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HomeMy WebLinkAboutContract 42120CITY SECRETARY lf ___ ., 1 CONTRACT NO . ;:;.. I ~ BROOKFIELD WATER AND WASTEWATER UTILITY SERVICE AGREEMENT This Brookfield Water and Wastewater Utility Serv ice Agreement ("Agreement") is entered into by and between the City of Fort Worth , Texas (the "City"), a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager; Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"); Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc. ("Aqua Texas"); and South Denton County Water Control and Improvement District No. 1 (the "District"). ARTICLE I RECITALS A. Owner intends to develop a mixed-use , master-planned community to be known as "Brookfield" situated on approximately 231.579 acres in Denton County, Texas , as shown on Exhibit A and more particularly described in Exhibit B attached to this Agreement (the "Development"), which Development lies entirely within the City 's extraterritorial jurisdiction ("ETJ"). B. Aqua Texas , the City , Owner, and the District wish to cooperate in obtaining and providing safe , adequate and reliable water and wastewater service to the Development in compliance with applicable rules and requirements of the Texas Commission on Environmental Quality ("TCEQ"), the City 's Infrastructure and Utility Standards , and the rules of the District. C. Aqua Texas currently holds Certificate of Convenience and Necessity ("CCN") No. 11157 authorizing the CCN-holder to provide retail water service in v arious areas within Denton and Wise Counties , including the land within the Development, and amended CCN No. 20453 authorizing Aqua Texas to provide retail wastewater service to land within the Development. D. The City has reached certain agreements with the District and Aqua Texas regarding the provision of wholesale water and wastewater service to the Development , and the City has a continuing interest in (i) the regulation of development for the health and safety of residents in its ETJ , and (ii) integrating the Brookfield water and wastewater systems into the City 's water and wastewater system. E. On , 2011 , the City Council of the City approved that certain Agreement Concerning Operation of South Denton County Water Control and Improvement District No . 1 (City Secretary Contract No. __ , M&C-) between the City and the District (the "Consent Agreement") containing , among other provisions , consent to conversion of the District to a freshwater supply district operating under Chapter 53 , Texas Water Code , as amended , and to issuance of bonds by the District for road projects. NOW THEREFORE , for and in consideration of the mutual agreements , covenants , and conditions hereinafter set forth , the Parties contract and agree as follows: ..--------, Bro okfi eld Water and Was tewater Utili ty Se rvice Ag ree ment 110903 9-1 os -12 -11 A09 :2 5 I N OFF ICIAL RECO RD CIT Y SECRE TARY FT. WORTH, T g 1 ARTICLE II DEFINITIONS "Buy-Out Contract" means the "Buy-Out Option Contract," the form of which is attached to this Agreement as Exhibit C. "CF A Policy" means the "Policy for the Installation of Community Facilities" as amended in March 200 I (M&C G-13181) in effect on the Effective Date , including any amendments thereto that are in effect on the Filing Date. "C ity Utility Standards" means (i) all City fire protection requirements for water line sizing, number of connections, minimum water pressure and number of fire hydrants that are in effect on the Filing Date, including any amendments thereto in effect on the Filing Date; and (ii) all City standards for design , location , construction , operation and maintenance of water and wastewater utility Infrastructure that are in effect on the Filing Date , and including all amendments to the foregoing regulations that are adopted after the Filing Date , except for any exemptions pursuant to Chapter 245 of the Local Government Code, expressly including without limitation the following: (a) Subdivision Regulations ; (b) CFA Policy; (c) Policy and Procedure for Processing Water and Wastewater Projects for Design and Construction ( 1999); and (d) General Contract Documents and Specifications for Water Department Projects. "C ity Review Fees" means fees and charges applicable to the review and approval of plans relating to the construction of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of submittal of such plans. "Contractor" means a person or entity that constructs , alters or repairs Infrastructure required to serve the Development, whether located within or outside the Development. "Development" means the mixed-use, master-planned community known as "Brookfield" situated on approximately 231.579 acres in Denton County, Texas, as shown on Exhibit A and more particularly described in Exhibit B attached to this Agreement. "Development Agreement" means the Development Agreement Between the City of Fort Worth, Texas and Brookfield Acquisitions, L.P. for the Brookfield Development (City Secretary Contract No. __ , M & C __ __, "Director" means the City Water Department Director or designee. "Effective Date" means January 25, 2011. "F iling Date " means July 23, 2007 , the date on which the application for approval of preliminary plat PP-07-024 for the Property (which was approved by the City's Plan Commission on September 26, 2007) was submitted to the City. If PP-07-024 expires, "Filing Date " shall be Brookfield Water and Wastewater Uti li ty Se rvic e Agreement 1109039-1 Page 2 · deemed to be the E ffective Date. For purposes of this section, "Project" means the development of the Property in accordance with this Agreement. If Owner fails to make progress (as defined in Section 245.005(c) of the Local Government Code) toward completion of the Project by January 25 , 2016, the "Filing Date" shall be deemed to be the date the first permit application relating to the Project is filed with the City after January 25, 2016. "Impact Fees" means City water and wastewater impact fees for new or enlarged connections adopted by one or more City ordinances in Chapter 35, Division 2, of the Fort Worth City Code in accordance with Chapter 395, Texas Local Governn1ent Code, as such may be amended from time to time. "Infrastructure" means all water and wastewater (unless expressly identified as only water or only wastewater) facilities, equipment or related improvements necessary to serve the Development, whether located within or outside the Development, excluding the Initial Wastewater Infrastructure and the Initial Water Infrastructure. "Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of the inspection. "Infrastructure Standards" means the standards for construction, operation and maintenance of Infrastructure constructed within the City as more specifically set forth in Article V . "Initial Wastewater Infrastructure" means wastewater facilities, equipment or related improvements necessary to serve the first 190 lots in the Development utilizing wholesale service provided by Aqua Texas or other provider, but excluding the City. "Initial Water Infrastructure" means water facilities, equipment or related improvements necessary to serve the first 190 Jots in the Development utilizing wholesale service provided by Aqua Texas or other provider, but excluding the City. "Party" means, individually, the City, the Owner, the District or Aqua Texas , and any successors and assigns, as permitted by this Agreement. "Subdivision Regulations" means the City's Subdivision Ordinance No. 17154-09-2006 and Plan Commission Rules and Regulations. "TRA Contract" means the agreement between the City and the Trinity River Authority ("TRA") entitled "Trinity River Authority of Texas -Denton Creek Regional Wastewater Treatment System Contract" dated October 28 , 1987 (City Secretary Contract No. 16054), as amended from time to time. "Wholesale Treated Water Service Agreement" means the "Wholesale Treated Water Service Agreement" between the City and Aqua Texas, the form of which is attached to this Agreement as Exhibit D. The Parties acknowledge that the form of the agreement set forth in Exhibit D may be modified to conform to any new wholesale water agreement used by the City for its other wholesale water customers in accordance with the terms of such agreement. Brookfield Water and Wastewater Ut ility Serv ice Agreement 1109039-1 Page 3 "Wholesale Wastewater Service Agreement" means the "Wholesale Wastewater Service Agreement" between the City and Aqua Texas, the form of which is attached to this Agreement as Exhibit E. The Parties acknowledge that the form of the agreement set forth in Exhibit E may be modified to conform to any new wholesale wastewater agreement used by the City for its other wholesale wastewater customers in accordance with the terms of such agreement. ARTICLE III WHOLESALE WATER AND WASTEWATER SERVICE 3.01 Wholesale Water Service. The first 190 retail water connections m the Development may be served by Aqua Texas utilizing the Initial Water Infrastructure and water obtained from groundwater wells or any other available wholesale water supply source. Within ninety (90) days of execution of this Agreement, the District shall submit a Wholesale Water Service Plan for the Development to the City for review and approval. The Wholesale Water Service Plan shall describe all water Infrastructure proposed by the District to serve the Development at full build-out. The Wholesale Water Service Plan shall identify at a minimum: (i) the location of the wholesale water delivery point for the Development ; (ii) the location of the wholesale master meter connection to the City's water system; (iii) the location and sizing of water mains and other lines to be used in obtaining wholesale water service from the City ; (iv) the location of the water pumping and storage facilities to be used in obtaining wholesale water service from the City (such water pumping and storage facilities to be constructed prior to connection of the wholesale master meter to the City's water system) subject to the District's right to make minor adjustments to such locations upon final design. The Pai1ies acknowledge that the Brookfield Offsite Utility Exhibit attached hereto as Exhibit F may be submitted as part of the Wholesale Water Service Plan and that the water Infrastructure depicted thereon accurately reflects the infrastructure proposed for the Development. Upon completion of construction of all water Infrastructure required by the City to provide wholesale water service to the Development, the first 190 connections and any additional connections in the Development shall be served by Aqua Texas utilizing water obtained from the City under the Wholesale Treated Water Service Agreement, the form of which is attached as Exhibit D. Any wholesale treated water service agreement to be entered into by the City shall not contain terms and conditions more favorable than as set forth in the City 's wholesale water service contracts with its existing wholesale customers. 3 .02 Wholesale Wastewater Service. The first 190 retail wastewater connections in the Development may be served by Aqua Texas utilizing the Initial Wastewater Infrastructure and the existing Shale Creek wastewater treatment plant authorized under TCEQ Permit No . WQ14186-001 , the Elizabeth Creek wastewater treatment plant authorized under TCEQ Permit No. WQ 14186-001 , or any other available wholesale wastewater service provider. Within ninety (90) days of execution of this Agreement, the District shall submit a Wholesale Wastewater Service Plan for the Development to the City for review and approval. The Wholesale Wastewater Service Plan shall describe all wastewater Infrastructure proposed by the District to serve the Development at full build-out. The Wholesale Wastewater Service Plan shall identify at a minimum : (i) the location of the wholesale master meter connection to the City's wastewater system; (ii) the location and sizing of wastewater mains and other lines to be used in obtaining wholesale wastewater service from the City ; and (iii) the location of any wastewater lift station, Brookfield Wate r and Was tewater Utility Se rvice Ag reement 110903 9-1 P ag e 4 · pumping and detention facilities to be used in obtaining wholesale wastewater service from the City, subject to the District 's right to make minor adjustments to such location upon final design. The Parties acknowledge that the Brookfield Offsite Utility Exhibit attached hereto as Exhibit F may be submitted as part of the Wholesale Wastewater Service Plan and that the wastewater Infrastructure depicted thereon accurately reflects the infrastructure proposed for the Development. Upon completion of construction of all wastewater Infrastructure required by the City to provide wholesale wastewater service to the Development, the first 190 connections and any additional connections in the Development shall be served by Aqua Texas utilizing wastewater service from the City under the Wholesale Wastewater Service Agreement, the fonn of which is attached as Exhibit E. Any wholesale wastewater service contracts to be entered into by the City shall not contain terms and conditions more favorable than as set forth in the City's wholesale wastewater service contracts with its existing wholesale customers. 3.03 Construction, Ownership and Operation of Approach Water Main. The approach water main depicted on Exhibit F (the "Approach Water Main") shall be paid for and constructed by Owner on behalf of the District. Within sixty (60) days after inspection and acceptance by the City , the Approach Water Main on the City 's side of the wholesale master meter connection to the City 's water system shown on Exhibit F shall be contributed to the City by the District along with all appurtenant easements and rights-of-way. The City agrees to reserve capacity in its water system to meet the minimum required capacity requirements of the Development. Following the contribution of the Approach Water Main to the City , the City shall have full ownership and operational control of the Approach Water Main , provided the City reserves capacity in its water system to meet the minimum required capacity requirements of the Development. Aqua Texas shall provide a master meter connection from the City 's water system to the Development as provided for in the Wholesale Treated Water Service Agreement. The cost of replacing the originally installed meter with a larger size meter in order to meet City Utility Standards shall be the responsibility of Aqua Texas and/or the District. Any additional master meter connections to the Approach Water Main for other subdivisions or developments shall be the subject of a separate utility service agreement; provided , however, the District or Owner shall be entitled to water main capacity per acre charges collected by the City from other developments served off of 18 ,070 linear feet of 30-inch water main (the "30-Inch Main") and 4 ,500 linear feet of 24-inch water main (the "24-Inch Main ") shown on Exhibit F , which may include without limitation the Alpha Ranch , Elizabeth Creek and Shale Creek developments , to the extent authorized under Sections 35-87 through 35-93 of the City's Code of Ordinances , and/or other right of reimbursement under City regulations for oversizing of the 30-Inch Main from 24 inches needed to serve the development to 30 inches , and oversizing of the 24-Inch main from 16 inches needed to serve the Development to 24 inches. 3 .04 Construction, Ownership and Operation of Sewer Mains. The approach sewer mains depicted on Exhibit F (the "Approach Sewer Mains") shall be paid for and constructed by Owner on behalf of the District. Within sixty (60) days after inspection and acceptance by the City , the Approach Sewer Mains on the City 's side of the wholesale master meter connection to the City 's wastewater system shall be contributed to the City by the District along with all appurtenant easements and rights-of-way . The City agrees to reserve capacity in its wastewater system to meet the minimum required capacity requirements of the Development. Following the contribution of the Approach Sewer Mains to the City , the City shall have full ownership and operational control of the Approach Sewer Mains , provided the City reserves capacity in its Brookfield Water and Was tewater Utili ty Servic e Agree ment 1109039-1 Pa ge 5 · wastewater system to meet the minimum required capacity requirements for the Development. Aqua Texas shall provide a master meter connection from the City 's sewer system to the Development as provided for in the Wholesale Wastewater Service Agreement. Any additional master meter connections to the Approach Sewer Mains for other subdivisions or developments shall be the subject of a separate utility agreement; provided , however , the District or Owner shall be entitled to sewer per acre charges collected by the City from other developments served off of 24,800 linear feet of 24-inch sewer main (the "24-Inch Main") shown on Exhibit F, which may include without limitation the Alpha Ranch , Elizabeth Creek and Shale Creek developments, to the extent authorized under Sections 35-81 through 35-86 of the City's Code of ordinances , and /or other right of reimbursement under City regulations for oversizing of the 24 - Inch Main from 18 inches needed to serve the Development to 24 inches. 3 .05 Construction and Ownership of Other Infrastructure. Under any CFA , Owner and /or the District shall bear the full costs of construction of all water and wastewater Infrastructure . All water and wastewater Infrastructure located on the Development's side of the master water and wastewater meter connections to the Development will be owned by the District and leased to Aqua Texas unless and until such Infrastructure is acquired by the City pursuant to Section 7.01. All water and wastewater Infrastructure located on the City 's side of the master water and wastewater meter connections to the Development will be owned and operated by the City . 3.06 Use of Wastewater Capacity Allocated to City by Trinity River Authority. The City will allocate to the Development a portion of its available TRA Contract treatment capacity sufficient to accept the wastewater from the Development pursuant to the Wholesale Wastewater Service Agreement. As provided for in the Wholesale Wastewater Service Agreement, the right of the City to provide wastewater service to the Development through the TRA Contract is subject to the approval of both the TRA and a majority vote of the TRA Advisory Committee. 3 .07 Easements and Rights-of-Way. All easements or rights -of-way required for the installation of water and wastewater Infrastructure required to deliver wholesale water and wastewater service to the Development by the City , and for the continuous operation and maintenance of all associated metering and sampling facilities , will be acquired by the District, Owner or Aqua Texas and granted to the City at no cost to the City. To facilitate the City's wholesale water and wastewater service to the Development, the District, Owner and Aqua Texas will grant to the City such easements and rights -of-way as are necessary to connect the City 's water and wastewater systems (or the Trinity River Authority 's wastewater system), to the Development at no cost to the City. Aqua Texas shall not be required to purchase any additional easements or right of way in connection with its obligations hereunder. 3.08 Access, Ingress and Egress. Upon prior Notice by the City , any duly authorized employee of the City bearing proper credentials and identification shall be granted access to any area or location within the Development as the City may determine is necessary for the purpose of inspecting , observing , measuring , sampling, testing or auditing the City's wholesale water and wastewater Infrastructure and service to the Development. In addition , the City will be given continuous rights of ingress and egress to all metering and sampling facilities. Brookfi e ld Wa ter and Was te wa ter Utility Service Agree me nt 1109039-1 Page 6 3.09 Oversizing of Infrastructure. The City shall not require Owner or the District to design or construct ( or pay for designing or constructing) Infrastructure that exceeds the capacity needed to serve the Development except as shown on Exhibit F. ARTICLE IV RETAIL WATER AND WASTEWATER UTILITY SERVICE 4.01 Service Plans to be Submitted. The District will submit retail water and wastewater utility service plans for the Development to th e City for review and approval , which approval shall not be unreasonably withheld. The City will make reasonable efforts to complete its review within 120 days of receipt of each plan. Approval of both a retail water utility service plan and a retail wastewater utility service plan by the City shall be a condition of the City 's approval of a final plat for the Development. If Owner creates any additional conservation and reclamation districts over the area covered by the Development, Owner shall submit a single retail water utility service plan and a single retail wastewater service utility service plan covering each district. 4 .02 Retail Water Service Plans. To obtain City approval , the retail water utility service plan must meet the following requirements: (a) All meters, water metering stations , valves , meter boxes, water distribution lines and other water Infrastructure to serve the Development ("Retail Water Infrastructure ") shall meet all City Utility Standards, all Infrastructure Standards , and all other standards and requirements as set out or referenced in Article V ; provided , however, the first 190 residential units are not required to meet City fire flow standards for water service prior to the time the first 190 residential units obtain access to the City 's wholesale water system. Following construction of the first 190 residential units , the City will not issue a building pennit for any additional residential unit or nonresidential structure in the Development unless and until the first 190 units obtain service from the City under the Wholesale Treated Water Service Agreement with the City and meet all applicable City Utility Standards. (b) The plan must demonstrate that an adequate supply of potable water meeting the more stringent of the capacity, volume and pressure requirements of (i) the City Utility Standards , or (ii) TCEQ public water system rules , will be provided. Such demonstration shall be made prior to the City 's approval of a preliminary plat for the Development ; provided , however, City fire flow standards shall not apply to the first 190 residential units prior to the time such residential units obtain access to the City wholesale water system. (c) All plans and specifications for Retail Water Infrastructure shall be submitted to the City as part of the retail water utility service plan. ( d) Upon City approval of the retail water utility service plan submitted pursuant to this Agreement, the City will not seek to challenge the service area for CCN No. 11157 to serve the Development. Bro o kfield Wate r a nd Was te wate r Ut ility Se rvi ce Ag reement 1109039-1 Page 7 4.03 Retail Wastewater Service Plans. To obtain City approval , the wastewater utility service plan must meet the following minimum requirements: (a) All meters , wastewater metering stations , sewer service lines , manholes and other wastewater Infrastructure to serve the Development ("Retail Wastewater Infrastructure") shall meet all City Utility Standards , all Infrastructure Standards, and all other standards and requirements as set out or referenced in Article V. (b) The plan must demonstrate that an adequate means of providing wastewater treatment and disposal meeting all TCEQ wastewater treatment and disposal requirements will be provided. Such demonstration shall be made prior to the City's approval of a preliminary plat for the Development. (c) All plans and specifications proposed for Retail Wastewater Infrastructure shall be submitted to the City as part of the retail wastewater utility service plan . (d) Where the District, Owner or Aqua Texas will provide wastewater treatment service through a wastewater treatment and disposal facility other than the Shale Creek wastewater plant and/or the Elizabeth Creek wastewater plant, such wastewater treatment plant shall be permitted, constructed , operated and maintained in accordance with all applicable TCEQ requirements , and in addition shall be permitted to meet effluent limitations no less stringent than 5-5-2-1 (5 parts per million ["ppm"] biochemical oxygen demand; 5 ppm total suspended solids; 2 ppm nitrogen; and 1 ppm phosphorous). The City will not contest any TCEQ or other regulatory approvals sought by Aqua Texas , the District or Owner for such wastewater treatment plant so long as the plant remains in compliance with applicable TCEQ requirements and the foregoing effluent limitations . (e) Upon City approval of the retail wastewater utility service plan submitted pursuant to this Agreement, the City will not seek to challenge the service area for CCN No. 20453 to serve the Development. 4 .04 Participation Fees. Prior to the City's delivery of treated water under the Wholesale Treated Water Service Agreement, the Owner shall pay to the City the "Cost of New or Additional Connections" as required by Section 3.3 of the Wholesale Treated Water Service Agreement based on the number of lots in the Development at full build-out as shown in the preliminary plat approved by the City. The Parties agree and acknowledge that the total of such costs is $353,970 which is reasonably determined under the projection of full build-out of the Development of 892 lots with a maximum daily demand of 1.51 MGD and a cost of $234 , 417 per MGD (i.e., 1.51 MGD x $234 ,417 = $353,970). Such cost shall not be a System Cost. The Owner will pay the amount of $353,970 to the City in a single lump sum payment at the time of the initial connection of the Fort Worth System to the Customer System to serve the Development. 4.05 Notices to Retail Customers . At least once annually, water and wastewater bills sent to all retail customers within the District will contain the following statement: "This service Brookfield Wate r and Was tewater Utility Service Agreement 1109039-1 Page 8 · address is inside the boundaries of a water district that may be annexed in the future by the City of Fort Worth. " 4.06 Service by Another Entity. If the District or Owner engages or allows any entity other than Aqua Texas to provide retail water or wastewater operations and maintenance or management services to land within the Development, then the District or Owner will first contractually obligate such entity to the terms and conditions of this Agreement to the same extent that Aqua Texas is obligated. ARTICLE V CONSTRUCTION, OPERATION AND MAINTENANCE OF INFRASTRUCTURE 5.01 Infrastructure Standards. All wholesale and retail water and wastewater Infrastructure shall be designed and constructed in compliance with this Article V and: (a) the City Utility Standards; (b) rules and regulations of the TCEQ; and ( c) the rules and regulations, if any, of the District ("Infrastructure Standards"), with the exception of the pump station shown on Exhibit F consisting of grow1d storage tanks , pumps, pressure tanks and related appurtenances which shall be built to TCEQ standards. In the event of any conflict between the City Utility Standards and any other standards , rules, or regulations listed above, the City Utility Standards shall control unless otherwise agreed in writing by the Director. 5.02 Additional Construction Standards for Water Utility Infrastructure. The water utility Infrastructure serving the Development must be constructed using the same type, or a compatible type, of meters , valves, meter boxes and service lines used by the City for its municipal water system; provided, however, that automated meter reading ("AMR")-compatible may be used. 5.03 Plan Review; Payment of Fees; and Pre-Construction Conference. Construction of Infrastructure shall not commence until (i) final construction plans and specifications have been reviewed and accepted by the City for compliance with the City's Utility Standards; (ii) a pre-construction conference has been held by the Contractor, the District's engineer and designated representatives of the City; and (iii) the applicable City Review Fees have been paid. At such pre-construction conference, the City shall designate City employees to serve as the project manager and the project inspector (the "City Inspector"). The City's review of construction plans and specifications for compliance with the City's Utility Standards and notification of the District of any deficiencies in such construction plans and specifications shall not be unreasonably delayed. 5.04 Community Facilities Agreements. Construction of Infrastructure shall not commence until a Community Facilities Agreement ("CF A") has been executed in accordance with the City's CFA Policy and which is consistent with the terms and conditions of this Utility Service Agreement. 5.05 Inspections by Third Party Inspectors. Except as otherwise provided in this Article V, inspectors retained and paid for by the District (or by Owner on behalf of the District) and approved by the City shall perform all inspections and testing of the construction of Brookfield Water and Was te wate r Utility Service Agreement 1109039-1 Page 9 · Infrastructure for compliance with this Article V. The District or Owner, as applicable , shall submit the names , addresses and phone numbers of such inspectors as part of the submittal of the retail water and wastewater service plans in accordance with Articles III and IV. Construction of Infrastructure shall not commence until such inspectors have been approved by the City which approval shall not be umeasonably withheld or delayed . The District shall require all inspectors it retains to provide copies of all inspection and testing reports to the City Inspector within five ( 5) business days of the date of the inspection . 5.06 Termination of Third Party Inspectors. The City has the right to terminate any third party inspector retained by the District or Owner pursuant to Section 5.05 if the inspector: (i) fails to properly perform inspections and testing to ensure construction in compliance with this Article V; or (ii) fails to timely provide copies of inspection and testing reports to the City's Inspector. Upon termination of any third party inspector, the City , at its option , may: (i) allow the use of another approved third party inspector, or (ii) perform all necessary inspections and testing. Should the City elect to perform inspections and testing pursuant to this Section 5.06, the City shall perform such inspections and testing for compliance with this Article V in a timely manner and the District shall pay the City an inspection fee to reimburse the City for its reasonable and necessary costs of performing the Infrastructure inspection. 