System to any Contracting Party
hereunder, or whether or not any Contracting Party actually
uses the services of the System whether due to Force Majeure or
any other reason whatsoever, regardless of any other provisions
of this or any other contract or agreement between any of the
parties hereto. This covenant by the Contracting Parties shall
be for the benefit of and enforceable by the holders of the
Bonds and/or the Authority.
Section 17. TERM OF CONTRACT; MODIFICATION; NOTICES;
STATE OR FEDERAL LAWS, RULES, ORDERS, OR REGULATIONS. (a)
This Contract shall be effective on and from the Contract Date,
subject to its execution by all of the Initial Contracting
Parties and the Authority, and this Contract shall continue in
force and effect until the principal of and interest on all
Bonds shall have been paid, and thereafter shall continue in
force and effect during the entire useful life of the System.
> .: 47
This Contract constitutes the sole agreement between the
parties hereto with respect to the System.
(b) Modification. No change, amendment, or modification
of this Contract shall be made or be effective which will
affect adversely the prompt payment when due of all moneys
required to be paid by each Contracting Party under the terms
of this Contract and no such change, amendment, or modification
shall be made or be effective which would cause a violation of
any provisions of any Bond Resolution.
(c) Addresses and Notice. Unless otherwise provided
herein, any notice, communication, request, reply, or advice
(herein severally and collectively, for convenience, called
"Notice") herein provided or permitted to be given, made, or
accepted by any party to any other party must be in writing and
may be given or be served by depositing the same in the United
States mail postpaid and registered or certified and addressed
to the party to be notified, with return receipt requested, or
by delivering the same to an officer of such party, or by
prepaid telegram when appropriate, addressed to the party to be
notified. Notice deposited in the mail in the manner herein-
above described shall be conclusively deemed to be effective,
unless otherwise stated herein, from and after the expiration
of three days after it is so deposited. Notice given in any
other manner shall be effective only if and when received by
the party to be notified. For the purposes of notice, the
48 OFFICIAL RICAVID
CITY
FTeu��, � �s,
addresses of the parties shall, until changed as hereinafter
provided, be as follows:
If to the Authority, to:
Trinity River Authority of Texas
5300 S. Collins
P. O. Box 240
Arlington, Texas 76010
If to the Initial Contracting Parties, as follows:
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
City of Haslet
P. O. Box 8
Haslet, Texas 76052
City of Roanoke
P. O. Box 386
Roanoke, Texas 76262
The parties hereto shall have the right from time to time and
at any time to change their respective addresses and each shall
have the right to specify as its address any other address by
at least fifteen (15) days' written notice to the other parties
hereto.
(d) State or Federal Laws, Rules. Orders, or Regulations.
This Contract is subject to all applicable Federal and State
laws and any applicable permits, ordinances, rules, orders, and
regulations of any local, state, or federal governmental
authority having or asserting jurisdiction, but nothing con-
tained herein shall be construed as a waiver of any right to
question or contest any such law, ordinance, order, rule, or
regulation in any forum having jurisdiction.
49
Section 18. SEVERABILITY. The parties hereto specifical-
ly agree that in case any one or more of the sections, subsec-
tions, provisions, clauses, or words of this Contract or the
application of such sections, subsections, provisions, clauses,
or words to any situation or circumstance should be, or should
be held to be, for any reason, invalid or unconstitutional,
under the laws or constitutions of the State of Texas or the
United States of America, or in contravention of any such laws
or constitutions, such invalidity, unconstitutionality, or
contravention shall not affect any other sections, subsections,
provisions, clauses, or words of this Contract or the applica-
tion of such sections, subsections, provisions, clauses, or
words to- any other situation or circumstance, and it is in-
tended that this Contract shall be severable and shall be
construed and applied as if any such invalid or unconstitu-
tional section, subsection, provision, clause, or word had not
been included herein, and the rights and obligations of the
parties hereto shall be construed and remain in force accord-
ingly.
Section 19. REMEDIES UPON DEFAULT. It is not intended
hereby to specify (and this Contract shall not be considered as
specifying) an exclusive remedy for any default, but all such
other remedies (other than termination) existing at law or in
equity may be availed of by any party hereto and shall be
cumulative. Recognizing however, that the Authority's
56 OFFICIAL RECORD
C1�.6
FY, WONk"U, YK
undertaking to provide and maintain the services of the System
is an obligation, failure in the performance of which cannot be
adequately compensated in money damages alone, the Authority
agrees, in the event of any default on its part, that each
Contracting Party shall have available to it the equitable
remedy of mandamus and specific performance in addition to any
other legal or equitable remedies (other than termination)
which may also be available. Recognizing that failure in the
performance of any Contracting Party's obligations hereunder
could not be adequately compensated in money damages alone,
each Contracting Party agrees in the event of any default on
its part that the Authority shall have available to it the
equitable remedy of mandamus and specific performance in
addition to any other legal or equitable remedies (other than
termination) which may also be available to the Authority.
