HomeMy WebLinkAboutContract 42119CITY SECRETAR'I; 1 'I Ot
CONTRACT NO. Y CJ"-\\ ...J
WHOLESALE WASTEWATER SERVICE AGREEMENT
FOR BROOKFIELD DEVELOPMENT
This Wholesale Wastewater Service Agreement ("Agreement") is entered into by and
between the City of Fort Worth , a Texas home rule municipality (the "City ") and Aqua Utilities ,
Inc., a Texas corporation doing business as Aqua Texas , Inc. ("Aqua Texas").
RECITALS
A. Aqua Texas wishes to provide retail wastewater utility service to the land shown
on Exhibit A consisting of approximately 231.579 acres in Denton County , Texas
to be developed as a mixed-use , master-planned development known as
"Brookfield" (the "Development") located entirely within the City 's
extraterritorial jurisdiction ("ETJ"), and more particularly described in Exhibit B
to this Agreement.
B. Aqua Texas holds Certificate of Convenience and Necessity ("CCN ") No. 20453
authorizing Aqua Texas to provide retail wastewater service in various areas
within Denton and Wise Counties , including the land within the Development.
C. The City , South Denton County Water Control and Improvement District No. 1
(the "District"), and Aqua Texas are parties to the "Brookfield Water and
Wastewater Utility Service Agreement," dated , 2011 , City
Secretary Contract No. , ("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 Texas to enter into a contract
for the provision of wholesale wastewater service to the Development,
commencing with the 191 st active residential connection within the Development.
D. 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 ").
E. The Development is located in the drainage area of Denton Creek.
F. Aqua Texas has considered its various alternatives for treatment of the
Development 's wastewater and has elected to seek to obtain such services from
the City.
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, T1 X Page
G. Aqua Texas has independently obtained a wastewater utility engineering study
describing facilities and equipment needed for retail wastewater service to the
Development, including the collection lines, lift stations and other appurtenant
wastewater utility service facilities.
H . Aqua Texas and the City have reached a mutually satisfactory agreement by
which Aqua Texas 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 Utility Agreement, commencing with the 191 st active
residential connection and thereafter including all customers within the
Development, including the first 190 connections.
NOW, THEREFORE , for and in consideration of the mutual agreements , co venants , and
conditions hereinafter set forth , the Parties contract and agree as follows:
ARTICLE I
DEFINITIONS
"Advisory Committee" means the Advisory Committee of the TRA.
"Agreement" means this Wholesale Wastewater Service Agreement between the City and Aqua
Texas .
"Aqua Texas" means Aqua Utilities , Inc., doing business as Aqua Texas , 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.
"City" 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 231.579-acre tract in Denton County, Texas to be developed
as a mixed-use , master-planned development known as "Brookfield" 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.
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"Development's System" means the wastewater collection facilities (whether owned by the
District 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.
"Discharge" means any solid or liquid waste, regardless of its source , nature or composition, that
enters a wastewater 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.
"Fiscal Year" means the City's fiscal year from October 1 through September 30 .
"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.
"MGD" means million gallons per day.
"Notice" means notice as defined in Section 11.02 of this Agreement.
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"Parties" means the City , Aqua Texas , and their successors and assigns , as permitted by this
Agreement.
"Party" means , individually, the City, Aqua Texas , or each of its successors and its assigns, as
permitted by this Agreement.
"Point of Entry " means the location where Discharge from the Development's System enters the
Fo11 Worth System, as reflected on the attached Exhibit D.
"Prohibited Discharge " 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 Environn1ental 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).
"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.
"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 D 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.
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"Utility Agreement" means the agreement defined in Recital C above.
ARTICLE II
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 Texas 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 700 gallons per minute and an average daily flow of 330 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 330 gallon per minute average daily flow. The City's
obligation to provide wastewater treatment services to Aqua Texas in accordance with the terms
of this Agreement will commence with the 191 s t active residential connection constructed within
the Development, at which time the City will become the wholesale wastewater treatment
provider for all customers within the Development, including without limitation the first 190
c01mections.
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, transp01i 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.
2.04 Connection to the Fort Worth System . The City hereby grants to Aqua Texas,
upon compliance with the tem1s 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 Texas agrees that
the Development's System, including all sewer connections, shall be constructed in accordance with
the standards set forth in the Utility Agreement. Aqua Texas 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 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 Texas shall not have any
Brookfield Wholesale Wastewater Service Agreement
11 99 512-1
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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 line is approximately
24,800 feet from the Development. In order for Aqua Texas 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 Texas 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 Texas 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 Texas 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, TRA, 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 Texas 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 Texas 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 Texas further agrees to impose
and reasonably enforce, through its tariff or otherwise, these influent quality and 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 Texas shall obtain the written consent of the City
prior to any Discharge into the Development's System generated by a SIU. Consent will not be
granted unless (i) the proposed Di scharge 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.
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3.03 Infiltration and Inflow. Connections that allow surface drainage (including storm
water run-off from rainwater spouts , rainwater collection areas , streets and gutters), abnorma l
seepage, and Infiltration or Inflow to enter the Development's System are prohibited. Aqua Texas
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 Texas 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 Texas agrees that it will comply with all pem1it
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 Texas 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 Texas pursuant
to Article VII.
3.05 Fort Worth City Code. Aqua Texas 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 C it y reserves the right
to revise influent quality and pretreatment standards contained in the Fort Worth City Code, and
shall provide Notice to Aqua Texas of the adoption of such revision within a reasonable time
after revision thereof. Aqua Texas 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 Texas 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
Texas shall immediately take actions necessary to eliminate the Prohibited Discharge or,
following notice and to the extent permitted by law, to disconnect the User from the
Development's System. In addition to Aqua Texas' 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 Texas of its enforcement obligations under this Agreement.
ARTICLE IV
RA TES and CHARGES
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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 Texas 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 Texas 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 Texas 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 for the City's wholesale customers and in effect on the first day. Discharge from the
Development enters the Fo1t Worth System. By way of example, the City 's rates for wholesale
customers effective on October 1, 2008 , were as follows:
Volun1e Charge
BOD Strength Charges
TSS Strength Charges
Monthly Billing Charges
$0 .8819 per 1000 gallons
$0.3349 per pound of BOD
$0.2036 per pound ofTSS
$75.00
4.03 Adjustment of Rates. Aqua Texas agrees that the City shall have the right to
unilaterally adjust the rates charged for the wastewater services provided pursuant to this
A greement, from time to time, so long as the adjustment is based on the agreed methodology set
forth in Exhibit E and in effect pursuant to Section 4.01 , and otherwise in compliance with this
Agreement. Aqua Texas ' agreement that the City has the right to unilaterally adjust the rates
charged pursuant to this A g reement is an essential part of the consideration given by Aqua Texas
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 Texas, either by entering into this 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 Texas object to any
unilateral rate adjustment, Aqua Texas 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 Texas has the following options:
A. Agree to pay the adjusted rate ; or
Brookfield Whol e sal e Wastewa ter Service Ag reement
11 99 51 2-1
Page 8
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 Texas the contract
rates that were in effect immediately prior to the proposed rate adjustment.
If Aqua Texas 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 Texas 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 Texas shall immediately pay the City the difference between the amount
that would have been charged pursuant to this Agreement under the rate Aqua Texas rejected ,
and the amount actually charged to Aqua Texas 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 Texas 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 Texas monthly by the City. All such bills shall be due and
payable by Aqua Texas 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 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 (10%) per annum to be calculated from the
date which the payment was required to be made.
4 .05 Billing Disputes. If Aqua Texas disputes a bill and is unable to resolve the
difference informally , Aqua Texas shall give Notice to the Director. The Director and Aqua Texas
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 annwn will be calculated from the date which the payment was required to be
made.
4 .06 Minimum Revenue Collection. Aqua Texas 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
maintenance expenses of the Development's System , including specifically the payments under this
Agreement.
ARTICLE V
METERING AND SAMPLING FACILITIES
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5.01 Construction and Title. Aqua Texas 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 acconm1odate a
complete initial installation satisfactory to the City, shall be provided free of charge to the City and
be paid for pursuant to the 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 Wo1ih 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 Texas, to the extent that access is w1der 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 Texas 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
System Cost. Any replacement facility or equipment therein shall comply with the City's standards
and specifications.
ARTICLE VI
METERING AND SAMPLING
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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 Texas 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 Texas and the
City , if so requested by Aqua Texas. Notice of any proposed tests shall be provided to Aqua Texas
at least seventy-two (72) hours prior to such tests being conducted.
6.03 Access to Record s . All readings of meters will be maintained by the City in its usual
and customary manner. Aqua Texas 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 Texas. The City shall notify Aqua Texas at least
seventy-two (72) hours in advance of the date and time for any calibration and Aqua Texas may
observe the calibration.
6.05 Corrections . Upon any calibration, if it is detennined 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 conected for a period extending back to the time
such inaccuracy began, if such time is asce1iainable ; 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 fuiiher 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 tlu·ough 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 volwne. In addition , the City shall periodically detennine 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
and testing shall be perfo1med up to two time s 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 Texas with a Notice at least
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Page 11
seven (7) days in advance of its intent to sample, or sufficiently in advance of the san1pling to allow
Aqua Texas to arrange the services of a qualified laboratory. If, at the request of Aqua Texas 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 Texas requests such additional monitoring, the City shall invoice Aqua Texas 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 Texas 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 Texas.
6.08 Compliance Monitoring. If, in the opinion of the Director, compliance monitoring is
required, the Director may order that additional monitoring be pe1formed with or without prior
Notice to Aqua Texas. Such compliance monitoring is to be in addition to the routine monitoring
and periodic san1pling set forth in Section 6.07. All infom1ation obtained as a result of this
compliance monitoring shall be provided to Aqua Texas upon request. The City will provide
Notice of such compliance monitoring to Aqua Texas within a reasonable time thereafter.
ARTICLE VII
OWNERSIDP, 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 Texas, 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 Texas.
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 Texas (whether past, present,
or future) will not be construed as granting Aqua Texas partial ownership of, pre-paid capacity in, or
equity in the Fort Wo1th System or the TRA System.
7.02 Indemnity . To THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA
TEXAS 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 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.
Brookfield Wholesale Wastewater Service Agreement
1199 512-1
Page 12
ARTICLE VIII
REPORTS AND RECORDS
8.01 Required Records . As required by the City's agreement with TRA , Aqua Texas
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 Texas to
incur umeasonable 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 exanune 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 sha ll expire upon the sooner of: (i) the date
upon which Aqua Texas 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 9.0l(iii),
the City will offer to continue to sell wholesale water service to Aqua Texas 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 9.0l(iii) to
state "December 31 , 2029 " and Section 4.02 to state initial rates that are those in
effect on the first day of the renewal tenn 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
Texas shall not extend beyond the earlier of the date on which Aqua Texas
Brookfield Wholesal e Wastew ater Service Ag reem e nt
11 995 12-1
Pa ge 13
ceases to be the retail wastewater provider for the Development or December 31 ,
2029 .
The City will advise Aqua Texas of the City 's selected option by providing Notice one hundred
eighty (180) days before the Section 9.0l(iii) expiration date. Aqua Texas can then either (i) agree
to accept the option offered by the City in its Notice, in which case Aqua Texas and the City will
execute the documents necessary to formalize the terms of such agreement within 60 days of Aqua
Texas ' receipt of Notice ; or (ii) elect not to continue to purchase wastewater from the City, in which
case this Agreement te1minates on the Section 9.0l(iii) expiration date and thus the City shall have
no further service obligation thereafter. If the City fails to offer Aqua Texas an option pursuant to
this section, this Agreement shall be deemed to be extended to December 31, 2029 . If the City 's
wholesale customers' 2017 expiration dates are extended, then the Section 9.0l(iii) expiration date
of this Agreement will be extended for the same number of years or months , but in no event beyond
December 31, 2029. The City is subject to this section without regard to whether the City has
commenced providing wastewater treatment service to the Development in accordance with Section
2.01 as of Ap1il 30, 2018.
9.03 Effective Date. This Agreement, together with all terms and conditions and
covenants, shall be effective upon execution by both Parties. Notwithstanding the foregoing, the
City's obligation to provide wastewater treatment services to Aqua Texas pursuant to the tenns of
this Agreement will commence upon construction of the 191 st active residential connection with the
Development.
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 Texas and the
City. Notwithstanding anything contained herein to the contrary, any material breach by Aqua
Texas in the perfom1ance of any of the duties or the obligations assumed by Aqua Texas herew1der,
or to faithfully keep and perform any of the tenns , 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
Texas commits a material breach , then the City shall deliver to Aqua Texas ninety (90) days prior
Notice of its intention to so terminate this Agreement, including in such Notice a reasonable
description of the breach. Aqua Texas 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 Texas within such ninety
(90) day period , the City agrees that it will not terminate this Agreement so long as Aqua Texas
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 Texas 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 Texas 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 pe1iod. The City
shall give Notice to Aqua Texas immediately upon acceptance of the cure of any default. A
material breach of this Agreement includes , but is not limited to:
Brookfield Wholes a le Wa stewater Service Agreement
11 995 12-1
Page 14
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. Fail me to permit any sampling of wastewater as provided for herein ;
e. Failure to disconnect a Prohibited Discharge pursuant to Section 3.07;
f. Failure of Aqua Texas 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
perfmm duties under this Agreement , the City shall deliver to Aqua Texas thirty (30) days advance
Notice of such default. If Aqua Texas fails to cure such breach, default or failure , then the City
shall give Aqua Texas Notice of such failure to cure and may surcharge Aqua Texas Five Thousand
Dollars ($5 ,000) per month until such time as Aqua Texas cures such nonmaterial default.
9.06 Effect of Termination. In the event of tem1ination of this Agreement, except to the
extent provided in Section 9.07, all rights, powers, and privileges of Aqua Texas hereunder shall
cease and terminate and Aqua Texas 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 Surviving Provisions. 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 tem1ination 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 Opportunity 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 Texas to
indemnify the City pursuant to Article VII for any Liabilities.
Brookfield Wholesale Wastewater Service Agreement
1199512-1
Page 15
ARTICLEX
PERFORMANCE PURSUANT TO UTILITY AGREEMENT
This Agreement is executed pursuant to, and shall be performed consistent with the terms
of, the Utility Agreement. Accordingly, all construction, operation and maintenance activities
undertaken pursuant this Agreement shall be performed in compliance with the 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 Utility
Agreement, the 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
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 perso n 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
I 000 Throckmorton Street
Attn: City Secretary
Fort Worth , Texas 76102
FAX: (817) 392-6196
Brookfield Whole sa le Wastewater Service Agreement
11 99512 -1
Page 16
City of Fort Worth, Texas
1000 Throckmorton Street
Attn : City Manager
Foti 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 Agua Texas:
Aqua Utilities , Inc. dba Aqua Texas , Inc.
Attn: Vice-President
1106 Clayton Lane , Ste. 400W
Austin , Texas 78723
FAX: (512) 263-5624
Aqua Utilities , Inc. dba Aqua Texas , Inc.
Attn: Chief Legal Officer
762 West Lancaster Ave.
Bryn Mawr, Pennsylvania 19010
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 Pmiy to this Agreement, individually , and such Party 's
respective personal representatives , successors , trustees , receivers , and assigns. However, no
Party 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, conve yance or assignment occasioned by the exercise of foreclosure of lien rights by a
creditor or a party hereto , whether judicial or non-judicial.
11.04 Amendment. This Agreement may be amended only with the written consent of
all Pmiies and with approval of the governing body of the City and Aqua Texas.
