Loading...
HomeMy WebLinkAboutContract 42926CITY SECRETARY CONTRACT NO. y_a�� CITY OF FORT WORTH WATER DEPARTMENT RECLAIMED WATER RETAIL SERVICE AGREEMENT THIS AGREEMENT is entered into by and between the City of Fort Worth, Texas, a home -rule municipal corporation situated in Tarrant, Denton, Parker and Wise Counties, Texas, hereinafter called "City," acting herein by and through Fernando Costa, its duly authorized Assistant City Manager, and Quicksilver Resources, Inc. , hereinafter called "User ", acting herein by and through Clay Blum its V.P. US Land. For the consideration provided herein, City agrees to supply and User agrees to accept, store and use Reclaimed Water in accordance with the terms and conditions of this Reclaimed Water Service Agreement (the "Agreement "). This Agreement incorporates and is subject to all of the terms and conditions set out herein as well as all of the following: • All applicable Attachments and Appendices attached hereto; • City of Fort Worth Water and Wastewater Installation Policy; • City of Fort Worth Policies and Procedures for Processing Water and Wastewater Projects for Design and Construction Manual; • City of Fort Worth Cross Connection and Backflow Prevention Program as described in Chapter 12.5, Article V, Division 3 of the City Code. • Chapter 35, Article VIII, "Reclaimed Water" of the City Code • All applicable local, state, and federal statutes, ordinances, and regulations, as they may be amended, now or hereafter in effect ( "Applicable Laws "), including without limitation, Chapter 210 of Title 30 of the Texas Administrative Code and Article VII of Chapter 35 of the City Code. 1. Use a. General. User shall use reclaimed water supplied by City under this Agreement (the "Reclaimed Water ") only as authorized by Applicable Laws, including, without limitation, Sections 210.22 (General Requirements), 210.24 (Irrigation Using Reclaimed Water), and 210.32 (Specific Uses of Reclaimed Water) of Title 30 of the Texas Administrative Code, and Article VII of Chapter 35 of the City Code. City in no way represents that the Reclaimed Water provided under this Agreement is suitable for User's purposes. b. Specific User agrees to use the Reclaimed Water only for the purpose(s) and in the location(s) described in Attachment A hereto. User agrees to obtain CITY's written consent prior to using the Reclaimed Water for a purpose or at a location not described in Attachm �. Any changes to the purpose and location of use of the Reclaimed Water mustbe re ?? "' in an amendment to Attachment A and attached hereto. User agrees 3 sf.4t� minimize the risk of human exposure to the Reclaimed Water. City may terminate this Agreement immediately, in its sole discretion, if City determines that User has failed to use the Reclaimed Water in accordance with Applicable Laws, this Agreement, and/or Attachment A. c. Prohibited Uses: User hereby covenants and agrees to the following: i. The Reclaimed Water shall not be used for drinking, food preparation, domestic purposes or any type of human consumption. Reclaimed Water may be used for toilet or urinal flush water in commercial applications, if described as a purpose in Attachment A, hereto. ii. The Reclaimed Water shall not be sold or supplied to any other person for any purposes whatsoever. iii. Except as User may otherwise be expressly authorized by the TCEQ, Reclaimed Water may not be discharged into or adjacent to the waters in the State. If TCEQ has granted User permission to discharge into or adjacent to the State, User shall provide a copy of such authorization to the City prior to the discharge. iv. User shall not cause nor allow to be caused a nuisance resulting from the distribution, use and/or storage of the Reclaimed Water. 2. Ouan ti a. Annual Amount City agrees to convey and transfer to User and User agrees to take from City, Reclaimed Water up to the maximum quantity set forth in Attachment B per contract year (the "Annual Amount "), and in the monthly volumes set forth in Attachment B. User further agrees to take at least 75 percent of the Annual Amount in each 12 month period (the "Minimum Amount"). b. Rate of Delivery City will deliver Reclaimed Water on a continuous basis during each twenty-four hour period at a rate consistent with User's anticipated monthly and/or annual utilization of Reclaimed Water as set forth in Attachment B hereto. c. Adiustment of Annual Amount If User fails to take the Minimum Amount for any two