5.07 Inspection by City. The City shall have the right to charge an Infrastructure inspection fee for City-conducted inspections and testing only for inspections and testing performed by the City pursuant to Section 5.06. In such case, the City may charge the City 's prevailing Infrastructure inspection fee applicable to inspections outside the City 's corporate limits. Notwithstanding the foregoing limitation on the City's right to charge an Infrastructure inspection fee , the City has the right , but not the obligation, to inspect and test the Infrastructure at any time and to participate in a final inspection of all Infrastructure. The Contractor shall notify the City Inspector when Infrastructure is ready for final inspection. If the City Inspector concurs that construction of the Infrastructure is substantially complete , the City Inspector will schedule a final inspection by the City within 30 days. Upon such final inspection and correction of any punch list items , written certification by the City Inspector that Infrastructure has been constructed in compliance with City Utility Standards shall constitute compliance with the inspection requirements of this Article V . 5.08 Access by City Employees. Upon prior Notice by the City, any duly authorized employee of the City bearing proper credentials and identification shall be granted access to any property of the District within the Development as the City may determine necessary for the purpose of inspection and testing of Infrastructure . 5.09 Contractors . If any Party engages a Contractor to construct Infrastructure, such Party shall incorporate the requirements of this Article V into a written construction contract with the Contractor. All such contracts shall provide that the City is a third-party beneficiary of and may enforce such contracts against the Contractor. 5 .10 Operation and Maintenance of Infrastructure. The District shall cause all Infrastructure , once it is constructed, to be operated and maintained in compliance with the Infrastructure Standards. Brookfield Water and Was tew ate r Utili ty Servi ce A g reement 1109039-1 Page 10 5.11 As-Built Drawings . The District and the Owner shall be jointly responsible for the delivery of mylar as-built drawings for all Infrastructure to the City Inspector within 30 days after final inspection . ARTICLE VI IMPACT FEES 6.01 Collection of Impact Fees. The City will assess and collect Impact Fees within the Development at 100% of the total maximum assessable amount as adopted by the City Council. The City shall not commence providing wholesale water or wastewater service within the Development until the District pays to the City Impact Fees for each existing retail water and wastewater connection within the Development, based upon the size of the retail water meter, including the first 190 residential structures . Commencing with the 191 st residential structure, the City may refuse to issue a building permit for construction of any structure in the Development, as required by the Development Agreement, until the Impact Fees for such structure are paid to the City, based on the size of the retail water meter. Co1mnencing with the 191 st residential structure within the Development, neither Aqua Texas nor the District will set a retail meter for water or wastewater service for any structure until Impact Fees for such structure have been paid to the City. The District or Owner shall be responsible for the payment of all Impact Fees. Payment of such fees shall not be a set off or reduction against any fees District or Owner is obligated to pay Aqua Texas under other agreements. 6.02 Reporting Requirements . The District, Owner, and Aqua Texas shall provide to the City such information as may be requested by the Director relating to the making of new or enlarged retail connections within the Development, including information required to be provided by the Wholesale Treated Water Service Agreement and the Wholesale Wastewater Service Agreement. ARTICLE VII CITY ACQUISITION OF RETAIL FACILITIES 7.01 Transfer of Retail Water or Wastewater Services. Pursuant to CCN No . 11157 and CCN No. 20453 , Aqua Texas shall have the right and obligation to provide retail water and wastewater service to the Development; provided however, the City may in its sole discretion seek to become the sole certificated retail provider of water service to the Development and the sole retail provider of wastewater service to the Development (with or without a wastewater CCN, in the City 's discretion) (a) at any time after seventeen (17) years from the date of the first connection within the Development to the City's water system , or (b) at an earlier date if agreed by the District and Aqua Texas. To effectuate the transfer of retail water and wastewater service from the District to the City, the Parties have entered into a Buy-Out Option Contract (the "Buy- Out Contract") a copy of which is attached as Exhibit C. The District, Aqua Texas and Owner agree not to contest any applications filed by the City at the TCEQ for a new or amended water and /or wastewater CCN to effectuate the future transfer of retail water and/or wastewater service rights for the Development to the City pursuant to the provisions of this Section 7.01, and further agree that they shall cooperate and assist the City to the extent reasonably necessary in obtaining any regulatory approvals required to effectuate such transfer of water or wastewater utility service rights and obligations to the City. Brookfi e ld Water a nd Waste wa te r Utili ty Service A g reement 1109039-1 Pag e 11 7.02 Lease Termination. Any District lease covering all or any part of the Infrastructure shall terminate upon transfer of any Infrastructure covered by such lease to the City pursuant to the Buy-Out Contract, and each such lease shall contain a provision expressly providing for such termination. Likewise , upon transfer of any Infrastructure pursuant to the Buy-Out Contract, Aqua Texas shall not have any obligation of any kind whatsoever to provide water or wastewater service to the Development and the Agreement for Sale of Treated Water by and between the City and Aqua Texas pursuant to Section 3.01 and the Agreement for Wastewater Service by and between the City and Aqua Texas pursuant to Section 3.02 shall tem1inate in accordance with their terms. 7.03 Effect of Transfer. Once the City becomes the certificated retail provider of water and the sole retail provider of wastewater service to the Development (with or without a wastewater CCN, in the City's discretion), Aqua Texas will cease providing water and wastewater utility service to that area , and the City shall have no further obligations to the District, Owner or Aqua Texas with regard to the costs , operation , equipment removal or site restoration of the water and wastewater system operations at the Development, or any portion of the Development that may have been served by such facilities . All costs of dismantling, decommissioning and removal of the then-existing water and wastewater system facilities not utilized by the City shall be borne by the District. ARTICLE VIII INDEMNIFICATION 8.01 Indemnity. To THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DISTRICT, OWNER AND AQUA TEXAS AGREE TO INDEMNIFY AND DEFEND THE CITY, ITS 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, 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 OR ANY CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE INFRASTRUCTURE, (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO STRICT LIABILITY OR THE CONCURRENT NEGLIGENCE OF ANY INDEMNITEE. NOTWITHSTANDING THE FOREGOING, IF THE DISTRICT, OWNER, AND/OR AQUA TEXAS ARE DETERMINED TO BE JOINTLY LIABLE TO ANY THIRD PARTY, THE PARTIES SHALL SHARE IN SUCH LIABILITY TO THE EXTENT OF THEIR FAULT. 8.02 Insurance and Indemnity by Contractors. If any Party engages a Contractor to construct, reconstruct, repair or maintain Infrastructure , such Party shall include in the contract requirements that the Contractor must provide adequate insurance covering the City as an additional insured . Such contract must also require that the Contractor covenant to indemnify , hold harmless and defend the City against any and all suits or claims for damages of any nature arising out of the Brookfi e ld Water a nd Wastewater Utility Service A g reem e nt 1109039-1 Page 12 · performance of such contract, even if such Liabilities arise from or are attributed to strict liability or to the sole or concurrent negligence of any Indemnitee. ARTICLE IX MISCELLANEOUS 9.01 Governing Law; Jurisdiction and Venue. THIS AGREEMENT SHALL 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 AND AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. 9.02 Conspicuous Provisions. The City, the District, Owner and Aqua Texas acknowledge that the provisions of this Agreement set out in bold, CAPITALS ( or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 9.03 Notice. Any notices , approvals, or other communications required to be given by one Party to another under this Agreement (a "Notice ") shall be given in writing addressed to the Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (b) when received if the Notice is deposited in the United States Mail , certified or registered mail , return receipt requested , postage prepaid; (c) when the Notice is delivered by Federal Express, UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or ( d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confinning 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 Attn: City Secretary 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-6196 City of Fort Worth , Texas Attn: City Manager 1000 Throckmorton Street Brookfield Water a nd Wastewater Utili ty Service Agreement 110903 9 -1 Page 13 Fort Worth, Texas 76102 FAX: (817) 392-6134 City of Fort Worth, Texas Attn: Water Director I 000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-2398 To Aqua Texas: Aqua Utilities, Inc. dba Aqua Texas , Inc. Attn: Vice-President 1106 Clayton Lane, Ste. 400W Austin, Texas 78723 FAX: (512) 263-5624 Aqua Utilit ies , Inc. dba Aqua Texas, Inc. Attn: Chief Legal Officer 762 West Lancaster Ave. Bryn Mawr, Pennsylvania 19010 FAX: (610) 520-9127 To the District: South Denton County WCID No. 1 c/o: Crawford & Jordan, LLP Attn : Christopher Jordan 19 Briar Hollow Lane, Suite 245 Houston , Texas 77027 FAX: (713) 621-3909 To Owner : Brookfield Acquisitions, L.P . Attn: Ross Calhoun 1221 I.H. 35E, Suite 200 Carrollton , Texas 75006 FAX : ( 469) 892-7202 9.04 City Consent and Approval. In any provision of this Agreement that provides for the consent or approval of the City staff or City Council, such consent or approval may be withheld or conditioned by the staff or City Council at its discretion, provided that such action is not arbitrary or unreasonable . 9 .05 Assignment. Bro okfi eld Water and Wa ste wate r Utility Serv ice Ag ree ment 11090 39 -1 Page 14 (a) Neither the District nor the City may assign thi s Agreement without the written consent of the other Parties. (b) Aqua Texas may not assign this Agreement without the prior written consent of the City; provided , however , that Aqua Texas ' rights hereunder may be assigned or transferred upon Notice , but without the City 's consent to (i) any subsidiary or affiliate of Aqua Texas (i.e., any entity with respect to which 50% or more of the voting and economic interests are owned by Aqua Texas or its parent) so long as Aqua Texas shall remain liable to the City for any and all liabilities or obligations arising out of this Agreement, or (ii) to any entity acquiring all or substantially all of the assets or common stock of Aqua Texas or its successor. Any assignee must assume all obligations of Aqua Texas and any liability that may result from acts or omissions by Aqua Texas or the assignee under this Agreement that may arise or accrue from and after the effective date of the assignment. If this Agreement is assigned to any entity by Aqua Texas , then the Buy-Out Contract must be assigned at the same time and to the same extent as this Agreement. ( c) Owner has the right , from time to time , to assign this Agreement, in whole or in paii, and including any obligation, right , title , or interest of Owner under this Agreement, to the District and to any person or entity (an "Assignee") without the consent of the City, provided that the following conditions are satisfied : (i) if not the District, Assignee is a successor owner of all or any part of the Development or is a lender to a successor owner of all or any paii of the Development; (ii) if not the District, Assignee has a contractual right to be reimbursed for water, sewer, or drainage improvements and/or the Road Project from District Bonds ( or has a lien or other security interest in such reimbursements); (iii) the assignment is in writing executed by Owner and Assignee in the fonn of assigmnent attached as Exhibit G; (iv) Assignee expressly assumes in the assigmnent any assigned obligations and expressly agrees in the assigmnent to observe , perfonn , and be bound by this Agreement to the extent this Agreement relates to the obligations , rights , titles , or interests assigned; and (v) a copy of the executed assigmnent is provided to all Parties within 15 days after execution. Provided the foregoing conditions are satisfied , from and after the date the assigmnent is executed by Owner and Assignee, the City agrees to look solely to Assignee for the performance of all obligations assigned to Assignee and agrees that Owner shall be released from performing the assigned obligations and from any liability that results from the A s signee 's failure to perfom1 the assigned obligations. No assigmnent by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assigmnent. Owner shall maintain written records of all assigmnents made by Owner (including , for each Assignee, the Notice information required by this Agreement , and including a copy of each executed assigmnent) and , upon written request from any Party or Assignee , shall provide a copy of such records to the requesting person or entity. It is specifically intended that this Agreement, and all terms , conditions and covenants herein , shall survive a transfer , conveyance , or assigmnent occasioned by the exercise of foreclosure of lien rights by a creditor or a Party , whether judicial or Brookfi e ld Water a nd Wastewate r Utility Serv ice A g ree ment 1109039-1 Page 15 non-judicial. This Agreement shall be binding upon and insure to the benefit of the Parties and their respective successors and Assignee. 9.06 No Third Party Beneficiary. This Agreement is solely for the benefit of the Parties , and neither the City , the District, Aqua Texas nor Owner intends by any provision of this Agreement to create any rights in any third-party beneficiaries or to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone other than the City , the District, Aqua Texas and Owner. 9.07 Amendment. This Agreement and the agreements listed in Section 9.18 may be amended only with the written consent of all parties to such agreement and with approval of the governing bodies of the City and the District, if a party to such agreement. 9.08 No Waiver. Any failure by a Party to insist upon strict performance by the other Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party hereto of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 9 .09 Severability . The provisions of this Agreement are severable and , in the event any word , phrase , clause , sentence, paragraph, section , or other provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid , illegal , or unenforceable for any reason , and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall , to the extent possible, accomplish the intent of the Paiiies as evidenced by the provision so severed. 9 .10 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of the Agreement. 9.11 Force Majeure. No Party shall be considered to be in default in the performance of any of the obligations hereunder ( other than obligations of either Party to pay costs and expenses) if such failure of performance shall be due to an uncontrollable force be yond the control of the Parties , including but not limited to , the failure of facilities , flood , earthquake, tornado , storm , fire , lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material shortage , sabotage, or restraint by a court order or public authority, which by the exercise of due diligence ai1d foresight such Party could not have reasonably been expected to avoid. Any 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. Brookfield Wate r a nd Was te water Utility Serv ice A g ree me nt 1109039-1 Page 16 9.12 Breach, Notice and Remedies. (a) If any Party commits a breach of this Agreement, the non-breaching Party shall give Notice to the breaching Party that describes the breach in reasonable detail. (b) The breaching Party shall commence curing such breach within fourteen (14) calendar days after the time the breaching Party receives such Notice and complete the cure within fourteen (14) calendar days from the date of commencement of the cure; however, if the breach is not reasonably susceptible to cure by the breaching Party within such 14-day period , the non-breaching Party shall not bring any action so long as the breaching Party has commenced to cure the default within such 14-day period and diligently completes the cure within a reasonable time without unreasonable cessation of the work. ( c) If the breaching Party does not substantially cure such breach within the stated period of time , the non-breaching Party may , in its sole discretion , and without prejudice to any other right under this Agreement, law, or equity, seek an action under the Uniform Declaratory Judgment Act, specific performance, mandamus, injunctive relief, and other remedies described in this Agreement; provided , however, that the non-breaching Party shall not be entitled to terminate this Agreement and each Party specifically waives any right such Party has or in the future may have to terminate this Agreement. It is understood and agreed that no Party shall seek or recover actual, consequential or any other type of monetary damages or awards, including but not limited to attorney's fees, in the event that any Party brings suit under or related to this Agreement. (d) By execution of this Agreement, neither the City nor the District waives or surrenders any of its respective governmental powers , immunities or rights, except as specifically waived pursuant to this subsection. The City and the District mutually waive their governmental immunity from suit and liability only as to any action brought by a Party to pursue the remedies avai labl e under this Agreement and only to the extent necessary to pursue such remedies. Nothing in this section shall waive any claims, defenses or immunities that the City or the District has with respect to suits against the City or the District by persons or entities not a party to this Agreement. 9.13 Interpretation. The Patiies acknowledge that each party and, if it so chooses , its counsel have reviewed and revised this Agreement and that the nonnal rule of construction to the effect that any ambiguities are to be resolved against the drafting paiiy shall not be emplo yed in the interpretation of this Agreement or any amendments or exhibits hereto. As used in this Agreement, the term "including" means "including without limitation" and the tem1 "days" means calendar days , not business days unless otherwise expressly stated. Wherever required by the context, the singular shall include the plural , and the plural shall include the singular. Each defined tem1 herein may be used in its singular or plural form whether or not so defined . Brookfield Water and Wastewate r Utili ty Service Agreeme nt 110903 9-1 Pa ge 17 9 .14 Section 13 .248 Agreement. The Parties agree that the designation under this Agreement of areas and customers to be served by water and wastewater utility providers is valid and enforceable and may be submitted to the TCEQ for approval at the appropriate time pursuant to Section 13.248 of the Texas Water Code regarding contracts designating areas to be served by retail public utilities. 9.15 No Joint Venture. No provision of this Agreement shall be construed to create any type of joint or equity ownership of any property or any partnership or joint venture. By entering into this agreement, the City has no obligation to provide water or wastewater treatment services to any area within the Development or any other area except as specifically set forth in this Agreement. 9 .1 6 Counterpart Originals. This Agreement may be executed in multiple counterparts , each of which shall be deemed to be an original. 9.17 Effect of Agreement. This Agreement supersedes any prior understandings or written or oral agreements among the Parties and their affiliates, concerning the subject matter hereof. 9.18 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement are incorporated into this Agreement by reference for the purposes set forth herein , as follows: Exhibit A Map of the Brookfield Development Exhibit B Legal Description of the Brookfield Development Exhibit C Buy-Out Option Contract Exhibit D Wholesale Treated Water Service Agreement Exhibit E Wholesale Wastewater Service Agreement Exhibit F Brookfield Offsite Utility Exhibit Exhibit G Assignment and Assumption Agreement ATTEST: C. -Gl-'-\-1 c)--0 Contract Au_horization l L( ____ ,_._....,... ___ , ____ . Pate Brookfield Water and Wastewater Ut ili ty Serv ice Agreement 1109039-1 OF FICIAL RECOR D CI TY SECRETARY FT. WORTHt TX Page 18 ATTEST: ~~d~~ Corporate Secretary Brookfield Water and Wa stewater Utility Service Agreement 1109039-1 AQUA UTILITIES, INC. dba AQUA TEXAS, INC. p. Robert L. Laughman , ~res id Date: January 13 , 2011 BROOKFIELD ACQUISITIONS, L.P., a Texa s limited partn ership By:MMM Ventures, LLC , a Texas limited liability company Its: General Partner By: 2M Ventures , LLC, a Delaware limite d liability compa ny ::.~ Mehrdad Moayedi Title: Governing Pers on SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT N0.1 By {~r 4 ~ . (p int ~J ;;e Title: V ,ce.. re.s,dw Date: ~v\rHi '2.2 · 201/ OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 19 i Exhibit A to Brookfield Water and Wastewater Utility Service Agreeme nt Exhibit A Map of Brookfield Development .:::,..,-- Page 1 Exhibit B Legal Description of Brookfield Development BEING a tract ofland 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 Number 2005-8893, Deed Records , Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 2,518.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439" found at the Northeast corner 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 North line of said Lot 13 , a distance of 13 .26 feet to a 1 inch iron rod found at the Southeast corner 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 degree s 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 3 7 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" fow1d at the most Easterly Southeast comer of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2 ,150 .81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at an i1mer 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 Water a nd Was tewater Ut ility Servic e Agreement Page I Exhibit C to Brookfield Water and Wastewater Uti lity Service Agreement Exhibit C Buy-Out Option Contract Page 1 BUY-OUT OPTION CONTRACT FOR BROOKFIELD DEVELOPMENT This Buy-Out Option Contract ("Contract") is entered into by and between the City of Fort Worth, Texas (the "City"), a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas , acting by and through its duly authorized Assistant City Manager; Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"); Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc. ("Aqu a Texas"); and South Denton County Water Control and Improvement District No. 1 (the "District"). RECITALS A. The Parties to this Contract will also execute that certain "Brookfield Water and Wastewater Utility Service Agreement", City Secretary Contract No. (the "Utility Agreement"). B. The Utility Agreement governs the prov1s10n of water and wastewater utility service to the mixed-use, master-planned community to be known as "Brookfield" situated on approximately 231.579 acres in Denton County , Texas , as shown on Exhibit A and more particularly described in Exhibit B attached to this Agreement (the "Developm ent"), which Development lies entirely within the City's extraterritorial jurisdiction ("ETJ"). C. Article VII of the Utility Agreement provides that the Parties will enter into this Contract to effectuate the future transfer of retail water and/or wastewater service rights for the Development to the City at the City's option and under the conditions set forth in that agreement. NOW THEREFORE, for and in consideration of the mutual agreements, covenants , and conditions hereinafter set forth, the Parties contract and agree as follows: ARTICLE I SELLER AND PURCHASER 1.01 "Effective Date" means the effective date of this Contract as defined in Section 6.12. 1.02 "Purchaser" means the City. 1.03 "Party" means, individually, the City, Owner, District or Aqua Texas, and any pennitted successors and assigns. 1.04 "Seller" means the District, Aqua Texas , or Owner, and each of their permitted successors and assigns, to the extent that each of those Parties or such successors or assigns owns all or any interest in the Property, as defined in Section 2.02, at the time the Option is exercised under this Contract. Brookfield Bu y-Out Option Contract 1199540-1 Page I 1.05 Other Defined Terms. Unless otherwise defined below, capitalized terms in this Contract shall have the same respective meanings as are ascribed to them in the Utility Agreement. ARTICLE II PROPERTY, GRANT AND EXERCISE OF OPTION 2.01 Grant of Option. Subject to the terms and conditions set forth in this Contract, Seller GRANTS to Purchaser an Option to purchase and accept from Seller, for the Purchase Price, all of Seller's right, title and interest in and to the Property in the Brookfield Development, as it may now exist, or be acquired or constructed by Seller at any time during the Option Period (the "Option") and consisting of the following: a. all water distribution facilities, including meters , above ground tanks, pump stations and other equipment, fixtures, improvements or appurtenances used to provide water service to the Development , and located inside the Development (collective ly, "Water Facilities"); b. all wastewater collection facilities, including meters, lift stations, and other equipment, fixtures, improvements or appurtenances used to provide wastewater service to the Development, and located inside the Development (collectively, "Wastewater Facilities"); c. all easements and rights-of-way inside the Development associated with the Water Facilities or Wastewater Facilities (the "Easements"); d. any tract of land within the Development owned by Seller and in use for the operation of the Water Facilities or Wastewater Facilities (the "Land"); e. account records and information for existing customers served by the Water Facilities and Wastewater Facilities (the "Account Information"); and f. surveys, plans and specifications in Seller's possession or control that relate to the Water Facilities or Wastewater Facilities (the "Documents"). 2.02 Property. The items listed in Section 2.01 above are collectively called the "Property." 2.03 Exercise of Option. Unless the Parties agree in wntmg to an earlier date, Purchaser may exercise the Option to purchase the Property at any time (a) after seventeen (17) years from the date of the first connection within the Development to the City's water system, or (b) at an earlier date if agreed in writing by the District and by Aqua Texas; but in any event Purchaser must exercise the Option (if at all) on or before thirty (30) years from the Effective Date of this Contract ("Option Period"). The Option , if exercised, must be exercised Brookfi e ld Buy-Out Option C ontract 1199540-1 Page 2 simultaneously for both the Water and the Wastewater Facilities and the Land, Easements , Account Information and Documents related thereto. 2.04 Exercise Notice. Whenever Purchaser desires to exercise the Option, Purchaser must provide Notice to Seller during the Option Period of it s desire to exercise the Option ("Exercise Notice"). The date on which Purchaser sends the Ex ercise Notice is called the "Option Exercise Date." 2 .05 Information to Purchaser. Within thirty (30) day s following the Option Exercise Date, Sell er shall provide to Purchaser true and complete copies of all written information that Seller po ssesses (other than privileged communications or attorney work-product) regarding the Property , including but not limited to: environmental studies and reports ; any permits required for the Water Facilities and Wastewater Facilities; all agreements granting or conveying the Easements; the Documents; and a complete and itemized inventory of any of the Property that is not described in or shown on the Documents. 2.06 Prohibited Encumbrance. Seller may no t enter into any agreement to sell, transfer, mortga ge, lease , or grant any preferential right to purchase (including but not limited to any option , ri ght of first refusal , or right of first negotiation) with respect to, or otherwise encumber all or any portion of, the Property before Closing ("Prohibited Encumbrance"), unless such Prohibited Encumbrance is cured and removed at or before Closing. 2 .07 Memorandum of Option. Seller and Purchaser shall execute and record , in the fom1 attached as Exhibit C to this Contract, a "Memorandum of Buy-Out Option Contract" in the Real Property Records of Denton County , Texas within thirty (30) days after the Effective Date o f this Contract. · ARTICLE III PURCHASE PRICE AND OPTION CONSIDERATION 3 .01 Purchase Price. When the Option is exer cised pursuant to this Contract, the consideration ("Purchase Price") for the entirety of the Property purchased pursuant to the Option is TEN DOLLARS ($10.00). 3.02 Time of Paym ent. The Purchase Price is payable in cash at the Closing. 3.03 Consideration . As consideration for Seller 's holding the Property available for purchase during the Option Period , Purchaser has paid Seller $100 ("Independent Option Considerat ion"), which Seller may retain , even if this Contract is terminated. The Independent Option Consideration does not apply to the Purchase Price. ARTICLE IV SURVEY, INSPECTION AND TITLE COMMITMENT 4.01 Survey during Option Period. From time to time during the Option Period , Purchaser shall have the right to obtain, at Purchaser's expense , a current, on-the-ground land Broo kfi e ld Bu y-O ut O pt ion Con tract 11 99 540 -1 P age 3 title survey ("Survey") of all or any portion of the Property made by a duly licensed surveyor reasonably acceptable to the Seller. 