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 Pmiy waiving such provision. Any waiver shall be limited to the specific purposes
for which it is given . No waiver by any Party hereto of m1y term or condition of this Agreement
Brookfi eld Whole sale Was tewater Service Agreem ent
11 995 12-1
Pag e 17
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
w1enforceability 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 tenn "including" means "including without limitation" and the term "days"
means calendar days , not business days. Wherever required by the context, the singular shall
include the plural , and the plural shall include the singular. Each defined term herein may be
used in its singular or plural form whether or not so defined .
11 .09 Conspicuous Provisions. The City and Aqua Texas 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 Texas intends by any provision of this Agreement to
create any rights in a ny 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 Texas.
11.11 Force Majeure. No Party shall be considered to be in default in the perfom1ance of
any of the obligations hereunder (other than obligations of either Party to pay costs and expenses) if
such failure of perfom1ance shall be due to an w1controllable force beyond the control of the Parties,
including but not limited to , the failure of facilities, flood, earthquake, tornado , stonn, fire ,
lightning , epidemic, war, riot, civil disturbance or disobedience , labor dispute , labor or material
sho1iage, 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 Party
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 paii
Brookfield Wholesale Wastewater Service Agreement
11 995 12-1
Page 18
of the services to Aqua Texas, no claims for damage shall be made by Aqua Texas 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
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Map of the Development
Legal Description of the Development
Original TRA Contract
Map showing the Development's Point of Entry into the Fort
Worth System and Fort Wo1ih's Point of Entry to the TRA System
Rate Methodology
Brookfield Wholesale Wastewater Service Agreement
1199512 -1
Page 19
Each Party has caused this Agreement to be executed by its duly authorized
representative in multiple copies on the date or dates indicated below.
ATTEST:
ATTEST:
v~~
Corporate Secretary
Brookfield Wholesale Wastewater Service Agreement
1199512-1
CITY OF FORT ·woRTH
c ontract Autho~i z a tioa
Date 'i ~~ {If
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 20
Exhibit A
Map of the Brookfield Development
\_
/
/
I
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Exhibit A to
Brookfield Wholesale Wastewater Service Agreement
/
t.:::,-,--
Page I
9735.2
Exhibit B
Legal Description of the Brookfield Development
BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO .
518 , Denton County , Texas and being all of a tract ofland described as Tract 1 and 2 in Deed to
Brookfield Acquisitions , L.P., recorded in Document Number 2007-45036 , Deed Records ,
Denton County , Texas and being more particularly described as follows :
BEGINNING at a concrete monument with a 1/2 inch iron rod found in the North right-of-way
line of State Highway No. 114, a 100 foot right-of-way , at the Southeast corner of said Tract 2;
THENCE North 89 degrees 31 minutes 05 seconds West , along said North right-of-way line , a
distance of 1,026.70 feet to a 1 /2 inch iron rod with a yellow plastic cap stamped "DAA'' set at
the Southeast comer of a tract of land described in Deed to Willow Bend 114 , recorded in
Document Nwnber 2005-8893 , Deed Records , Denton County, Texas;
THENCE North 00 degrees 19 minutes 46 seconds East, a distance of2,518.47 feet to a 1/2 inch
iron rod with a yellow plastic cap stamped "5439" found at the Northeast comer of Lot 13, Block
A of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County , Texas according to
the Plat thereof recorded in Cabinet D , Page 317 , Plat Records , Denton County, Texas;
THENCE South 89 degrees 59 minutes 13 seconds West , along the Notih line of said Lot 13 , a
distance of 13 .26 feet to a 1 inch iron rod found at the Southeast comer of a tract of land
described in Deed to Robert B. Logan , recorded in Volume 515 , Page 92 , Deed Records , Denton
County, Texas;
THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch
iron rod found at the Northwest comer of said Tract 1;
THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch
iron rod with a yellow plastic cap stamped "EC&D" found at the Northeast comer of said Tract
1 · '
THENCE South 00 degrees 15 minutes 25 seconds East, a distance of2,753.84 feet to a 1/2 inch
iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly Southeast comer
of said Tract 1;
THENCE North 89 degrees 36 minutes 34 seconds West , a distance of2,150.81 feet to a 1/2
inch iron rod with a yellow plastic cap stamped "EC&D" found at an inner ell comer of said
Tract 1;
THENCE South 00 degrees 08 minutes 43 seconds West , a distance of 1,322.76 feet to the
POINT OF BEGINNING and containing 231 .579 acres of land , more or less.
Exhibit B to
Brookfield Wholesale Wastewater Service Agreement Page I
9 73 5.2
Exhibit C to Exhibit C Original TRA Contract G?~~t.:' , 'l'lUNITY llVD AOTBOR.ITY 07 '1'!::0..S -PE'.N'T01f Cjl!jll BUIQQL Q.ST!;WATER ~ SYSTEM COb'l'MCT 1'Blt Sv.'l'E OF TXXAS TRINITY RIVER AOT!fORITY 01' TltllS THIS 'l'RINITY lUVE'R ADTBOR.ITY OF TEXAS -DENTON CR.EU REt.IONAL WASTEil'll'ER TREATMZH"l' SYS'l't:M CONTRACT (the •Contract•) made and enter•d into as or the 28th day of OCTOBER, 1987 (the "Contract Data") 1 b"i and azaong TRINITY R.IVER AUTHO~TY OF TEXAS (tha .. Authority"), ui agency and _,olitical subdivision of tho state ot 'l'e.xas, l:>aing a. conservation and recla.a.'tion district created and functioning undar Article 16, Section 591 ot the Texas constitution, pursuant to Chapter 518, Acts of the 54th Legislature of the Stat• of Taxag, Regular session, 1955, as Ulended (the "Authority Act .. ) , and tha following: CI'l'Y OP' FORT WORTH, IN 'tARBAN'1' COUNTY, 'l'EXAS, CITY OF HASLET, IN 'l'ARRAN'l' cpuHTY, TBXAS , and CITY or ROANOJCE, IN DENTON COUNTY, TBXAS, ( eollecti vely tbe · "Initial Contracting Parties•) . 'ff I T N E S s E T Hi 'WBXR.EAS, each of the I~itial Contracting Parties is a duly created city and political subdivision of the State of Texas operating under the Constitution and laws of the Sta.ta ot Texas; and WHEREAS, tho Authority and the Initial Contracting Partios are authorized to enter -into this Contract pursuant to the 1 OFFICIAL RECORii°l CITY SEtRfTARY · FT. WORTH, 1IX. Brookfield Wholesale Wastewater Service Agreement Page I 9735.2
Authority Act, Cha,pt-ar 30, Taxa.s Water Code, Varnon's Ann. Tex.
Civ. st. A..-ticle 4413(J2c) (tha e1ntarlocal Coope.ration Act"),
and other a.pplic:abl• laws, and
WX!:REAS, th• Authority proposes to aoqui.ra and construct a.
r•giona.l Wutewa.ter traa.tmant system to suva the Initietl Con-
tracting Parties with.in the wa.tershed or dra.inaga a..raa. of
Denton Creek, a tributary ot the Trinity River, located in
I>anton and Tarrant Counties, T&Xll.S (tha "Syst.ela") 1 an.d
WDREAS tha SysteJD initia.lly proposed to ba ac~irad an:\
constructed. ia d .. cribed in an engineering report cf Rady i
Assoc:ia.tu, Fort Worth, TeJatS, entitled "CODprebansive
7eaaibility Study on Danton Crae.lc Regional Waste~ater Systen",
dated August, 19B7t and
lffll:UAS, such report, including all uaend:mants &nd supple-
ments thareto Dade prior to the execution of acquisition and
construction contracts for the Syst.ea and as changed by change
orders entered a.t:ter acquisition and construction contract~ for
r the syste.lll have been executed, is hereinaftar cl!l.l.lecl the
•&nginaaring Report"; and
WBXllltAS, it is expected by th.a ,parties be.r to that as soon
u prac:tic::abl• a~er tha execution of this contract tha Author-
ity will issue ai, installllant or Bonda to provide part or the
money to acquire and construct thQ syatea, and thareafter will
issue a subsequent inst.al.iment or installments ot Bonds to
complate the acquisition and construction of tha systam, with
2
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 2
9 735.2
a.ll of said 3onds to be payable trom and secured by Annual
Paymants 1D&da under this contract by the In.i tial Contracting
Parties.
NOW, THDXFORE, in consideration of! the mutual covana.nts
a.nd agreeJ11e.nts herein c:onta.ined, the Authority agraas to
provide Wastewater traat:ment servicu of the system to the
Initial contracting Pa.rtie.s under this contract, and to issue
its Bonds: and to acquire and construct the SysteJD, upon and
subj act to tha terms and. concU tions hereinafter s t torth,
to-wit:
Section l. DEFINITION OF TBRHS. Tha ~ollowing taras and
expreasions a.a w:ad in this Contract, unless the context
clearly shows otharwise, shall have the following meanings:
(a) 11 .Add.itional Contracting Party" maa.ns any party not
definad u one ot tha Initial Contracting Parties vith which
tba Authority aakas a contract sillila.r to thi.s contract tor
providing servicas of the sy~tea, provided that after execution
of any such contract such. party shall b come ona ot the con-
tracting Parties tor all purposes of this contract, unless
otharwi.se specitically provided he.rein.
(b) "Adjusted Annual. Payment" means tha Annual Payaent,
a .s a.djw:ted during or atter each Annual Payment Pariod, as
provided by this contract.
3 ·
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 3
9735 .2
(o) 11 Ad.visory Colllll.itt••• 11ea.na the collCD.ittae to be
eraatac:! to consult vith and advi~• the Authority with raspect
to tb• System as provided in Section 10 of this Contract.
(c:!) "Annual Payment• nuurua the uount of money to ba paid
to the Authority by each ot the ContractJ.ng Parties during aacb
Annual Payment Period as its proportiona.te share ot tha Annual
R&quire:m.ent.
(a) "Annual Payment Period" maa.ns the. Authority's l"iccal
Y'aa.r, .whicb currently begins on Dacaaber l of each calendar
yaa.r and ends on the last day ot November of the next 04landar
yur, and th• ti.rst Annual Payment Period 'under this contract
ia estimated to be the period ot December 1, 1989, through ·
November JO, 1990.
(~) •Annual Requiramant" means tha total a.a.cunt of money
required tor the Authority to pay .all operation and Maintenance
Expenses of the systUt, to pay tba debt service. on its Bonds,
to pay er re.store any IUlounta required to be deposita.d in any .
Sl)acial., contingency, or reserve funds required to ba ••tab-
lishecl and/or lllaintained by the provisions of the Bon.d Resolu-
tions, all as fU.rther described in s ction 11 (a) ot this
contract.
(g) "B.o.o.• C4•noting Biochemical oxygen Demand) means
the quantity ot' oxyge.n utilized in the bioch&lllica.l. oxidation of
organic matter under standard laboratory procedure in tiva days
at 20• c., expressed in milligrams per liter.
4
Exhibit C to
Brookfield Wholesa le Wastewater Service Ag reement Page 4
973 5.2
(b) "Bond. Resolution" means a.riy re.solution ot the Author-ity wh..ich authorizes any Bond,. Ci) "Bond.a" 11taa.ns a.11 bond.s herea..!ter issued by the Authority, a1:pactad to be in two or Dore series or iss·l,les, an~ tha interest thereon, to acquire and construct the Syste.m (including all bonds issued to coaplete tha acquisition and construction of the Systelll) , and/or all bonds issued subse-quently to ilDprove andjor extcand the System, a.nd any bonds issued to refund any Bonda or to refund any such ratuncling bonds. (j) "Contracting Parties• 1naans the •Initial Contracting Pa.rtiaa", as defined in the' first paragraph of thia contract, together with a»y other party or partia.c wbic:h hereafter becomes one of th• contracting Partia5 by beoo11ing an Addi-tional contracting Party. (k) •contracting Party" 11lElana any ono of th• Contracting Parties. (l) "Engineering Report" means the "Engineering Report" as dafinGd in the preamble to this Contract. \ (11) "Garbage" means solid wastes from the preparation, cooking, an.d dispensing of food, and from handling, storag .. , and sale of produce. (n) "Greaca11 m•ans fats, waxes, oils, and other i;i.Jllilar nonvolatile 1:1ateria.ls in Waaste~ter, whieh are extrllcted by 5 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 5 9735.2
treon ~rom Ul acidified sample usL~q tbe Pa.rtition-Gravillletric
aethod.
(o) "Industrial user (It7)" 11aana any parst>n, inclod.ing
but not liaited to, any individual, firm, partnership,
co?:Poration, association, or a.ny other group or combination
acting as a unit, or any otb.ar legal entity, who discharge• or
desires to discharge industrial 'onl.Stes into tha systea.
(p) "Infiltration water" maans tha wat•r which laa.ks into
a sawer.
(q) "Ope.ration and Maintena.nca Expenses" aaa.ns all coGts
and expanses · of operation and maintanance ot th• Systa1a and t.ha
W~atewater Interceptor System, including (for greater certainty
but without lill1ting the generality of tha foregoing)· repairs
and replacoents for which no special fund is created in tha
Bond Resolutions, ope.rating personnel, the cost ot utilities,
tha costs of supervision, angi.neering, accounting, auditing,
leg~ services, supplies, sarvioe.s, adll.inistration ot the
system and tha Wastewater Int rc~ptor system, including the
Authority's genera.1 ovarhead exp nses attributal:>le to the
Sy-stem and the Wastewater Interceptor system, insurance
prelliums, equipment necessary for proper operation and
aaintananca ot the systam a.nd the Wastevatar Interceptor
Syatam, and paY11enta made by the Authority in satisfaction of .
judgmanta resulting from claims not covered by the Authority'a
6
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 6
973 5.2
L.~cura.nce a.rising in coru"lec:tion with th.a o~ation and mainte-
nance o~ the Systa.Jl a.od the Wa.stevate.r I.nt..roaptor systo. The
te1:111 doe~ not include depraciation.
(r) "pH• means the 0011110n logarithm o! the reciprocal ot
the weight ot hydrogen ions in g,:ams per liter ot solution.
(s) •Project• aeans the •Project" as de.fined in tha
preamble to this Contract, and as ganerally describod in the
Engineering Report.
(t) "PO'l'W" lll&ans PUblicly owned Traatllaot Works as
defined in 40 CFR 403.
(u) •Propuly Shredded Garbage" means garbage that h.a.s
bean shredded to such degree that all particles will .be cattiod
freely under tha flow conditions normally prevailing in public
sevars, with no particle greater than l/2 inch in any d.iaa.n-
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 ~eets at least one ot
the following critoria:
Exhibit C to
(1) Average industrial wastewater discharge
rate greater than so,ooo gpd.
(2) BOD and/or suspGndad solids concentrations
in industrial waste~tar greater than 250 mg/1.
(J) Industria,l category regulated by national
Pretreatment standards as promulgated by the un.ited
states Bnvironmenta.l Protection Agency.
7
Brookfield Wholesale Wast ewa ter Service Agreement Page 7
9735 .2
(w) "Suspended Solids" =e.a.n_s solids that •itbe.r float on
the surraee o:r a.ra in suspans ion in va t4lr, sewage, or othar
liquids, a.nd 'Wb.ich a.re removabla by la.l>oratory filtering,
expressed in 1DilligraJCS p~r litar.