consecutive 12 month periods, for reasons other than rainfall or default or nonperformance by City, City may reduce the Annual Amount to an amount that reflects the User's actual historical usage over the previous 12 months or as mutually agreed upon by the parties. City may in its discretion increase the Annual Amount, if requested in writing by the User, based on availability Reclaimed Water Retail Service Agreementcrrl 11811 2of14 and other factors related to the provision of Reclaimed Water. All adjustments to the Annual Amount must be reflected in an amendment to Attachment B. 3. Delivery a. Point of Delivery City shall deliver Reclaimed Water from a meter or meters owned and maintained by the City. The approximate location of the Reclaimed Water meter(s) is shown on Attachment A. Title to the Reclaimed Water shall pass from the City to User at the meter connections on User's premises ( "Points of Delivery "). The amount of Reclaimed Water received by User shall be determined by and based upon monthly meter readings performed by the City. b. Service Pressure City does not guarantee to deliver Reclaimed Water to User at any specific operating pressure. User shall supply, install and maintain at User's sole expense all equipment to obtain User's desired pressure if the pressure provided by City is not adequate for User's purposes. Such equipment must comply with City standards. 4. Quality a. State Standards City agrees to transfer to User, at the designated Points of Delivery, Reclaimed Water of at least the minimum quality required by State standards for Type I usage as set forth in Section 210.33 of Title 30 of the Texas Administrative Code, as such may be amended or superceded from time to time. Pursuant to Section 210.33(1), the minimum Reclaimed Water quality for Type I water initially will be equal to or less than: BOD5 or CBOD5 5 mg/L Turbidity 3 NTU Fecal Coliform 20 CFU /100 ml* Fecal Coliform 75 CFU /100 ml ** * geometric mean ** single grab sample (not to exceed) b. Warranties User understands and agrees that the quality of the Reclaimed Water is different from that of User's normal potable water supply. User understands and agrees that the City makes no warranties as to the quality of the Reclaimed Water beyond those contained in Section 4a. All other warranties whether express or implied, including, without limitation, Reclaimed Water Retail Service Agreementcrrl 1 1811 3of14 the implied warranty for fitness for a particular purpose or the implied warranty of merchantability are hereby excluded. 5. Reclaimed Water Use Requirements a. General User acknowledges that use of Reclaimed Water is regulated by the Texas Commission on Environmental Quality ( "TCEQ ") and Article VIII of Chapter 35 of the City Code. A copy of Article VIII of Chapter 35 is included as Attachment C. User shall fully inform itself of applicable requirements for the use of Reclaimed Water and abide by all Applicable Laws. Delivery of Reclaimed Water may, at City's sole discretion, be immediately terminated for violation of the provisions of any Applicable Laws. b. Reclaimed Water Supervisor i. User shall designate an individual as User's Reclaimed Water Supervisor. The Reclaimed Water Supervisor shall be User's coordinator and the direct contact person between City and the User. The User agrees that the Reclaimed Water Supervisor shall be responsible for the proper operation of User's Reclaimed Water system, implementing the requirements of this Agreement relative to the onsite use of reclaimed water, monitoring of User's Reclaimed Water system for prevention of potential hazards, and coordination with the City and other regulatory agencies. City will assist in the training of User's Reclaimed Water Supervisor as time and resources permit; however, it shall be the non- delegable responsibility of User to assure its Reclaimed Water Supervisor is trained in the use and handling of Reclaimed Water in accordance with all Applicable Laws. ii. User shall inform the City in writing of the name, position and daytime and nighttime telephone numbers of User's Reclaimed Water Supervisor and shall promptly inform the City in writing of any changes of designee and/or phone numbers during the term of this Agreement. c. Onsite Facilities i. If modifications are necessary to User's onsite facilities to conform to Reclaimed Water use requirements, User shall submit its plans and specifications for such modifications to the City which shall