Notwithstanding anything to the contrary contained in this
Contract, any right or remedy or any default hereunder, except
the right of the Authority to receive the Annual Payment which
shall never be determined to be waived, shall be deemed to be
conclusively waived unless asserted by a proper proceeding at
law or in equity within two (2) years plus one (1) day after
the occurrence of such default. No waiver or waivers of any
breach or default (or any breaches or defaults) by any party
hereto or of performance by any other party of any duty or
obligation hereunder shall be deemed a waiver thereof in the
,: 51
future, nor shall any such waiver or waivers be deemed or
construed to be a waiver of subsequent breaches or defaults of
any kind, character, or description, under any circumstances.
Section 20. VENUE. All amounts due under this Contract,
including, but not limited to, payments due under this Contract
or damages for the breach of this Contract, shall be paid and
be due in Tarrant County, Texas, which is the County in which
the principal administrative offices of the Authority are
located. It is specifically agreed among the parties to this
Contract that Tarrant County, Texas, is the place of perfor-
mance of this Contract; and in the event that any legal pro-
ceeding is brought to enforce this Contract or any provision
hereof, the same shall be brought in Tarrant County, Texas.
IN WITNESS WHEREOF, the parties hereto acting under
authority of their respective governing bodies have caused this
Contract to be duly executed in several counterparts, each of
which shall constitute an original, all as of the day and year
first above written, which is the date of this Contract.
TRINITY R AUT O TY OF TEXAS
BY
Gene Manager
ATTEST:
C
� y
Sec_etary, Board of Directors
(AUTHORITY SEAL)
52
CITY OF FORT WORTH, TEXAS
C
BY
//
ity Man ger
ATTEST:
City Secretary
(CITY SEAL)
APPROVED AS TO FORM AND LEGALITY
City Attorney, City of Fort Worth,
Contract Authorisation /1'.4 Jr.: Texas
Date CITY OF HASLET, TEXAS
Mayor
ATTEST:
City Secretary
ICITY SEAL)
CITY OF ROANOKE, TEXAS
BY
Mayor
ATTEST:
City ecr ary
(CITY SEAL)
53
Exhibit D
Points of Entry
Ciff MCRE Y
Exhibit D to �Q N
Wholesale Wastewater Service Agreement
f u ,
r
II
Y
�5
u
�-v
s
A '1
f12 - _ •�'. ni d ,
CL 2
O y Oet
L
r.
w
LA
R qhs
ti
EXHIBIT E
WHOLESALE RATE METHODOLOGY
1. Wholesale wastewater rates will be based upon cost-of-service rate studies performed by
independent utility rate consultants. The independent utility rate consultant shall be
selected by Director from a list of five qualified firms submitted to the Director by the
Fort Worth "Wastewater Advisory Committee." The cost of such studies will 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.
2. Every three (3) years, a detailed wholesale revenue requirement shall be developed on an
actual historical cost test year basis allowing for reasonable and necessary expenses of
providing such wastewater service and allowing for known and measurable adjustments.
Such adjustments should allow for year end trending and the spreading of non recurring
expenses over an appropriate benefit period. The test year for the initial rate set forth in
Section 4.02 is October 1, 2003, through September 30, 2004, and the next detailed cost
of service study shall be performed by an independent utility rate consultant during the
first two (2) calendar quarters of 2007, based on audited data for the immediate past fiscal
year ended September 30, 2006. On a three (3) year cycle thereafter, a complete detailed
rate study will be performed with the same methodology used in the previous rate study
by an independent utility rate consultant, subject to modifications recommended by a
majority of the Wastewater Advisory Committee and approved by the Fort Worth City
Council. In the interim period between complete detailed rate studies, wholesale
wastewater rates shall be adjusted by Fort Worth using the same methodology adopted at
the time of the last complete detailed rate study, utilizing the actual operating data for the
twelve month period ending September 30th of the prior year, adjusted for known and
measurable changes in cost data which may have occurred since the last audited
statement.
3. 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 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,
wastewater quality, 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. On a periodic basis as determined by the Director the depreciation
rates on all General Benefit Capital Facilities shall be studied, and new salvage values,
useful lives, and annual rates of depreciation shall be developed from such studies. 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. On a periodic basis as determined by the
Director, a cash "lead lag" study shall be conducted to determine the appropriate level of
working capital at the same time as the above depreciation rate study is done. 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
Exhibit E to
Wholesale Wastewater Service Agreement'�,: �� MAP
available for inspection at the Fort Worth Water Department during reasonable business
hours upon request by Aqua Utilities.
4. The City shall be allowed an adequate opportunity to earn a reasonable rate of return,
sufficient to assure confidence in the financial soundness of the utility, adequate to
maintain and support its credit, enable it to raise the money necessary for the proper
discharge of its public duties. The rate of return is equal to the weighted average
imbedded cost of outstanding debt plus one and one half percent(1-1/2%).
5. The rates set forth in Article 4.02 shall be automatically adjusted to equal those adopted
by the City Council based on the foregoing rate studies, and shall become effective on the
effective date established by the City for those rates.
Exhibit E to
Wholesale Wastewater Service Agreement
Page 2