(X) "Systaa" means the ragions.l ,..~stewa.ter traatmant
systeJ1 describ&d in the preamble to this Contract and in tha
Engineering Report, and all illlproveaenta a.nd additions to and.
axtenaions, a.nla.rge.ments, and raplace»ents of such facilities
tthich are deaaed necu.sary and feasible by the Authority in
order to receive, treat, and dispose ot: Wastewater tro11 Con-
tracting Parties a.nd to co•ply with the raquireaents of the
Waatavater regulatory agencies o~ the state or Tex.as and the
t;rnited States of Ame.r.iea. Said taria doas n.ot ineluda any
facilities acquired or constructed by the Authority with the
pre>ceeda fro21 th• 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
aade under this Contract a.n .d similar contracts vith Additional
Contracting Parties, and which a.re payablG solely from other
sources.
(y) "Total Toxic organics" 11.eans the sum of all d t cte.d
con~antrations greater than 10 micrograms par liter for all
. organic compounds claaaitied as priority pollutants by the
United statos Envirormental Protaction Agency.
8
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 8
9735.2
(Z) "Trunk Sewe:-• nea.ns a.ny sevar in wb.ich ~Cl'la'age from
collecting and late-""lll savers is concantratad and conveyed to
tha system.
(aa) "Wa.stewat.er" JD&ans Sewage, Industrial Waste, Munici-
. pal Waate, Recreational Wa.ste, U)d Agricultura.l wa.ste, a.s
de.fined in the Tex.as Wa.ter Coda, together with Properly Shred-
dad Garbage and such Infiltration Water th~t may ba present.
(bb) "Wastewater Interceptor . syst m" J1eans the
"'Intei:ceptor·systam• as defined in tha •Trinity River Authority
of Texas -Denton Cree.le Wastewater Interceptor System
contract•, dated october 28, 1987, ex.ecu.t d by the pa.rtiea to
tbia contract concurrently with tha execution her of (tha
"Interceptor Contract•) , and being faeilitia.s intended to·
collect and transport Wastewater into the "Syste.lll", as definad
in this: Contract, together with any other Wastewater collection
and tx-ansporation facilities which are not part ot the Systaa
as herein defined, and which are int nded to collect and
transport the W1u;tewater of any Additional contracting Party
into the SystaJa as herein c:la fined.
Section 2. CONSUL'l"ING ENGIN~; CONSTRUCTION OF SYSTEM.
Th Authority and the contracting Parties agree that the
Authority will choose the consulting Engineers ror the syst m,
provided that the Consulting Engineers may be changed at the
option ot the Authority. Th• Authority agi;ees to issue its
Bonds, payable fro and secured by Annual Paynents made und r
9
Exhibit C to
Brookfield Wholesale Wa stewate r Service Agreement Pa ge 9
9735.2
this contract, to acquire a.nd construct tha Systl!ll!, and agrees tha.t tha systaJA will ba acquired an:1 constructad in ;anera.l a.eeordance with the Engineering Report. It is anticipated that such acquiaition and construction will be fi.n.anc•d by the Authority through the issuance of two or 11ora aeries or usueS1 of its Bonds payable f:r0t1 and secured by Annua.). Paymants made under th.is Contract, and the Authority agrau to issue ita Bonda for sucb purpose. The proceed.a from the sale iUld de-livery ot such Bonds also vill be sufficient to fund to th• extent deimed advisable by the Authority a debt service reserve tund, a contingency tun:1, a.nd interest on the Bonds during construction; and such proceeds also will be uaad for tha paymant of the Authority's axpensu and costs in connection with the Systaa (including all enginaaring and design costs and expanses, and .th• coat of the land ancl interests tharain related to the Systam) and the. Bonds, including, without lilnitation, all financing, legal, printing, and other expenses and costs related to the issuance ot such Bonds and the system. It is now eat.ilaatad that such Bonds to acquire and construct tha initial systaa will be issued in an aggregate amount ot approximately $2,aoo,000 (whether actually more or less), which swa is now e.atimated to ba su.!ticie.nt to cover all the aforesaid costs, a~s:ea, and other amounts. Ea.ch Bond Resolution ot the Authority shall spocify the exact principal !lllount ot the Bonds issued thereunder, which shall mature 10 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page IO 9735.2
vithin th• 1ux.imum period, and sha.ll bear int.rut at not t.o a:ic:eeed the 1u .. d.:mUJ1 ~ates, then perteitt•~ by la.w, and aach B-ond Rasolution sha.ll create and provide. for th• nainte.na.nca o~ a reve.nua .tu.nd, an interest and sinking fund, a debt su-vice raserve fund, a.nd any othar runds deem&d advisable, all in the Dannar and a.JIOU1\ts as provided in such Bond Resolution. Each contracting Party a gr a.es that it and when such Bonds ara actually issued and delivered to the purchaser thereo~, either for the purpose of initially acquiring and constructing the Syste.n, or subsequently tor improving and/or exte.nd.ing the systea, the Bond Resolution authorizing the Bonds shall for all purposes be deeJDed to be in compliance with. this Contract in al;L respects, a.nd the Bonds issued thereunde.r will constitute Bonds as datined in this Contract tor all purposes. section J • QOA.m'rTY 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 reriod while tbca System ii; in operation, to discharge into· the System at its Point or Points of Entry hereinafter described, all of the Wast.awator which is generated vithi.n its boundaries vhich are w~thin the vaters:hed or drainage area ot Denton Creek, subject to the restrictions hereinafter stated: and provided that each such Contracting Pa.rty must t.ran~ort such Wastewater to its Point or Points of Entry. P'Urther, each Initial contracting Party shall be 11 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 11 9735.2
ol:>lic;atet1 to tra.nsport a.nd dis,cba.rge into tha Systea at its
Po i nt or Points ot :!ntry all Wastewater which is ge.ner&tad
within its boundaries Vhich a.re within the vat&rsbed or
dra.inage area o~ Denton creak, axcept !or reasonably s1u.ll
fri.nga a.re.as which could be more cost effectively sa.rved by
other maa.nc, and vhich are approved by a majority vote ot the
Ac!v iaory comai. tt.. a..nd a.pp:rovac1 by tha Authority.
(b) Tha combined 1U.X.i.Jmm rate a.t which Wastewatar 1• d.is-
cha.rgad by each contracting Party at all of its Points ot Entry
shall not excaad. a rate which, if continuad tor a. 1)4lriod of
twenty-four hours would equal 3. so ti.mac such Contracting
I
Party'• estimated avenge daily contributing .!l.ow of Wastawa.~
for the then current Annual PllYJl&nt Period. The tota.l quantity
ot 'M'astevater disc::ha.rgec1 into the System ab.all never exceed the
aJDe>Wlt which th• System is capable of receiving, treating, and
disposing, unless approved by a ll!ljority vote o~ the Advisory
ColllJD.ittee and approved by the Authority, subject to t r10 and
conditions to be established by the Authority. Notvithstan.d.ing
tho foregoing, no contracting Party shall ever 111alc:e any dis-
cb..arga into tne system which would cause it t~ be overloaded or
be in violation of its per11l1ts frolll tha state of Texas and/or
the Oni ted Sta tea of Ame.rica.
(o) Wastewater meeting the quality roquiremanta ot
Section 4 ct .this Contract will be received into the system at
the Points of Bntry I respectively, shown for each Initial
12
Exhibit C to
Brookfi e ld Whol esa le Was te w ate r Se rvi ce Ag ree me nt Page 12
9735 .2
co~tracting Party, respectively, in tha Enqinaaring aeport, or
at ~ucb other or additional Points of Entrf that ~ay be astal>-
lished by mutua.1 agreement betw••n the Authority And a. Con-
tracting ?arty in the tutu.re, it such other or add.itional
?oi.nts of Entry a.re determined by the .Authority to be econom-
ical and be.na!icial to the systam, and such contracting Party
pays any costs related thereto which tbe Authority ~atarmines
should~ paid by su~h contracting Party.
(d) It is tha intention of the parti s hereto that the
'
system shall be acquired, constructed, extended, and i.Jllproved
ao that at all rea.son.abla times it will be capable ct receiv-
ing, transporting, treating, uid d.i~sing of all eligible
Wastewater gane.rated within the boundaries of aach contracting
Party which are within tha waurahed or 'drain1tge llraa of! Denton
creek and which such contracting Party delivers: to its Point or
Point.a of Entry, arid that the Authority will ~rom time to time
issua its :&onds in such llllounts as ara, within its judgment and
discretion, suf.ficient to achieve such· rosults.
Section 4. QUALITY. Tho obligation of tha Authority to
receive into th System such Wastewater depends upon complianea
by each contracting Party with the provisions of this Section.
General Qb1ectiv11 Qt Quality Requirements.
In order to perm.it ~e Autl1ority to properly traat and
dispo~• of each contracting Party's wastewater; to protect the
public h alth; and to parmit cooperation with other agencies
13
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 13
9735.2
Which have re~re:ments for th protection of the p:!ly~ical,
chu.ical, and bac::te.rioloc;ical quality of public 'itt'ater and water
coursaa, and to protect the propertiu of the systam, each
Cootracting Party agra&s:
(a) Ad.missibl Discharges into Authority's SYfteD.
Oischarqe.s .into the systeJt shall consist only of Wastcwa.tar and
othar waste free from the prohl..bited constituants liatod in
Subsection (b) and limited in B.o.o., suspended Solids, dis-
sglved sulfides, and pH as hereinafter provide.d.
(b) Wa1t11 Not Ad;mi11ible. Gasoline; cleaning solvents;
non amulsified oils and greases: minera.l oils; a.sh&a; cindars;
sand 7 gravel : tar; asphalt; ceramic wastes I plastics; other
vaoous subata.ncas, fu.thars; hair1 ragsi; metal; metal tilings;
glass; wood shavings; sawdust; unsbradded garbage: toxic,
cor,:osive, explosiva or malodorous gases; acetylane generation
sludge; cyanidas or cyanidas or cyanogen compounds capabl of
libaratling bydrocya.nic gas on acidification in excess of 2
mg/1 by weight as CN; radioactive materials which will pa.rm.it a
transient concentration higher than 100 aicroouriea par liter;
emulsi~ied oil and grease, exclusive of soaps, exceeding on
analysis an average ot 100 •g/1 ot ather-solubl• ma.tte.r7 acids
or alkali, having a pH val~• lower than 6. o or higher than
10.0; and wastawater cont&ining sp oitic pollutant concantra-
tions in excess ot any o! the numarical limitations named
hereunder be prohibited. frolll discharge to tbe system:
14
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 14
9735.2
ppllµto,,nt
A..""'Sa.nio
BariWI
Cadmium
Chrom.i UJI
Copper
Laad
Manganese
Mercury
Ni~el
Sele.niwa
S11:var
Zinc
Total To~ie Organicc
Maximum lllowabla
~QllGtDtration tug111
100
1,000
100
1,000
l,SOO
1,000
1,500
5
1,000
so
100
2,000
1,000
(c) Biochepical oxygen PftMD4 CB,o, P,). B.O. D. of
wastewater delivered to thQ syctoJa, a!J determined by standard
methods, shall n~t axoud 250 ~/l.
(cl) Total suspended solids. 'l'otal suspended solids
,delivered to the ~atam, as clat.rlained by standard methods,
shall not exceed 250 mg/l.
(e) HVdroqen, Ion Concent?,=:Ation CRH>. The pH of wastca-
vater de.livared to the systo shall be not lowar tha.n 6. o nor
higher th.an 10. 0. No acids · shall be 'discharged into the
Authority's System unl ss n utralized to a pB of G.O or more.
(t) Hydrogen sulfide concentration. Dissolved sulfides
in Waste-water at the point of delivery to the Systena shall not
~cead o .1 'tltg/1.
Cg) Prohibited Diacharae Limitations subject to change.
Notwithstanding the toregoing provisions of this Section, the
lS
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 15
9735 .2
pa.rtiea bueto agree and understand that l"ede.ral llnd State
Regulatory Ag.nci.a·perioiiica.lly modify standU'ds on prohibited
diaeharga.s; tberetora, revisions to, additions to, or delations
from th• items list•d in this Section may become ne<::egsary in
the fUtura to com.ply vi th tbua latest standards. It is the.
intention of this contract that prohibited d.ischa.rge requira-
menta be reviawed pe.riodically by the Authority and revis&d in
accordance with tha la tut standards o'f! any Federal or state
Agenc::y having regulatory powers. Any required revisions shall
be aada and written noti~• th.a.reef given to each contracting
Party. Each Contracting Party shall be N$ponaibl• ror inte-
grating such changas i.nto the local industrial vaata ordinance
and notifying. all a:t!ectad. users of the change within ninety
days following written notice to the Contra.c:ti.ng Party ot such
ohangas.
(h) To datar:aine normal quality of Wastewater, tbe
Authority will collect twanty-t'our hour composite aanplas of
wastcawatar at each Point ot Entry and cause s!llllo. to ba analyzed
in accordance vith testing procedures as set forth in the
latest edition of standard Mathpds of Examination of Water and
wa1tey11t1r, published by Americah PUblic .Health Association,
Inc. Composite SUlples will noraially be ta.ken once a aonth, or
at more frequent intervals it naoesaary to detarm.ine Wastewater
quality. As provided above, such Wastewater sba.11 not exceed
16
Exhibit C to
Brookfie ld Wholesale Wastewater Service Agreement Page 16
9735 .2
the lillli ts ot! eoocentra.tion spa-citied for Nor:ma.1 Wa..staV6ter a.s
follovs:
Norm~l wastevater con;antra,tion
BOt>
TSS
pH, not less than
Kydrogan SUlfide
2SO mg/1
250 mg/l
6 nor greater t.ha.n 10
0.1 mg/l
Should the analysis disclose ooneentrations higbar than
those listed., the Authority i111JDedia.taJ.y Vill infora the Con-
tracting Party which •ade the discharges ra~ ting in th•
violation ot this Section, and such disoha.rge.s shall cease
ilaedia.taly. Hawevar, with the approval of the Authority,
wastewater with concentrations of BOD and TSS greater than
sp.cified abova may be discharged by a Contracting Party _into
the system on a.n emergency and temporary basis, subject to th•
paY11•nt ot a surcharge (in addition to all other ~ayiaants
r~quirod by this contract), vh.ich surcharge shall be determined
by the Authority and shall be in an UOW'lt sufficient to oove.r
and pay for all additional costs o~ transportation, treatment,
and dispo!:al related to such discharges.