approve same before construction commences and which approval shall not unreasonably be withheld. All modifications required in User's onsite facilities shall be the sole cost and responsibility of the User. Upon request or at the City's discretion, the City shall assist the User in identifying the modifications and/or changes required in User's onsite facilities. It shall be the User's responsibility to construct the modifications in accordance with the approved plans and specifications, and with all Applicable Laws. Reclaimed Water Retail Service AgreementenI 1 1811 4of14 ii. City shall install and maintain Reclaimed Water meter(s) on the User's site, as required and as the City deems necessary, to monitor the Reclaimed Water deliveries made to User. User shall provide CITY with any easements necessary for delivery of Reclaimed Water to User's premises at a mutually agreeable location in a form acceptable to the City. d. Notifications User shall provide proper notification as required by Section 210.25 to User's employees and to the public that Reclaimed Water is being used on the Site in accordance with all Applicable Laws. ii. Prior to User's commencement of the use of Reclaimed Water under this Agreement, the City will notify the Executive Director of the TCEQ and obtain approval for such use in accordance with Section 210.4 of Chapter 210 of Title 30 of the Texas Administrative Code. iii. Upon completion of all onsite modifications and changes to User's Reclaimed Water and potable water systems, User shall provide the City with as-built drawings of User's completed Reclaimed Water system and potable water system on User's site. The drawings shall show at a minimum, the locations of all pipelines, controllers, valves, buildings, structures, property boundaries, and any other features important to the onsite use of Reclaimed Water. iv. User agrees to notify City by telephone or fax of any Reclaimed Water use not authorized by this Agreement, including, but not limited to, spills, leaks, discharges, or releases of a material volume of Reclaimed Water into or adjacent to the waters of the State. The only exception is when the discharge or spill is caused by rainfall events or in accordance with a permit issued by the TCEQ. Telephone or faxed notice must be given to City within 24 hours of obtaining knowledge of any such spill, leak, discharge, or release. City personnel will then assist in (1) assessing the extent of the unauthorized discharge and (2) aid in determining what reports, if any, need to be made as well as assist in making the reports. City will then provide written notice to TCEQ within 5 working days of obtaining knowledge of any such spill, leak, discharge or release. Reclaimed Water Retail 5dvice Agreememtcrrl 11811 5of14 v. Notices to be given by either party to the other relative to this Agreement shall be in writing. Both parties agree that any such notice shall be effective when personally delivered or deposited, postage paid, in the U.S. Mail addressed by certified mail, return receipt request, as follows: To City: Fort Worth Department 1000 Throckmorton Fort Worth, Texas 76102 Phone Number: Fax Number: To User: Quicksilver Resources, Inc. 801 S. Cherry Street Suite 3700 -Unit 19 Fort Worth, Texas 76102 7. Price and Payment for Use of Reclaimed Water a. Rates and Fees User shall pay the City for Reclaimed Water rates as stated in Section 35 -188 "Rates and Charges" of the City Code and all applicable fees as adopted by City Council, as may be amended. b. Payment Each month User shall make a payment to the City as provided in Article III, Chapter 35 of the City Code. . 8. Permission to Enter User hereby grants to the City and regulatory agencies, acting through their duly authorized employees, agents, or contractors, access at all reasonable times to enter the Site for the purpose of observing construction or modification of reclaimed water facilities, for maintaining and repairing City - installed facilities, for meter reading, and for Reclaimed Water Retail Service AgreemeatmT11181 1 6of14 entering User's premises, the City or the regulatory agencies shall not unreasonably interfere with User's operations and its use of the premises. 