4.02 Inspection during the Option Period. From time to time during the Option Period, Purchaser shall have the right to obtain, at Purchaser's expense, an inspection, including an appraisal of real and personal property ("Inspection"), of all or any portion of the Property, for purposes of assessing the physical and operational condition of the Property. 4.03 Title Examination during the Option Period. During the Option Period , Purchaser shall have the right to obtain, at Purchaser's expense, an examination of any or all of the real property records related to the Land and the Easements ("Title Commitment"), including any and all instruments constituting an exception or restriction upon the title or easement rights of Seller. 4.04 Approval Period and Title. If Purchaser chooses to have a Survey, Inspection or Title Commitment of all or any portion of the Property during the Option Period , Purchaser may, after it has delivered its Exercise Notice, deliver to Seller a Notice of its written objections to anything contained therein. Seller shall, in good faith, attempt to satisfy such objections before Closing; but Seller shall not be required to incur any cost to do so, except with respect to any Prohibited Encwnbrance, which must be removed or cured before Closing. For all objections except the Prohibited Encumbrances , if Seller is unable to satisfy such other objections on or before the Closing Date, or if, for any reason, Seller is otherwise unable to convey title in accordance with Section 5.02(b) below, then Purchaser, as its sole and exclusive remedy hereunder may (a) waive such objections and accept the Property in its condition at the time of Closing, with such title to the Property as Seller is able to convey ; (b) elect to exclude from the purchase any portion of the Property that it reasonably deems to be affected by its objections and accept such title to the remainder of the Property as Seller is able to convey; or ( c) withdraw the Exercise Notice in its entirety, and its corresponding exercise of the Option, but preserve its right to exercise the Option at a later date within the Option Period. The Purchaser may enforce by specific performance the Seller's obligation under Section 5.05 to remove any Prohibited Encumbrance. ARTICLE V CLOSING 5.01 Time of Closing. The closing ("Closing") of the sale of the Property by Seller to Purchaser will occur on or before ninety (90) days after the Option Exercise Date, or at such other time or place as the Parties may mutually detennine ("Closing Date"). 5.02 Requirements of Seller. For all of the Property that is the subject of the Exercise Notice, unless excluded by Purchaser pursuant to Section 4.04, Seller shall deliver or cause to be delivered to Purchaser at Closing all of the following : (a) a Bill of Sale and Assignment in substantially the same fom1 as that attached as Exhibit D to this Contract, fully executed and acknowledged by each Seller as its interests may appear, conveying, transferring, and assigning to Purchaser all of Seller's right, title, and interest in and to the Water Facilities, the Wastewater Facilities, the Account Information, and the Docwnents; (b) a Special Warranty Deed executed and acknowledged by each Seller as its interests may appear, conveying to Purchaser good and Brookfield Buy-O ut Option Contract 1199540-1 Page 4 indefeasible fee simple title to the Land and subject to all matters of record; ( c) an Assignment of Easements , executed and acknowledged by each Seller as its interests may appear, conveying, transferring, and assigning to Purchaser all of Seller's right, title, and interest in and to the Easements; (d) evidence reasonably satisfactory to Purchaser that the person(s) executing the Closing documents on behalf of Seller has full right , power, and authority to do so; and (e) any other document reasonably necessary to consummate the transaction . All conveyances made in connection with this Agreement shall be made "AS IS, WHERE IS , WITH ALL FAUL TS " and such language shall appear in the conveyance. Each Party shall sign only those documents conveying property in which such Party has an ownership interest. 5.03 Requirements of Purchaser . Purchaser shall deliver or cause to be delivered to Seller at Closing all of the following : (a) immediately available funds in an amount equal to the Purchase Price; and (b) evidence reasonably satisfactory to Seller the person executing any Closing documents on behalf of Purchaser has full right, power, and authority to do so . 5.04 Termination of Leases. Upon completion of the Closing, Seller shall terminate, as of the Closing Date , any and all leases and operating agreements between Aqua Texas and the District or the Owner covering any portion of the Property purchased. 5.05 Purchaser's Remedies. If Seller fails or refuses to sell the Property at the Closing, then Purchaser, at its sole option , is entitled to (i) enforce specific perfonnance of Seller's obligations under this Contract; or (ii) withdraw its Exercise Notice and its corresponding exercise of the Option, but preserve its right to exercise the Option at a later date within the Option Period; or (iii) exercise any other right or remedy avail.able to Purchaser at law or in equity. ARTICLE VI MISCELLANEOUS 6.01 Form of Easement within the Development. Before granting any Easement to the District or Aqua Texas, Owner shall submit to Purchaser for its review and approval (which approval by Purchaser shall not be unreasonably withheld) Owner's proposed form of Easement for water and wastewater lines and related facilities and appurtenances. The Easement form must provide that the underlying land owner of the servient tenement consents in advance to any future assignment of such Easement by Seller to Purchaser. After Purchaser has approved the form of water and wastewater Easement, Purchaser 's prior written consent will not be required for any new Easement that Seller enters into under the approved forms . Nevertheless , Seller must send to Purchaser copies of each fully executed and recorded Easement within thirty (30) days after such Easement is executed. 6.02 Other Forms. In case of a dispute as to the form of any document required by this Contract, unless otherwise required by the Utility Agreement, the current form prepared by the State Bar of Texas shall be conclusively deemed reasonable. 6.03 Notice. Any notices, approvals, or other communications required to be given by one Party to another under this Contract (a "Notice") shall be given in writing addressed to the Bro okfield Bu y-Out Option Contract 1199540-1 Page 5 Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (b) when received if the Notice is deposited in the United States Mail, certified or registered mail , return receipt requested , postage prepaid; (c) when the Notice is delivered by Federal Express , UPS , or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or ( d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Contract 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 6.03 . To the City: City of Fort Worth , Texas Attn: City Secretary 1000 Throckmorton Street Fort Worth , Texas 76102 FAX: (817)392-6196 City of Fort Worth , Texas Attn: City Manager 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817)392-6134 City of Fort Worth , Texas Attn: Water Director 1000 Throckmorton Street Fort Worth, Texas 76102 FAX : (817) 392-2398 To Aqua 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 Brookfi e ld Buy-O ut Option C ontract 1199540-1 Page 6 To the District: To Owner: FAX: (610) 520-9127 South Denton County WCID No. 1 c/o: Crawford & Jordan, LLP Attn: Christopher Jordan 19 Briar Hollow Lane , Suite 245 Houston , Texas 77027 FAX: (713) 621-3909 Brookfield Acquisitions, L.P. Attn: Ross Calhoun 1221 I.H. 35E, Suite 200 Carrollton, Texas 75006 FAX: (469) 892-7202 6.04 City Consent and Approval. In any provis ion of this Contract that provides for the consent or approval of the City staff or City Council , such consent or approval may be withheld or conditioned by the staff or City Council at its discretion, provided that such action is not arbitrary or unreasonable . 6.05 Binding Effect and Assignment. This Contract, and the Option granted herein , shall inure to the benefit of and bind the Parties hereto and their respective heirs , representatives, successors and assigns. Assignment of this Contract is permitted only under the same terms , and to the same extent as assignment of the Utility Agreement. Further, this Contract must be assigned at the same time and to the same entity as the Utility Agreement. 6.06 Amendment. This Contract may be amended only with the written consent of all Parties and with approval of the governing bodies of the City and the District. 6.07 Severability. The provisions of this Contract are severable and , in the event any word, phrase , clause , sentence , paragraph, section, or other provision of this Contract, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid , illegal, or unenforceable for any reason, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Contract, then such provision shall be deemed severed from this Contract with respect to such person , entity or circumstance, without invalidating the remainder of this Contract or the application of such provision to other persons, entities or circumstances, and a new provision shall be d ee med 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 . Bro okfi eld Bu y-Out O pti on Co ntra ct 11 99540-1 Page 7 6.08 Interpretation. The Parties acknowledge that each party and , if it so chooses, its counsel have reviewed and revised this Contract and that the nonnal 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 Contract or any amendments or exhibits hereto. As used in this Contract, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall 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 . 6.09 Survival. Any portion of this Contract not otherwise consummated at the Closing will survive the Closing of this transaction as a continuing agreement by and between the Parties. 6.10 Counterpart Originals. This Contract may be executed in multiple counterparts, each of which shall be deemed to be an original. 6 .11 Incorporation of Exhibits by Reference. All exhibits attached to this Contract are incorporated into this Contract by reference for the purposes set forth herein, as follows: Exhibit A Exhibit B Exhibit C Exhibit D Map showing the Brookfield Development Legal description of the Brookfield Development Memorandum of Buy-Out Option Contract Bill of Sale and Assignment 6.12 Effective Date. The Effective Date of this Contract is January 25, 2011. ATTEST: Marty Hendrix City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney Bro okfi eld Buy-Ou t Option Contract 1199540-1 CITY OF FORT WORTH By:--------------- (print name) Title: ------------- Date : ------------- Page 8 ATTEST: /~f-zv~ Corporate Secretary Brookfield Buy-Out Option Contract 1199540-1 AQUA UTILITIES, INC. dba AQU TEXAS, INC. all: jJlll_, Robe L. Laughman , Preside Date: January 13 , 2011 BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership By: MMM Ventures , LLC, a Texas limited liability company Its: General Partner By: 2M Ventures , LLC, a Delaware limited liability company Its: Manager By:~LLLd Mehrdad Moayedi Title: Governing Person Date: -~~~11<+--(~, de)~_(_/ _ SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO.~ '/ I By .· .. ~ /)AIY ~ 'jj'~ (print nae) Title: Vice._ h e~,dtfr t Date: l"une.. 21 .'2.otl Page 9 / .. J / ? Exhibit A to _J ,' Buy-Out Option Contract I \ Exhibit A Map Showing the Brookfield Development ;---\ L -j .-----. I ·n ) Page I 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 of land 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 Number 2005-8893 , Deed Records, Denton County, Texas ; THEN CE North 00 degrees 19 minutes 46 seconds East, a distance of 2 ,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 North 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 of 2 ,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 of 2 ,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. Ex hibit B to Buy-Out Opti on Contract Page I STATE OF TEXAS COUNTY OF DENTON Exhibit C Memorandum of Buy-Out Option Contract § § § KNOW ALL BY THESE PRESENTS: This Memorandum of Buy-Out Option Contract ("Memorandum") is effective as of ______ , 2009, by and among the City of Fort Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager ("Purchaser"); Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"); Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc. ("Aqua Texas"); and the South Denton County Water Control and Improvement District No. 1 (the "District") (collectively, "Seller"). A. Under that certain Buy-Out Option Contract for Brookfield Development dated as of , 2009 ("Contract"), Seller has granted Purchaser the option ("Option") to purchase certain land, improvements, easements, account records, plans , and other associated property ("Property") related to the provision of water and wastewater utility service to, and located within, that certain real property development known as "Brookfield" consisting of 231.579 acres of land in Denton County, Texas, as more particularly described on EXHIBIT "A" attached hereto ("Development"). The period during which Purchaser may exercise the Option begins at several possible points in time and ends thirty (30) years after the effective date of the Contract ("Option Period"). Purchaser's exercise of the Option is governed by the terms and conditions of the Contract. B. Seller and Purchaser are executing, acknowledging, and recording this Memorandum to provide public notice of the existence of the Contract and of the Option that exists in Purchaser's favor to purchase the Property in the Development under the terms and conditions of the Contract. C. Seller and Purchaser do not intend by this Memorandum -and nothing in this Memorandum may be deemed -to alter, amend or otherwise affect the terms or conditions of the Contract. Exhibit C to Buy-Out Option Contract Page I EFFECTIVE as of the date set forth above. ATTEST: Marty Hendrix City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney ATTEST: Corporate Secretary Ex hibit C to Buy-Out Option Contract CITY OF FORT ~/ORTH By:--------------- (print name) Title: ----------- Date: ----------- AQUA UTILITIES, INC. dba AQUA TEXAS, INC. By: ___________ _ (print name) Title: ------------- Date: -------------- BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership By:MMM Ventures , LLC, a Texas limited liability company Its: General Partner By: 2M Ventures, LLC, Date: a Delaware limited liability company Its: Manager By: Mehrdad Moayedi Title: Governing Person -----·-------- Page 2 Ex hibit C to Buy-Out Optio n Contract SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT N0.1 By:-------------- (print name) Title : _____________ _ Date: -------------- P age 3 ST A TE OF TEXAS COUNTY OFT ARRANT § § § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared __________ as of THE C ITY O F FORT WORTH, a municipal corporation, on behalf of said City, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy-Out Option Contract, and acknowledged to m e that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said City. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the __ day of --------' 20 __ . ST A TE OF TEXAS COUNTY OF ----- § § § Notary Public, State of Texas BEFORE M E, THE UNDERSIGNED AUTHORITY , o n this day personally appeared _______ as of AQUA UTILITIES , INC. d/b/a AQUA TEXAS , INC., a corporation, on behalf of said corporation, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy-Out Option Contract, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the __ day of -----------' 20 __ . Notary Public, State of Texas Ex hibit C to Bu y-Out Option Co ntract Page 4 STATE OF TEXAS COUNTY OF ----- § § § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared __________ as of SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, on beha lf of said District, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy- Out Option Contract, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated , and as the act and deed of said District. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the __ day of _________ , 20 __ . STATE OF -------- COUNTY OF _____ _ § § § Notary Public, State of Texas BEFORE ME , THE UNDERSIGNED AUTHORITY, on this day personally appeared Mehrdad Moayedi, Governing Person of 2M Ventures , LLC, a Delaware limited liability company, Manager of MMM Ventures, LLC, a Texas limited liability company, in its capacity as General Partner of Brookfield Acquisitions , L.P., a Texas limited partnership, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy-Out Option Contract, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the __ day of _________ ,20 __ Notary Public, State of ---- Exhibit C to Buy-Out Option Contract Page 5 Exhibit A to Memorandum of Buy-Out Option Contract Legal Description of the 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 of land 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 comer 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 Number 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 North 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 of 2,150.81 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 C to Buy-Out Option Contract Page 6 Exhibit D BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT ("Assignment"), effective for all purposes as of _, __ (the "Effective Date"), is from Brookfield Acquisitions , L.P., a Texas limited partnership; Aqua Utilities, Inc ., a Texas corporation doing business as Aqua Texas , Inc.; and South Denton County Water Control and Impro vement District No. 1, or any district resulting from the conversion or division of such district (individually and collectively, "Assignor") and is to the City of Fort Worth, Texas, a home-rul e municipal corporation situated in Tarrant, Denton , and Wise Counties , Texas , ("Assignee"). Concurrently with this Assignment, the Assignor, as Seller, and Assignee , as Purchaser are executing a Special Warranty Deed transferring any tract of land owned by Assignor and in use for the operation of the Water or Wastewater Facilities (the "Land") described in Exhibit A to Assignee . It is the desire of Assignor to hereby ASSIGN, TRANSFER and CONVEY to Assignee all fixtures , fittings, appliances , apparatus , equipment, machinery and other items of personal property, affixed or attached to , or placed or situated upon , the Land and any and all other facilities, rights , contracts , documents, or appurtenances as more fully described below. FOR AND IN CONS ID ERA TION of the sum of Ten Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed , Assignor hereby GRANTS , BARGAINS, SELLS , TRANSFERS, ASSIGNS and CONVEYS unto Assignee all of the following assets (collectively , the "Assets," including, without limitation , the specific items listed on Exhibit B): a. all water distribution facilities , including mete rs, above ground tanks, pump stations and other equipment, fixtures, improvements or appurtenances used to provide water service to the 231.579-acre mixed use , master-planned community known as Brookfield (the "Development"), and located inside the Development (collectively , "Water Facilities"); b. all wastewater collection facilities, including meters, lift stations , and other equipment, fixtures , improvements or appurtenances used to provide wastewater service to the Development, and located inside the Development ( collectively, "Wastewater Facilities"); c. account records and information for existing customers served by the Wastewater Facilities and Water Facilities (the "Account Information"); d. surveys , plans and specifications in Seller's possession or control that relate to the Water Facilities or Wastewater Facilities (the "Documents "); and Exhibit D to Bu y-Out Option C ontract Pag e I e. any and all other incidental rights, leases , contractual rights , or otherwise related to the Water Facilities, Wastewater Facilities , Account Information, or Documents (the "Contractual Rights"). ON AND SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS: 1. Warranty of Title. Assignor severally agrees to warrant and defend title to the Assets unto Assignee , its successors and assigns forever, as against the claims and demands of all persons claiming or to claim the same or any part thereo f. 2. Counterpart Execution. Assignor and Assignee may execute this Assignment in multiple counterparts , each of which shall constitute an or iginal hereof, and the execution and deli very of an y one of such counterparts by any signatory party shall have the same force and effect and shall be binding upon such signatory to the same extent as if the same counterpart were executed by all of the signatory parties. TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its successors and assigns, forever. Ex hibit D lo Bu y-Out Option Co ntract [THIS SPACE INTENTIONALLY LEFT BLANK/ SIGNATURES ON FOLLOWING PAGE] Page 2 ATTEST: Printed Name: -------- City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney Exhibi t D to Bu y -O ut Option Cont ract ASSIGNEE: THE CITY OF FORT WORTH, a Texas home-rule mw1icipal corporation of Tarrant, Denton, and Wise Counties By: _________________ _ Name: _______________ _ Title: ________________ _ Date: ________________ _ Page 4 EXHIBIT A The Land [insert legal description and map] Ex hibit D to Buy-Out Option Contract Page 5 EXHIBITB The Assets Exhibit D to Buy-Out Option Contract Pa ge 6 Exhibit D Wholesale Treated Water Service Agreement Exhibit D to Brookfield Water and Wastewater Uti lity Service Agreement Page I WHOLESALE TREATED WATER SERVICE AGREEMENT BETWEEN THE CITY OF FORT WORTH, TEXAS, AND AQUA UTILITIES , TNC. STATE OF TEXAS § COUNTY OF TARRANT § This Contract and Agreement ("Agreement") is made and entered into this _ day of ____ , 20_, by and between the City of Fort Worth, a municipal corporation located in Tarrant County, Texas, acting by and through , its duly authorized Assistant City Manager, hereinafter called "Fort Worth," and Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc., hereinafter called "Customer," and hereinafter collectively referred to as the "Parties". WHEREAS, Fort Worth has provided at its own expense, and now owns, operates and maintains facilities for processing and distributing a large supply of swiace water, and at the present time, is qualified to furnish and deliver treated water, both within and without the corporate boundaries of Fort Worth; WHEREAS, Customer has provided at its own expense and now owns , operates, and maintains a distribution system, and furnishes water service to the customers within the boundaries of Certificate of Convenience and Necessity ("CCN") No. 11157; WHEREAS, Customer, Fort Worth, and Brookfield Acquisitions, L.P., a Texas limited partnership, have entered into that cetiain Brookfield Water and Wastewater Utility Service Agreement (City Secretary Contract No. __J with respect to water service to the approximately 231.579-acre Brookfield development in the City's extrateITitorial jurisdiction (the "Development") pursuant to which Customer will enter into this Agreement with the City to purchase water to serve the Development; WHEREAS, it is deemed to be in the best interest of both F01i Worth and Customer that the Parties enter into a mutually satisfactory agreement by means of which Customer may obtain from Fort Wo1ih a supply of treated water at a reasonable rate to serve the Development; WHEREAS, by the execution of this Agreement, neither Fort Worth nor Customer will sutTender any of its rights to the ownership and operation of its present water production and distribution facilities; WHEREAS, Customer desires to continue to contract for the purchase of treated water and Foti Wo1ih desires to continue to sell treated water to Customer; WHEREAS, Customer and Fort Worth desire to provide for reasonable wholesale contract rates for the purchase of tTeated water sufficient to assure confidence in the financial soundness of the Fo1i Worth utility, adequate to maintain and support the utility's credit and sufficient to enable Fo1i Wo1ih to raise the money necessary for the proper discharge of its public duties in the provision of water service ; and Agreement for Water Service For Special Water Utility OistTicts 1198845-1 WHEREAS, Chapter 552 of the Texas Local Government Code authorizes Fort Worth and Customer to enter into this Agreement. NOW, THEREFORE, KNOW ALL BY THESE PRESENTS that for and in consideration of the mutual covenants, promises and agreements contained herein, Fort Worth and Customer do hereby covenant and agree as follows: Table of Contents AR.'l'ICLE 1. ·oefinitions ........................................................................................................... 6 1.1 Annual Consurnption .................................................................................................... 6 1.2 Average Daily Use ........................................................................................................ 6 1.3 Calendar Day ................................................................................................................ 6 1.4 Capital In1proven1ents ................................................................................................... 6 1.5 Chapter 395 ................................................................................................................... 6 1.6 Custorner's Service Area .............................................................................................. 6 1. 7 Custon1er Systen1 .......................................................................................................... 6 1.8 Delivery Facility ........................................................................................................... 6 1. 9 Director ......................................................................................................................... 6 1.10 E n1ergency ..................................................................................................................... 6 1.11 Eq uivalent Meters or EM .............................................................................................. 6 1.12 Facility Expansion ........................................................................................................ 7 1.13 Fiscal Year .................................................................................................................... 7 1.14 FortWorth ..................................................................................................................... 7 1.15 Fort Worth Systern ........................................................................................................ 7 1.16 ln1pact Fee ..................................................................................................................... 7 1.17 Maxin1un1 Day Den1and ................................................................................................ 7 1.18 Maximum Hour Demand .............................................................................................. 7 1.19 MGandMGD ............................................................................................................... 7 1.20 Parties ............................................................................................................................ 7 1.21 Rate of Use Charge ....................................................................................................... 7 1.22 R.aw Water Charge ........................................................................................................ 7 1.23 Return Water ................................................................................................................. 7 1.24 Service Charge .............................................................................................................. 7 1.25 Street Rental .................................................................................................................. 8 1.26 Stand-by Charge ............................................................................................................ 8 1.27 Systern Cost .................................................................................................................. 8 1.28 TCEQ ............................................................................................................................ 8 1.29 Treatment, Pumping and Transmission Charge ............................................................ 8 1.30 Yolun1e Charge ............................................................................................................. 8 ARTICLE 2. Delivery of Water ............................................................................................... 8 2.1 Delivery ......................................................................................................................... 8 2.2 Acceptance and Payment .............................................................................................. 8 Agreement for Water Service For Special Water Utility Districts I 198845-1 2 2.3 Operations ..................................................................................................................... 8 2.4 Raw Water Contract. ..................................................................................................... 9 2.5 Water Use R estrictions and Conservation .................................................................... 9 2.6 Requirem ents of 30 Tex. Admin. Code Chapter 288 .................................................... 9 2. 7 Consultation with WCAC ........................................................................................... 10 ARTICLE 3. Location and Maintenance of Measurin g Devices .............................................. 10 3.1 Metered Water ............................................................................................................ 10 3.2 Point(s) of Delivery ..................................................................................................... 10 3 .3 Cost of New or Additional Connections ..................................................................... 10 3.4 Check Me ter ................................................................................................................ 11 ARTICLE 4. Meters ................................................................................................................ 11 4.1 Testing ......................................................................................................................... 11 4.2 Corrections .................................................................................................................. 