Section 5. METER.ING OF WASTEWATER. The Authority will
furnish, inst:.a.11, · operat , and aaintain at its expense the
necessary equipment and devicaG of st~ndard type required for
neaauring properly all Wastewater discharged into the syste11 by
aach contracting Party, reGpectively, through its Point or
Points= of Entry, respectively. Such meters :,.nd other equipme.nt
shall r main the property of the Authority. Bach Qontracting
17
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 17
9 73 5.2
Party shall have acoe.ss to such mete.ring eqaipme.nt at ll
reasonable til!t&s tor inspaiction and e~nation, but tha
re.ad.ing, caJ..i.bration, and adjastlD&nt thareot sha.ll be dona only
by employea.s or aqents ot tha Authority in the praaence of a.
repraaentative of the attacted Contracting Party or Pllrties it
requa.sted by such contractihg Party or Pa.rties. All ra~dinga
ot meter• will be entered u.pon propar boob of re.cord main-
tained by the Authority. upon vritten request any contracting
Party may have acoea!I to said record books during reasonable.
quai.nass hours. Not more than three. ti.aes in each year of
oparation, the AUthority sbAll caJ.ibrata its mete.ra, it re-
que•t.ed in writing by th• atfaeted contracting Pa.rty or Parties
to do so, in the prese.nce ot a repruentative ot s.uch Contract-
ing Pa.rty or Parties, and GUch partiaa shall jointly observe
any adj u.sbant• which are 1Dade to the aete.rs in ca.aa a..ny
adjuatae.nt is tound to be nace.asary. It, for any reason, any
· meters are out ot service or out of repa.ir, or if, upon a.ny
test, the percentage of inaccuracy of any meter is . found to be
in excess of five (St) per cent, registration thereof shall bB
corrected for ll period or ti.De extending ba.cJc to the tine W'hen
s:ucb inaccur:acy began, if suc:h time is ascertainable' and i:r
not ascartaina.bl•, then for a period extending bkck ona-b alr
{l/2) of the time olapsed since the data ot the laat cJlibra-
tion, but in no ave.nt further back than a period ot six (6)
months. Any Contracting Party may, at its option and its own
18
Exhibit C to
Brookfi e ld Wholesa le Was te w ate r Se rvi ce Ag ree m e nt Page 18
9735 .2
Ex hibit C to
axp«~a, instal.l a..nd o,e.ra.ta a cb.ack mete.r to check •ach ate.r
inata.llad by tbe Authority, but the. maa.surq-ant f!or th• purpose
of! this aqreem.ant sh&.ll be aolaly by th• Authority's metars,
exe•pt as in th.is Section spacitica.lly provid~ to the con-
trary. All such check metars sha.ll be of st..!U>dard make, shall
be installa:1 in a loc11tion approved by tho Authority, and shall
be subjaet at all reas~nable ti.lies to inspection a.nd. exaJli.na-
tion by any eurployaa or agent of the Authority, but tha read-
ing, calibration, and . adjustment thereof shall be ma.dca only by
the contractinq Party or Parties, except during ·any period wben
a check ~ater may be used under specific written co~cnt by the
Authority !or musuring the oount of Wastevater delivarad into
th• Systui, in vhich case the reading, ca.libration, a.nd adju.ct-
me.nt thereof shall be made by tha Authority with lik• effect aa
it such check ••t•r or :meters : bad bee.n turnisbed or installed
by the Authority •
. Section 6. UNIT OF MEASUREMENT. The 1.Utit of ne.asurament
!or Wastewater dischargod into the system her under shall be
1,000 gallons, u. s. standard ~iquid Measure.
Section 7. LIABILITY :FOR DAMAGES AND RESPONSIBILITY FOR
TREATMXNT AND DISPOSAL OF WASTEWATER. Liability for damages
arising tron the transportation, deliv ry, reception, treat-
aent, and/or disposal or all Wastewater dis:c.bu:gad into tlie
syste111 hereunder shall remain in each contracting Party to its
Point or ?oints of Entry, respectively, and titla to such
19
Brookfield Wholesale Wastewater Service Agreement Page 19
9 735 .2
Wa.st.ewa.tar shall bet in suc:b Contract i ng ?a.rty to such Point or
P'oints, and upon pa.saing through Points ot Entry liab11ity t'or
such damages shall pass to the Authority. A9 between the
A.uthori ty a.nd each contracting P-a.rty, eaeh party agrees to
indemnity and to save and hold the ot:har party ba.na.le&s tr01n
a..ny and all claims, demands, causes of action, daJaages, losses,
costs, fines, !l.lld axpensas, including reasonable attorney's
f'•••, whicb may arise or be asae.rtad by anyone at any till)a on
account ot the transportation, delivery, raeaption, treatnent,
and/or disposal wbila title to the Wastewater is in such party,
or on account of a prohibited discbarga by a Contracting Party.
Th• Authority has the responsibility as between the parties tor
the proper reeaption, tranr:portation, treatment, an.d disposal
of! a.ll Wastewater disctlargad into the Syste111, but not tor
prohibit&d discharges diaeha.rg d by any party at any Point of
Entry.
section 8. REPORTING REQUIREMENTS. (a) Approximately
thirty days after the e.nd of each .Annual. Payment Period each
contracting Party, respectively, shall turnisb in writing to
the Authority the following information with re~act to such
contracting Party:
(1) The number of active domestic sewer connections
tributary to the systan and which will be sarved by th System;
(2) Th• number ot commercial and busi ness s e•.rer connec-
tions to bes rved by the sy~tem;
2 0
Ex hibit C to
Brookfi e ld Whol esa le Waste wa te r Serv ice Ag ree me nt Page 2 0
9735 .2
(3) Th• ntmbar ot i.nciu:trial conn•ction i;; t o l::>• sarvlld by
the Syrte.m, with nue a.nd location o! each .
'l"be purpoaa of th.ia provision ia to pernit the Authority
to aOCUlllul&ta statisti cal data which will ana.ble it to re.nd&r
better sarvica and facilitate plan.a for bettermant and fUture
faciliti•• expaiuion.
(b) I:ndustrial Wasta. The affects of carta.in typas ot
Industrial Waste upon sawara and sewage traatment procar:ses ara
such as to require that carefU.l consideration be mada or each
industrial connection. This is a matter of concern both to the
Authority and to the Contracting Parties. Accordingly, eacb
contracting Party shall regulate the discharqa of Industrial
Wasta generated by ll SIU into its sawer system, and will
authorize discharge of Industrial Waste irlto its savers subject
to th• g.neral provision that no barn will result troa such
di;cha.rge and subject to the tiling by applicant industry of a
statnaent, copy or which shall be torva.rdod to the Authority,
contai~ing the following information:
(l) NalDa and address of applicant;
(2) Typa of industry:
(3) Quantity of plant waste;
(4) Typical analysis of the wa&te;
(5) Type of pre-treataent pr.oposed.
To facilitate inspaction ~nd control of Industrial wast~, each
Contracting Party will require industries to separate
21
Ex hibit C to
Brookfi eld Whol es al e Was tewater Servi ce Agree ment Page 21
9735.2
I.ndust.rb.l Wasta frOll S&n.ita.ry s.waga until srueb :rnl1u.strial
Wasta ha• passed th.rough a Donitoring porta.l which shall b•
located so as to be aceassi.bl• at ,all ti~a.s to ini;p.c:tors or
sueh. Contr cting Party. I! inspection indicates that dllllaga
might result from the diacbarga the perm.it shall bt revoked
unless and until the industry promptly establishes aecoptabla
ranedia.l measures. At regular intervals tha Authority vill
collect twenty-four hours composite samples of all Wastewa.tar
at eacll Point of Entry and cause Salle to ba analyzed. by
A:JDarica.n PUblic Health Association standard Methods. such
wa.ctewa.ter shall not exceeli the li.aita of concentration
speoitied in Section 4 of this Contract. Should the analysis
disolor;a concentrations b.iqhar tha.n those stipulated the
Authority immediately will intoria the attacted Contracting
Party of such disqualification. :rt shall be the obligation of
such contracting Party to require the offending originator ot
sllid highly concentrated materials to immediately initiate and
undertake re.medial pre-t:reatlnent or othor le.gal means bator
discharge into such Contracting Party's se.wers.
(c) ordinances. Each contracting Party, raspactiv ly,
agreas that it has enacted or will e.nact ordinancea a:; neces-
sary to include tha toll owing prov.iaiona:
(1) For each existing and future SIU, the contracting
Party shall requir s.aid user to complete and submit a permit
application containing that int'ormation specified ·in the sample
22
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 22
9735.2
application torm whicil is attaohe~ h•r•to as Exhibit l i1m11edi-
ataly following this .Saction a (c). .The Authority sha.l.l ba
provido:1 a copy ot tha permit application within thirty days
after receipt by tha Contracting Party. The Authority sha.ll
provide 00111.a.nt.a on said application vithin thirty days of
receipt and return conmwants to tbe contracting Party. Failure
to comment shall bo construed a.s concurrence by th.e Authority.
After approval of the Par11it Application by .both the
Contracting I>a.rty· and the. Authority, th• contracting Pa.rty
shall issue a pet11i t to di$chal:'ge containing tbe requiralll•nta
as shewn on the form wh.ich is attachod hereto as Exhibit 2
imaadiately following Exhibit l ~t tha and of thi• Section a
(c) • Said per11it to discharge sbul ba reqa.ired of all sros
befora said user will be allowed to discharga indus:tria,l wastas
into the sewage systelll. A copy of th• perait to discharga
shall ba torwardad. to the Authority for approval. prior to the
issua.nc to tba s IO.
(2) 'Iba contracting Party shall require significant
induatrial usara to comply with appiicable Federal Categorical
Pr treatment Standards as well as any applicable state and
local standards.
(3) The contracting Party shall maintain certain informa-
tion contained in parmit applications as contid ntial at SIU's
r quest.
23
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 23
9 735.2
( '4) The Contracting Party sh~ll d.isa.ll.ow dilution a.a a. means or reducing pollutant concentrations in an SI'O'a va.ste · strau. (5) 'J."ha contracting Party shall ba ai.rtb.orbed to e..nter s:ru premises at any ti.ma tor independent monitoring, inspae-tion, or rev~ew ot applicable record.a to det&rlldna compliance. (6) The Contract11!g Party shall develop and require adhe-rence to SIU compliance schedules. (7) The contracting Party shall require self-llonitoring and r•porting at SIU' a axpense. (8) 'l'h• Contracting Party shall choose or approve labora-tory to analyze industrial wastes. (9) 'l'he Contracting Party shall require SIO''s to pay applicable faea for: (i) sampU:ng and tasting to determ.ine camplia.nce (ii) disconne.c::tion/rtoormection of s&rvice resulti.n9 from noncompliance (iii) abnoraal strength wa.staa (iv) additional costs incurred by contracting ~arty or POTW in transporttng or tre~ting wastes (v) filingr r•vision, or renewal of Permit Application (10) The Contract.ing Party shall provide public notitica.-tion tor instances of violation. 24 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 24 9735.2
( ll} Tha Corrt::ra.eting ?arty sh_a.ll deny /revoke parmi t,
d.isallow/dbc::onnact service, a.ssess civil or criminal pen.al-
ties, and •••k otbar available legal and equi tabla ra111edi"e.s
against sro for:
/
(i) discharge .to sew•raga systelD rasulting in
violation of PO'I'W's discharge permit condition•
( ii) baza.rd to heal th Cir lit• of POTW personnel or
use.rs ot receiving waters
(iii) violation ot a.ny applicable ordina.nce or
regulation
(iv) false information transmit~ed to approving
authority through Pe.r1ait Application, monitoring
reports, ato.
The contracting P~y shall furnbh to tha Authority all
dOCUJDent• and records, in addition to those outlined herein, as
nacessary to d.e:monstrate c011pliai:ice by all industries.
25
Exhibit C to
Brookfield Wholesa le Wastewater Service Agreement Page 25
9735 .2
I
I
i
Exhibit C to
04\11
EXH BT l
PtR.~!T APPLlCATION
c:nr 01
To; S( .. ifJc.11t h .dirnrtO u,er1
Subject: Apptrc;etCOft for • Pcralt t• OhcMrtt l11~trltl wuuwu,n to tilt
S1nlC1l"f S.vtr S11t1•.
O~d!11,11c1 ~r MS bHft ldopt1d for the pi;,r,nt ot re,vhtln9 tlle
!lllllll)' of lnoustrlal wutewners r:tatrlbuttd t. t-uatur1 11v1t. Tl\1
MJ tr:t htl of Ult CINWACI ,r1 t.. llf"ll' .. t IWlltf or OKtl"ll'Ctl OIi ~ tilt Ulltr,
to 1n(II t11terr1re1Ct wttl ue re11on•1 w,st.cw,tc.r tr .. tM.A~ p1t11t 01Ht,.•t1d 111
tfle Trl•1tt llnl' a.tl\arlc,, alltd u c:oai,l,1 with state IIMI ftler•I ~gulntons
trg,1"111111 ,r1ti:ut.a1nt or. tllodun.rtd wutu.
S 911flc:a11t l11d11u.rl•l 11U.l'S a,st ~taln I Ptrwlt to dtschart~ llld,ntrhl
vutrvatrrs ti tllt w-.r. n.r flcratt tsthrlua 1ovr dhr:l\&fl• 1110 uu forth
c:rlurl•. for fhct.ar91 ctU•lft7 •nod rtqc,lreaeau for report I 119.
The ,u.,c:lled appHc,tfoft fOI' • ,,,...1t ttVst M ,coaplt~td and rtlUNIH to u,e
••111119 ,e1oreu 1t11wa tttlow vlthtn 110 ors, A (tt ot •uH
'"oa,Ul1 tJlh ,,.Huth,11. Th1 c:lt1 1114 tlle Trlntt..r U..er A.iid,or1t7 will
,...,1.., 1our ot>l tutlo,i. Addtt toul l11fol"Mt 10A i.vc:11 u nl0tt1te ,r
ltttta•tttt, u1 k ,..quest~ froa either tnth1, The Clt7 will return •
'etwl t to ,w •P• •p,r"O'f•l ,r your •HI 11 c,t[ on •1'14 w1 ll t I tller ,pprove ,r
Cleft, suer .. ,11c1tfN w1tu11 ,o C1•r• or Its ~,lpt •1 tlt7.
l'lent •CSU.cs q11en.to11S co,ic.eml119 u,e h10111trhl IIUtNU.er Qr1Sl•111tc P'1rett c.o:
Brookfield Wholesale Wastewater Service Agreement Page 26
9735.2
:DUB Tl (CONT 'D)
"11L!CI.TfDI 1-C A 1'£1U(!T TO DJSCMU~
UCX.tSTttAL VA.STC'ill..Ttl TO M SM I T'ar sr-.,tt
lbt-c u s1,.t .. 1 Orrfcle1: ,1cut ~t!tt An4 return tllh ,pp rl ~tCN v1U1l11
au ta.rs. Slfllbt orrrctah ant hna nt)lufut1ra to proficSe l 11rora1t SDC1 on
be~l r or u.. ~ • .,. t11ronuthN1 c.ol\s ldertd CMiri4e•t.l•l ~1 ,ollf' a.111.aa,
,htw1f \e ctu.-11 •uhf u tb.&t , 11 \llfDraet to1 c aa ite aalau1ncC 111
se,.•re t c, \1•fttf ate.ell files.
"CTIOI I.. r.txtlAl.: J~f1DK
1. Coll!W'l7 ..... z. ~1Hftt U6r-t"!"c~,-----------------.. -z .. 1-,-a.,a .. ,---
l. factl1t, Udreu · l1le,11oa~ lulbet ----{1d6r111 ..tit.rt ~e, ssr,,ict t, 1'1!_.,tsteo/
•· Is coap,itf curreat11 ta os,tr&tfo,i at fact Ctr 1ddl"'eu't rn _ IID
SE'ttlo« •• Ul>r,t,:TS ca StJrtct tllTOR*TJDN
1. lt'ler des~lpt1011 or uouf,cturf111 procun, or ccrvfce ,nhltt &t t.h.t
hct1 ltt 1"'1dtnt reu or 1roduct.f011, tr 1ppllabh:
' z. Prl11ctp•l rttt ut£rlah, bch1d1119 dlealuls. c1~111,t1, 1otw1au 1 etc.,
uste 1ft •"'1 pfluc or the •lA r.ctur1'1f prKtn or senlce ,ctfrltr: _
l. lf11t1bel' of capJ07111 • lbur, per t•1 of tpi:rac.1011 _. o..rs Ptf' wNt or optru1on _.