9. Interruption of Service City may interrupt Reclaimed Water service at any time if City determines that User is in breach of any provision in this Agreement or in violation of Applicable Law. If City interrupts service pursuant to this subsection, User shall have .30 days to cure the breach to the satisfaction of City. If User fails to cure the breach to the satisfaction of City in the period provided, City shall have the right to immediately terminate the Agreement. The provisions of this Section are not intended to limit the rights of City contained in Section 10 of this Agreement. 10. Termination a. With Notice Except as otherwise provided herein, either party may terminate this Agreement for any reason by giving the other party 180 days advance written notice of the party's intent to terminate. b. Unauthorized Use City may terminate this Agreement immediately if City determines that the use of the Reclaimed Water is not in strict compliance with this Agreement or Applicable Laws, as each may be amended and such noncompliance has not been remedied within 30 days as provided in Section 9. c. Onsite System City may terminate this Agreement immediately if City determines that the Onsite System is not in strict compliance with this Agreement or Applicable Laws, and such noncompliance has not been remedied within 30 days as provided in Section 9. d. Nonpayment In the event User fails to timely pay for Reclaimed Water in accordance with this Agreement, City may interrupt service and terminate this Agreement. Service will not be interrupted for failure to pay an amount contested in good faith by User and in accordance with City's established procedures, so long as User timely pays all other charges due and not in dispute. All billing inquiries, disputes and decisions to terminate Reclaimed Water service for nonpayment shall be resolved in accordance with City's established policies as such policies may be amended from time to time. Reclaimed Water Retail Service Agreementurl 11811 7 of 14 e. Conveyance of Premises City may terminate this Agreement immediately if User leases, sells, or conveys to another entity ownership, control or possession of all or parts of the land on which all or part of the Onsite System is located; provided, however, that City may, in its sole discretion and on conditions it may require, permit this Agreement to be assigned to such other entity, provided the entity to which the assignment is made shall use the Annual Amount of Reclaimed Water for the same purposes and in the same locations as established in the applicable Attachments hereto, all in accordance with this Agreement. 11. Liability. Indemnification and Force Maieure a. User's Liability User shall be solely responsible for any and all claims, damages, deaths, losses, injury, fines, penalties, suits and liability of every kind, including environmental liability, arising from the use, distribution or discharge of the Reclaimed Water, whether such us is intended or accidental, or authorized by this Agreement and Applicable Laws or otherwise. User shall be solely responsible for any and all claims, damages, deaths, losses, injury, fines, penalties, suits and liability of every kind arising from or relating to the design, installation, construction, connection, maintenance, operation and modification of the onsite system, regardless as to whether the onsite system was released for service by City. B. INDEMNIFICATION USER AGRES TO INDEMNIFY AND HOLD HARMLESS THE CITY OF FORT WORTH, AND ITS EMPLOYEES, OFFICERS, AGENTS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING ENVIRONMENTAL LIABILITY, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH USER'S DISTRIBUTION, USE AND /OR STORAGE OF THE RECLAIMED WATER PROVIDED HEREUNDER, AND /OR THE DESIGN, INSTALLATION, CONSTRUCTION, CONNECTION, MAINTENANCE, MODIFICATION OR OPERATION OF USER'S ONSITE SYSTEM, INCLUDING WHEN CAUSED, IN WHOLE OR PART, BY USER, THIRD PARTIES, OR BY THE CONTRIBUTORY NEGLIGENCE OF CITY REPRESENTATIVES. IT IS THE EXPRESSED INTENT OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY USER TO INDEMNIFY AND PROTECT CITY REPRESENTATIVE FROM THE NEGLIGENT ACTS OF THE USER, THIRD PARTIES, AND CITY Reclaimed Water Retail Service Agreementcrr] 11811 8of14 REPRESENTATIVES, EXCEPT WHEN CAUSED BY THE SOLE NEGLIGENCE OF CITY REPRESENTATIVES. c. Force Maj eure If by reason of Force Majeure, the City shall be rendered unable wholly or in part to carry out its obligations under this Agreement to deliver Reclaimed Water, it shall not be required to deliver Reclaimed Water, and its failure to deliver Reclaimed Water in accordance with the terms and conditions of this Agreement, shall not be considered a breach of this