11 4 .3 Req ueste d Testing ....................................................................................................... 11 4.4 Out of Service Meter. .................................................................................................. 12 ART ICL E 5. Meter Reading and Billing ................................................................................. 12 5.1 Reading Meters ........................................................................................................... 12 5 .2 Rec o rds ....................................................................................................................... 12 5.3 Multiple Meters ........................................................................................................... 12 5.4 October Billing ............................................................................................................ 12 5.5 Billing a nd Payn1ent. ................................................................................................... 12 5.6 Billing Disputes .......................................................................................................... 12 ARTICLE 6. R.ates .................................................................................................................. 13 6 .1 Method of Rate D etermination ................................................................................... 13 6 .2 I:Z at es to be Used .......................................................................................................... 14 A RTICLE 7. Payment for Water ............................................................................................ 15 7. 1 Annual Pay111ent .......................................................................................................... 15 7.2 Withdrawal Rate .......................................................................................................... 16 7.3 Monthly Pay111 ents ...................................................................................................... 16 7.4 Total Annual Pay111ents ............................................................................................... 16 7.5 Rate of Use Charge ...................................................................................................... 17 7.6 Applicability of Stand-by Charge ................................................................................. 17 ARTICLE 8. Effective Date ................................................................................................... 17 ARTICLE 9. Ter111 .................................................................................................................. 18 AR Tl CLE 1 0. Ri ght s-of-Way ................................................................................................... I 8 ARTICLE 11. TCEQ Public Water Supply Approval ............................................................... 18 ARTICLE 12. Resale of Water. ................................................................................................. 18 12.1 Outside Service Area .................................................................................................. 18 12 .2 Exceptions ................................................................................................................... 19 ARTICLE 13. Sanitary Sewer Facilities .................................................................................... 19 ARTICL E 14. Additional Wholesale Customers ....................................................................... 19 ARTICLE 15. Wholesale Customer Advisory Conunittee ........................................................ 19 ARTICLE 16 . Ii11pact Fees ........................................................................................................ 19 16 .1 Calculation and Payment of Impact Fees .................................................................... 19 16 .2 Multiple Surface Water Providers .............................................................................. 20 Agreement for Water Service For Specia l Water Utility Districts 1198845-1 3 16 .3 Use o f llnpact Fees ...................................................................................................... 20 16.4 ltnpact Fee Report ....................................................................................................... 20 16.5 No Waiver ................................................................................................................... 2 0 16.6 CTFC ............................................................................................................................ 20 16.7 Capital Impro v ements Plan ......................................................................................... 21 16 .8 Di s semination of Documents ...................................................................................... 21 16.9 Audited F inancial Statement ....................................................................................... 21 16.10 Current llnpact Fees .................................................................................................... 21 16.11 Chang es to Chapter 395 .............................................................................................. 21 AR TT CLE 1 7 . Breach , Tem1ination and Other Remedies .......................................................... 21 17 .1 Termination by Mutual Consent ................................................................................. 21 17 .2 Termination for Material Breach ................................................................................ 22 1 7 .3 Tern1ination for Repeated Breach ............................................................................... 22 17.4 M aterial Breach ........................................................................................................... 22 17 .5 Notice and Cure .......................................................................................................... 22 17.6 Notice and Cure for Nonpayment oflmpact Fees ...................................................... 23 17 . 7 Notice and Cure for Breach o f Water Use Restrictions and Conservation ................. 2 3 17 .8 Failure to Provide Notice of Withdrawal Rate under § 7.2 ........................................ 23 17 .9 Effect of Termination .................................................................................................. 23 17.10 No Waiver by Fort Worth ........................................................................................... 23 17.11 No Waiver by Customer ............................................................................................. 24 ARTICLE 18 . Ownership and Liability ..................................................................................... 24 18 .1 No Joint Venture ......................................................................................................... 24 18.2 Liabilitie s .................................................................................................................... 24 18.3 Contractors .................................................................................................................. 24 ARTICLE 19. Force Majeure .................................................................................................... 24 19. l Notice and Suspension ................................................................................................ 24 19.2 Definition .................................................................................................................... 25 ARTICL E 20. Notices ............................................................................................................... 25 20.1 R.e quired Notice .......................................................................................................... 25 20.2 Delivery and Receipt. .................................................................................................. 25 20 .3 Change of Address Notices ......................................................................................... 25 ARTICL E 21. Insp ection and Audit.. ........................................................................................ 26 ARTICL E 22 . Misce llaneous .................................................................................................... 26 22 .1 Favored Nations .......................................................................................................... 26 22.2 Suspension of Rate of Use Charges .............................................................................. 26 22.3 Water to Adjacent Areas ............................................................................................. 26 22.4 Subj ect to Laws and Permits ....................................................................................... 26 22 .5 Entry on Customer 's Premises .................................................................................... 27 22 .6 Alternative Dispute Resolution ................................................................................... 27 22 . 7 lnfonnation ................................................................................................................. 27 22.8 A ss ign1n e nt ................................................................................................................. 28 2 2 .9 N o Waiver ................................................................................................................... 28 22.10 VENUE ......................................................................................................................... 28 22.11 Construction ................................................................................................................ 28 Agree ment fo r Water Servic e For Speci a l Water Utili ty Di s tricts 11 98845 -1 4 22.12 22.13 22.14 22.15 22.16 Severability ................................................................................................................. 28 lJ se of Return Water ................................................................................................... 28 System Regulatory Actions ......................................................................................... 29 Additional Contract Terms ......................................................................................... 29 Exhibits ....................................................................................................................... 29 Agreement for Water Service For Special Water Uti li ty Districts 1198845-1 5 ARTICLE 1. Definitions The following definitions, when capitalized, apply throughout this Agreement: 1.1 Annual Consumption. The total quantity of water purchased under the terms of this Agreement by Customer during the Fiscal Year as determined by the difference in the annual October meter readings . 1.2 Average Daily Use. The Annual Consumption divided by the number of calendar days in the Fiscal Year year. 1.3 Calendar Day. The period from midnight of one day to 11 :59 PM of the next day. 1.4 Capital Impro vements. Any of the following facilities which provide utility services and benefits common to all customers (both retail and wholesale) and that have a life expectancy of three (3) or more years, whether such improvements are located within the jurisdictional limits (including the extra-t erritorial jurisdiction) of Fort Worth or Customer, and consisting of: water treatment facilities; metering facilities; control systems and appurtenances; storage facilities; pumping faci liti es; and all mains that are sixteen inches (16") and greater in diameter. Capital Improvements include the initial construction or the expansion of such facilities, as necessary to serve new development. 1.5 Chapter 395. Chapter 395 of the Texas Local Government Code, as it may be amended or re-codified from time to time. 1.6 Customer 's Service Area. The area inside the Customer's Certificate of Convenience and Necessity within the Brookfield Development as shown on Exhibit A, except that the Customer may, with written notice to the Director, exclude a contiguous area that receives its entire water service from provider(s) other than Fort Wo1ih. 1.7 Customer System. All necessary Customer mains and distribution facilities on the Customer's side of the meter from and beyond the point of delivery of treated water by Fo1i Wo1ih. 1.8 Delivery Faci lit y. Any facility necessary for the transmission of water from the Fort Wo1ih System that is on the Customer's side of the point of delivery that is constructed specifically to allow Fort Worth to serve Customer. I. 9 Director. The Director of Fo1i Worth Water Depaiiment or his designee. 1.10 Emergency. A situation, event or condition created by unforeseeable mechanical failure, unprecedented high rate of treated water usage (such as might result from a major fire or a major water main break) or circumstances beyond the Pa1iy's reasonable control. 1.11 Equivalent Meters or EM. A means of relating a large-use customer with a base (residential) use customer. Fo1i Worth Water Department uses 5/8 x 3/i inch meter capacity as an Agreement for Water Service For Special Water Utility Di stricts 1198845-1 6 EM. The ratio of larger meter's capacity to the 5/8 x 3i4 inch meter capacity is the number of EMs for each meter size. 1.12 Facility Expansion. The expansion of the capacity of an existing facility that serves the same function as an otherwise necessary new capital improvement, in order that the existing facility may serve new development. The term does not include the repair, maintenance, modernization, or an expansion of an existing facility to better serve existing development. 1.13 Fiscal Year. The fiscal year of Fort Worth, which is from October 1st through September 30th. 1.14 Fort Worth. The City of Fo11 Worth, acting by and through its duly authorized Assistant City Manager, who may delegate to the Director. 1.15 Fo1t W 011h System. The Fort Worth water treatment and distribution system. 1.16 Impact Fee. A capital contribution funding or recouping the cost of Capital Improvements necessitated by and attributable to new development, subject to and as provided in Article 16 of this Agreement. 1.17 Maximum Day Demand. The maximum quantity of water used by Customer during one calendar day of the Fiscal Year. 1.18 Maximum Hour Demand. The quantity of water used by Customer during the one hour of the Fiscal Year that more water passed through the meter or meters serving the Customer than during any other hour of the Fiscal Year, multiplied by 24 hours and expressed as MGD . 1.19 MG and MGD. MG is million gallons; MGD is million gallons per day. 1.20 Parties. Fort Worth and the Customer, or each individually. 1.21 Rate of Use Charge. The charge for Maximum Day Demand in excess of Average Daily Use and for Maximum Hour Demand in excess of Maximum Day Demand, as provided in§ 7.5 and Exhibit C. 1.22 Raw Water Charge. The rate for 1,000 gallons charged by the Tarrant Regional Water District to Fort Worth for raw water to be sold to the Customer plus four percent (4%), representing Fort Worth system losses of four percent (4%). 1.23 Return Water. All water that is returned to Fort Worth via discharge into Fort Worth's wastewater system for treatment by Fort Worth's Village Creek Wastewater Treatment Plant or another wastewater treatment plant that is owned or operated (directly or through contract) by Fort Worth. 1.24 Service Charge. A fixed monthly charge per wholesale meter, as set forth in the annual cost-of-service rate study, designed to include a po11ion of Fort Wo11h Water Department's cost for wholesale customer billing and accounting. Agreement for Water Service For Special Water Utility Districts 11 98 84 5-1 7 1.25 Street Rental. The Street Rental charged to the wholesale customers of the Fort Wo1ih System is intended to be compensation for use of public rights-of-way. The Street Rental is established at five percent (5%)of the revenue requirements, excluding Payment in Lieu of Taxes (PILOT). The Street Rental can not be decreased without the consent of Fmi Worth in its sole discretion and, in the event of an increase, can only be increased in one percent (1 %) increments once every five (5) years starting on the anniversary date of this Agreement in 2016, and shall never exceed the rate being collected from the natural gas franchised utility serving the City of Fo1i Worth or the rate collected from the retail water customers of Fort Worth, whichever is less. 1.26 Stand-by Charge. The fee set f01ih in§ 7.1.3 and Exhibit B. The Stand-by charge is intended to allow a wholesale customer to rely on the Fort Worth System for stand-by delivery of water for the Customer's Emergency use only, as provided in§ 7.6. 1.2 7 System Cost. System Cost, as provided in§ 6.1.2. 1.28 TCEO. The Texas Commission on Environmental Quality or its successor agency. 1.29 Treatment, Pumping and Transmission Charge. The rate, per 1,000 gallons used , regardless of rate of use, as determined by the annual cost-of-service rate study, and which shall include the maintenance and operation costs, and the capital facilities cost on the part of the production and transmission system related to annual use. 1.30 Volume Charge. The combined total of the Treatment, Pumping and Transmission Charge plus the Raw Water Charge in effect for the current Fiscal Year. ARTICLE 2. Delivery of Water 2.1 Delivery . Fort Wo1ih agrees, subject to the amount ofraw and treated water available to Fort Worth, to furnish and sell to Customer treated water of potable quality meeting all a pplicable governmental standards, delivered under the normal operating pressure prevailing in the Fort Worth System at the Customer point or points of delivery mutually agreed upon , without guarantee of a specific minimum pressure. Mutually agreed point(s) of delivery on the Effective Date are shown on Exhibit A. 2.2 Acceptance and Payment. Customer agrees to accept delivery of and to pay for the water in accordance with the terms and conditions of this Agreement. Customer understands and acknowledges that Customer is responsible for maintaining water pressure in the Customer's System, and that maintaining a certain water delivery pressure requires use of storage or pumps on Customer's System. 2.3 Operations. Fori Worth is entitled at any and all times to install, repair, maintain, and replace any equipment or device s in the Fort Wo1ih System. In an Emergency, Fort Worih may take necessary action (including reduction or cessation of water service to Customer) as necessary or appropriate to allow Fort Worth at all times to maintain a minimum pressure as required by law at all retail service locations directly served by Fort Worth, and Fort Worth is Agreement fo r Water Service For Special Water Utility Di stricts 1198845-1 8 excused from the requirements of§ 2.1 to the extent caused by an Emergency or by Force Majeure or Fort Worth's reasonable efforts to respond to such conditions. In the event of such service intenuptions, Fort Worth shall make every reasonable effort to expedite the restoration of service in a timely manner, and shall not unreasonably interrupt, withhold or delay service to Customer. 2.4 Raw Water Contract. In accordance with the tem1s of Fo11 Worth City Secretary Contract No. 12720 between F011 Worth, the City of Arlington, the City of Mansfield, Trinity River Authority , and the TaITant Regional Water District, this Agreement shall be deemed subordinate in all respects to the water requirements of the above contracting Parties as specified in Section 3 of that contract. 2.5 Water Use Restrictions and Conservation. 2.6 2.5 .1 If Fort Wo11h in any way restricts, rations or conserves the use of water throughout its CCN during an Emergency declared by the Director, then within 24 hours of being notified of the action ofFor1 Worth , Customer shall institute and apply the same restrictions and /or measures as to the use of the water by the customers of Customer. 2.5.2 If Fort Worth in any way restricts, rations or conserves the use of water throughout its CCN as authorized by the then Fort Wo11h City Counci l and adopted by ordinance, then Customer agrees to institute , apply and enforce the same rationing, conservation measures , or restrictions to the use of water by the customers of Customer for so long as any part of the total water supply of the Customer is being furnished by Fort Worth . Customer shall submit to Fo11 Worth , within sixty (60) days of the action taken by the City Council of Fort Worth , a copy of the Customer's city council and/or governing board resolution and /or ordinance adopting the same measures as Fort Worth . 2.5.3 If Customer fails to comply with its obligations under this§ 2.5 then, in addition to the remedies available under Article 17, Fort Worth may install or adjust any rate of flow controllers necessary to physically achieve compliance, regardless of whether the rate of flow controller to be installed or adjusted is on Fo11 Wo11h 's or Customer's side of the meter. Requirements of 30 Tex. Admin. Code Chapter 288 ("Ch. 288"). 2.6 .1 A s required by 30 Tex . Admin. Code§ 288 .5(1)(0), this Agreement requires Customer to develop and implement a water conservation plan or water conservation measures using the applicable elements of Tex . Adm in Code Ch . 288. 2.6.2 As required by 30 Tex . Admin . Code§ 288 .22(a)(8), this Agreement requires that, in case of a shortage of water resulting from drought, the water to be distributed shall be divided in accordance with Texas Water Code § 11.039. Agreement for Water Service For Speci a l Water Utility Districts 11 988 45-1 9 2.6.3 To the extent that Customer fails to comply with § 2.5 above or meet any * additional requirements under 30 Tex. Admin. Code Chapter 288, Customer agrees to implement and comply with Fort Worth's water conservation plans and measures and drought contingency plan until the Customer's own plans and measures are brought into compliance. 2. 7 Consultation with WCAC. Except when the Director determines that emergency conditions require short-term restriction, conservation or rationing to meet all necessary water demands, Fort Worth agrees to consult with the Wholesale Customer Advisory Committee, in the development of any restriction, conservation, rationing, or drought contingency plans that the Director determines may be necessary to address operational constraints, whether or not required by any state or federal regulatory agency, or deemed advisable by the Wholesale Customer Advisory Committee to manage long term System Costs, except where emergency conditions may dictate short-term restriction, conservation or rationing requirements as may be determined by the Director to meet all necessary water demands. ARTICLE 3. Location and Maintenance of Measuring Devices 3.1 Metered Water. All water furnished under this Agreement by Fort Worth shall be measured by one or more suitable meters equipped with continuous flow, chart recording devices, and telemetering equipment connected with the Fort Worth control center. All meters, recording devices, telemetering equipment and appurtenances (including any flow control equipment required by§ 7.2) shall be approved and installed by Fort Worth. Customer shall pay for the meter vault and all metering equipment, including telemetering equipment to the Fort Worth control center, and appurtenances, plus the installation cost thereof. Fort Worth shall pay all costs associated with the operation and maintenance of said equipment and shall pay for the replacement of said equipment as necessary. Such costs, as well as charges for the telelink line and microwave transmitter and the power to operate same, shall be a System Cost. 3.2 Point(s) of Delivery. The point or points of delivery of treated water by Fort Worth shall be the meter vault connection to Customer's side of the meter, and all necessary mains and distribution facilities from and beyond that point shall be the responsibility of Customer. The location of each meter shall be mutually agreed upon in writing by and between the Parties and the meter or meters shall not be moved or relocated except by mutual consent in writing by the Parties. 3.3 Cost of New or Additional Connections. Customer shall pay the cost of each new, enlarged or additional Customer connection to the Fort Worth System, including the cost of the wholesale mete r and the Customer's proportionate share of any improvements required for that connection or related service to be provided at the delivery point. The Customer's cost shall be calculated in the same manner as the "developer 's cost" for special facilities under Fort Worth's then-existing Water and Wastewater Installation Policy , as determined by the Directo r. The Customer will pay that amount to Fort Worth before making the new or additional connection to the Fort Worth System , and the amount shall not be a System Cost. This Section 3.3 is subject to Agreement for Water Service For Special Water Utility Districts 119 8845 -1 10 the terms and conditions of Exhibit F hereto and Exhibit F shall control with respect to any conflict between the terms and conditions of this section and Exhibit F . 3.4 Check Meter. Either Party, at its own expense, may install a check meter to check or measure the volume of water passing the master meter, provided that, if such check meter is installed, the same rules and regulations relative to its operation , maintenance and reading shall apply as to the master meter being tested. ARTICLE 4. Meters 4.1 Testing. Fort W01ih shall routinely test for accw-acy , and service and calibrate if necessary, the master meter at each point of delivery no less than once during each twelve ( 12) month period. Copies of the results of such calibration and all related information shall be provided to Customer. Customer shall have access to the metering facilities at all reasonable times; provided, however, that any reading, calibration or adjustment to such metering equipment shall be done by employees or agents of Fort Worth, or other mutually approved third party calibration agent, in the presence of representatives of Customer and Fort Worth, if so requested by Customer. Notification of any proposed test shall be provided to the Customer at least seventy-two (72) hours prior to such test being conducted and Customer may observe such test , if so desired . 4.2 Corrections . Upon any calibration of a Wholesale Customer's meter, 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-hund red-five percent ( 105%) expressed as a percentage of the full scale of the meter, the registration of the flow as determined by such defective meter shall be corrected for a period extending back to the time such inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable, then for a period extending back one-half ( 1 /2) of the time elapsed since the date of the last calibration, but in no event further back than a period of six (6) months. All meters will be properly sealed, and the seals shall not be broken unless representatives of both Parties have been notified and given a reasonable opportunity to be present. If the meter, after testing , is found to be in error outside the parameters established in this Agreement, the amounts due to or due from Fort Worth shall be determined based upon the prevailing wholesale rates which were in effect at the time the meter was determined to be malfunctioning. The amount due to or due from Fort Worth shall be payable within thirty (30) days from the date of receipt of the invoice for said amounts by Fort Worth or by Customer. In addition, the Wholesale Customer's volume and rate of use records shall be corrected, as determined by the meter testing. 4 .3 Requested Testing. Customer shall have the right to request Fori Worth to test any mete r(s), but no more frequently than quarterly. Upon any such request, Fort W01ih agrees to perform it s testing and calibration of the meter(s) with notice to Customer, and the Parties shall be entitled to jointly observe any testing, calibration, and adjustments that are made to the meter(s), in the event such modifications are necessary . For such additional testing request , Fort Worth shall give Customer notice forty-eight ( 48) hours in advance of the time when that testing will occur. Customer shall pay the cost of the additional test requested for any meter(s) if the test shows that the meter(s) is accurate (within five percent (5%) registration), but Fo11 Worth Agree ment for Wat er Service 11 For Special Water Utility Di stricts 11 988 45-1 shall pay the costs of the additional test if the results indicate that the meter( s) is not accurate (in excess of five percent (5%) registration). 4.4 Out of Service Meter. If any meter used to determine the flow of treated water to Customer is out of service or out of repair so that the amount of water metered cannot be ascertained or computed from reading the meter, then the water delivered during the period that the meter is out-of-service or out of repair shall be estimated and agreed upon by the Parties 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 that metering station under similar conditions. If the Parties cannot agree on the extrapolated estimate of water volume delivered, then agreement on the flow volume will be determined by§ 22.6 dispute resolution. ARTICLE 5. Meter Reading and Billing 5.1 Reading Meters. Fort Worth will read all meters provided for herein at monthly intervals, and the Parties shall have free access to read these respective meters daily, if e ither Party so desires. Each Party has the duty to give immediate notice to the other of any meter that it finds is not functioning properly. Upon such notice, repairs to such meter shall be made promptly. 5 .2 Records. All readings of meters will be entered into the records maintained by Fort Worth. Customer shall have access to such records during reasonable business hours and shall be furnished with monthly readings for each point of delivery metering facility. 5 .3 Multiple Meters. If Customer has more than one point of connection to the Fort Worth System, the sum of all meter readings and rates of flow shall be used for the purpose of calculating the water Volume Charge and the Rate of Use Charge. 5.4 October Billing. A review of water usage amounts by Customer for the past twelve (12) months shall be made during the presentation of the October bill each year. The October statements shall be prepared so as to reflect any and all Rate of Use Charges for the Fiscal Year just ended which have not been previously billed and paid. A copy of the rate of flow chaiis or other records showing the Maximum Day Demand and the Maximum Hour Demand for the Fiscal Year just ended shall be furnished to Customer with the October billing. 