•· St..lldttd lllldwstrltl Code llilmbtr _ (4 dl9IU).
j. L1st ot.htr '""trOMUtal C.Vftt,..I pt,-1U ld •t thfs t1ait.
,. Attach a ,reptttJ' pht pnptrel 111 u tn9hu1r or ll'Chftt c t sliovfn9
tout Ions or wntr ancS sever COl'IMCt. lo•n. u11ho \,cs, tros, tt t. Al so
lndlcu.e the hutttfls or "' accept•llh 110n(lor",g sta t lo.-for Coll,ctl1t9
u-,1u •aid •uivrlftf novs or the l11HUrhl wot4ttt,ttr 1tt11.-s prlor to ,,,~rge It tJit ~Ital")' "wer.
Exhibit C to
Brookfi e ld Whol esa le Was te wate r Se rvi ce Ag re em e nt Pa ge 27
9735.2
Exhibit C to
E:XHlB T 2
PEKXIT FORM
CJTr CS-------
rOPltt to 01sc1CAAt.t ZX'DCISllt.tl.l. w.smu.rus
to TNE SAICIT A.a f SEIIO
a.Mor ltid11:tr1 (Ptrwlttn} _________________ _
l.ddr,u -------------------------(loutfoa oi HVtr unite)
hftll lie, ----------ActOUllt lo,----------
1
Tae _. .. , AMt4 ~rwfttn Js 111ti.rhe4 t.o 4htMtt• t_.11,trhl vntew-.ter-i to
U. u11ltar"J' ~,r,,e s1it• •ec:.orcf119 to tlle p,r"OYlsfon, or thh P-H.
AlltbtrlutfOII Is 9r111tM fer • p&"rfod M1l11Af•t . · 111\tll
Xii-Ji.,-1,li aipr111a,1\IYt
Cf\7 •'------
6.n.,
Brookfield Wholesale Wastewater Service Agreement Page 28
9 73 5.2
Exhibit C to
.._ uruitn Lll<JT4TIOKS
Tr.e oii•IH1 of ,c.raltte,t'S l11du1v1t1 thd'l1rgu 11111 be llahu t>t tht
p,..,1sl1•n of Cft1 o.•,1aantt lib. vid U.t k,tloa•I l>rttrutatat
a.,wltt1DIIIJ llflttll l"'hlu tht fol1wu19 -.e.rtYI HattHhu :
ST AH!l.lP.M
l>ttlirt.ut or
Pol 1.-tant l>ropert.1
, Plu1-ll10,,,1i.lt
Co"'t11tr•t {oa, •1/l
""1tr,91 Coat1n~ratlo11
1114/or to,d
"lfl Dr' lb/Uy
lllt dhclllrte of t111 Polfwta11t u • brcl h nc.eu or Wt 1dtntHltd 111d
•utMrhtlf bf tllls peralt, ~11 tll'!nftvtt I Y1t\atlo11 of tht ttras '"'
tl>Mlit1Hs 1f ttlfs Ptrah, $ucll • rfohtto• ••1 res.It t1 Ptr•h
rt,ocat1oa tll4/or tile ta,011t10ft of c1wll •nd/tt' tr1•1ntl pe1111,1,,.
I, l'CllrrTDll1111i Mtl tt,OlTlllli
l, f'tN1tlH stl•ll co11cn rcprent1tlth1 Ha,lu of the wutewttu
dlsd!Ar,. IN .,..,,u thcH ••ttl"S for t.llt pc,11utHIU IIMIIClt.td '"
Sutfon A. "111ere ruahh, ua,lu ,hall b• obUl11cd ••ht tltw
pn,ort10Ml coa,p11ftt u:apH"f t~hA(Qfta ,,.cHltd 111 t.Jie appltui.11
cu,1orl"I l>rttr11tac11t suadtrd, Wliere ,oacao,tt1 u-,llnf 1s ,wo:.
fe,s1blt, 1r•b ,aaplll\f ts 1cct1tai.l1. 11'1 .,..,_ttt11 '11•11 c, lect 111d
,.,1.ri, suiph(s) turt11t • ,el'I~.
(Mlllller) (,~lervll)
z. ,,,,. ttee s~ll SUIM4r l u 11011lt.orl11t f11forwatton OIi • ,opy or tht
•HH)IN •s1911!Hc.nt Jndustrhl Vnr S.H l'bn!tort119 lfoort• for•.
l>u;,1 tutu or thts for• slu ll •• su~• ttcd dur \ri9 th1 ao11ths of
and or t1t.h ,,,r to:
Cl tr Cnptnur
Clty of -------
wlU~ a,p~ tol
,ntrea~t Prog r &• IUM9tf'
Tri111lt1 Unr ..,,,,. .. , t,y ,r Tun
"· o .... zco
Arlln9to•, TcE.tS 75010
Brookfield Wholesale Wastewater Service Agreement Page 29
9735.2
Exhibit C to
EXHIBIT 2 (CONT'D )
l. r• llDrt to "'Inf t 1111 ,..POl"t ~ t,,fon.,t, 1>" ~qvf re4 1>1 t h per,ah
,~11 tOIIStlt•tt I T1olitfOII • .
,. "'1 caa•De, 111 the wracttrfnfcc or the llld111trhl dhcl\ar9n n •
rcsvtt of a=tri,,ttons to the 111d11n.rh\ p,roc~.nn a&:U M r~orted,
Jt)df (1Uth11S t• tht pera1t Ml t.hell b4l IIHt to rtC\ttt r IIKtUA T
ChUJCS 11 Pr-t«U COt11ClttfNS 0 1,w:lu(fat P1 lltCHUrJ' •Hhlcat
lfalt•tfoft, for 1111 pol1ut111t1 l*t fdtfttl(ltd ahd lCaflel ~l"elA.
This ptl'Wf, H aot tr~sf1ru~h to cD,aJ-ufn or procnus ot.htr thu
~' to ~fc.11 ft ta or-l9fn•\l1 t,s~••·
5. raraftt.H .~11 lllldhttl)' Mtff7 the trutatat ,iot atM91r ,c
(Zl') Z%5•34,t ii t~t tYelt Of• S1Uf taalfl\f Of pol\~••~t, IC I
rnu1t tf •• o,er•lfoiwl ttaturt •f pretrutatnt ftetl1tlu or
_ •ccfde11t1l cp1l1s.
,. ,_,tt.ee wst a,i11tal11 rec:ordc or •ll f•l'Ot'1'1t10ft f'Hfll tte9 fr• "-1
aoft1twi•t ,~c .. 1t1u ,.,. • ••••-,u,DC or l rurs. S11~ r1cDt"f,
vl11 laclllde f1u• •ll "99lU:
(1) the 41·u • u•et pl&ee. Nthod, aw tC111 or napl 1119 ud the 11 .. H
or tl'I Plf'S• w pcrioft1 utt111 tbia uaplu;
(H) TM CHt," tbe .. llf'lU vert puforNd;
( If 1 ) lftlO ptr-r orw:d the t1w 1,s u :
(f•) n., •••l,tCCAI t.etlwllqPIS/atthods us,d: 6ftd
(Y) TIit rtftlU or s11ch •~1rus.
bcorc1 ,h.t1t N aue n&fl•lt1e rot t1tspecth11 ,.,d co,r1nt t1r the
clt7, or tt1 re,~e,eatatfves.
7. C:0.,\1 •n,t sc.hKirlt:
~thrtz
I. Ptraittu fl •dw-lud thH h• ,.,, a ced to u11pl7 with ddill o u l
l"tVUl H1Dnl ll sted U follow~:
•
Brookfield Wholesal e Wastewater Service Agreement Pa g e 30
9735 .2
Exhibit C to
EtHUtT 1 (COtfT'D)
1. tad 1:a~e the ty;.ec '"' q-.m,t.ttr or ltldc"trhl waU.h1Htl" bf a.,letlnt t.11e
t..~ 11 llt 1.-,:
Ci.tct l11ch1strt • l n 111, Floit Floit
App,-orhu "°"' l'!ttered £"hwtecl P'roputlf
SH Dr A'ftrl~ Dally/ (cJlttt (c.hat.'t For flaw
Tne or Ku.1111111 l>,a ti 1 1f ru) u rt•) lod .. strJ
wut.ewater (chotct t f
10)
(1) P'roctn
Yutav•ter:
ConthlLIDU'I
OhtUf"9t
~~h
I
DlseNr,e I
(b) lo 11 tr llD..clc»m I .
(c) (oal11lt "•hr
leltut I
(If) '1tllt &Ill
[~~·t I
ltUhdDVlt
(t) Otlltr
I
(l,c,Hr)
.
for e,c.11 vnttvtttr stre .. 1tt1cll • sdt1111tlc Dr w1ter '1011 t.111t dep1cts
tbe w•ttr so11r-u, fMvltrhl vntu 11h1rt 11tncr h uud in.If pr1trutM11t
""t cs.
l, Vutew1ur Ov•Htr, ~ 1ppHcut 11111ct prese"• tnforNtfo,i oa Ult 1111111tt or lndustrhl wUtC'w·1ten, S.aplu collccttd froa wut1wtt1r Hruas
sho11lif bt rtpres111t,th1 of d1tl1 op11"1tlo11s. u1lytfc:1l 'proctd•ru
sh"ld follov U1Ht 11'1 suno,-d KtthocH for tJie (uatn, on or v, r ,
11ttv1ter, AJtKA.-Altlll-11 L
Brookfield Wholesale Wastewater Service Agreement Page 31
97 35.2
Exhibit C to
£XHIB1 l (CO tt T 1 0)
01 •rlll'l\t ••1111111..,t 111hl'M'Lf•r •luu "°'''-'LI •r lhcl•t , • .° •r It \"4
tHlnl!IM'1•t.t ._ ., ttl' lhlH c:•1111 ~ I t h ·~tC\tf h l>t
a.lt•L". ~ tt "-·"""••L", •s.wm,, 1.e ~ .,_u-,• • .,. "'-16 "'
,,,,.. ,• 11 ,,,,, ••••'•Cl·•"'•• ., ,,,nu ,cic••t, ., t, .. ,,u, " , .,.,,...IC\,
.... .. .. -It .. (f•-• .. ~ ·-··r a. ... ._, • ._. .. . .. -...... . , . .....,. .... " ..... , :: :=:. '=:!r I
t, -tuiwl J ,. '-fuu•t ... _, .......
n . ··•cvt tuulJ u ... ,-.. ...... ,
I L lll-Cl"oll ... ~· .. •·r-'' II. ........ .
"---"· _......, .... u. ....... .. "· _, ... .,11. ... twta "· ... __ _
n. --u. ......... I:::::~,..-
t. = r.Qrs;:=
l'I. --1· ...._ ... ..-c • ""41 ... ~ .... ,
iL. ,.-c 1•11•1 "' ..-,,_ aa. •• , , ..... _.,,, -
)&, ... ·~-,···-.n. ••• ,_._....._,., .. _ -. ...... ._..,.I """.., "· .. , ,-.. ''-'" ...... ,_ .. -·----"· ....... , .... ...... __
:t :;:,..!,;,•:=t:..-
u. '""-.. "_, .... "· ... .,._ . d. .... __ .,,_. ... ·~-·-............... ... . ... -.., ... .,. -·. ,, ... ~ 119' .,.. ,., (U--u. , •• ,..._ .... , ... ,, ...... __ ,
\t, ..... ., ..... ., ...... ,, ......
it.::~{~
"-····· -... •··•·· .. I&. .. _ .... , ..... _ ., ... _...__ .._ u •,.,., __
It. LH• •..--IL t.a.. .... ,..-,_ , .. ····~ ..... .., ............ ... ""'-·"--·-•'-......... ~ ... -
I 1,rl ... 1~:J1 1 I d !I!! !
H I J I f
I
111
II 11111
111 I II
II I 11' Ji
I! I 111,'
J ! "
"· .... .... ••• ~ n. n. ...
"-:1: ,.. ... ...
"· a.
II. ...
II. .... "· ... "· ... "· ... n • ::: ...
"· ...
"· == ... ...
11M. ..... -. .. ,. -""'· ....
Ill. 11 ,. .... .. ..
Ill, n•. '"· ....
'"· a.,-,
Ill, u,.
Ill. .....
"'· fr,:
UI.
Lft.
1.1.-i...._, ...
,., .. ic.a-u..
u• .. l.).Au,_ ,., ... u.a.-,
1.t.-tcM-
fUI I-· L.Mi.i., • --.. •H'1•
•tet"rl .... , ... ~-·-.rt ....... ~ .......... .
411--.,e .-& .... ..
.i-111-.. 1,u ·~~-:l"'·--· t._, ...... _ ,.-,U'--1.t..c-,l.,.. .. 1 .. _, .. . _ .... .. -, .. ..,, ... _ .. _. ....... . ..,--n--,...,_
~'--.. Ji-'-----·--............ ._
........... i,(I_ _.._
..._ Cl,&.kft -·--.... ,_ ........ --·-.............. ,..,.,__. ............. .... .,.._.,.. __
._ .. , ........... , .... .. ...... -~ ... .. ,o .....
,n.1rn
~llat
,n.llU ,o.u ..
Kl,UW
'D-&I ..
..... t ..... ,.. ... ----__. -t.t.J .-n ... 111-,-... . ..,._ ...
l.l,,t.,«IHrM•I""' .. ~ ·--,--l••--
l ........ i.t.•-t r,,.1_ '·'·'"'"·~··--'·'·'"'''"''-.... ,,tn.__
tric:•l ...... ~-t .1.1.ar1cal--l ... ,, ... ~ ...
Brookfi e ld Wholesale Wastewa te r Se rvice A g re e me nt
I
I
t I
J
I'
I I , I
111 !
I I
} I
l·I .! 1
1
11 I ll I, II
I! I !! I!
I l f f I
t ' p f t I d
II ll II
Page 32
9735.2
Exhi bit C to
EXK SIT l (CONT'D)
For ~re,1 ~,ovMh ""tdl •r-• lft41 c.ttd Lo bt "'J:t\DWfl P'reu"t• .. hut lrt ,,..,
pr·nUe Ule ro n o•l"'f Cl&u fi,r ucll (tttttll fOdHlonal ihctts tr l\"HOtd),
tstl•nd ,., ... ,..,. Kut-
l.111111• l I.Ml lo Co11ce11t.r-H 1 WI toft'lat r, t 1 on
btefl Uu91 Sever-!Ji Dhc:Ji• r-gt t11 DheMr-91
--· C>lealc&l Coa,ovDd (lb,) (l~i/rur) (99/1} (•Ill}
.
.
. .