Agreement. The term "Force Majeure" as used in this Agreement shall mean acts of God, strikes, lock -outs, or other industrial disturbances, acts of the public enemy, orders of any kind of the federal or state government or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, power failures, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, the partial or entire failure of the Fort Worth Water System, unsuitable Reclaimed Water quality, or other causes. Nothing herein shall be construed to enlarge the duty or liability of the City beyond that imposed by law. 12. General Conditions a. This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas, and venue of any litigation hereunder shall be in a court competent jurisdiction sitting in Tarrant County, Texas. b. This Agreement and the attachments thereto contain all the agreements of the parties with regard to this Agreement and cannot be enlarged, modified or changed in any respect except by written amendment to this agreement between the parties. c. The unenforceability, invalidity or illegality of any provisions of this Agreement shall not render the other provisions unenforceable, invalid or illegal, but the parties shall negotiate as to the effect of said unenforceability, invalidity or illegality on the rights and obligations of the parties. d. The CITY and User will each use their best efforts to fully cooperate with one another as may be necessary to diligently obtain and maintain in effect any required permits and all other approvals and records required by regulatory requirements that may be necessary for the CITY and User to perform under, or take advantage of, the terms and conditions of this Agreement. e. The captions, titles and headings in this Agreement are merely for the convenience of the parties and shall neither limit nor amplify the provisions of the Agreement itself. Reclaimed Water Retail Service Agreementcro 11811 9 of 14 f. This Agreement is for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. Nothing herein shall be construed to confer standing upon any third party who did not otherwise have such standing. Reclaimed Water Retail Service Agreementcrrl 11811 10 of 14 Signature Page for Reclaimed Water Retail Agreement IN WITNESS WHEREOF, the City and User have fully executed this Agreement on Fe-b sua c a D , 201 . CITY OF FORT WORTH Fernando Costa ASSISTANT CITY MANAGER RECOMMENDED BY: Frank Crumb WATER DEPARTMENT DIRECTOR USER: BY: Clay Mum Title:V.P. US Land NO M &C REQUIRED APPROVED AS TO FORM AND LEGALITY Christa R. "Reynolds SR. ASSISTANT CITY ATTORNEY AT ST WI NESS s to s A J �u h g By: C-t- L4M` CITY SECRETARY '4y h• X 0 OFFICIAL RECOW; CITY SECRETARY! FT. WORTH, TX Reclaimed \am Retail Scrcice Agreenxntcn l l 181 1 1 1 of 14 Contract No. ATTACHMENT A PURPOSE AND LOCATION OF USE Effective Date of this Attachment: 1. General category of reclaimed water use(s). Mark all that are applicable. ® Commercial ❑ Irrigation ❑ Industrial ❑ Other (specify) 2. Describe specific purpose of reclaimed water use(s) Completions operations of Natural Gas Wells 3. Describe the boundaries within which the reclaimed water will be used. Attach a map showing approximate meter and location of reclaimed water use. The reclaimed water will only be used on Quicksilver Resources, Inc.'s Village Creek West pad site during completions operations. Does this Attachment A supercede a previous Attachment A? Yes ❑ NoN If yes, what is the Effective Date of superceded Attachment A? If yes, execution by authorized CITY representative is required. Fort Worth Water Department Representative Reclaimed Water Retail service Agreementcul 1 1811 12 of 14 Date ATTACHMENT B ANNUAL AMOUNT AND MONTHLY VOLUMES 1. User's total maximum annual quantity of reclaimed water ( "Annual Amount "): 11.168 acre feet/year 2. Peak usage required500 -700 gallons per minute 3. Monthly volumes MONTH Approximate Usage (1000 gallons/month) January February March 3,360,000 gal April May June July August September October 9,800,000 gal November 9,800,000 gal December 9,800,000 gal Does this Attachment B supercede a previous Attachment B? Yes ❑ No® If yes, what is the Effective Date of superceded Attachment B? If yes, execution by authorized CITY representative is required. Fort Worth Water Department Representative Reclaimed Water Retail Service Agreemmtctrl 11811 13 of 14 Date ATTACHMENT C FORT WORTH CITY CODE CHAPTER 35 ARTICLE VIII Reclaimed Water Retail Service Agreementurl 11811 14 of 14