5.5 Billing and Payment. Bills for water service shall be rendered to Customer monthly by Fort Worth, and shall be due and payable by Customer not more than thirty (30) days trom the billing date. The bill s will show current charges, as well as past-due charges , if any. Past-due charges shall be the total amount unpaid from all prior billings as of the current billing date . Payments received by Fort Worth shall first be applied to the past-due charges, if any, and thereafter to the current charges. 5.6 Billing Disputes. If Customer disputes a bill and is unable to resolve the difference informally, Customer shall notify the Director in writing. If the Director and Customer are unable to resolve the disputed bill, agreement on the bill will be detennined by§ 22.6 dispute resolution procedures. Dispute of a bill shall not be grounds for non-payment. If a bill or other payment is not paid as specified in this Agreement, a finance charge of ten percent (10%) per Agreement for Water Service For Special Water Utility Districts 1198845-1 12 annum will be calculated from the date which the payment was required to be made. If a billing adjustment is agreed upon or otherwise established by dispute resolution, then the amount found to be incon-ect will be credited to Customer's account together with an interest charge of ten percent ( 10 %) per annum calculated from the date payment of the disputed bill was received . ARTICLE 6. Rates 6.1 Method of Rate Determination . 6.1.1 Wholesale water rates will be based upon an annual cost-of-service rate study with a rate study conducted every three years by an independent utility rate consultant as provided for in§ 6.1.4. The independent utility rate consultant s hall be selected by the Director from a list of five qualified firms submitted to the Director by the Wholesale Customer Advisory Committee. The cost of any such study shall be a System Cost. All cost-of-service studies shall be conducted utilizing the utility cost basis of detennining revenue requirements applicable to the wholesale customer class. 6.1.2 The System Cost (i.e., the cost-of-service for the wholesale class) shall include allocated reasonable and necessary operation and maintenance expense; depreciation expense; a fair and reasonable return on allocated capital facilities as provided in§ 6.1.3; general and administrative costs; commodity charges including the Raw Water Charge; the cost of treated water; transmission losses; Street Rental ( calculated as provided in § 1.25); and Payment In Lieu of Taxes ("PILOT" calculated as provided in Exhibit D). To determine the allocation and distribution of costs to the wholesale customer class, the independent utility rate consultant shall consider at least the following factors: total volume, rate of flow, metering , and customer related costs such as accounting, billing, and monitoring . Capital related costs will consist of depreciation expense and return on original cost rate base. The "rate base" shall consist of all allocated capital facilities, net of depreciation and 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. The methodology shall be that used in the most recent wholesale water rate study completed and approved by the Fo1i Wo1ih City Council before the Effective Date, which Customer acknowledges having recei ve d prior to executing this Agreement. Records of the original cost and the accumulated depreciation of all capital facilities shall be maintained in the Fort W01ih Fixed Asset Tracking System. These records shall be available for inspection at the Fort Worth Water Department during reasonable business homs upon request by Customer. 6.1.3 Fort Worth shall be allowed to earn and recover in rates a rate-of-return on the rate base as described in § 6.1.2. That rate of return shall be equal to the weighted average imbedded cost of outstanding debt plus one and one-half percent (1-1/2%). The paiiies agree that this rate ofretum is reasonable. Agreement for Water Service For Special Water Utility Districts 119 8845-1 13 6.1.4 For the Fiscal Years beginning October I , 2011, 2014, 2017 , 2020 , 2023 2026 and 2029 , a detailed wholesale water rate study will be performed by an independent utility rate consultant selected by the Dire,ctor in confom1ance with§ 6.1.1. The same methodology used in the immediate previous rate study will be utilized by the rate consultant so selected . In the interim Fiscal Years between detailed rate studies , Fort Worth will adjust wholesale water rates annually, using the same methodology as the last detailed rate study, and will utilize the actual operating data for the twelve (12) month period ending September 30111 of the prior year, adjusted for all known and measurable changes in cost data that may have occurred since the last audited financial statement. Such adjustments should allow for year-end trending and the spreading of non-recurring expenses over an appropriate benefit period. 6.1.5 Changes in the wholesale water rate methodology will be allowed if recommended by a majority vote of the Wholesale Customer Advisory Committee and approved by the Foti Worth City Council. For purposes of this § 6.1.5, a majority is defined as any combination of Fort Worth wholesale customers that took more than fifty percent ( 50%) of the wholesale water delivered by Fort Worth during the immediate past Fiscal Year. 6.2 Rates to be Used. 6.2.1 The rates and charges to be effective upon approval of this Agreement shall be those calculated by the most recent cost of service study and adopted by the Fo1i Worth City Council to take effect during the current Fiscal Year. 6.2 .2 The Raw Water Charge shall be increased or decreased when the raw water cost paid by Fort Worth for water available for treatment and sale to Customer is increased or decreased as determined by the Tarrant Regional Water District in accordance with Fort Worth City Secretary Contract No. 12720 . 6.2.3 The Parties agree that services obtained pursuant to this Agreement are essential and necessary to the operation of Customer's waterworks facilities and that all payments made by Customer hereunder shall constitute reasonable and necessary operating expenses of Customer's waterworks and wastewater systems within the meaning of§ 1502.056 of the Texas Government Code, and the provisions of any and all ordinances of Customer authorizing the issuance of any revenue bonds of Customer which are payable from its waterworks and wastewater systems. 6.2.4 Customer agrees, tlu·oughout the term of this Agreement, to fix and collect such rates and charges for water service to be supplied as will produce revenues in an amount equal to at least (i) all of operation and maintenance expenses of such system , including specifically its payments under this Agreement ; and (ii) all oth er amounts as required by law and the provisions of the ordinances or resolutions authorizing its revenue bonds or other obligations now or hereafter Agreem e nt for Wat e r Se rvic e Fo r Special Wat er Utility Di stricts 119 88 45-1 14 outstanding, including the amounts required to pay all principal of and interest on such bonds and other obligations. 6.2 .5 Customer understands that Fort Worth City Council has the right to annually revise the rates charged to cover all reasonable , actual , and expected costs. Revision of rates shall be pursuant to the provisions set forth in this Agreement. Fort Worth shall give Customer a minimum of six (6) months notice of intent to revise rates. Fort Worth will furnish members of the Wholesale Customer Advisory Committee a draft copy of the cost-of-service study of the proposed rates sixty (60) days prior to F01i Wo1ih submitting a rate increase request to its City Council. Within thirty (30) days ofreceiving the draft study , the Wholesale Customer Advisory Committee will submit its written comments on the draft study to Fort Worth, and Fort Worth will respond to these comments as soon thereafter as possible. If the Wholesale Customer Advisory Committee has not provided its written comments within said period , the Whole sale Customer Advisory Committee is deemed to have accepted the proposed rates contained in the draft study , and Customer agrees that it will be bound by the rates as approved by the Fort Wo1ih City Council. The rates approved by the F01i Worth City Council shall be the rates to be used in this Agreement for the succeeding Fiscal Year. ARTICLE 7. Payment for Water Payment of charges to Fort Worth for water used by Customer shall be made as follows: 7.1 Annual Payment. The annual payment will be the charges computed based on all water delivered by F01i W01ih to Customer during the current Fiscal Year at rates set pursuant to this Agreement. For purposes of calculating the annual payment, the current year will be the Fiscal Year during which the water usage occurred. However, the minimw11 annual payment will be the greater of the following: 7 .1.1 the cmrent Fiscal Year Volume Charge times the current Fiscal Year Annual Consumption, plus the Service Charge, plus the current Fiscal Year Rate of Use Charges (Exhibit C, Example 1); or 7 .1 .2 the current Fiscal Year Volume Charge times the current Fiscal Year Annual Consumption, plus the Service Charge, plus the current Fiscal Year Rate of Use Charges applied to the average of the Maximum Day Demand above Average Daily Use and the average of the Maximum Hour Demand above Maximum Day Demand for the most recently completed three (3) Fiscal Years (to include the cmTent Fiscal Year) (Exhibit C, Example 2); or 7.1.3 if applicable to Customer, a Stand-by Charge equal to: (a) twelve (12) months; Agree me nt fo r Wate r Servic e 15 For Sp ec ial Wat er Utility Di strict s 11 98845 -1 (b) times the total number of EM units for all of the Customer's wholesale meters connected to the System; ( c) times 28,800 gallons per day; (d) times a dollar amount equal to a three (3) year numerical average of the Treatment, Pumping and Transmission Charge per 1,000 gallons, using the Treatment, Pumping and Transmission Charge from most recent annual cost-of-service rate study performed by the independent utility rate consultant as provided in§ 6.1.4 and the two years prior to the year of that study. This dollar average will remain in effect for purposes of calculating this§ 7.1.3 Stand- by Charge until the next cost-of-service rate study is performed by an independent utility rate consultant as provided in § 6.1.4. Exhibit B presents an example calculation of the Stand-by Charge. 7.2 Withdrawal Rate. The rate at which water is withdrawn from the Fort Worth System by Customer shall be regulated by rate-of-flow controllers, pumps, or other approved methods. The rate of withdrawal shall be controlled so that the maximum rate shall not exceed 1.35 times the Maximum Day Demand experienced during the previous year unless Customer has notified the Director at least (6) months before the date of the anticipated increase in the Maximum Day Demand; provided, however that in an Emergency such as a line break, Customer shall advise the Director within 24 hours of the increase in the maximum rate of withdrawal. Customer shall furnish the Director with all pertinent inforn1ation regarding the proposed increase in maximum rate of withdrawal. The Director may waive the notice requirement i( in his sole opinion, that notice is not necessary to protect the interests of Fort Worth. 7.3 Monthly Payments. The monthly payment will be the sum of (a) plus (b) plus (c): (a) the greater of: (i) one-twelfth (1/12) of the amount calculated in§ 7.1, or (ii) the Vo lume Charge times the actual volume of water taken that month; (b) one-twelfth ( 1 /12) of the sum of the annual Rate of Use Charges, detern1ined as provided in§ 7.5 and Exhibit C; and ( c) one-twelfth ( 1 /12) of the sum of the Fiscal Year Service Charge. 7.4 Total Annual Payments. The total annual payment for water delivered to Customer shall be based on the annual and peak volumes delivered to Customer during the Fiscal Year, as determined by meters, flow recording devices or other approved methods, and calculated as provided in the annual payment provisions set forth above and in Exhibits B and C. The October monthly payment for September's usage shall contain any adjustments necessary to update the Rate of Use Charge calculations as necessary to recover the Annual Payment for the Customer's actual withdrawals from the F011 Worth System (including Rate of Use Charges for Agreement for Water Service for Special Water Utility Di s tricts 1198845-1 16 Maximum Hour and Maximum Day Demands) for the Fiscal Year just ended, during which the water usage occuJTed. Exhibit C provides examples of the Annual Bill Calculation. 7.5 Rate of Use Charge. As provided in§§ 7.1, 7.3 and 7.4 and shown in Exhibit C , Monthly Payments and the Annual Payment shall include Rate of Use Charges , unless the Stand- by Charge applies. The Rate of Use Charges consist of: (a) Maximum Day Rate of Use Charge, calculated by multiplying the "Excess Max Day Charge" per MGD from the annual cost-of-service rate study, times the Maximum Day Demand (in MGD) in excess of Average Daily Use (in MGD); and (b) Maximum Hour Rate of Use Charge, calculated by multiplying the "Excess Max Hour Charge" per MGD from the annual cost-of-service rate study, times the Maximum Hour Demand (expressed as MGD) in excess of Maximum Day Demand (in MGD). Exhibit C presents example Rate of Use Charge calculations. Rate of Use Charges are estimated by applying the current Fiscal Year Excess Max Day and Excess Max Hour Charges to the prior Fiscal Year's Maximum Day Demand, Maximum Hour Demand and Average Daily Use in the October through September bills, with adjustments in the October bill as necessary to recover the Annual Payment based on the Customer's actual withdrawals (including Rate of Use Charges for Maximum Hour and Maximum Day Demands) for the Fiscal Year just ended, during which the water usage occurred. 7.6 Applicability of Stand-by Charge. Customer is subject to the Stand-by Charge if the amount of the Stand-by Charge is the greater of the Annual Payment options listed in § 7.1. Customer is a Stand-by Customer if it receives water from the System for Emergency use only , and the Director has approved that use. A Stand-by Customer's obligations under this Agreement include the requirements of§ 3 .1 for the location, approval and installation of meters. By execution of this Agreement and approval of the Stand-by service meter, Fort Worth agrees to provide the wholesale Emergency service through the approved meter to the Stand-by Cu stomer, subject to the terms of this Agreement; however, notwithstanding§ 2.1 , delivery of water to a Stand-by Customer is subordinate to Fo1i Worth's other delivery obligations. Further, this Agreement does not grant or imply that the Standby Customer has reserved any water service, capacity or delivery from the System, other than for Emergency use as provided in this § 7.6. Any change in the Stand-by Customer's use from Emergency to non-Emergency must be approved in writing by the Director. Unless otherwise agreed in writing by Customer and Director, the Stand-by Customer is not required to pay the Impact Fees required by Article 16 until it reg uests or takes deliveries of water from the System that exceed the approved Emergency use. ARTICLE 8 . Effective Date The effective date and time of this Agreement for all purposes is January I, 2011 at 12:01 a.m . Upon the Effective date , the wholesale water service agreement then in effect between Fort Worth and the Customer is terminated and superseded by this Agreement. Agr eement for Water Service For Special Water Utility Districts 11 988 45-1 17 ARTICLE 9. Term This Agreement_expires o n September 30, 2031. It may be renewed on terms mutually agreeable to the Paiiies . ARTICLE 10. Rights-of-Way Customer shall grant, without charge to Fort Worth, such easements and rights-of-way along public highways or other prope1iy owned by Customer, as requested by Fori Worth, in order to construct or maintain mains or facilities within the Customer 's Service Area to provide water to Customer and to other areas. Upon notice from Customer and at Fort Worth's expense incurred as a System Cost, Fort Worth will move such water mains or facilities located in such street rights-of-way, or other property owned by Customer when reasonably necessary to the performance of essential governmental duties by Customer. Fort Worth shall grant, without charge to Customer, such easements and rights-of-way along public highways or other property owned by Fort Worth , as requested by Customer, in order to construct and maintain water mains or facilities within Fort Worth to provide water to Customer. Upon notice from Fort Worth and at Customer's expense, Customer will move such water mains or facilities when located in such street rights-of-way or other property owned by Fort Worth when reasonably necessary to performance of essential governmental duties by Fort Worth. All work done by or on behalf of Fort Worth under this paragraph will be performed in accordance with specifications equal to those applying to work of a similar nature performed within Fort Worth, and the applicable Patty will use its best efforts to restore the others property to as near original condition as feasible unless otherwise mutually agreed in writing. Fo1t Worth and Customer agree to coordinate the location of the mains and/or facilities in the other's easements and rights-of-way in order to prevent further conflicts insofar as is reasonably practicable. ARTICLE 11. TCEO Public Water Supply Approval The Customer System shall be approved by the TCEQ during the life of this Agreement. If, at any time , the Customer System is not approved by the TCEQ, or if Customer does not have an active cross-connection control prognun , there shall not be any direct physical connection between the Fort Worth System and the Customer System unless an approved backflow prevention device has been provided and installed and this installation has been approved by the TCEQ. All expenses to provide and install backflow prevention device(s) will be borne by Customer. ARTICLE 12. Resale of Water 12.1 Outside Service Area. Customer agrees that it will not share facilities for water system use with any other governmental or corporate entity outside of Customer's Service Area without the express written consent of Fort Worth, which consent shall not be unreasonably withheld. Fmi Worth neither recognizes nor approves any existing agreements entered into by Customer Agreement for Water Service For Special Water Utility Di stricts 1198845-1 18 with other governmental or corporate entities outside of Customer's Service Area, unless expressly approved in writing by the Director before the Effective Date. 12.2 Exceptions. Only those existing connections outside of the Customer's Service Area shown in Exhibit E may continue. Customer agrees that it will not enter into any resale or transportation agreement other than as a part of its normal offering and supply of water to existing and future subscribers to its Customer System without the recommendation of the Wholesale Customer Advisory Committee and express written consent of Fort W01ih. ARTICLE 13. Sanitary Sewer Facilities The Customer agrees that it will require all of its customers, who are provided water from the Fort Wo1ih System, to have adequate sanitary sewage facilities meeting TCEQ requirements. ARTICLE 14. Additional Wholesale Customers Fort Wo1ih will use its best efforts to provide an adequate water supply for all of its customers. Prior to the approval of additional wholesale customers, Fo1i Wo1ih will obtain in writing reasonable assurances from the Tarrant Regional Water District that the projected ten ( 10) year water demands of the then-existing wholesale customers being served and any proposed additional customers can be fulfilled, and will charge the new customer an appropriate connection fee pursuant to § 3.3. Fort Worth will consult with the Wholesale Customer Advisory Committee and the TmTant Regional Water District before contracting with additional new wholesale water customers. ARTICLE 15. Wholesale Customer Advis01y Committee Customer's governing body shall annually appoint a representative to be a voting member of the Wholesale Customer Advisory Committee, whose purpose shall be to consult with and advise Fort W01ih , through the Director, on matt ers pertaining to conservation, wholesale planning, improvements, grants , wholesale rate studies, administration, budgets, and additional wholesale customers , whether same be wholesale customers of Customer or Fort Worth . The Wholesale Customer Advisory Committee may establish bylaws governing the election of officers, meeting dates and other matters pertinent to its functioning . ARTICLE 16 . Impact Fees 16.1 Calculation and Payment of Impact Fees. On a quarterly basis, Customer agrees to pay to Fort Worth an Impact Fee for each new or enlarged connection for water service made within Customer's Service Area served by the Fort Worth System . The Impact Fee to the Customer for each such connection shall be based upon the size of water meter and shall be assessed and collected by the City at 100% of the total maximwn assessable amount of applicable impact fees as adopted by the City Council. Subject to the foregoing, the calculation of the Impact Fee shall be consistent with the Foti Worth ordinance adopting the Impact Fee in accordance with all applicable state and federal regulations, including Chapter 395, and shall include only those costs allowed under§ 395.012 (or its amended or successor statute) that are associated with Capital Agre e ment for Water Service 19 For Sp ecial Water Utility Di stTict s 119 88 45-1 Improvements necessary to provide service to new development. Nothing within this Agreement shall be deemed to prevent either Fort Worth or Customer from charging their own retail customers' Impact Fees in excess of the Impact Fee authorized by this Agreement. This Section 16.1 is subject to the terms and conditions of Exhibit F hereto and Exhibit F shall control with respect to any conflict between the terms and conditions of this section and Exhibit F. 16.2 Multiple Surface Water Providers. If Customer receives surface water from more than one water provider for use by potable water customers within its Service Area, then the Customer's impact fees due to F01i Worth shall be proportionately reduced. The charge will be a fractional part of the Impact Fee imposed within Fmi Worth for the same size of meter based on the ratio of the annual amounts of water purchased from Fo1i Wo1ih to the total annual combined amount of surface water purchased from Fo1i Worth and the Customer's other surface water provider(s). For purposes of calculating this fractional part, this ratio will be the greater of the most recent prior amrnal ratio or the most recent 3 year average ratio occurring after the first Fiscal Year after the Effective Date. 16.3 Use of Impact Fees. As required by Chapter 395, Fort Worth agrees that all money remitted to it pursuant to this Article 16 will be placed in an interest bearing account to pay only for the cost of constructing Capital Improvements included in the Chapter 395 capital improvements plan , and will not be used for operation and maintenance expenses. Once expended, such funds and all interest earned thereon will be considered a "contribution" for rate setting purposes only. To the extent that the cost of any Capital Improvement is recovered through Impact Fees, it shall not be included in the System Cost. 16.4 fmpact Fee Report. Customer shall provide to Fort Wo1ih information that relates to the making of new and/or enlarged connections within its jurisdiction as may be requested by the Director, including building permits, with each quarterly payment required in this Article 16. 16.5 No Waiver. Neither Fort Worth nor Customer shall waive any Impact Fee due from new or enlarged connections to its respective system within its jurisdiction. However, either Fort Worth or Customer may pay such Impact Fee into the interest bearing Impact Fee account required by§ 16.3. 16.6 CIFC. The Wholesale Customer Advisory Committee created pursuant to Article 15 shall select five (5) of its members to a subcommittee to be known as the Customer Impact Fee Committee ("CIFC"). As required by Texas Local Government Code§ 395 .052, at least every five (5) years, beginning June, 2014, or sooner, Fort Worth will update the land use assumptions and capital improvements plan upon which the Fort Wo1ih Impact Fees are based, or make the determination under Chapter 395 that no update is required. Fort Worth shall submit a copy of the annual report of Fort W01ih Impact Fee projects and expenditures to the Wholesale Customer Advisory Committee Rate Subcommittee. In June 2014 and at least every five years thereafter, the CIFC shall submit a list of five qualified engineers or planning consultants to the Director. The Director shall select a consultant from such list to assist Fo1i Worth in developing land use assumptions, identifying capital improvements, and fomrnlating capital improvement plans and Impact Fees. The consultant shall be responsible to F01i Worth and its citi ze n's advisory committee, but shall also report to the CIFC. The cost of the consultant shall be deemed Agreement for Water Service 20 For Special Water Utility Di stricts 1198 845-1 a System Cost, except to the extent that such cost is recovered through Impact Fees. If the CIFC fails to submit a list of five consultants to Fort Worth, Fort Worth shall select the consultant. 16. 7 Capital Improvements Plan. Fort Worth agrees that only the Capital Improvements as defined in § 1.4 shall be included in the capital improvements plan for the purpose of determining Impact Fees; provided however, Fort Worth may include other capital improvements for the purpose of determining Impact Fees to its own retail customers . Fort Worth shall not be required to include all of its capital improvements in its Chapter 395 capital improvements plan. The CIFC shall be responsible for working with Fort Worth and its consultants to determine the Capital Improvements to be included in the calculation of any Impact Fees . The CIFC shall recommend to the Wholesale Customer Advisory Committee which Capital Improvements should be included in the calculation of any Impact Fees. The CIFC shall also meet with Fort Worth's citizen advisory committee as such citizen's advisory committee reviews and considers land use assumptions, the capital improvements plan and Impact Fees . 16.8 Dissemination of Documents. Prior to the adoption of any land use assumptions , capital improvements plan, or Impact Fees assessed by Fort Worth, the CIFC shall be furnished a copy of the proposed land use asswnptions , capital improvement plans or Impact Fees at least thirty (30) days prior to any scheduled hearing thereon. Any revised Impact Fee adopted pursuant to such updated capital improvements plan shall not take effect for a period of at least ninety (90) days after adoption by Fort Worth. 16 .9 Audited Financial Statement. Upon request, Fort Worth shall make available to the Wholesale Customer Advisory Committee the most recent audited financial statement of the Fort Worth Water Department's records. 16.10 Current Impact Fees. Customer agrees to pay Impact Fees in the amounts determined pursuant to this Article 16. On the Effective Date, those impact fees are 100% of the maximum assessable Impact Fees most recently adopted by the Fort W01ih City Council before the Effective Date . Thereafter the Impact Fees are those in effect by Fort Worth ordinance at the time the new or enlarged connection is made . This Section 16 .10 is subject to the terms and conditions of Exhibit F hereto and Exhibit F shall control with respect to any conflict between the terms and conditions of this section and Exhibit F. 16.11 Changes to Chapter 395. F01i Worth and Customer agree that the methodology for the calculation of Impact Fees required by this Agreement shall be consistent with the methodology prescribed by Chapter 395. If that statutory methodology is amended or replaced by a new statute , the Wholesale Customer Advisory Committee may engage legal counsel to work with Fort Worth to propose amendments to this Agreement to conform it to such amendment or new statute . The reasonable cost of such legal counsel shall be a System Cost. ARTICLE 17. Breach, Termination and Other Remedies 17.1 Termination by Mutual Consent. This Agreement may be terminated in whole or in part by the mutual consent of Customer and Fort Worth. Fort Worth's decision on whether to Agreement for Water Service For Special Water Utility Districts 11 988 45-1 21 consent to termination remains within it's sole discretion; however, before consenting to termination, Fort Wo1ih shall consult with WCAC regarding the circumstances of the proposed termination. 17.2 Termination for Material Breach. Notwithstanding anything in this Agreement to the contrary, any material breach by either Party to perform any of its duties or obligations under this Agreement, or to faithfully keep and perform any of the terms , conditions and provisions of this Agreement, shall be cause for termination of this Agreement by the non-breaching Pmiy in the manner set forth in this§ 17.2. Upon such breach, the non-breaching Party may notify the breaching Party of the non-breaching Party's intention to terminate this Agreement if the breaching Party fails to cure such breach within ninety (90) days from the date of the notice. The notice must include a reasonable description of the breach. The non-breaching Party shall notify the breaching Party in writing upon acceptance of the cure of any breach. If by the ninetieth (90th) day the breaching Pmiy fails or refuses to cure such breach pursuant to the terms and conditions of this Agreement , then the non-breaching Party shall have the right to te1minate this Agreement with six months additional notice to the breaching Party. 17.3 Termination for Repeated Breach. Upon a second (or any repeated) breach of a similar nature by a Party and irrespective of any cure of such breach, the non-breaching Party may, after s ix (6) months notice to the breaching Party, terminate this Agreement. That notice must be provided within a reasonable time after the repeated breach that is the basis for the termination. 17.4 Material Breach. The following breach, default or failure to perform a duty or obligation under this Agreement is a material breach: a. Failure to comply with §§ 2.5 or 2.6 requirements regarding rationing , conservation measures or restrictions ; b. Failure to pay any bill, charge, or fee as required by this Agreement, including fees required under Article 16; c. Making any connection to the Fort Worth System at any point except as provided in § 3.2; d. Failure to coITect any potentially hazardous connection in accordance with the terms of Article 11, after notice delivered by certified mail ; e . Failme to provide Fort Worth ingress and egress for purposes of operation and maintenance of any metering facility; f Failure to provide Fort Worth rights-of-way as required herein; or g. Failure to provide Fort Worth an Impact Fee report as required in Article 16 . All other breaches are deemed to be non-material. 