~
Brookfi e ld Whol esa le Wastewater Serv ice Agr ee me nt Page 33
9735.2
Ex hibit C to
EXHl a1 r 1 (CO lfT 'O)
l. Is T"' ,Sscher pt s&DJttt tt Nt l Of\tl ,r,tru r. .. -,t Sto4 HH ,n,~1'~1\t•
1111d,r (0 er.a. e~,ttr J. l4,),;l\.tJter t(,
YU
f>.t •bnt ,11utf•11 u1t l>t aa1wert1 v l U• ter-t1l tt. for Ud(tl o ,,,,
lllforan1QII r111rc\119 ,C,t1o"41 ,rttr utaetat s eo4udt. •P>"'*•t ,1io,1,
eon uct a.,1111 Y1 or the tAYlronacnt,1 ,r otc,thft A;ca,, et (Z l O 7U -Z6l0
.,. t!le Tr l11lt7 llYtr Aitth~r itr. flbr-ther" le9loa Oft tt 1t (111) ti7-4ZZl,
c. Ftl' u:hth1 cf911 f rlc.aat tN1111trhl wceri. tt tllc usvcr t• the 1btn
qnccs1111 II res. fltut li.stut, tJic 1pp1lc.tbl a prnruteetit nu.s..r,s 111
tile space pt'Ow1ded t.elw w attaa • ctetcaeai rnlevtd bt •ppltuM •s
autborh1, reprueatatht Pd certlffttl t.f • qvall rltf . p,..ru1 IDM t.
l1W1 i utta1 ""'ttlte r •PPH"l>1t prttreltat•t sttlldardc are Mf119 •t .. •
c.oaclcwt lluts. If appllc,~lt prtt..rutaeftt st.aflC1rl1 are .. t llttl)t •tt
01 • eo&C(C t &at -.1{1 1 cttt1(t _t4 St.atc ... t choould 1"4ic1t1 the folltwfa1 :
,. ~Uler tddtt.lN11l opu.CIN a!Mt ,..,,,.,.. .. ,e (0&11) •rrd/tr addlLfoHl '
IN'ttN&taent 1, nqvfre:d ror •PPll'6U to Met prttruu.t11t. ,taMtard1; .. , .
b. n.. shorttct 1dled11le b1 _..,~ appllu11t "111 pnw1da add1 t 1o,ia l OUt
or Jretr~atecet. JIit c-,ltUM 4at.t 1D \llh sc.ht11wlt 1111st •ot. be
luu tllu C,OlfUaAee d1t1 utabl ls lu1d for 1ppl Sub1t pretttatatAt
sta ll4 ard.
Af1211cabl~ sw,dard, •
Co11Hft.D1 flt U •lt(S)
Broo kfi e ld Wh o lesa le Was tewater Se rv ice Agree me nt Page 34
9735.2
Exhibit C to
EXHIBIT l (CO KT ID)
I ,. For 11N r;(911HICLDt boir.:rtrltl ~ers de1:r-l~ '"1'11 prctr-Ht.ac,it procusu ,,,,,.s~ ror row fac lli t, tt •nt tloe ~111,-...1\U ll ittd ht H.• •.
[[u11, t5: 114rirtr• ll uth•, ••tcrl• 1' neover1, pr-eu1 trtp,, unt tr,ps,
ct:.)
I ill« llftdtr-,f911ed •11,11c1M, btta1 tht .vthorlu4 r-e,n&enutln or w ~~t11
Mad aapan.,, dD lroer~ reQ11ut t leratt to ~Unue to ue or to ut,~lbh 111
hdllStrhl &PII' ~ctlOII •t tllt \•uttoa l1111futt4 ~'" IM 6o •tree to
c:om;,17 vftl\ proirfslOIIS or ~tty Or'll1CIUIC.• ----
SI ,aetwre or A41,l lcotnt -------------
.,_. or s,,11~ -----,...----...-.-..... ------(>tun Prlat)
Keae ud p'-'e nvaber or per1oi1 to eflltt'ct ro11rdtnt Pu.ft totol"MtfOII.
Tl« STA.rt ~ ttW.
COCINTT 0, -----
I
(
• corperttlon, ~ tt M to be tlie pcrson .itlon "' .. h sllbr.crl~ to tbe
roupolnt iastr-,it. •110 1ct.awhd9tt1 to ne tMt hi u1c11to4 the sue for
purpose'\ w COI\SlllerHiOft, thcrctn upr~cud, In the c1ap•cit1 thcr11A stated
u1cs u the act &nAt eked of u1' a>rporHh>l'l.
lilwen l/'lldtr er h,l'ld ,._, iul ot ort fc o Oil this _ cJ•1 of _____ _,. lt __ •
llot1r1 ,uot1, ,n and lor
CGuatt, Tests -------
IV c-tufo11 ts,t,...s.
Brookfield Whol esa le Wastewater Se rv ic e Agreement Page 35
9735.2
sectioo 9. OT1:i'.3R CONTRACTS. (a) Th• Authority reserva:
tbe right, ._.ith tha a.pprovo.l ot a. m!ljority vote ot the Advisory
Cctmll..itt.ee, to ant•r into contracts to provide th• Wa.ste1a.,.atar
services of tha systam to Additiona.l contracting Parties under
contracts similar to this contract, s::ubjoct to the requiremantli
concerning "minimums• as harainA~ur provided. !ach contract
with any Additional contracting Party shAl.1 comply vith the
require.JDQ?lts of this contract, shall :u.bstaritia.lly re.state tba
~sential provisions of this contract, ~nd shall l)e. structured
to be si'Bilar hereto to the .tullest extent appli~l and
pract~ca.ble, with such additions or changes as Are necessary to
neat tbe actual oircu:astancas, with the effect that each
Additional contracting Party will substantia.lly adopt tbe
provisioru: of this contract, as supplelllant d and neceasarily
changed by its contract. Howava.r, the Authority shall not
obligate itlielf to r~ceive Wastewater into tha Syst&ll tron any
future Additional. contracting Party it, in the jUdl;Jlllent and
discretion of thQ Authority, such obligation would jeopardiz
the Authority's ability to lDaat its obligation to receive,
transport, tra.at, and dispos~ of Wastewater discharged into the
system by prior Contracting Pa.rtie.J:, includi.ng specifically the
Initial. contracting Parties.
(b) It is furth r recognized and agreed that in the
tuture .th• Authority may provide servic s of the Sy~tem to
parties which are not Additional. Contracting Parties, provided
26
Exhibit C to
Brookfield Wholesale Was tew ater Service Agreem ent Pag e 36
9735.2
that a.11 sucb. services of the System to parties Yhich a.ra not
Additiona1 contracting ?a.rtias sh.a.ll in all re.spects be sub-
ordinata to th• prior rights or the Contracting Partiu:, a.nd
all contracts or other arra.nge.ma.nts relating to such servio~s
.sha..11 reooqnh e, a.nd l>e aada subordinate to, such pr i'or rights.
(c) Each contracting Party :.hall have tbe right, with the
approval of a majority vote of! the Advisory C0111D.ittaa and the
approval. ot the Authority, ton gotiata and enter into ~Ub-con-
tra.cts with any other city or other entity under which such
othar oity or antity aay discharge Wastewater generated within
the drainage araa of Donton creek, but outside th• boundaries
of such Contracting Party, into auch contracting Party'•
severs, to ba . transported into the System at 1:;"Uch Contracting
Pa.rt:y' s Point or Points · ot Entry along with &SUch Contracting
Party's Wa.stewatar generated within the drainaga area of D nton
Creek. In such case such additional WastoW&ter shall be
regard.ad as being the Waste~ter of such Contracting Party for
all purposes ot this Contract. '.t'be consideration as between or
among such cities or other entities may ba determined by such
parties, but no such transaction shall relieve tba Contracting
Party ot its obligations to the Authority under the tenas of
this contract.
s cticn 10. ADVISORY COMMr'rl'EE. (a) The governing body
ot each of th~ Contra~ting Parties a.nnua.lly sball appoint one
ot the ~elllbers of its gove~ing body or one of it& e~ployees as
27
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 37
9735.2
~ votL-a:; member of the Advisory COIIIJlittee for the Sys~, W'b.ieb
Advisory Commitua ia h~re..by created and ai;;t.l.blished. The
Advisory Comllitt••, at its first maating, shall elaet a
Chairman, a Vic• Chairman, a.nd a Secreta.ry. The Advisory
Comaitte.e may asta..blish bylaws governing th• election o!
oftio rs, J1eeting dates, and othe.r matters pertinent to the.
functioning ot th Advisory CoJllllittaa. The Advisory Comm.ittae
shall consult with and advisa the Authority, through its
General MA.nager or his dasignatad representative, with r gard
to the tollowing matters pertaining to the Systelll:
Exhibit C to
(i) Tha issuance of Bonds;
(ii) The operation and JaAintenance ot: the System;
(iii) Additional. contracting Parties and the tems and
conditions of the contracts with such parties,
consistent vitb the provisions ot this Contra.ct;
(iv) Contracts tor services to entities which a.re n;t
Additiohal Contracting Partias, and th prices,
ter11s, and conditions of such contracts consistent
with the provisions ot this Contract;
(v) The Authority's Annual Budget, prior to its
subllrlssion by the Authority's Generl!ll Manager to the
Authority's Board;
(vi) Raviaw of the Authority's Annual Audit:
(vii) All other pertinent matters relating to the
m.anagement ot the System; ana
28
Brookfield Wholesale Wastewater Service Agreement Page 38
9 735.2
(viii) Improvements ~c! e.rtan.i ons of the SystEUD.
'l'b.a Advisory CC'Jl!Jlittee siha.11 h.a.va access t o and m.ay inspect at
any raa.i;ona.bla ti.m .. a l l physica.l ttle.me.nta of the System a....,d
all record9 a.nd accounts o! the Authority pertaining to tbe
systelll. A copy of the Dlinute.s of the meetings of the Advisory
colllllittea and all othe r perti.nant data, sh~ll be provided to
the neJD.bars of tha Advisory COllllllittee.
(b) The term of JDelnbarship on tha Advisory Committee
shall be at the ple.a!iltlra of each governing body represented,
respectively, and each mamber shall serve until replaced by
such governing body. All expenses of the Advisoey C0111Dittaa in
discharging its duties under this Sect!on shall be considered
as a.n operation and Ma.inte.nano.a Ex:penaa of the Syate11 .
Section 11. FISCAL PROVISIONS. (a) Subject to the terms
and provisions o! th.is contract, tha Authority will provide and
pay for the cost o~ the acquisition and construction of th
System and all syste11 facilities, by issuing its Bonds in
amounts which will ba sufricient to accomplish such purpo~es,
8J'ld the Authority will own and operate the system. It i s
acJcnovlcdged and agreed that paynent.s to be made under this
contract and siailar contracts with .Add i tional Contracting
Parties, if arty, will be the prilaary source available to the
Authority to provide the Annu~l Raqu.irelllent, and that, in
compliance with the Authority's statutory duty to fix and from
tilDa to time r e vili the rates ot compensation or charges ·for
29
Ex hibit C to
Brookfield Who lesa le Wa ste wa te r Servic e Ag ree me nt Page 39
9735.2
sarvic•s ot the Syst.e.m r nd.ar~ and n.acie availa.bla by tbe.
Authority, tba Annual Require.me.nt will ch~ge tro1:1 ti"me to
ti»a, a.nd that aacb $Uch Annual RaquireJDant shall be allocatad
~ong tha Contractinq Parties as haraina.tter provided, and that
the Annual Raquiramant for oach Annua.l ?ayment ?eri~d shall ba
provided for in each Annual Budget and shall at all timas ba
not less than. an iUllount sufficient to pay or provide tor the.
pa::fllle.nt of:
Exhibit C to
{A) An •Operation and Kaintona.nce COlnponent• equal to the
;mount paid or payable for all Operation and Mainta-
nanca Expenses of the Systelll and tbe Wastewater
Interceptor system. It is understood and agreed th.at
although the Wa.stewa.t r Interceptor System will not
be a part of tbe System ~s defined in this Contract,
it will consist ot taciliti•• which are ancillary to
and integrated into the ope.ration of the. Systea, and
therefore will be operated and ma.intainad in effect
as a part of the system under the provision.s or this
Contract, consistent with the t rms ot thG
Interceptor contract; and
(B) A 11 Bond Service Co•ponent" equal to:
(l) the principal of, redemption premium, if any,
and interest on, its Bonds, as such principal,
redcll!ption premiWII, if a.ny, and interest become
due, less interest to be paid out of Bond
proceeds or from other sources if permitted by
30
Brookfield Wholesale Wastewater Service Agreement Page 40
9735 .2
a.ny Bond Ras.elution, and llll a.mounts raqu.irtld to
r•.1eea any Bond.a prior to JH.turi ty when and a.a
provided in 11.ny EK>nd Re.solution, plus tha f•e.,
expenses, and cha.rga.a of •11ch Paying
AgantjRegistrar for paying tha principal of and
inter1tst on the Bonds, and for autbe.."lticating,
registering, and transferring Bonds on the
regiatration booksr and
(2) th• proportionate amount ot iµlY special,
contingency, or raserv tands required to ba
a.cCWDula.ted and 1D.Aintained by the provisions or
any Bond Re~olution; a.nd
(3) any aJDOunt in addition thereto sufficient to
restore any deticienay in any of such funds
required to b• acCUJIUla.ted and izainta.inad. by the
provisions ot any Bond Resolution.
Section 12. ANNUAL BUDGET. Each Annual Budget for the
System shall always provide for amounts s~fioi nt to pay the
Annual R quire1Dent. The Annual Budget for thG system for all
or a.ny part or the An.rlual Payment Period during which the.
System is tirst placed into operation shall ba pr pared by the
Authority based on estimate&i 111ade by the Authority attar,
consultation with th• Advisory COllllU.ttee. on or before August
l or each year after th.a syste111 is first placed in operation,
the A~bority shall furnish to each Contracting Party a
31
Exhibit C to
Brookfield Wholesa le Wastewater Service Agreement Page 41
9735 .2
pralillu.nary ~stl.l1111te of t.h.• A.nnua.l Paym.uit requ.ire.d from ~ch
contra.cti.ng Pa.rty for the ne.xt fol l owing Annual Pa}'lDe.nt P~riod.
Hot las= ~lu.n forty days betore tha co:m:D-eocament of the Annual
?aYJJlent Period a!t~r the Syste.n. is tirst placed into operation,
and not less than forty days be!ora the collllllenc.eme.nt ot e.ach
Annual PaYJDant ?eriod thereafter, the Authority sbail 04use to
be prepared as heroin provided its preliainary budget for the.
sys tell for the nort ensuing Annual Payment Pe.rfod, which budget
shall specifically include tha · Opera.ti on and Maintenance
Component a.nd :the Bond sca.rvice C011Ponent. A copy of such
preliminary budget sbail be filed with each' contracting Party.
The preliminary budget shall be subject to examination, at
reasonable ti111.es during huciness hours, at the ottice ot the
City Secretary of· ·each Contracting Party. It no protest or
request tor a baa.ring on such prelainary budget is presented
to the Authority within ten days a.tte.r such tiling of the
preliminary budget by one or more, Contracting Parties or. by the
owners of a m.iniJrUJa of 25\ in principal amount of the Bonds
then oubitancUng, the preliminary budge.t for th System shall
be eonsiderad for all purposes as the •Annual Budget" tor the
next. ensuing Annual Payment Period. But if protest or request
for a hearing is duly filed, it shall be the duty ot the
Authority to fix the date and time tor a hearing on the prelim-
inary budgot, and to give not less than ten days notice theraof
to the Contracting Parties. An appropri ate Com:m.i ttee of tha
J2
Exhibit C to
Brookfield Whole sa le Was tewater Service Agree ment Page 42
9 73 5.2
Authority sh.all consider the t..stim::>ny uid showings :m.11de in
5mcb haa.rinq and shall report it.s findings to the Board ot
Di.r•ctors ot tb.• Authority. Tba :Soard ot Directors :may ad.opt .
the pre.limin~ budget er m.a.lce such illlend.ments tharao~ as to it
may sae.m proper. . The budget thus approved by the lY.)ard of
Directors ot the Auth.ority shall be tbe Annual 3udgat ~or the
next ensuing Annual P11yment Period. The Annual Budget (includ-
ing thta tirst Annual Budgat) ma.y be aJDa.nded by the Authority at
·any tima to tra.nsfar from one division thereof to another tund.s
which will not be needed by cuch division.. Tb.a amount for any
d~viraion, or the amount for a.ny purpose, in the Annual Budget
may be increased through for.mal action by tha Board of Direc-
tors of the Authority even though such action might cause the
total aaount of the Annual Budget to be axoeaded1 provided that
such action shall be taken only in the event o~ an flJDergency or
spacial circumstances which shAll be clearly stated in a
resolution &t th& time such action is taken by the Board or
Directors. Certified copies ot tha alllended Annual Budget and
resolution shall be til d i.Jllmediately by the Authority with
each contracting Party.