17.5 Notice and Cure. In the event of a material or non-material breach, default or failure to perfo1111 a duty under thi s Agreement, the non-breaching Patty may send a notice of such default to the breaching Party. The notice must include a reasonable description of the breach. If the breaching Party fails to cure the breach , default or failure within 60 days of that notice , then the non-breaching Party may give the breaching Party a second notice of its failure to cure the breach. Failure to cure the breach within 30 days after the second notice shall constitute a Agreement for Water Service 22 For Special Water Utility Districts 11 98845 -1 repeated breach, and may result in termination of this Agreement as provided in § 17 .3 for repeated breach. Fort Worth may, upon breach by a Customer, surcharge the Customer an amount developed and calculated by Fort Worth intended to reimburse Fort Worth for any damages each month, including 10% interest, until Customer cures that breach. Because failure to perfom1 obligations under this Agreement cannot be adequately compensated in money damages alone, the Parties shall have available to them the equitable remedy of specific performance in addition to any other legal or equitable remedy as may be provided by law. 17 .6 Notice and Cure for Nonpayment oflmpact Fees. If the breach is based on the non- payment or underpayment of Impact Fees, then the Customer shall pay Fort Worth the amount of the non-payment or under-payment within 60 days of the notice required by§§ 17.2 or 17.5, plus interest at a rate of 10% of the amount owed, accruing from the time at which the payment was due. An additional charge of $500.00 will be added if no Impact Fee report was filed. 17.7 Notice and Cure for Breach of Water Use RestTictions and Conservation. If Customer breaches §§ 2.5 or 2.6, then the§ 17.2 notice provisions do not apply and the Director, in his sole discretion, may, in writing, set such time in which the Customer shall cure the breach. If Customer fails or refuses to cure the breach within the stated time, then Fort Worth shall have the right to declare this Agreement terminated after six (6) months additional notice to Customer. 17.8 Failure to Provide Notice of Withdrawal Rate under§ 7.2. Failure to provide§ 7.2 notice, provided the Director did not waive notice requirements, will be considered a non- material breach of the Agreement and, in addition to other remedies available under this Agreement, shall result in an automatic surcharge in the amount specified in§ 17.5 for such non- material breaches of the Agreement, without further notice requirements. 17.9 Effect of Termination. Upon ten11ination of this Agreement under this Article 17, all rights , powers , and privileges of Customer and Fort Worth under this Agreement shall cease and terminate, and neither Party shall make any claim of any kind whatsoever against the other Party, its agents or representatives, by reason of tennination or any act incident to termination, if the terminating Party acted reasonably and the termination was not unreasonable, or arbitrary and capricious. If this Agreement is not renewed before it expires, and the Parties are negotiating in good faith regarding the provisions of a new agreement, then the Parties may extend the date for termination, in writing that refers to this§ 17.9 and is signed by both Parties. If this Agreement is not renewed, or if the Agreement is terminated by one of the Parties pursuant to this Article 17, then, as authorized by Texas Water Code § 11.036, this Agreement requires the Customer to develop alternative or replacement supplies before the expiration or termination of this Agreement; this requirement may be enforced by the equitable remedy of specific performance, sought by court order, in addition to any other legal or equitable remedy as may be provided by law. No continuation of the service obligation exists or will be implied after expiration or termination. 17.10 No Waiver by Fort Worth. Any failure by Fo1i Worth to terminate this Agreement, or the acceptance by Fo1i Worth of any benefits under this Agreement, for any period of time after a material breach, default or failure by Customer shall not be determined to be a waiver by Fo1i Agreement for Water Service For Special Water Utility DislTicts 11 9884 5-1 23 Worth of any rights to terminate this Agreement for any subsequent material breach, default or failure. 17 .11 No Waiver by Customer. Any failure by Customer to terminate this Agreement, or the acceptance by Customer of any benefits under this Agreement, for any period of time after a material breach, default or failure by Fort Worth shall not be detennined to be a waiver by Customer of any rights to terminate this Agreement for any subsequent material breach, default or failure. ARTICLE 18. Ownership and Liability 18.1 No Joint Venture . No provision of this Agreement shall be construed to create any type of joint or equity ownership of any property, any paiinership or joint venture, nor shall same create any other rights or liabilities and Customer payments (whether past, present, or future) shall not be construed as grai1ting Customer paiiial ownership ot pre-paid capacity in, or equity in the Fort Wo1ih System. 18.2 Liabilities. Liabilities for damages ai·ising from the proper treatment, transportation and delivery for all water provided hereunder shall remain with Fort Wo1ih to the point of delivery and, upon passing through the meter, liability for such damages shall pass to the Customer, save and except that Fort Worth's sole responsibility is to provide to Customer water of a quality which meets state and federal drinking water standards. Each Party agrees to save, release and hold harmless the other Party from all claims, demands, and causes of action which may be asse1ied by anyone on account of the quality, transp01iation and delivery while water is in the control of such Pa1iy. This covenant is not made for the benefit of any third party. Fort Worth takes the responsibility as between the Parties for the proper treatment, quality, transportation, and delivery of all such water provided by it to the point of delivery. 18.3 Contractors. Agreements made and entered into by either Customer or Fort Worth for the construction , reconstruction or repair of any Delivery Facility shall include the requirement that the independent contractor(s) must provide adequate insurance protecting both the Customer and Fort Worth as co-insured . Such Agreement must also provide that the independent contractor(s) covenant to indemnify, hold harmless and defend both the Customer and Fmi Worth against any and all suits or claims for damages of any nature arising out of the performance of such Agreement. ARTICLE 19. Force Majeure 19 .1 Notice and Suspension. If by any reason of force majeure either Pmiy shall be rendered unable, wholly or in paii, to carry out its obligations under this Agreement, other than the obligation of the Customer to make payments required under the tem1s hereof, then if such Parties shall give notice and full particulars of such force majeure in writing to the other Party within a reasonable time after the occurrence of the event or cause relied on, the obligation of the Party giving such notice, so far as it is affected by such force majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and such Party shall endeavor to remove or overcome such inability with all reasonable dispatch. Agreement for Water Service 24 For Special Water Utility Districts 11 98845-1 19.2 Definition. The term "force majeure," as employed herein, shall mean acts of God, strikes , lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the government of the United States or the State of Texas, or any civil or military authority , insuITection , riots , epidemics , landslides, lightning , earthquake, fires, hun-icanes , storms, floods, washouts , droughts , arrests , restraints of government and people, civil disturbances , explosions, breakage or accidents to machinery , pipelines or canals , partial or entire failure of water supply, and inability on the part of Fort Worth to deliver water hereunder or the Customer to receive water hereunder on account of any other cause not reasonably in the control of the Party claiming such inability. ARTICLE 20. Notices 20.1 Required Notice. Except in the case of an Emergency, any notice or other communication that is required, given or provided for under this Agreement shall be in writing, and address ed as follows: To Fort Worth: To Customer: Water Director City of Fori Worih 1 000 Throckmorion Street Fo1i Worih, TX 76102 Aqua Utilities, Inc. dba Aqua Texas, Inc . Attn: Vice-President 1106 Clayton Lane, Ste. 400W Austin, Texas 78723 Aqua Utilities , Inc. dba Aqua Texas, Inc. Attn: Chief Legal Officer 762 West Lancaster Ave . Bryn Mawr, Pennsylvania 19010 With an additional copy to be given to a Customer representative , if designated in writing by Customer. 20 .2 Delivery and Receipt. Notice shall be either (a) delivered personally, (b) sent by United States certified mail, postage prepaid, return receipt requested, ( c) placed in the custody of a nationally recognized overnight carrier for next day delivery , or (d) sent via telecopy or facsimile (fax) transmission. Notice shall be deemed given when received if delivered personally or sent via telecopy or facsimile transmission with written confirmation of receipt; fo1iy-eight ( 48) hours after deposit if sent by mail; and twenty-four (24) hours after deposit if sent by nationally recogni z ed overnight carrier for next day delivery. 20.3 Ch ange of Address Notices . Each Party shall provide notice in writing , as provided in § 20 .1 of any change in its address. Agree me nt for Wate r Service For Special Wat er Utility Di stricts 11 988 45-1 25 ARTICLE 21. Inspection and Audit Complete records and accounts required to be maintained by each Party shall be kept for a period of five (5) years. Each Party shall at all times , upon notice, have the right at reasonable times to examine and inspect said records and accow1ts during normal business hours ; and further , if required by any Jaw , rule or regulation , make said records and accounts available to federal and/o r state auditors. The responding Paiiy shall make the records available promptly upon request. ARTICLE 22. Miscellaneous 22.1 Favored Nations. Fort Worth and Customer agree that if Fo1i Worth should enter into any future Agreement for supplying treated water to any municipality under more favorable terms or conditions than set forth herein, this Agreement shall be amended to provide the same terms and conditions with respect to the sale of treated water to Customer. 22.2 Suspension of Rate of Use Charges. During an Emergency it may be necessary that water be withdrawn from the Fort Worth System at a rate of usage in excess of the Customer's contractually established Maximum Daily Demand ai1d Maximum Hour Demand. It is agreed that extra Rate of Use Charges that would nom1ally be applicable shall not apply for such bona fide emergency withdrawals provided that Fort Worth is notified in writing within forty-eight ( 48) hours of the occurrence of the Emergency. In any event, the normally applicable Rate of Use Charges the Customer would have incurred had it not been an Emergency, plus the Volume Charges for all water delivered, shall be due and payable as described elsewhere in this Agreement. 22.3 Water to Adjacent Areas. At the request of the Director, Customer agrees to furnish water to areas and premises situated adjacent to the boundary of Customer and within the boundaries of Fort Worth, subject to the Texas Water Code and TCEQ regulations regarding service meas. The metered quantity of water used in this area each month by Fort Wo1ih shall be the total of all individual customer meter readings . At the option of Customer or Fort Worth, a master meter may be installed where practicable at the expense of Fo1i Worth to meter all water used by Fori Worth under the terms of this§ 22 .3 . The metered quantity of water furnished by Customer to Fo1i Worth shall be deducted from the total quantity of water withdrawn from the Fo1i Worth System by Customer before the charge for water service to Customer is computed in accordai1ce with the payment computations set forth and based on the Volume Charge, the quantity of water so withdrawn from the Fort Worth System and, if the meter serving those customers has been equipped to measure it, Maximum Day Demand and Maximum Hour Demand. 22.4 Subject to Laws and Permits. This Agreement is subject to all applicable federal and state laws and any applicable permits, amendments, orders, or regulations of any state or federal governmental authority having or asserting jurisdiction, but nothing contained herein shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction. Customer agrees to abide by any changes in this Agreement Agreement for Wat er Service For Special Water Utility Districts 1198845-1 26 made necessary by any new, amended, or revised state or federal regulation; however the Partie s may not enact rules or laws that conflict with this Agreement. 22.5 Entry on Customer's Premises. Upon prior notice by the Director, Customer shall allow a ny duly authorized employee of Fort Worth who presents proper credentials to access any premises located within Customer's Service Area or served by Customer as may be necessary for the purpose of inspections and observation, measurements , sampling and testing and /or auditing , in accordance with the provisions of this Agreement. Customer may elect to accompany the Fort Wo1ih representative. To the extent permitted by law, Fort Worth agrees to be responsibl e to Customer for any damage or injury to person or prope1iy caused by the negligence of such duly authorized employee while such employee is in the course and scope of their employment. 22.6 A lt ernative Dispute Resolution. 22.6.1 The parties shall endeavor, but only to the extent permitted by applicable law and at no additional cost to Customer, to settle all disputes arising out of or relating to this Agreement b y amicable negotiations . 22.6.2 Any and all disputes arising out of or relating to this Agreement that caimot be resolved informally will be submitted to mediation. The place of mediation shall be in Tarrant County , Texas. A mediator shall be jointly agreed to by both Parties, and the mediator selected shall have expertise in the sale and supply of treated water. Either Party may apply for injunctive relief until the mediation decision is rendered or the controversy is otherwise resolved. Either party may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the mediator's detem1ination of the merits of the controversy. Each Party shall initially bear its own costs and expenses; however, unless otherwise agreed in mediation, Fort Wo1ih's costs in mediation , including expenses, reasonable attorneys' fees and other costs, shall be a System Cost. Nothing occurring during mediation shall be considered evidence in court. 22.6.3 If mediation is not successful, either Party may commence litigation to resolve the dispute. Fo1i W01ih's litigation costs shall be a System Cost. 22.7 Infonnation . If requested by the Director, Customer shall provide quarterly the following data or information: 22.7.1 Actual number of customer accounts consuming directly or indirectly from the Customer System within Customer 's Service Area; 22.7 .2 Classification of domestic and nondomestic accounts within its Customer's Service Area by number and percentage of accounts consuming directly or indirectly from Customer System within its Customer's Service Area; Agreement for Water Service For Special Wat er Utility Di stricts 11 98845-1 27 22. 7.3 Customer water usage from all sources other than the Fort Wo1ih System, including ground water, other surface water, and water supply agreements with other entities; and 22. 7.4 Additional data which may assist Fort Worth and/or Customer in developing methodology for cost of service studies, planning studies for analyzing federal grants, and Impact Fees; provided, however, that neither Party shall request data that will require either Party to incur unreasonable expenses in providing such data. 22 .8 Assignment. Customer may not assign this Agreement without the prior written consent of Fort Worth. Fort Worth may not assign this Agreement without the prior written consent of Customer, except that if Fort Worth's water utility is designated as a regional water agency by a duly authorized regulatory body, or if Fo1i Worth elects to contract with or assign this Agreement to a regional water authority or utility to provide all or part of the services covered by this Agreement, the Customer hereby agrees and grants Fort Worth the right to assign this Agreement under the following conditions. The regional water authority or utility shall asswne and receive the same obligations, responsibilities and benefits as Fort Worth, and Fort Worth or the regional authority or utility will notify the Customer of such assignment at least ninety (90) days prior to its effective date. 22.9 No Waiver. No waiver by either Party of any term or condition of this Agreement, or failure to give notice of any breach, shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the san1e te1m or condition. 22.10 YENUL THE PARTIES AGREE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND THAT THE COURTS OF TARRANT COUNTY ARE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING UNDER THIS AGREEMENT. 22.11 Construction. As used in this Agreement, the term "including" means "including without limitation," the words "shall" and "will" are mandatory and the word "may" is permissive, 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. 22.12 Severability. If any term or provision in this Agreement is held to be invalid or unenforceable by any legislative act or comi of competent jurisdiction, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the parties as expressed in this Agreement, then such invalid or unenforceable provision shall be deemed severed from this Agreement without invalidating the remainder of this Agreement, and a new provision shall be deemed substituted in lieu of the provision severed, which new provision shall, to the extent possible, accomplish the intent of the parties as evidenced by the provision severed, and without affecting any other term or provision in this Agreement. 22 .13 Use of Return Water. Customer agrees that Fo1i Worth has the right to own and to use or sell any Return Water. Customer will not seek or receive any compensation, credit, or offset from Fo1i Wo1ih for making the Retmn Water available to Fort Wo1ih through discharges into Agreement for Water Service For Special Water Utility Districts 1198845-1 28 Fort Worth's wastewater collection and treatment system(s), and agrees that it will not provide water service under any ordinance or agreement that conflicts with Fort Worth 's rights under this § 22.13. 22.14 System Regulatory Actions. Customer agrees, upon the request of Fort Wo1ih , to gi ve reason a ble consideration to supporting Fort Worth , and shall not oppose Fort Worth , on an y permit app lications or governmental approvals related to the Fort Worth System . 22 .15 Additional Contract Terms . Additional contract terms that apply to the Customer , but not Fort Worth 's other who lesale customers , a re contained in Exhib it F "Additional Term s ." 22.16 Ex hibits. All exhibits attached to this Agreement are incorporated into this Agreement by reference, for all intents and purposes of this Agreement, as follows: Exhibit A Exhibit B Ex hibit C Exhibit D Exhibit E Exhibit F Customer Service Area and mutually agre ed point(s) of delivery on the Effective Date . Stand-by Charge (Example Calculation) Example of the Annual Bill Calculation Calculation of PILOT and Cost of Service Revenue Requirement to Recover the Cost of Pilot Map of Existing Connections Outside Customer's Service Area [if any]. Additional Tem1s [T H I S S P A C E I N T EN T I O N A L L Y B L A N K] Ag reem e nt fo r Wate r Servi ce For Sp eci a l Water Utili ty Di stric ts 11 98845-1 29 lN TEST1MONY WHEREOF, after proper action by the respective governing bodies of the Pariies, this Agreement has been executed in quadruplicate copies , each of which is cons idered to be an original. AITEST: CITY OF FORT WORTH By: ____________ _ City Secretary , City of Fort Worth Assistar1t City Manager City ofF01i Worth APPROVED AS TO FORM AND LEGALITY: City Attorn ey , City of Fort Worth Date : -------------- APPROVAL RECOMMENDED: Director City of Fort Worth Water Department ATTEST: Jk£-a(~~ Corporate Secretary Agreement for Water Serv ice For Special Water Utility Di stricts 11 9884 5-1 AQUA UTILITIES, INC. dba AQU TEXAS, INC. Date: January 13, 2011 30 • Brookfield Exh ib it A t Legend • • • Prop. waterli ne by dev. ---Wat er Li nes ~ Brookfield [=~~J CFW City Li mi t 114 l I ...J ...J 1 c..> I I I I • • 3Cr'. • • • • I • • • • • • • • a:: w ...J ~ ~ ' ' . r . ·-···-. ----· -----=-~·. ----·-· .. ·-·· -. . , i I i : I r I ., I ~, ......... ,._,.J .. ,---.. it I .. --· • • ~-. I . I ·l I L I 24" D.I. :u · I • w p ...J < C) z w f-:c: C!) z 1 114 Brookfield Development point of del ivery from Fort Worth system w ith meter and backflow prevention device . .. >- ~ z .. :c 0 -, • . • .., 'J HNDA.Y SONGB IRD • L ···-·-----___ __, .. ------ ,..--.. ____ ~ --·-. ----· ---· . ·--· 24 " 0 .1 . f ! ! ~ Cl a -€ (ii i ; • .. } !!. -8 3 ~ ~ 2-• f J I g i 9o I!' g !;; ~ !l' 2'. ~ [ ! !I .. ~ EXHIBITB SECTION 7.1.3 Stand-by Charge Example Calculation l) Stand-by Charge CafouJatfon Inputs:: • 10 inch meter = 2 IO EMs • I EM = 20 Gal per Minute X 60 Minutes per Hour X 24 Hours per Day or 28,800 GaUons per Day • Does not include Cost of Raw Water 3-Year Average Treatment, Pumping and Transmission Charge ($/1,000 Gals) Calculation: FY05 FY06 FY07 $0 .5398 $0.6829 $0.6291 Three Year Average $.Q.6113. 2) Stand-by Charge Calculation: Monthly Standby Charge = 28 ;8.00 Gallons per Day X 210 EM X $0 .6173 per 1,000 Gallons or $3,733 per Moruh. Annual Standby Charge = 12 Months X $3,733 per Month or $44,801. STANDBY CHARGE ASSUMPTION AND DEFINITIONS: The Minimum Standby Charge is based on the maximum a~ount of water a connection could draw in a 24-hour period. The calculation assumes that any usage would be temporary and of an emergency basis . The calculation is also based on the number and size of each connection. The Transmission Charge is the 3-year average for that charge as calculated in the most recent independent cost-of-service study. Reserved Capacity is defined as the maximum amount of water a connection could draw in a 24-hour period. "Equivalent Meters" or "EM" is a means of relating a large-us,: customer with a base (residential) use customer. Fort Worth uses 5/8 x 3/4 inch meter capacity as an EM . The ratio of larger meter's capacity to the 5/8 x 3/4 inch meter capacity is the number of EMs for each meter. The ratios can be found in the A WW A Standard C700-02. l EM delivers 20 Gallons per Minute. 1 EM delivers 28;800 Gallons per Day (20 GPM * 60 Minutes/Hour * 24 Hours/Day). Maximum Reserved Emergency Usage equalsEM * 28,800 EXIIlBIT C SECTION 7.4 Total Annual, Monthly and Rate of Use Example Calculations The calculations shown below assume a customer drawing water from one metering station. The volumes, peaks, rates and charges in this Exhibit C are for demonstration purposes only and are not based on adopted rates or on actual usage for the Customer. The annual Volume Rate is charged as a rate per 1,000 gallons. The Annual Payment also includes the monthly service charge. Volume Rate of Rate Volume Service Month Gallons $/1,000 Charges Charges Use Total Gallons Charges* Oct 1,000,00"0 $1.43 $1,430 $25 $2,209 $3,664 Nov 1,000,000 $1.43 $1,430 $25 $2,209 $3,664 Dec 1,000,000 $1.43 $1,430 $25 $2,209 $3,664 Jan 1,000,000 $1.43 $1,430 $25 $2,209 $3,664 Feb 1,000,000 $1.43 $1,430 $25 $2,209 $3,664 Mar 2,000,000 $1.43 $2,860 $25 $2,209 $5,094 Apr 3,000,000 $1.43 $4,290 $25 $2,209 $6,524 May 3,000,000 $1.43 $4,290 $25 $2,209 $6,524 Jun 3,000,000 $1.43 $4,290 $25 $2,209 $6,524 Jul 3,000,000 $1.43 $4,290 $25 $2,209 $6,524 Aug 4,000,000 $1.43 $5,720 $25 $2,209 $7,954 23,000,000 $32,890 $275 $24,299 $57,464 Sep 3,000,QOO $1.43 $4;290 $25 $7,021 $11;336 26,000,000 $37,180 $300 $31,320 $68,800 * Example calculation for Rate of'Use Charges is on Page 2 of 4. 1 of 4 EXHIBITC SECTION 7.4 Total Annual Payment Example Cal<;ulation (con't) Example Ca'lculation for monthly Rate of Usie Charges Average Daily Use for the prior year Maximum Day Demand for the prior year Maximum Hour Demand for the prior year (converted to gallons per day) Maximum Day Demand above Average Daily Use (Max Day-Avg Day) Maximum Hour Demand above Maximum Day Demand (Max Hour - Max Day) Gallons 60,000 175,000 480,000 115,000 305,000 Monthly Excess Maximum Day and Excess Maximum Hour Payment Calculation: Excess Max MOD Charges/MOD* Total Max Day Above Avg Da;Y Max Hour Above Max Day 0.115 0.305 $135.,000 $36,000 Monthly Rate of Use Charge Payment (Total Divided by 12) $15,525 $10,980 $26,505 $2,209 *The Excess Max Charges/MOD are the Excess Max Day Charge and the Excess Max Hour Charge, each in $/MOD, taken from the current Fiscal Year annual cost-of-service rate study As shown, the monthly Rate of Use Charges are calculated using the prior year's Average Daily Use, Maximum Day Demand and Maximum Hour Demand, times the current Fiscal Year Excess Max Charges/MOD. The final Annual Payment required by Article 7 is calculated using the cucr:ent Fiscal Year Average Daily Use, ancllthe Maximum Day Demand and Maximum Hour Demand for the current Fiscal Year or for the average of the most recent three (3) Fiscal Years, whiehever is greater (as prov ided ,in § 7.1 artd shown in the following Examples l and 2), times the current Fiscal Year Excess Max Charges/MOD. 2 of 4 EXHIBITC SECTION 7.4 Total Annua.l Payment Example Calculation (con't) Example! -Current year exceeds the average ofthe most recent three Fiscal Years Average Daily Use for the year Maximum Day Demand for the current year Maximum Hour Demand for the current year (converted to gallons per day) Maximum Day Demand above Average Daily Use Maximum Hour Demand above Maximum Day Demand Fiscal Year Average of Most Recent Three Years Current Average FY Gallons 71,233 215,000 545,000 143 ,767 330,000 FY 2008 FY 2007 Max Day Above Avg Day (MG) Max Hour Above Max Day (MG) 129,178 318,333 143,767 I 15,000 128,766 330,000 305,000 320,000 Annual Payment Calculation Gallons 26,000,000 Service Charge $25 Max Day Above Avg Da;}'. (MGD2 0.144 Max Hour Above Max Day (MGD) 0.330 Total Annual Payment Due X X X X Volume Rate $/1,000 Ga!lons $1.43 Months 12 Excess Max Charges/MGD $135,000 Excess Max Charges/MOD $36,000 Previous Billings for October through August Usage October Billing for September Usage 3 of 4 = = = = Total $37,180 $300 $19,440 $] 1,880 $68,800 $57,464 $11,336 EXHIBIT C SECTION 7.4 Total Annual Payment Example Ca ,lculation (con't) Example 2-The average of the most recent three Fiscal Yea r s exceeds Current year. Average Daily Use for the year Maximum Day Demand for the current year Maximum Hour Demand for the current year ( converted to gallons per day) Maximum Day Demand above Average Daily Use Maximum Hour Demand above Maximum Day Demand Fiscal Year Average of Most Recent Three Years CURRENT Average FY Max Day Above Avg Day (MG) 120,844 118,7 6 7 Max Hour Above Max Day (MG) 311,667 310,0 00 Gallons Annual Payment Calculation Volume Rate $/1,000 Gallons 26,000 ,000 X Service Charge $25 X Max Day Above Avg Day (MGD) 0.121 X Max Hour Above Max Day (MGD) 0.312 X $1.43 Months 12 Excess Max Charge·s/JvfGD $135,000 Excess Max Charges/MOD $36,000 Total Annual Payment Due Pre v ious Billings for October through August Usage October Billing for September Usage 4 of4 = = = = Gallons 71,233 190,000 500,000 118,767 310,000 FY 2008 115,000 305,000 FY 2007 128,766 320,000 Total $37,180 $300 $16,335 $11,232 $65,047 $57,464 $7,583 EXHIBITD Calculation of PILOT and Cost of Service Revenue Requirement to Recover the Utility's Cost of PILOT DESCRIPTION A payment in lieu of taxes ("PILOT'') assessed against the Water Operating Fund is an annual assessment to offset the ad valorem taxes lost, due to the non-profit slatus of the Water System. The Water Operating Fund pays the amount of the assessment into the General Fund . PILOT assessed against the Water Operating Fund is calculated by applying the most recently adopted property tax rate per $ I 00 assessed value to the net book value of the applicable assets. These assets are limited to the assets classified as Plant and Property (in the specific NARUC accounts listed on the next page), and do not include Transmission Mains, Connections, Collection Structures and Meters. The PILOT is a component of the Water Operatihg Fun'd Cost of Service. The Cost of Service Revenue Requirement that is necessary to recover PILOT is allocated between Retail and Wholesale customer classes accotding to the volume usage in the most recently completed fiscal year, prorated between the two customer classes. The Wholesale Cost of Service component of PILOT is then allocated amongst the wholesale customers according to each wholesale customer'·s percentage of the wholesale customer class's volume usage in the most in the most recently eompleted ·fiscal year. EXAMPLE The following example further e*pla-ins the calculation of the City's PILOT, the related revenue requirement, and its recovery through rates. The methodology applied in this example will remain in effect for the life of the Agreement; however, the specific dollar figures, volumes and other numerical values used in the following example will be updated from the sources identified below for each fiscal year that the contract is in effect. NET BOOK VALUE CALCULATION FOR PILOT ASSESSMENT PILOT assessed against the Water Operating Fund is calculated by applying the most recently adopted property tax rate per $100 assessed value to the net book value of the applicable assets, calculated as: Historical Cost of Water System Assets at most recent audit ed year end; LESS Historical Cost of Non-Plant and Non-Property Wa-ter System assets defined by NARUC (National Association of Regulatory Utility Commissioners) codes: 316 Raw Water Conduit and Valves 343 Transmi,ssion Mains 345 Service Connections 346 Meters 347 Meter Installation 348 Hydrant 372 Structures & Improvements/ Collection (If any of these account codes are amended, the equivalent code will be substituted.) LESS Accumulated Depreciation on Plant and Property at most recent audited year end; PLUS Construction Work in Pro:gress oh Plant and Property at most recent audited year end; Example calculation: NET BOOK VALUE CALCULATION LESS Historical Cost Total of Non-Plant LESS PLUS Historical and Non-Life-to-Date Construdion EQUALS NET Cost of Water Property Accumulated Work In BOOK System Assets Depreciation Progress VALUE $982,385,273 ($655,261,618) ($105,793,316) $26,990,180 $248,320,519 (Dollar figures from most recent Cost of Service Study.) NET BOOK VALUE ALLOCATION BETWEEN R!ETAIL AND WHOLESALE The Cost of Service R:ev~nue Requirement necessary to recover PILOT is allocated between Retail and Wholesale customer classes according to the volume usage in the most recently completed fiscal year, prorated between the two customer classes . Example Retail/Wholesale allocation calculation: Total Annual Volume (MG) Wholesale Volume (MG) Wholesale Allocation Retail Allocation Volume(MG) 66,917 21,639 32.34% 67 .66% (Dollar figures and percentages from most recent Cost of Service Study.) Total Net Book Value Base Wholesale Net Book Value Base $248,320,519 $80,299,602 CALCULATION OF WHOLESALE REVENUE REQUIREMENT (PILOT COST OF SERVICE COMPONENT) FY .JOJO Tax Rate per $l00 Value Total PILOT Cost of Service Wholesale Allocation Wholesale PILOT Cost of Service S0 .8550 $2,12 3,140 32.34% $6116,562 EXHIBIT E Exhibit Intentionally Omitted EXHIBITF ADDITIONAL TERMS The Parties acknowledge and agree that Impact Fees pursuant to A1iicle 16 and Cost of New or Additional Connections pursuant to Section 3.3 shall be paid to Fort Worth as required by the Brookfield Water and Wastewater Utility Service Agreement as entered into by the City of Fort Worth, the Customer, Brookfield Acquisitions, L.P., and South Denton County Water Control and Improvement District No. 1. To the extent the terms and conditions of Article 16 conflict with the terms and conditions of the Utility Service Agreement, the terms and conditions of the Utility Service Agreement shall control. Agreement for Water Service For Special Water Utility Districts 1198845-1 31 Exhibit E to Brookfield Water a nd Wastewater Uti li ty Service Agreement Exhibit E Wholesale Wastewater Service Agreement Page 1 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. (the "District"), and Agua 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 51 active residential connection within the Development. D . The City and the Trinity River Authority of Texas ("TRA") are pmiies 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 fi:om 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 . Brooldield Whole sale Wa stewater Service Agreement 11 995 12-1 Page 1 (., ]. H. 