Section 13. PAYMENTS BY CONTRACTING PAR'l'IES. (a) For
the Wastewater s;orvicas to be provided to the Contracting
Parties under this. contract, each of tho Contracting Parties
agrees to pay, at the time and in tha manner hereinafter
provided, its proportionate shat" of the >.nnual Requirement,
33
Exhibit C to
Brookfield Wholesa le Wa stewa ter Service Agreement Page 43
9735 .2
Vhich &hall be datarll.in~ as herein dascribo~ a.nd sh~l consti-tute s Contracting Party's Ann\l4.l Pa~e..ot. ~ach of tha con-tracting Pa.rtie5 shal.l pay its part ot. tba Annulll R.aquirament !or each Annual Payment Pario:1 directly to the Authority, in monthly installman~, on or bafora tha 10th day of aach nonth, in accordance with the schedule of paymenta furnishad by tha AUtbority, as hereinafter provided. (b) For e.acb Annual P&YJDent Period each contracting .Party's proportionate share of the Annual Raquirema.nt shall be a pa.rcentage ob~ined by dividing the nwabor of gallons of contributing now of Wastewater estimated to be discharge.d into the syste.J1 by such contracting Pi!lrty during such Annual Payment Period, as determ.in~ by the Authority after consultation with s.ucb contracting Party, by th• aggregate total nwaber of gallons of contributing flow of Wa.stewa.ter estimated to be discharged into the System by all Contracting Parties during such period, as determined by the Authority attar consultation with all of the contracting Parties. rt is provided, however, that in esti111ating cos:ts: for services the Authority is specifi-cally authorized, in it.E. discretion, to 8stimate such costs basad on an arbitr~ry asswnption that tha Annual Pa}'JDent Period for which th43 calculation is being made will be an extre.maly dry year, rather than a. noI'lltal or average yaar, and that accordingly the contributing flow o! Wastewater discharged into the System will be less tha~ expected normally or on an 34 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 44 9735.2
average, all ·1irdth tha resu.lt that tbe monthly payments :mad.a by
the Contracting P-arties :zu.y be higher tba.n vou1d. have · bae..,
required on the basis ot a normal or average y•ar, a.nd with th•
turtha.r result that the total 1U11ount ::-equ_ired to meat the the.n
currant Annual Budget for the Sys-tell may be coll.cted by the
Authority before the end of the then current Annual Paymant
Period. This re.sul t is expressly appraved by the contracting
Parties and is daemad by the p~iu hereto to be beneficial in
the fiscal nanagoant ot the Systelll, and will assure the tine1y
a.va.ilabili ty of tunds even under unexpected circumstances.
However, upon receipt duri.ng a:ny Annual Payment Period of o.n
amount su.fficient to meet the then currant Annual Budget of the
Systell for the reDainde.r of tha than current Annual Payment
Period, tha Authority i.Jmaadiately shall notity the contracting
Parties, and thay shall not be obligated to 1nake further
payments under this Section for the remainder ot that Annual
Payment .Period, unlass otherwii.e specifically hare.inafter
provided in the event of une.xpcct .d ~r additional Annual Budget
requirements. It is further provided that the Authority :may
revise its estimates of contributing !low either ~onthly or for
any othar period within an Annual Payment Period, as determined
by tha Authority, and such revi~ed estimates ~ay be made on the
basis o~ actual metered contributing tlow during tha pr ceding
month or other pariod, to the end tbat the Authority may use
its bast efforts to avoid to the extent practicablca unneces sary
35
Exhibit C to
Brookfi e ld Wholesale Was te wa te r Se rv ice Ag reeme nt Page 4 5
9735 .2
fina.l adjustments among the contracting Partie.s !or each Annua.l
?a:t]he.nt Paricxt, All such payments for each Annua.l Payment
Period shall be mad• in aceorda.nca vith a 'lirritten 9,cbedu.le o~
payinant.s for-the appropriate Annual Paj'lllent ?ario:1 Vb.ich vill
be supplied to aac:h of the Contracting Parties by the.
Authority. such schedule or payments may be revised by the
Authority periodica.lly based on any changes in its estimates o!
contributing flow as provided above, and each revised schedule
of. payments sha..l-;l be supplied to aach Contracting Party before
the beginning of. the pariod to which it is applicabla. At tha
close of aach Annual Papaent Period the Authority shall
detarDina the actual meter~ number of. gallons ot contributing
flow of Wa.stawatar dis;cha.rgad into the Systul by aach
contracting Party during said period a.nd determine each
contracting Party'~ actual percentage of the Annual R•quire111ent
by dividing iiucb Contracting Party's actual metered
contributing flow by the actual mater d contributing flow of
all Contracting Pa.rtias. Each contracting Party's Adjusted
Annual Paymant shall bo ca.lculatod ~y multiplying ach ~uch
contracting Party's redoterained percentage tiJ11es the actual
Annual Requiroment. The difference between the a111ounts 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
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 46
9735 .2
debit~ to such Contrac:tinq Party's next monthly pa}'lllant, or .u
otharvis• agreed betwaan the .Authority ~d th~ affected Con-
trac:tinq Party, ~rovided th.at all such credits ll.nd debits shall
~ made in a tim•ly manner not later than tha end ot the nQXt
following Annull1 Payment Period.
(c) Notwithstanding the provisions of (b), dl>ove, and as
an exception there.to, it is agreed th.at it, du.ring any Annual
Payment Period, the .estimated and/or actual metered contribut-
ing tlow ot Wastavater into the system ot any Contracting Party
is, for any ra.ason whatsoever, lass than the mini:allll aDount
hareinatter prescribed and provided tor it, such contracting
Party ahal.l pay its share ot each Annual Requirement as it its
as;tilllated an~or actual mate:t"•d contributing flow of Wastawat•r
into tha systcm w•r• suoh minillwa. aJDcunt. Howava~, it iruoh
Contracting Party's estiaated a.nd/or actua..l mat•red contri but-
ing tlow of Wastewater into the systom is oqual to or in excess
of such minimulll .?1Jnount, its share ot all of each Annual Ra-
quire11ent sh.all be ca.lc;:ulated. on the basis o f estimated and
actual contributing flow as provid~d in (b), above. All
contracts with Additiona.l contracting Parti~s shall provide f or
equitable minimums si.JJ!ila.r to those provided for belov. such
minimwu iJhall be fixed in amounts at laast su!ticiant, as
datarmined. by tha Authority, to assure a.n initial. annual
payment by such Additional Contracting Party for not lass than
the amount of its estim.atod contributing !'low of Wa..stewatar
37
Ex hibit C to
Bro okfi e ld Whol es ale Was tewater Se rvice Ag ree ment Page 47
9 735.2
into tha Syste:m du.ring the first year of service undar such
contract. Tor tha purp:>se. of calc:::ulatinCJ the aini.UIWII pe.r-
cant11.ga of e.aoh Ar.nu.al RequireJ:11ent tor wbich each Initial
contr11.ctin.g Party is unconditionally liable, without offset or
count.e.rclai.m (also 9ea Saction 16 h.eraof} , the contributin;r
flow or Wutevater into tha system of aach Initial Contracting
Party, during each Annual P1t.}'1Dent Period, shall ba dee.niad to be
not less than the mini.mum amount (reg-ardle.ss of whether or not
such amount was actually discharged into the System) specified
!or such Initial Contracting Party as follows:
city of Fort Worth:
city ot Haslet:
City ot ~oanoke:
43,158,695 gallons
22,082,500 gallons
40,l.50,000 gallons.
(d) Notwithstanding tha !oregoing, tha Annual Requir•-
a.ent, and each Contracting Party's share thereof, shall be.
redeterminad, arter consultation with each ot the Contracting
Parti s, at any tillle during any Annual Payment Pei:::iod, to the
extent deemed necessary or advisable by tha Authority, it:
Ex hibit C to
(i} The Authority commences furnishing services of the
systan to an Additional contracting Party or Parties:
(ii) unusual, oxtraordinary, or unaxpgcted xpe.nditures
for Operation and Ma.intena.nca Expenses ar roquirad
which Are not provided for in tbe Authority's Annual
Budget for the systelll or in any Bond Resolution;
(iii) Operation and Maintenance Expenses are substantially
JB
Brookfield Wholesa le Wa stew ate r Service Agreement Page 48
9735 .2
(iv) Th• Authority issu•s Bonds which require a.n incraa.se
in tba Bond Servi~ componant ot th• Annua.l Payment;
or
(v} Tb• Authority recaiv~ either significantly Dora or
significantly lesg revenuas or othar &Jnounti; than
those anticipated.
(e) Du.ring aaoh Annual. Pa}'lllent Period all revenues
received by thca Authority troa providing service.s of the System
to parties which are not Contracting Parties, and all sur-
charqe~ collected frora any Contracting Party under section 4,
abova, shall (i) tirst be credit•~ to the Operation and Mainte-
nance Component ot tha .Annual Requirement, and ( ii) then any
-ra.m.ainder credited to the Bond Service Colllponent of the Annual
Require~ent, with the result that such credits under (i) and
. (i~·), respectively, shall red.uc;a, to the extent ot such
credits, the a.:nounts ot such Components, respectively, .,•hich
otherwise would be payable by the contracting Parties pursuant
to the method pr s:crib d in (b) and (c}, abov • Th Authority
may estim~ta all ~uch crcidits which it cxpocts to makG during
each Annual Payment P riod in C4lculating ach Annual Payment.
( t) Each Contracting Party here.by agrees that it vill
Ila.lee pay,:ae.nts to the Authority required by this section on or
batora the 10th. day or each onth of each Annual i>ayment
Period. r~ any contracting Party at any tim• dispute.s the
39
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 49
97 35.2
a:mou.nt to be paid by it to th~ Authority, 51ucb complaining
party shall nevertheless promptly JU.ke such payment or pay-
111ents, lT..it if it is subsequently dete.rmin&-1 by a.greeJ11.ent or
court decbion tha.t such di5ilputed paym~nts nade by such com.-
plaining party should have b&e.n less, or ~ore, the Authority
s.ba.11 pro11tptly revilie a.nd r~llcx::ate the cha..rgas a.mong all
contracting Parties in such ma.nner that such complaining party
will recover its ov rpaYJlent o~ tha Authority will recover the
alllount dua it. All amounts due and owing to tha Authority by
ea.oh contracting Party or due and oving to any contracting
Party by the Authority shall, it not paid When due, bear
interest at th• rate of tan (10} percent per a.nnun !rou the
date when dua Wltil paid. The Authority shall, to the axt.nt
permitted by law, discontinue tha sarvicas of tha system to any
contracting Party ~hich re111ains delinquant in any payments ·due
hereunder for a period of sixty days, a.nd sha..11 not resume such
services whllca such contracting Party is ~o delinquent. It is
furth r provided and agreed that if a.ny Contracting Party
should remain delinquent in any paynents due hereunder for a
period of on hundred twenty ~ays, and if such delinquency
continues d1.1ring any period thereafter, such Contracting
Party's minimum amount of gallons of Wastevater specified and
described in (c), above, shall be deemed to have been zero
gallons during al.l periods of such delinquency, !or the purpose
of calculating and redetermining the percentage ot each Annual
40
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 50
9735 .2
Payment to ba paid l:>y the non-delinquent Contra.cting Parties,
a.nd the Authority shall redetermine sucb parcant~g• on that
ba.sis i.n such avant so that th• non-delinque.nt Contracting
Pa.rtias collectively sh~ll ba required to pay a.ll of the Annual.
Requirement. aowaver, th.a Authority shall pursue all legal
ramedias against any such del.ioquent Contracting Pa.rty to
enforce and protect the riqhts of the Authority, the othar
Contracting Parties, and t.be holders of the Bonds, and such
delin~ent Contracti ng Party sha.11 not be relieved of the
liability to tbe Authority for tha pay.m.ent of all a.mountli which
would nava bean du• .hareundar, in the a.bS&ence ot the next
prec.d~ng santence. It is understood that the forego i ng
provisions a.re for the benafit of th• holders ot the Bonds so
a.s; to inwre tha.t a.11 of th• Annua.1 Requirement will be paid by
the non-delinquent Contracting Parties during each Annual
Pay.m.ant Period regardless of the delinquancy ct a Contracting
Party. If any aJDOunt dua and owing by any contracting Pa_rty to
the Authority is placed with an attorney for collection, such
contracting Party shall pay to tho Authority all attorneys
f es, in addition to all other paYlJla nts provided for he.re.in,
including interest.
(g) If, during any Annual PaYlJlant Period, any contracting
Party',; Annual Payment is rede.termined in any manner as pro-
vided or required in this Section, the Authority wi ll promptly
4 1
Ex hibit C to
Brookfi eld Whole sa le Was tewater Servi ce Ag ree ment Page 51
9735.2
furnish such Contracting Party with e.n updated schedule cf Donthly p3.}"1Dants re!lecting such redetenru.n11tion. Section 14. SPBCI.AL PROVISIONS. (a) The Authority will continuou.sly O?erate Uld •aintain the Syst~ in a.n otficient man.oar and in accorda.nca with good hw;inasi: a.nd ~"9inearing pra.cticas, a.mi a.t rauonzu:>le cost and e.>..-pen.se. (b) 'l'he Authority agrees to carry fire, casualty, public liability, and other insurance (including salt-insura.nca to the extent deemed advisable by the Authority) on the ·syste.n tor purpose& and in amounts which ordinarily would be carriad by a privately owned utility company, owning and operating such facilities, except that the Authority sh~ll not be required to carry liability insu.rance elCcept to insure itself against risk ot los9 du• to claitas tor which it can, in the opinion of the Au-thori ty' s legal counsel, be liable under the Tex.as Tort Cla.iJDs Act or any similar law or judicial decision. Such insurance will provide, to the extent feasible. ilnd practicable, tor the re$toration or damaged or de.s.troyed properties and equipment, to 111inillizo the interruption of the services o! such facilities. All preaiUJnS for such insurance shall constitute an operation and Maintenance Expen~e of the system. (c) It is the intent of the parties that the Systen will be placed in operation in 1989, and the .Authority agrees to proceed diligently with the design and construction of the system to 111eet such schedule, subject to the other terms and 42 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 52 9735.2
oon1Uti.on.s in this Contract. It isi express:ly understood and
agread, h.owavar, tbat a.ny oblig-a.tions on the pa.rt or tbe
Authority to a.equ.1.ra, construct, and OOlltPl•t.e the syst•:m and to
provide the ~e.rvices ot the SysteD to the Contracting Parties
s?a.11 be conditioned (i) upon tbe Authority's ability to obtain
al.l neca1:nry penuts, material, labor, a.nd equipllle.ot, (ii)
upon the. ability of tha Authority to finance tha cost of thca
system th.rough. the ac:tua.l sllle of! the Authority's Bonds, and
(iii) _su!>ject to a.ll pre.sent and tuture valid laws, orders,
rules, and regulations of tbe United statas of America, the
state .or: Texas, and any regulatory body having jurisdiction.