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. 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, covenants, 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" mean s the wastewater capacity that the City has allocated to serve the Development pursuant to Section 2.01. Brookfield Who lesale Wastewater Service Agreement 1199512-1 Pag e 2 "Deve lopment '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 Depaiiment 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. "ET.I " means the extraterritorial jurisdiction of a city as defined by the Texas Local Government Code, as amended, with the City's ET.I being an unincorporated area presently extending five miles from the City's corporate limits, excluding other incorporated municipalities and their res pee ti ve ex traterri to rial j uri sdi cti ons. "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 a ll City customers, including but not limited to wastewater treatment facilities , Metering and Sampling Facilities, control systems and appurtenances, and a ll major collectors and interceptors that are eighteen inches (18 ") and greater in diameter. "I nfiltration " 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 serv ice 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 stom1 sewers and sanitary catch basins, cooling towers, storm waters, surface rw1oft~ 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 E ntry. "MGD" m ean s million gallons per clay . "Notice" means notice as defined in Section 11.02 of this Agreement. Brookfield Wholesale Wastewater Service Agreement 1199512-1 Page 3 "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 thi s Agreement. "Point of Entry " means the location where Discharge from the Developm e nt's System enters the Fort Worth System , as reflected on the attached Exhibit D. "Prohibited Di sc harge" means a Discharge from outside the Development 's Sy stem or otherwise not in compliance with this Agreement, as defined in Section 2.02. "S ignificant Industrial User" ("SIU") means any User connected to the Development 's System that meets at least one of the following criteria: a . Average industrial wastewater discharge rate greater than 50 ,000 gallons per day. b. Biochemical Oxygen Demand and/or suspended solids concentrations in industrial wastewater greater than 250 mg/L. c. Meets any of the criteria used by the Environmental Protection Agency ("EPA") to define SIU in 40 C .F .R .. § 403.3(t) as amended from time to time (for purposes of the EPA definition of SIU relating to the "Control Authority," the Control Authority currently refers to the TCEQ). "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. "TC EQ " means the Texas Commission on Environmental Quality or its successor state agency. "TRA" means the Trinity River Authority of Texas. ''TR.A Contract" mean s that agreement defined in Recital D above and attached as Exhibit C , as it may be amended from time to time . "TR.A 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 line s and associated facilities owned by TRA which transport wastewater to that plant. "TSS " (also refe rred to as Total Non-Filterable Residue) means total s uspende d solids, measured in mg/L, that either float on the sudace of, or are in suspension in, water, wastewater or other liquids , and which are largely removable by a laboratory filtration device . "User" means any perso n or entity th a t owns or operates any facility or other point from which a Di sc h arge enters the Development 's System, either directly or indirect ly. Brookfield Whol esa le Wastewater Servic e Agreement 1199512·1 Page 4 "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 .1 6 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 st active residential connection constructed within the Development, at which time the City will become the wholesale wastewater treatment provider for al l customers within the Development, including without limitation the first 190 connections . 2.02 Prohibited Discharges. Any waste generated outside the Development or any Discharge not in compliance with this Agreement is a Prohibited Discharge that is not authorized to enter the Development's System pursuant to this Agreement. The City shall be under no obligation to accept, transport or treat any Prohibited Discharge. 2.03 TRA Approvals and TRA Contract. The TRA Contract requires approval of this Agreement by both the TRA and by a majority vote of the Advisory Committee and is not valid until such required approvals are obtained. The Agreement is subject to the TRA Contract, as amended from time to time, and all standards contained therein. This Agreement is a "subcontract" as that term is used in, and for purposes of: Section 9( c) of the TRA Contract. 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 tenth 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 1199512-1 Page 5 responsibility or liability for the maintenance and operation of the Fort Worih System, except as otherwise expressly provided herein. 2.06 Extension of Facilities. The City's wastewater co ll ection 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 TR.A applicable to the Fori 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 , pe1111its 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 conummications to or from the TCEQ, the EPA , TR.A, Denton County or other political subdivisions of the State of Texas, that contain data from or analyses oC 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 3.0 I 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 TR.A 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 TR.A 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 Fmi Worth System. 3 .0 2 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 Discharge will meet all influent quality and pretreatment standards o f Section 3.01 and (ii) the SIU submits a permit app lic ation ninety (90) days prior to commencing discharge in accordance with Article VI of Chapter 12.5 of the Fort W 01ih 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. Brookfield Wholesale Wastewater Service Agreement 1199512-1 Page 6 3.03 Infiltration and Inflow. Connections that allow surface drainage (including stom1 water run-off from rainwater spouts , rainwater collection areas, streets and gutters), abnormal seepage, and Infiltration or Inflow to enter the Development's System are prohibited. Aqua Texas will supervise and maintain the Development 's Sy stem using best management practices to prevent such Prohibited Discharges and, if any are discovered within the Development's System, shall, to the extent pennitted 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 pe1111its issued by the State of Texas and subject to oversight by EPA Aqua Texas agrees that it will comply with all permit conditions that relate in any way to the Development's System and to any Discharge into the Development's System that ultimately enters the Fort Worth System. Aqua Texas agrees that, in the event a fine is assessed against the City or TRA for any violation of any pe1111it 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 F01i Worth City Code. Aqua Texas agrees to abide by all other prov1s10ns contained in Article VI of Chapter 12 .5 of the Fort Worth City Code that apply to customers or other users in the City's ETJ, as amended from time to time, including, but not limited to, those provisions that relate to influent quality or pretreatment standards. 3.06 City's Right to Revise Wastewater Quality Standards. The City reserves the right to revise influent quality and pretreatment standards contained in the Fort Wo1ih 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 com1ections 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 1:"i-om 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 Brookfield Whole sa le Wastewater Service Agreement 1199512 -1 Page 7 4.01 Calculation of Rates Pursuant to this Agreement. The Pa.iii es 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 sepai·ate 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 ai1d the City expects to enter into negotiation for new wholesale contracts with those wholesale customers who are mw1icipalities. The City shall provide Aqua Texas at least ten (I 0) days prior Notice of the commencement of the negotiations between the City and the Wastewater Advisory Committee. If this Agreement is renewed pursuai1t 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 ai1d agree that for the renewal term of this A6rreement 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 AgTeement 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 F01i Worth System. By way of example, the City 's rates for wholesale customers effective on October 1, 2008, were as follows: Volume 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 Agreement, from time to time, so long as the adjustment is based on the agreed methodology set fo1ih 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 Agreement is an essential paii 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 w1der 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 th e 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 Wholesale Wastewater Service Agreement 119 9512-1 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 Fo1i 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 inm1ediately 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 , tTeatment and disposal service provided since the prior billing period. Past- due charges shall be the total amount unpaid fi:0111 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 thi1iy (30) days of the billing date shall be subject to a finance charge of ten percent (I 0%) 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 effo1is to resolve the disputed bill; however, dispute of a bill is not grounds for non-payment. 1n the event a payment is not paid as specified in this Agreement, a finance charge of ten percent ( I 0%) per annum will be calculated from the date which the payment was required to be made. 4 .06 Minimum Revenue Collection. Aqua Texas agrees, throughout the tem1 of this Af:,rreement, 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 Brookfield Wholesal e Wa stewater Service Agreement 1199 5 12 -1 Page 9 5.0 I 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 accommodate a complete initial installation satisfactory to the City, shall be provided free of charge to the City and be paid for pursuant to the Utility Agreement. Upon acceptance of the Metering and Sampling Facilities, the City shall own and have title to the Metering and Sampling Facilities along with the exclusive right to use , operate , and maintain such facilities; however, such metering and sampling facilities shall serve the Development only and no Discharge from outside the Development will be connected to the Fort Worth System in a manner that would allow it to pass through such facilities. 5.02 Operation and Maintenance. The City shall become solely responsible for the operation and maintenance responsibilities associated with the Metering and Sampling Facilities. Aqua Texas, to the extent that access is under its control, will continuously provide a route of ingress and egress to said Metering and Sampling Facilities for the City. The City shall have the discretion to constrnct 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 VJ METERING AND SAMPLING Brookfield Whole sale Wa stewater Service Agreement 11 9951 2-1 Page I 0 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 pat1y 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 Records . 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 infom1ation s hall 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 Conections. Upon any calibration, if it is determined that the accuracy envelope of such meter is found to be lower than ninety-five percent (95%) or higher than one hundred five percent ( 105%) expressed as a percentage of the full scale of the meter, the registration of the flow as detern1ined by such defective meter shaH be corrected for a pe1iod extending back to the time such inaccuracy began, if such time is asce11ainable; or, if such time is not ascertainable, then for a period extending back one-half ( 1/2) of the time elapsed since the date of the last calibration, but in no event further back than a period of six (6) months. 6.06 Out of Service Meter. If any meter used to detennine volume from the Development's System is out of service or out of repair so that the amount of wastewater metered cannot be ascertained or computed from the reading thereof~ the wastewater delivered through the period such meter is out of service or out of repair shall be estimated and agreed upon by the Parties hereto upon the basis of the best data available. The basis for estimating such flow includes, but is not limited to, extrapolation of past patterns of flow for said metering station under similar conditions. 6.07 Monitoring of Quantity and Quality. All Discharge from the Development 's System shall be monitored for volume. In addition, the City shall periodically determine the quality of the Di sc harge 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 performed up to two times per year until build-out of the Development and thereafter one time per year. To detem1ine 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 (2 4) hour periods . The City will provide Aqua Texas with a Notice at least Brookfield Whol esa le Wa stewate r Service Agreement 1199512 -1 Page 11 seven (7) days in advance of its intent to sample , or s uffici ently in advance of the sampling to allow Aqua Texas to an ange the services of a qualified laboratory. rt: at the request of Aqua Texas or at the request of the Director , more extensive monitoring is desired, s uch additional monitoring shall be paid for by the Party making the reque st and shall be done in compliance with this Article VI. If Aqua Texas requests such additio nal monitoring , the City shall invoice Aqua Texas and payment shall be made within thiriy (30) days after receipt of invoice. The Notice s ha ll include the planned dates, times, and location(s) of sampling. The City shall analyze the samples collected in accordance with stand ard methods. Aqua Texas may be present during the initial setup of sampling equipment and at the time of pickup for eac h twenty-four (24) hour composite sample. The City agrees, if requested , to split the wastewater samples with Aqua Texas. 6.08 Co mpli ance Monitoring. rt: in the opinion of the Director, compliance monitoring is required, the Director may order that additional monitoring be perfom1ed with or without prior Notice to Aqua Texas. Such compliance monitoring is to be in addition to the routine monitoring and periodic sampling set forth in Section 6.07 . All infonnation obtained as a result of this compliance monitoring shall be provided to Aqua Texas upon request. The City will provide Notice of s uch compliance monitoring to Aqua Texas within a reasonable time thereafter. ARTICLE VII OWNERSHIP, LIABILITY and INDEMNIFICATION 7.01 Liability a nd Ownership. Liability for damages arising out of the transportation, delivery, receipt, treatment, or disposal of any Discharge into the Development's System sha ll 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 an y 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 o r 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 eq uity in the Fort Worth System or the TRA System. 7 .02 Indemnity. To THE FULLEST EXTENT PERMITTED BY APPLICABLE L AW, AQUA TEXAS AG REES TO I N DEMNIFY AND DEFEND CITY, TRA, AN D EACH OF THEIR RESPECTIVE OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS, CONTRACTORS, SUCCESSORS AND ASS IGN S {COLLECTIVELY, "INDEMNITl.<.:ES") WITH R EGA RD TO ANY AND ALL CLA IMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SU ITS, .JUDGMENTS, ADMINISTRATIVE PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREME NT S, ENFORCEMENT ACTIONS, AND ALL COSTS AND EXPENSES INCURR E D IN CONNECTION THEREWITH {INCLUDING, BUT NOT LlMITED TO, REASONABL E ATTORNEYS' FEES, COSTS OF INVEST IGATION AND EXPENSES, INCLUDING THOSE INCURRED BY CITY IN ENFORCING THIS IND EMN ITY), DIRECTLY OR INDIRECTLY A RI SING OUT OF, CAUSED BY OR RESULTING FROM (IN WHOLE OR IN PA RT) ANY BREACH OF THIS AGREEMENT, ANY PROHIBITED DISCHA RGE, OR ANY CONNECTIO N OF THE DEVELOPMENT'S SYSTEM TO THE FORT WORTH SYSTEM, (COLLECTIVELY, "LIABILITIES"), EVEN IF SUC H LIABILITIES ARISE F ROM OR ARE ATT RIB UTE D TO STRI CT LIABILITY. Brookfield Wholesale Wa stewater Service Agreement 119951 2-1 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 accotmts discharging into the Development 's Sy s tem; B. Classification of domestic and non-domestic accounts within it s service area by number and percentage of accounts discharging directly or indirectly into the Development's System; C. The number of S[U 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 incw-w1reasonable expenses in providing such data. 8.02 Inspection and Audit. Complete records and accOLmts required to be maintained by each Party hereto shall be kept for a period of five (5) years. Each Party shall at all times, upon Notice , have the right at reasonable times to examine and inspect said records and accounts during normal business hours; and further , if required by any law, rule or regulation , make said records and accounts available to federal and/or state auditors. ARTICLE IX TERM and RELATED PROVISIONS 9 .0 I Te1111 of Agreement. This Agreement shall expire upon the sooner of: (i) the date upon which Aqua Texas ceases to be the retail wastewater provider for the Development; (ii). tem1ination 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 9.01 (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 term for the City's wholesale customers who are municipalities. B. A wholesale wastewater agreement with tem1s 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 te1111s 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 Whole sal e Wa stewater Service Agreement 11 995 12-1 Page 13 ceases to be the retail wastewater provider f-or 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 tem1s 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 terminates on the Section 9.0l(iii) expiration date and thus the City shall have no fu1ther 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 9.0t(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 April 30, 2018. 9.03 Effective Date. This Agreement, together with all terms and conditions and covenants, shall be effective upon execution by both Paities. Notwithstanding the foregoing, the City's obligation to provide wastewater treatment services to Aqua Texas pursuant to the terms of this Agreement will commence upon construction of the 191 st active residential connection with the Development. 9.04 Termination. 1n addition to termination pmsuant to Article IX and Section 4.03 , this Agreement may be terminated in whole or in pait 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 performance of any of the duties or the obligations assumed by Aqua Texas hereunder, or to faithfully keep and perform ai1y of the te1111s , conditions ai1d provisions hereof, shall be cause for tem1ination 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 fou1teen (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 tem1inate 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 tem1inated, and the Agreement will immediately expire at the end of such Notice period. The City s hall give Notice to Aqua Texas immediately upon acceptance of the cure of any deJault. A material breach of this Agreement includes , but is not limited to: Brookfield Wholesale Wastewater Service Agreement 1199 5 12-1 Page 14 a. Failme to comply with and enforce any wastewater quality or pretTeatment standards required by this Af,JTeement; b. Fail me to make any payment of any bill , charge or fee as provided for in this AgTeement; c. Making any connection to the Fort Worth System at any point other than those authorized by this Agreement; d . Failure to permit any sampling of wastewater as provided for herein; e. Fail me 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 perform duties under this Agreement, the City shall deliver to Aqua Texas thi1iy (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 Effec t of Termination. In t he event of tern1ination 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 te1111ination was not w1reasonable, arbitrary and capricious . 9.07 Surviving Provisions. As part ot: or in addition to, survival rights to which the Parties may be entitled in law or equity, the following provisions shall survive the termination of this Agreement for any reason: (a) any payment obligation of any Party under the term s of this Af,'Teement that has accrued prior to such tem1ination; (b) Section 7.02 (Indemnity); (c) Article VIII (Rep011s and Records); and (d) Artide XI (Miscellaneous). 9.06 Effect of Oppo11unity to Cure. The oppo11unities 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 o( 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 or 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 person at the delivery address; or ( d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday, Sunday , or legal holiday . For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas 1 000 Throckmorton Street Attn: City Secretary Fort Worth , Texas 76102 FAX: (817) 392-6196 Brookfield Wholesale Was tewater Service Agreement 11 995 12-1 Pag e 16 City of Fort Worth, Texas 1000 Throckmorton Street Attn: City Manager Fort Worth, Texas 76102 FAX: (817)392-6134 City of Fori Worth, Texas 1000 Throckmorton Street Attn: Water Director Fort Worth, Texas 76102 FAX: (817)392 -2398 To Aqua 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 thi s Agreement shall be binding upon, shall inure to the benefit oC and shall be severally enforceable by a nd against each Party to this Agreement, individuall y, and such Pmiy 's respective personal representatives , successors, trustees, receivers, and assigns. However , no Party shall assign this Agreement without the written consent of the other Party. ft is specifically intended that this Agreement and all terms, conditions and covenants herein shall survive a transfer, conveyance or assignment occasioned by the exercise of foreclosure of lien rights by a creditor or a party hereto , whether judicial or non-judicial. 11.04 Amendment. This Agreement may be amended only with the written consent of all Parties and with approval of the governing body of the City and Aqua Texas. 11 .05 No Waiver. Any failure by a Party to insist upon strict performance by the other Pariy of any material provision of this Agreement shall not be deemed a waiver thereof, and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party hereto of any tem1 or condition of this Agreement Broo kfield Whole sale Wast e w ate r Service Agreement 11 995 12-1 Page 17 shall be deemed or construed to be a waiver of any other tenn or condition or subsequent waiver of the same term or condition. 11.06 Severability. The provisions of this Agreement are severable and, in the event any word, phrase , clause , sentence, paragraph, section, or other provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid , illegal, or unenforceable for any reason , and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall , to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. 11 .07 Captions. Captions and headings used in this Agreement are for refei·e nce purposes only and shall not be deemed a part of the Agreement. 11 .08 Interpretation. The Paiiies acknowledge that each Party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto . As used in this Agreement , the term "including" means "including without limitation" and the term "days" means calendar days , not business days. Wherever required by the context, the singular shall 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 Benefici a ry. This Agreement is solely for the benefit of the Paiiies, and neither the City nor Aqua Texas intends by any provision of this Agreement to create any rights in any third-party beneficiaries or to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone other than the City and Aqua Texas. 11.11 Force Majeure. No Party shall be considered to be in default in the performance of any of the obligations hereunder (other than obligations of either Party to pay costs and expenses) if such tailure of performance shall be due to an uncontrollable force beyond the contrnl of the Parties, including but not limited to, the failure of facilities, flood , earthquake, tornado, storm , fire , lightning, epidemic, war, riot , civil disturbance or disobedience , labor dispute, labor or mate rial sho11age, sabotage , or restraint by a com1 order or public authority, which by the exercise of due diligence and foresight such Party could not have reasonably been expected to avoid. Either Pai1y 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 Wo11h System , as a result of the above, requires the City to temporarily inten-upt all or part Brookfield Whole sa le Was tewa ter Service Agreement 1199512-1 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 inteITuptions 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 Worth's Point of Entry to the TRA System Rate Methodology Brookfield Whole sale Wastewater Service Agreement 11 99 512-1 Page 19 Each Pa rt y ha s caused thi s Agreement to be exec ut ed by its dul y authorized repr ese nt at ive in multipl e copies on th e d ate or dates indi cated below . ATTEST: Marty He ndrix C it y Secretary APPROVED AS TO FORM AND LEGALlTY: Assistant City Atto rne y ATTEST: -J:r+(Y~ Co rpor ate Sec retary CITY OF FORT WORTH By: (p rint name) Titl e: ----------------- Date: ________________ _ AQUA UTILlTIES, INC. clba AQUA ' EXAS , INC. Date: Brookf-ic ltl Wholesa le Wastewate r Serv ice Agreemen t I 19 9512 -1 Page 20 Exhibit A Map of the Brookfield Development ,_,,.,...,,_,-...~,.,r.__,,.,.,....,,..,. ,...,,....,.,n --,--•--,., f \. ./"' ·--:- / I I ~ / T . ../ ... ::.. (.") .I . ~/ ,· 1' / / / Exhibit A to Brookfield Whole sa le Wa stewater Service Agreement / I ... , .. J I / l,/ I ,.;.• ~ . ·I ... I '"·, -·-· '~-\ / \ L i /' / ·\ j ! ) / ' I j ' j • ., ,:: ,, 0 _, , / ' ·\./ ' \!\ -·---~ ... -·\\ l1 [ ... -i //" l 1 -- 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 , De nton County, Texas and bein g more pariicularly described as follows: BEGINNING at a concrete monument with a 1/2 inch iron rod found in the Norih right-of-way line of State Highway No. 114 , a 100 foot right-of-way, at the Southeast corner of sa id Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said No1ih 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 corner of a tract of land described in Deed to Willow Bend 114, recorded in Document Number 2005-8893, Deed Records , Denton County , Texas ; THENCE Norib 00 degrees 19 minutes 46 seconds East, a distance of 2,518.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439" found at the Northeast corner of Lot 13 , Block A of WILLOW SPRINGS SUBDIVISION, ar1 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 North 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 corner 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 ye llow plastic cap stamped "EC&D" found at the Northeast corner of said Tract 1 . ' THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753 .84 feet to a 1 /2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the most Eas terly Southeast comer of said Tract I; 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 I ; THENCE South 00 degTees 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 les s . Exhib it B to Brookfield Wholesale Wastewater Service Agreement Page 1 973'.i .2 Ex h ibit C to Exhibit C Original TRA Contract T.llNITY RIVE:R AO'TEOR.ITY O? TEX.AS - DENTON" C?J;EK R;,G!OK1\,L WAS'l:z'WlJER TZZATMENT SYST;;M CQZ,"l'RhCT TKE STATE O? TEXAS TRINITY RIVER AUTHORITY OF TEXAS THIS TRINITY RIVER A.OT30RITY OP. TEXAS -DENTON CRERX REGIONAL WASTE'l'IA.!'7...R TREATM:E:ITT' SYSTEM CONTRACT (the "Contract•) made and entered into as oft.he 28th day of OCTOBER, 19B7 (the "Contra.ct DatQ"), by and a:ciong TRINITY RIVER AUTHO~TY OF TEXAS (tho "Authority•), ll1l agency and political subdivision of the state of Texas, being a conservation and reclamation district created and tunctioning undar Article 16, Section 59, of tho Taxas Constitution, pursuant to Chapter 518, Acts of the 54th Legislature of the State of Texas, Regu.lar Session, 1955, as alllended (the "Authority Act"), and the following: CITY OF FORT l;ORTH, IN TARRANT COUNTY, TEXAS, CITY OF HASLET, IN TARRANT cpUNTY, TEXAS , and CITY OF ROANOKE, IN DENTON COUNTY, T.EXA.S, (collectively the ·"Initial Contracting Parties"). Hr TN ES SETH: ·WHKIU!AS, each of the Initial Contracting Parties is a duly created city and political subdivision of tho State of Texas operating under the Constitution and laws of the state of Texas; and WHE:RZAS, the Authority and the Initial Contracting PartiQ~ are authorized to enter 1.nto th.is Contract:. pursuant to the 1 DFFIC~L RHDRIJJ 1 GJTY SECRETARY . FT. VIORTH, ITX. Brookfie ld Who lesa le Was tewa ter Serv ice Ag ree me nt Page I 9735 .2 Aut.b.o:::ity Act, C'haptar 30, Te.xa.s Water Code, VQrnon';;. 