(d) The Authority sh.11.ll navar have the right to demand.
payment by any Initial contracting Pa.rty ot any obliglltions
assWDed by it or i.lrposed on it under and by virtue ot this
contract !:rem funds raised or to be raised by taxes, and the
obligations undar this contract shall never be construad to be
a debt of such kind as to require any ot the Initial Contract-
ing Parties t.o levy and collect a tax to discharge such obli-
gation.
(e) Each of thca Initial Contracting P-arties, respect-
ively, raprasont• and covenants that all paymants to be mado by
it under this Contract shall constitute reasonable and neces-
sary "ope.rating e.xpe.nses" of its colllbined W2'terworks and sewer
systan, as defined in Vernon's Ann. Tex. Civ. St. Article lllJ,
and that all such paym nts will be made from th revenue~ o~
43
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 53
9735 .2
Exhibit C to
its. combined wa.~erworks a.nc:1 !;e"War syst.m. ::a.ch of the Con-
tracting Parties, re.spectiveiy, repre.cents and h~s d&te.rin.inad
that tho s:ervicas: to ba provided by the system a.ra necessa.ry
and e.asantial to the present an:! tuture ope.ration of its
aforas:a.id systalll, and that the Syste111 constitutes the only
avail~le and adequata method for cUscba.rqinq, receiving,
traating, and disposing of its Was:t water !ro11 the Danton Creek
drainage area, ~d, accordingly, all pay:me.nts raquired by this
contract to be made by each Contracting Party ~hall constitut
reasonable and necessary operating e.xp nses of it~ systems,.
raspectively, as described above, with the effect that the
obligation to make such pa'Y]Mtnts from revenues ot such syste.iu;,
respectively, shall bava priority over any oblig-ation to 1Dake
any pay.ants from such revenues of principal, interest, or
otherwise, with respect to all bonds or other obligations:
heretofore or hereafter issued by such Contracting Party.
(t) ,ltach o! the Contracting Parties agroc9 th.roughout the
te.I:Ja ot this Contract to continuously operata and maintain its
colllbinad waterworks and sewer system, and to fix and collect
such rates and charges for water and sewer services and/or
sewor ~ervicos to be supplied by its system as aforesaid as
will produce revenues in an am~unt equal. to at least (i) all of
the expenses of operation a.nd maint nance exp nses or such
system, including s-pacitically its payments under this Con-
tract, and (ii) all oth r ainounts as required by law and the
44
Brookfield Wholesale Wastewater Service Agreement Page 54
9735.2
provisions ot tbe ord.ina..nces or resolutions i:.uthori~ing its
revenue bonds or otha.r obliqa.tions now or here.a.fter outst~nd-
ing, inclu:linq the amounts required to pay all principal of and
interest on such bonds and othar obliga.tions.
(g) The J.uthority covenants anc1 agrees that naithar the
proc.eds fro:m the sale ot the Bonds, nor tha llloneys pa.id to it
pursuant to this contract, nor any e.arnings tro'Dl the invest'lllent
or any of the forQgoing, will ba U$~ for a.riy purposes except
thosa directly relating to the SysteD, the Wastewater
:rnt~ceptor syst&J1, and the Bonds as provided in thb Contracti
provided that the ~uthority JDAY rablltA any excess arbitraga
earnings tro11 sucb invast.ma.nt &a.rningc to the United state.a of
AJDerica. in ordar to prave.nt any Bonds fro• beeoJl.ing "arbitrage
boods" within the meaning of the IRS Coda ot 1986 or any
amendaents thereto in effect on the data of issue of such
Bonds.· Each of the Contracting Parties covenants and agroos
that it wil not use or pennit the use of the SysttUa in any
manne.r that would cause the interest on any of the Bonds to be
or become subject to federal income taxation under the IRS COda
of L986 or any amendments thereto in ettect on the date of
issue ot such Bonds.
Station 15. FORCE MA..J"E'DRB. It by roa.son of force majaure
any party hereto shall be rendered unable wholly or in part to
C4rry out its obligations under this Contract, other than the
obligation of each Contracting Party to make the payments
45
Exhibit C to
Brookfield Wholesale Wa stewater Service Agreement Page 55
9 73 5.2
requ.ir•d und,µ-Se-ction 13 o! this Contract, thell it such party
sha-ll give ::iotice an~ tuil partic:ula.rs of such force majeura in
writing to tbe other pa.rtias vith1.n a rea.sona.bla tim~ a.ftar
occu..n:-anca o~ tha event or cause relied on, tha obligation of
th• party giving such notice, so !ar as it is dfected by s•.1ch
force :iaajaure, shal.l be suspendad during tbe continuance of tho
inability than cla.ilud, but !or no longer period, and any such
party sha.1.1 endeavor to ramove or overcolhe s.u.ch inability with
all reasonable di1:patcb. The ter.m "Force Majeure" as employed
herein shall mo.an acts ot God, strikes! lockouts, or other
industria.l disturbanoo~, acts ot public enemy, orders or any
Jclnd ot the Government ot the United States or the state o!
Texas, or any· civil or military authority, insurrection, riots,
epidemics, lands~ides, light~ing, ea.rthqu&ke, fires, hurri-
canas, litorm&, floods, vuhouts, d .roughts, arrests:, restraint
ot gove:rnJD.e.nt and people, civil disturbances, explosions,
braa.Jcage or accidents to machinery, pipeline.$ or canals,
part~al or entire railure of water supply, or on account ot any
other causes not rea5onably within tha control of th party
claillling such inability.
Section 16. UNCONDITIONAL OBLIGATION 'l'O MAKE PAYMENTS.
Recognizing the fact that the Contracting Parties urgently
raquire the fadilities a.nd services of the SysteJll, and that
such facilities and ~•rvices a.re essential and necessax:y for
actual. use a.nd for standby .purposes, and recognizing the fact
46
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 56
9735 .2
that the Authority will use payments receiv•d tro11. th• Con-
tracting Pa.rtias . to pay and secure i ta Bonds, it is hareby
agreed tha.t each o'f the contractinr; Pa.rtie.s sh.s.11 be uncon-
ditionally o!>ligated to pay, without off~et or countercla.iln,
its proportionata .ha.re of tha Annual R•qu.iremant, a..s provided
and deter:11inad by thia Contract (ineludinq the obligations for
paying for "m.in.i.mula: • as described in Section 13 hereof) ,
regardle.ss 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 whoth.ar or not any Contracting Party a.ctually
uses the services of the System whether due to Force Majaura or
any other reason whatsoever, regardless of any other provisions
ot this or any other contract or agraemant between any of the
parties hereto. This covena.nt by tha 'contracting Parties shall
be tor the be.na~it of and entorc.able by the holders of the
Bonds and/or the Authority.
Section 17. TERM o:r CONTRACT; MODIFICATION; NOTICES 1
STATE OR FEDER.AL LAWS, RULES, ORDERS, OR REGULATIONS. (a)
This contract shall be effective on and fro'l'll tha Contract Data,
subject to its execution by al,l. of the Initial Contracting
Parties and the Authority, and this Contract sba.11 continue in
!orce a.nd e.t'!ect until the principal of and interest on all
Bonds shall hava been paid, and thereafter shall continu in
!ore.a and eftect du.ring the entire usetul life of tha system.
47
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 57
9735 .2
Tb.is co:itrac;t eons ti tute.3 the sole a~e.ement l:>etween the
parties hereto .ith ~aspect to the Syst8JII.
(b) Modification. No cha..,se, a.=andmant, or modificAtion
of this Cont~act sha.11 be made or be effe~tiva which will
a.ff•ct adversely the prc,mpt pa:yJDent whan dua of all znonays
required to ba paid by each Contracting Party under the terms
ot this contract and no such change, amendJDent, or modifiC4tion
s;b.all be made or ba at!ective vhicb would CAuse a violation ot
any provisions of any Bond Resolution.
(c) Addressn and Notice. Unless otherwise provided
herein, any notice, com:munication, request, reply, or advice
(herein severally and coll ctively, for convenience, called
NNotice") herein provided or penaitted to be given,· made, or
accepted by any party to any other party must be in writing a..nd
may be given or be s:arved by depodting th.a sama in the United
states mail postpaid and registered or cartitied 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 t legraia when appropriate, addr~~ed to the party to be
notified. Notice doposited in the ~ail in the mannca.r heroin-
above described shall bo conclusively deemed to be !t ctiv,
unlass ,otherwis stated herein, from and after the expiration
of three days art r it is so deposited. Notice given in any
oth r manner shall be effective only if and when received by
the party to ba notitiad. For tbe purposes or notice, the .
48
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 58
9735.2
a.dd.r•scec of th• pa.rtiei; sha..11, until chanqad as harain~fter
provided, l>a u: follows:
It to tha Authority, to:
TrL"l.i ty River Authority of Texas
5300 s. Collins
P. 0. Box 240
Arlington, Texas 76010
If to the Initial contracting Pa.rties, as follows:
City of Fort Worth
1000 ~rt.on
Port Worth, Toxas 76102
City of Haslet
P. o. Box a
Haslet, Texas 76052
City of Roanoke
P. O. Box JB15
Roanoke, Texa..s 76262
The parties hereto sh.all have the right tro1D. time to tima and
at any tillle to change their respective addresses and. each shall
have the rigbt to specify as its addr••a illlY: other address by
at least fi~een (15) days' written notice to the other parties
hereto.
(d) state or Paderal Laws. Rules. Qrde.i:s, or Regylations.
This contract is subja.ct to all applicable Federal and State
laws and any applicable pe.rmita, ordina.nces, 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 ot any right to
question or contest any such la.v, ordinance, order, rule, or
regulation in any foruJD having jurisdiction.
49
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 59
9735 .2
section 18. s~~>..BILITY. The. pllrtiiu he.reto specitica.l.-
ly agraa that in c3sa a...,y on• or more of the ~ections, ~ubsec-
tiona, provisiona, clauses, or words of this Contract or tbe
application of sue~ sections:, sub~acti~ns, provisions:, clauses,
or words to a..ny situation or circmtsta.nce ~ould be, or ahould
be held to be, for any ra~son, inv~lid or unconstitutional,
under th• laws or constitutions of the State ot Texas or the
United states of Amarica, or in. contravantion of a..ny i;:ucb laws
__ QX. c;pnuJ, .. tutl~n.:!, ~u~ ipva:t:id~~y ,. -~~~tit~t~~;-i_,q_i!Y..1 ... _or
contravention shall not affect any other S.4lctions., s:ubsoctionc,
provisions, clauses, or words ot this Contra.ct or the applica-
tion ot such sections, subsections, provisions, clauses, or
words to · any Jother situation or circumstea.ncG, a.n.d it is in-
tended that this Contract shall be seven.ble and shall be
construed and ,applied as if any such inval.id or unconstitu-
tional saction, subsection, provision, clause, or word had not
bean i~cluded herain, and the rights and opligations of the
partie!I hereto shall be construed and renain 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 rem dy for any default, b~t all such
other reaedies (other than t raination) existing at law or in
equity may be availed of by any party hereto and shall be
cumulative. Recognizing bowavor, that the Autbority~s
so
Exhibit C to
Brookfield Wholesa le Wastewater Service Agreement Page 60
9735 .2
un:,.artaking to provido a.nd 111.unta.in the servioos; ot thca Sys.tam
is an obligation, failure in tha performance of ~~ich cannot bca
adequately compensated in 11loney dua.gac a.loo•, the Authority
llqrees, in the event ot any default on its pa.rt, that a.aeh
Contracting ?arty shall have av-a.ilabla to it tha equi t.a.ble
remedy o! m.a..nd.alnus and specific par!ormanoe in addition to any
other legal or aquita.hla remedie.s {other than teruination)
which may also be available. R~cognizing that failure in tho
pe.rtorn1ance of any Contracting Party's obligations baraundar
could not ba adequately ~ensa.ted in money da.JDages alone,
each contracting Party agrees in tha event of any default on
it.a pa.rt that the Authority _shall have available to it tha
aquita.bla ramady ot mandanws and spe.ciric performance in
addition to a.ny other legal or equitable remedies (othar than
terzaination) which lllaY also ba available to the Authority.
Notwithstanding anything to the contrary contained in this
contract, any .right or rQllledy or any d fault hereunder, except
the right of the Authority tor ceiva the Annual PaYJlent which
shA.l.l never be determined to be wai vcd, shall be deemed to be
conclusively waived unless asserted by a. proper proceeding at
law or in equity within two (2) years plus one (l) 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 perfonna.nce by any other party ot any duty or
obligation hereunder =hall be daemed a waiver thereof in the
51
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 61
973 5.2
t~ture, nor shall Al'IY such waiver or vaivers ~a deelEled or
construed to be a ... -zd.var of subsequent br~ch.es or de!ault~ ot
ILnY kind, chara.ctar, or de_scription, under any circumstances.
Saction 2 o. \rmro:!. All a.mounts due unde.r this Contract,
including, but ·not lim.itod to, paYJllants due u.ndar this Contract
.or damagas tor the breach of this Contract, s~ll be paid and
be dua in Tarrant County, Texas, which is tha County in which
the _ principal achainistrative offices of th.a Authority are
located. It is specif ica.lly agreed among tha pa.rtias to this
Contract that ~ant Cowjty, Texas, is the place ot p r!or-
ma.nca of this Contract; and in the event th.at any legal pro-
ceeding is brought to n!orce this contract or any provision
hereof, the silJle shall l:>e brought ' in Tarrant County, Texas.
IN WITNESS WHEREOF, tbe parties hereto acting under
authority ot their respective governing bodias have caused this
Contract to be duly ex~cuted in several counterparts, each or
Which shall constitute an original, all as. of tha day and year
tirst abova written, which is the date of this Contract.
· ta.ry, Soard of Directors
(AUTHO~T'l SUL)
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement
52
Page 62
9735.2
A'l'TEST: .
. ~
(CITY SEAL)
APPROVED AS TO FORM AlfD LEGALITY
CDntn.ot .luthar.uatiozl
A-~~!.~ or 1'ort Worth,
/',,.... Te:x:as
/d~~-d'7_
Da.te CITY OF HASLET,· TKXAS
BY Or /44-(E.4>-46 CU't-Y:
Mayor
ATTEST:
lC'ITY SBAL)
ATTEST:
(CITY SEAL)
53
Exhibit C to
Brookfield Wholesale Wastewater Service Agreement Page 63
9735.2
.,
.,
E?Cllib it Oto
Whole$Ale Wa:lle '!ttt Sc:tvlce~eot
Exhibit C to
E xhlbitD
Points of Entry
Brookfield Wholesale Wastewater Service Agreement
P~l
Page 64
9735.2
Ex hib it D to
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
(
'· "·. i
! :·~ i ,;~
~ .-:
~ .
Brookfie ld Wh o lesa le Wastewa ter Se rvic e Agreeme nt Page I
9735 .2
Exhibit E
Rate Methodology
1. Wholesale wastewater rates will be based upon cost-of-service rat e 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 perio d 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 yea r, 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 detennine 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
Exhibit E to
Brookfield Whole sa le Wastewater Service Agreement Pag e I
9735.2
maintained in the Fort Worth Fixed Asset Tracking System. These records shall be
available for inspection at the Fort Worth Water Department during reasonable business
hours upon request by 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
Brookfield Wholesale Wastewater Service Agreement Page 2
9735.2