1'.n..""l. Te.>e. Civ. St. A--ticle Hl3 (32c) (tha nintarlo:::a.l Coope.ra.tion J..ct"), a....'")d other a.pplica..bl~ laws, and ~' th.a Authority proposes to acqu.ira and construct a regional Wa.stawa.ter tre.atIDant s:x·stem to serve tha Initia.1 Con- tracting ?arti~ ~i thin tha watershed or dra.inage area of Denton Creek, a tributary of the Trinity River, located .L""l Denton and Tarr!l.nt Cou.,ties, Te.x:a.s (the "S::r•s'tP--lll") ; and WHZREAS the System initially proposed to be ac~ired an~ constructed. is das.cribed in an engineering report of Rady • A.ssocia. tas, Fort Worth, Ta::.:as, enti tl ad "Comprehensive Feasibility Study on Danton Cree.k Ragional Wastewater sys;;te:na", dated August, 1997; and WHEREAS, such report, includ.inq all aJ11e.ndmants a.nd supple- ments thereto made prior to the execution of acquisition and construction contracts for tha System and as changed by change orders entered arter acquisition and construction contracts for the systan have been executed, is hereinafter called the "Engineering Re.port"; and 'NHl:REA.S, it is expected by the -parties hereto that as soon as practicable after the execution of this Contract the Author- ity will issue an installnont of Bonds to provide part of the money to acquir12 and construct the syst~, and thar~atte.r vill issue a subsequent insta.l l ment or installments of Bonds to complete the acquisition and construction of the Syste:m, with 2 Exhibit C to Brookfie ld W holesale Was tewater Service Agree m e nt Page 2 9735 .2 all of said 3onds to b-e payable trom a...,d secu=ed ":Jy Annual PaY1Dants made tL."ldar this contract by the L~itial Contracting Parties. NOW, THmFORE, i:1 conside.ration of the mutual covan.ants and agree111e.nts herein conta.ined, tha .\uthor i ty agr~ei;: to provida Wastewate.r treatJnent services of the System to t.'le Initial Contra.cting Parties under this Contract, IL"ld to issue i ti: Bonds and to acqi.iira an::! construct the System, upon and subj act to the t~rms and conditions hereinafter sot fot'"...h, to-wit: Section 1. DEFINITION OF TERMS. The ~allowing tenns and expressions as usod in this Contract, unless the context clearly shows otherwise, shall have the following meanings: (a) "Additional contracting Party" me.ans any party not de! ined as one of the Ini tia.l Contracting Parties with which the .Authority :Qakes a contract sinifar to this Contract for providing services of the System, provided that after execution of any such contract such. party shall become one o! the Con- tracting Parties for all purposes of this Contract, unless otherwise speci!ically provided herein. (b) "Adjusted Annual PaY111ent" means the Annual Paym<?nt, as adjusted during or arter each AnnuaJ. Payment Period, as provided by this Contract. 3 . Ex h ibit C to Broo kfi e ld Wh o lesale W astewate r Servi ce Agreem e nt Page 3 9735.2 (c) "Advi:=ory Conmdtt~c" :means tha :::o.n:.uit~ee to be create~ to con.sult with and advi~a ":.he ~uthority with raspect to the System as provided in Section 10 o! thi~ Contract. (d) ~Arlilual Payment" maa..ns the a.:aount of mon~y to b~ paid t.o tho A.ut.hority :>y each o! the Contracting Parties du.ring each AIL-i.ual Payu.e.nt Period as its proportionat'1 share of the Annual Requirement. (a) "Anr1ua1 PaYJ!lent Period" maa.n.s the Authority's Fiscal Year, which currently begins on Decexzber l of each calendar ye.,_r and ends on the last day of Uove..mber of the next calendar year, and. tha !irs.t A.nnua..l PaYJ!lant Period. under this Contract is estimated to be tha period or Dec8lllber 1, 1989, through · November 30, 1990. (f) "Annual Requirenant" maans th~ total amount of money requ.irad. !or the Authority to pay _all operation and Maintanance Expanses: of the Systal!l, to pay the debt service on its Bonds, to pay or restore any a:In.ounts required to bo deposited in any _ sJ;>eciaJ., contingency, or reserve funds raqu.ired to ba esitab- lished and/or il!Ztintain~ by the provisions of the Bond Resolu- tions, a.11 as further described in Section ll (a) of this Contract. ( g) "B. 0. D. n ( ~enot ing Biochenical Oxygen Dellland) means the quantity of oxygen util ized in the biochemical oxidation of oFganic mattar under standard laboratory procedure in five days at 20• C., expressed in mi l ligrams per liter. Ex hi bit C to Rrooktie ld Who lesa le Wastewate r Serv ice Agree me nt Page 4 9735 .2 (h) "Bo;}::i .?.esolut.io:i" maa;:is any re.solution o! ':.he A.utbor- i ty ..,.hich authori ze.s any 3ond!i'=. ( i) "Bond.s" me.a.."1S a..11 bonds hereafter issued by the Authority, a:.::pectQd to be in t~o or nore saries o= issues, a.n::i t.ha intere.s:t the::-eon, to acquire and construct the Syste.m (including all bonds issued to coJ:tplete the acquisition and construction of the System) , and/or a.11 bonds issued subse- quently to ilnproVQ and/or extend the System, and any bonds issued to refund any Bonds or to refund any such re!und.ing bonds. (j) "Contracting Parties" means the •rnitial Contracting ?arties", a:; defined in tha · fir~t paragraph of this Contract, together with any other party or partios which hereafter becomes one of th11 Contracting Parti~i. by b~oming an Addi- tional contracting Party. (k) "Contracting Party" means any ono of tbe Contracting Parties. (1) "Engineering Report" means the "engineering Report" as definod in the prea1!1bla to this Contract. (n) "Garbage" :means solid wastes from the preparation, cooking, and dispensing of food, a .nd !rom hancU ing, storage, and sale of produce. {n) "Grease" means fats, ,;.·axes, oils, and other shiilar nonvolatile materia.ls in Wastew~te.r, which are extracted. by 5 Exh ibit C to Brookfi e ld Wholesa le Was tewater Serv ice Agreement Page 5 9735.2 freon ~rorn a.., ecidificd sample u~L,g tbe ?a.rtition-Grav.i.Jn~tric :cet.~od. (o) "Inc:lu.strial Usar {IU) n :c,ea:ns any pars:on, including but not limited to, a.ny individual, firm, partnership, co:rporation, association, o:r any other group or combin3.tion acting as a unit, or any other loga1 entity, who discha:rg~s or dasires to dis-::::harge industrial. w-a.stes into th.a sy:.te.m. (p) "Infiltration water" means the wat~r which lea.ks into (q) "Oparation and Maintenance E'..<penses" me~s all co~t!i: and e~anses ·of operation and maintenance of the Syste:m and the Wastewater Interceptor Sy~t=1n, including (for greater cartainty but without li.?uting the generality of the foregoing) repairs and replacements for which no special fund is created in the Bond Resolutions, ope.rating personnel, the cost o! utilities, the co:;ts of supervision, engineering, accounting, 11uditing, legal services, :;upplies, services, administration o! the system and the. wastewater Interceptor systrun, including the Authority's gene.ra.l overhead expanses attributable to the System and. the Wastewater Interceptor System, insurance prellliums, equipment necessary for proper operation and mainte.nance of the systam and the Wastewater Interceptor System, and payue.nts madQ by the Authority in satisfaction of j udg1:1e.nts res:ul ting !ram claims not covered by the Authority's G Ex hi b it C to B rook fi e ld Wh o le s a le W as tewate r Ser vice Agr eem e nt Page 6 9735 .2 Exhibi t C to i..""lsura.nce a.r is; ing in con...,ection •,;i th t.ha op;a.ra t.:.on a.nd :znaL,tc- nance of the Sys.ten and the Wastevater Intarcc.ptor system. The tarm d.oes not includa depreciation. (r) "pH" means the co?l!lnon logarithm ot th~ reciprocal of the weight of hydrog:e.n ions in ~ per liter o~ solution. (s) "Project" 111eans the "Project" a:; dQfined in tbe prealllbla to this Contract, and ~s generally descri.bod in the Engina~ring Report. (t) "POTW" means PUblicly owned TreatJnQ.nt Wor}:.5 as defined in 40 CFR 403. (u) "Properly Shredded Garbage" :t:teans garbage that has bean shreddod to such degree that all particlas will bo carriQd freely under the !low conditions nonnall.y prevail.ing in public sewars, with rio particle greater than 1/2 inch in any di~en- sion. (v) "Significant Industrial User (SIU)" means any indus- tril!.l user who is connected or desire-s to connect to the City's domestic wastewater collection system and meets at least one of the following criteria: (l) Average industrial wastewater discharge rate greater than 50,000 gpd. (2) BOD and/or suspe.nded solids concentrations in industrial wastewater greater than 250 mg/1. (3) Industrial category r~lated by national Pretreatment standards as promulgated by the United states Envirorunenta.l Protection Agency. 7 Brookfie ld Who lesa le Wastewate r Se rv ice Ag ree me nt Page 7 97]5 2 (~) "Suspcn~ed Solids" ~c~.~ solids tbat Qii::ber floa~ on the surface or a.r~ in suspension in water, sewaga, or other liquids, and which a.re r~ova.ble by la.boratory filtering, axpres~ed in 11Ulligra::s per litar. (:x:) "Systea:" me:,.ns the ragion~l ,.ra.stewater tr<:.atman't systel!I descr ~d in the prea:m!:>lc to this Contract and in tba EngineerL-ig Report, and all improv~ents o.nd o.d::l.itions to and oxtensions, enlargements, and replace.J11ents of such facilities which are deemed necessary a.nd feasible by the Authority in ordQr to receive, treat, and dispose of Wastewater rrom Con- tracting Parties and to comply with the requ.iraments of the Wastavater regulatory agencies o-r the state of Texas and the Unitad States of A.ma.rica. Said te.nt doe.s not include any facilities acquired or constructed by the Authority with the proceed.9 fro:m tho issuance of "Spacial Facilities Bond.s", which are hereby defined as being ravQnuc obligations of the Author- ity which are not secured by or payable from Annual Pa.ymonts 111ade under this Contract and 3im.ilar contracts: with Additional Contracting Parties, and .'hich are payahla 5olely from other sources . (y) "Total Toxic Organics" 1:1.eans the stun of all detected concantrationg greater than 10 microgra.ms per liter for all . organic compounds classified as priority pollutants by the United States Enviroronental Protection Agency. B Exhib it C to Brookfie ld Who lesa le Wastewa ter Se rv ice Ag ree me nt Page 8 9735 .2 collect ing and la.t.eral sewers is concantratad and co:1·.reyed to the System. (aa) •twa.s:te...-at.cr" l%laans sa .. -age, Industri tl Wast::!, MUnici- . pal Waste, RecrMtional Was:te, and A~icu.ltural Was~e, as defined in the Ter.as Water CodQ, together ~ith Proporly Shred- ded Garbage and s u ch In!iltr11tion W.ater that :m~y be presont. (bb) "Wastewater Interceptor . Systein" means the "Inte~ceptor system• as defined in tha "Trinity River Authority of Texas Denton creek Wa.stewator Inter ceptor Systam contract", dated october 28, 1987, executed by the pnrti~s to this contract concurrently with tha execution he.reef (tha "Interceptor Contract"), and being facil i tio..s intended to collect and transport Wastewater into the "System", as definGd in thi~ Contract, together with any other Wastewatar collection ~nd transporation facilities which are not part of the systet11 as herein definad, and Which are intended to collect: and transport the Wa.stewater of any Additional Contracting Party into the Systelll as he.rein defined. Section 2. CONSULTING ENGINEERS; CONSTRUCTION OF SYSTEM. Tha Authority and the Contracting Parties agree that the Authority will choosa the Consulting Engineers for the system, provided that the consulting .Engine.<=>-rs may be changed at the option o ! the Authority. The Authority ag-rees to 5.ssue its Bonds, payable froa and secured by Annual Paynonts ~ade undor 9 Ex hibit C to Brookfie ld Who lesa le Wa ste water Service Agree me nt Page 9 97 35.2 this Co~tract, to acqu~re and construct tba Sy~t~, and agr~~~ that the Systa.n will ba acquired ~:i construc~Qd in ~a.::'laral accordance vitll the E:nginsering Report. rt is anticipated that such acquisition and construction ,..ill !:>e financad by the Authority through the issuance of two or more SQries or i~s:ues of its Bond:; payabl~ from and secured by .Annua).. P3.i"'lllant:; rr.ade unde.r this Contract, and the Authority agrees to issue its Bonds for s;uch purpose. Tbs! proceeds from the sale and de- li very of such Bonds also will be sufficient to fund to tho extent de.9.llled advii.:aJ,la by the. Authority a debt service reserve fund, a contingency fun:i, a.nd interest on the Bonds during construction; and 6Uch proceeds also will be used !or the payment of the Authority's a.xpc.ni.:es and cos;ts in connection with the System (including all engineering and design costs and expcmses, and _the cost of the land anc:l interests therein related to the System) and the. Bonds, including, without limitation , all financing, legal, printing, and other expenses and costs related to the issuance of such Bonds and the System. It is now estimated that such Bonds to acquire and construct the initial system will be issued in an aggregate amount of approximately $2,800,000 (whether actually more or less), which SUll is now estimated to be surticient · to cover all the aforesaid co.sts, expani:es, and other amounts. Each Bond Resolution ot the Authority shall spocify the exact principal amount o f the Bonds issued thereunder, which :;hall mature 10 Ex hibit C to Brookfie ld Who lesa le Wa stewa ter Service Agree men t Page I 0 9735 .2 -..,ithi.:l th~ r.a.xillltn:n period, and shall bear int.ere.st at net to a::io:::cQed t..r:ie max.i..lnw: ~ates, the.n pe~i:tt~::1 'by la.w, and each Band Rasclution sha.ll create ,a...""2d pro-.;ride for ~e. maintenance o~ a revenue fund, an inte::-e.st and sinking funj, a debt service reserv~ fund, a.nd any other !unds de.e:mad advisable, all in the 111annar and a.mounts as provided in such Bond Re·solution, Each Contracting Party . .agre.e.s that i! and when such Bonds are actually issued and delivered to the purchaser thereof, either for the purpose of initially acquiring and constructing the Syste:m, or subsaquently for improving andjor extending the Systelll, the Bond Resolution authorizing the Bonds shall for all purposes be deemed to be in compliance with this Contract in al.l r4t~pects, and the Bonds i .ssued thereunder ,..ill constitute Bonds as defined in thi~ Contract !or all purposes. Section 3 . QUANTITY AND POINTS OF ENTRY. (a) In con- sideration of the paymonts to be made by eac.h Contracting Party under this contract, each such Contracting Party is entitled, during each Annual Payment Period while the Systelll is in operation, to discharge into · the System at its Point or Points of Entry hereinafter described, all of the Wastewater which is generated within its boundaries which are within the watar~hed or drainage area of Denton creek, subject to the restrictions hereinafter stated: and provided that each sucll Contracting Party must tram.port such Wastewater to its Point or Points of Entry. Further, each Initial Contracting Party shall be 11 Exh ib it C to Brookfie ld Wh o lesa le Was tewate r Se rvi ce Ag ree me nt Page 11 9735 .2 obli~at ed t o trlU'..sport a....""ld ciischai;ge i.llto ~a Syste111 at it~ ?oi.nt or ?oints of :!ntry a.11 Was;t ew-ater .·hich is genera.tad within its 'boundaries t.o.·hich !.re within tha watershed or :ira.inage area of ~_nton creak, &xcept f.or rea.&ona.bly sma.11 fri.nga araa.s which could be. more cost e.tfecti vely served by other maans, a.nd which are approved by a majority vote. of the. Advisor-/ Co~ttee and approv~d by the Authority. (b) The combined m.~imu:n rate at which Wastewater is dis- chargod by each Contracting Party at all of its Points of Entry shall not e.xC9ad a rate which, if continued for a pariod of twenty-four hour5 voul.d equal 3. 50 timQs. such Contracting Party's estimated average daily contributing flow of Wastewater for th=. then current Annual Paym.~mt Period. The total quantity ot liaste·.·ater discharged. into the Syst~ s.hall neve.r exceed the amount vhich the System is ~pahle of receiving, treating, and disposing, unless approved by a m.aj ority vote of the Advisory Committee and approved by the Authority, subject to terms; and conditions to be established by the Authority. Notwithstanding the foregoing, no Contracting Party shall ever make any dis- ch..arga into the System w~ich would cause it to be overloaded or be in violation of its perm.its from the state of Texas and/or tha United States of America. (c) Wastewater meeting the quality raquirements of Section 4 of .this Contract will be received into the S_ystam at the Points o! Entry, respectively, shown for each Initial 12 Exh ibit C to Brookfield Wholesale Wastewate r Se rvice Agreeme nt Page 12 9735 .2 co:it=-act:.nq Party, rcs;pectively, L, tha Enginea.ri:1g ~eport, or at such other or additional Points o! Entri" that -may be estal:>- li$hed by mutt.Al agreel:lent bet'ween the Authority a...?)d a Con- tracting ?arty in tha future, i! such other or additional Points of E:1try a.ra detennined by the _Authority to be econom- ical and beneficial to the system, and such Contracting Party pays any co~ts related thereto which the Authority determ.ines sh.ould be paid by such Contracting Party. (d) It is the int~ntion of the partiGs hereto that the Systel!l shall ba acquired, con.str>~cted, extended, and improved so that at all reasonabla times it w~ll be capable of receiv- ing, transporting, treating, a.nd disposing of all eligible Wastewater generated within tho boundaries of each Contracting Party which are within tha wa.tar~hed or drainage area of Denton Cree.le and which such contracting Pa.rty d8livers to its Point or Points of Entry, and that tho Authority will from ti.mo to ti:me issue its Bonds in such a.mounts as ara, within its judgment and discretion, sufficient to achieve such· results. Section 4. QUALITY. The obligation of the Authority to receive into the System such Wastewater depends upon compliance by each Contracting Party with the provisions of this Section. c;;eneral Objectives of Quality Reguir~. In order to permit ~he Autho.rity to properly treat and dispo~e of each Contracting Party's Wastewater; to protect the public health; and to permit cooperation with other age.ncies 13 Exhib it C to Broo kfie ld Who lesa le Was tewate r Service Ag ree me nt Page 13 9 735 .2 which ha·.,re requ.ireJn~nb for the p:-otaction o! tha p h ~·sical, chlttt..ical, a..~d bacteriological quality of public water and water courses, and t..o protect the propertie= or. the SysteID, e.ach Contracting P~ agreas: (a) Admissible Di~cJla,rges into Authoritv' s sv:rte:m. Discharges into the Systeiu shall consiS"t only of Wastewater and othar '.,ras-te free fro:m the prohibited constituanb list.ad in Subsection {b) and limited in B.O.D., suspended Solids, dis- solved sul!idQs, and pB as hereinafter provided. (b) Was.tesz Not Admissible. Gasoline; cleaning solvents; non emul~ified oils a..nd greases; mineral oils; a.shes; cinders; sand i gravel; tar; a.sphal t; caraJD.ic wastes; plastics; other viscous substancQ.S; feathers; hair; rags; metal; metal filings; glass; •,lOod shavings; sawdust; un.shredded garbage ; toxic, corrosive, explosive or malodorous gases; acetylene generation sludge; cyanid~s or ~.ranides or cyanogen compounds capable of libaratling hydrocyanic gas on acidification i n excess of 2 mg/1 by weight as CN; rad i oactivo materials which will permit a trans i ent concentration higher than 100 uicrocuries per liter; emulsified oil a...~d grease, exclusive of soaps, exceeding on analysis an average of 100 mg/1 or ether-soluble matter; acids or alkalis having a pH val~e lowar than 6. o or highe.r than 10.0; and Wastewater containing specific pollutant concentra- tions in excess o! any of the nwnarica.l limitations naned hereunder be prohibited fro111. discharge to the System: 14 Exhibit C to Brookfie ld W ho lesa le Was tewater Se rv ice Agreeme nt Page 14 9735.2 ?ollµta,ot Ar.sa.nic BariWll Cadlniu.m Chrolll.iwn Copper Laad Manganese Marcury Nic}:el S e.l an i Ulll. Silvar Zinc Total Toxic Organics ~aximlllll .Ulo•,.·a..ble ~Qoccptr~tion fug/1) 1.DO 1,000 1DD 1,000 1,500 1,000 1,500 5 1,000 50 100 2,000 1,000 (c) Biochemical Oxygen Deln.and CB,Q. R, l. B.O. D. of wastewater delivered to the sys:tc.m, as dete.rm.ined by standard methods, ::ha.11 not sX:CQ~ 250 mg/1. (d) Total su;rpended Solids. Total Suspended Solids ,delivered to the SystQlll, a$ deter11ined by Standard methods, shall not exceed 250 mg/l. (e) Hydrogen Ion concentration (pH}. The pH of WastQ-water de.livered to the system sha.11 l:>e not lower than 6. D nor higher than 10. 0. lfo acids· shall l>e 'discharged into the Authority~s system unless neutralized to a pH of G.O or more. (t) H'vdroqen Sultige Concentration. Dissolved sulfides in wastewater at the point of delivery to the Sy-ste.ra shnll not exceed 0.1 mg/1. (g) Prohipited Djscharge Limitations Subject to Change. Notvith:;tanding the foregoing provisions of this Section, the 15 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 15 9735.2 parties he:-eto aqree and understand that ?cderal a.n d State R~.latory Agencies · perio::Uca.lly t.1odify sta.."ld~rd s on prohibi tad dischargas; th~refo~~, ravi>ions to, additions to, or deletion~ from the items. listed in this Section :ir.ay become necessary in tho futura to com.ply with tha;:a latest stand.a.rd.s. It i s tbe intention of this Contract that prohibited discharge r-cquire- ments be reviawed periodically by the Authority and revised in accordance with the latest standards or any Federal or state Agency having regulatory powers. Any required revisions shall be mad~ and written notic.e the.raot given to each contracting Party. Each Contracting Party shall be responsible for inte- grating such changes; into tha local industrial •,.aste ordinance and notifying-all a!!ected users of the changa within ninety days following written notice to the Contracting Party ot such change&. (h) To determine normal quality of Wa:.;te,;.-ater, the Authority will collect twenty-four hour composite sa.Iilplss of Wastawater at each Point of Entry and cause sama to be analyzed in accordance ,dth testing procedures as set f orth in the latest edition of ~0,ndard Methods of Examination ot Water an(l. wa~te.vatc~, published by American PU.blic Health Association, Inc. Composite Sa.Jllples will normally be taken once a month, or at more !requent intervals if necessary to determine Wa ,stewater quality. As providad above, such Wastewater shall not exceed 16 Exh ibit C to Bro o kfie ld Who lesa le Wa stewater Serv ice Agree ment Page 16 9735 .2 tha li:miti; of cooce.ntration spe::;i!ied f or Nonnal Wa.st~;.rater as follovs: No;:n;!tl Wast0 water Conc:;9,ptration BOD TSS pH, not lass~~ Hydrogen Sulfida 250 mg/l 250 Jl!g/1 6 nor gr~ate.r th.an 10 0.1 mg/1 Should the analysis disoloi;e concentrations higher than those listed, the Authority illlmediatoiy will inform. the Con- tracting Party which made the discharges re.s-ulting in the violation of this Section, and such dis.charges: shall cease imnediately. HO'oo'ever, with the .ipproval of the Authority, WastQvater with concentrations of BOD and TSS greater than specified above may be discharged by a Contracting Party into the Syst~m on an elllergency and te1Dp0rary basis, subjoct to tho pay:mont of a surcharge ( in addition to c!lll other paymant11: requirQd by thi. Contract), vh.ich surcharge shall ba determined by th~ Authority and shall be in an a:mount sufficient to cover a .nd pay for all additional costs of transportation, treatment, and disposal relatad to such discharges. Section 5. METERillG OF WASTEWATER. The Authority will f~~ish, install, · operate., and :naintain at its expense the nocess.ary equip:xr:ent and devices of standard type required for neasuring properly all Wastewater discharged into the system by each contracting Party, respective.ly, through its Point or Points of Entry, respectively. Such meters ~nd other equip~Qnt shall remain the property of the Authority. Each <:;ontracting 17 Exhibit C to Brookfie ld Who lesa le Wastewater Service Agreeme nt Page 17 9735.2 ?arty shall have access to smc~ metering equipment at all rea.s:onable time~ !or inspetction and exa.minrition, but the r&a.ding, calibration, and adjus'bne.nt thereof shall be· dona only by e.mployeas or a.qents of the Authority· in th.a pr&s.cnce of a represe.ntative of the a.!factad Contracting Party or Parties if requestad. by such Contracting ?arty or ?artie.s. All readings of mate.rs will ba entered upon proper books of record main- tained by tha Auth.ority. Open ·written request any contracting Party lll.aY have access to sa.id record books du.ring reasonable }?usinass hour3. Not more tha.n three ti.Jnes in e.ach year of operation, the Authority shall cal.ibrata its. mete.rs, if re- quested in wTiting by tha affected Contracting Party or Parties to do so, in the presence of a rapres:e.ntative of such Contract- ing Party or Parties, and such parties shall jointly observe any adjustnents which are Jnade to the :mete.rs in case :,.:ny adjustlllent is found to be necessary. If, for any raason, any meters are out of service or out of ropair, or if, upon any test, the percentage of inaccuracy of any meter is found to be in axc.ess of five (5.t) per cent, registration thereof shall be corrected for a period of tillle extending back: to the tilile when !.UCh inaccur.acy bogan, if SU.ch tillle is ascertainable, and if not ascertainable, then for a period extending baci: one-halt' (1/2) of the ti.ma alap5ed since the date of the. last ca.libra- tion, but in no event f~cthcr back than a period of ~ix (6) months. Any Contracting Party may, at its option ~nd its own 18 Ex h ib it C to Brookfi e ld Wholes a le Was tewater Ser v ice Agreement Page 18 9 73 5.2 Ex hibit C to expense, L.,stall a.."1d opera. te a cb.eck mete::-to ::heck g.a.ch met a r ins:ta.lled by t b,e Authority, b u t 'th~ mea..i.u.reJJ:e-nt for t.hQ purpos:e o~ this agreement sb..a..11 be aol~ly by the Autbority's meters, exc~pt as in th.is Section spaciti~lly p:-ovided to the con- trar/. All such check meters shall be of standard make, shall be installe1 in a location approved by tha Authority, and >hall be: subject at all reasC?nAhle ti.me!l to inspection cllld e.xaJ1.ina- tion by any employee or agent of the Authority, but the read- i ng, c~libration, and adjustment thereof shall be made only by the Contractin~ Party or Parties, except during any period when a check m.etar DJay be used under specific ·..ri tten cons.ant by the Authority for measuring the aJDount o ·f Waste.water delivarad into the systeln, in which ca~e the reading, calibration, and adjust- ment thereat shall be made by the Authority with lik~ effect as if such check meter or moters : had been furnished or instaJ.led by the Authority. Section 6. ON!T OF MEASUREMENT. The unit of llleasurrunent for Wastewater discharged into the system hereunder shall be 1,000 gallons, U. s. standard ~iquid Measure. Section 7. LIABILITY FOR DAMAGES AND RESPONSIBILITY FOR TREATMENT AND DISPOSAL OF WASTEWATER. Liability for damages arising !rom the transportation, delivery, reception, treat- oent, and/or disposal or all Wastewater dis:charged into the System hereunder shall remain in each Contracting Party to i t.s; Point or ?oints of Entry, respectively, .ind titla to such 19 Brookfield W ho lesa le Was tew a ter Ser vice Agreeme nt Page 19 9735 .2 Wa.stewa.tar ~hall be in such Contract i ng ?a.rty to such Point or Points, and upon pa.ssing tr.rough Points: of Entry liability f o:- such da.m.ages sha..11 pass to tha Authority. As betwee.;i the Authority and c.~ch Contractin g Party, each party agrees to indemnify a..~d to save and hold the other party hantless trom any and all claims, dC?nands, ca.u~~s: of action, da.JBages, 1 osses, costs, fi.nes, and expensQs, including reasonable attorney's feas, which lll.aY ari~e or be asserted by anyone at any time on account of tha transportation, delivery, rQc~ption, tra~tinent, and/or dispos~l while title to the Wastewater is in such party, or on account of a prohibited discharge by a Contracting Party. Tha Authority has the responsibility as between tha parties for the prop~r reception, transportation, treatment, and disposal or a.11 Wastewa.t~r discharged into th.e SystelD., but not for prohibita.d discharges dis;ccha.rgecl by any party at any Point of E,.').try. Section 8. REPORTING REQUIREMENTS. (a) Approximately thirty days after the end of ~ach Annual Payment Period each Contracting Party, respectivaly, shall f'urnish in writing to the Authority the following inforlllation with respect to such Contracting Party: (l.) The number of active domestic sewer connections tributary to the. systen and which will be sarved by the Systelll.; (2) Tho number of commercial and business sewer connec- tions to be SQrved by the system; 20 Exhib it Clo Brookfie ld Who lesa le Was tewater Serv ice Agree me nt Pag e 20 9735 .2 (.3) Tha munl:>er of ind.ii.trial conn~ctions ~o ::>-e se.rv~d by the s:,·rte.:n, with na:ne and location of each. The ?urposQ of this provision i~ to permit the Autll.ority to accu:aulate statirtical data. wh.ich will e.na.ble it to :.-ender better service and facilitate plans f.or bettenn~nt and future faciliti~.s exp~sion. (b) Industrial Wasta. The erfects of certain type.s ot Industrial Wasta upon s0wars and s~wage trBatnient processes are s:uch as to require that careful consideration be made of each industrial conr1ection. Th.is is a matto.r of concern both to the Authority a.nd to the Contracting Parties. Accordingly, each Contracting Party shall regulate the disch.arqe of Industrial Wai;te generated by a SIU into its saw~r system, and will authorize discharge of J:ndustrial Waste into its: se,..•ers >ubj ect to the general provision that no harm will result from such discharge and subj oct to the filing by appl~ca.nt industry of a statel!lent, copy of which shall be for«ardod to the Authority, contai~ing the following information: (l) name and address of applicant; ( 2) Type of industry; (J) Quantity of plant waste; ( 4) Typical analysis of the wa.ste; (5) Type of pre-treat~ent pr-0posed. To facilitate inspection and control of Industrial Waste, each Contracting Party will require indu~tries to separate 21 Exhibit C to Brookfield Wholesale Wastewater Service Agreement Page 21 9735.2 I.ndustria.l ~aste fro111 Sanitary Sewaga until ,;uch Industrial Wasta ha.a passed through ~ :cioni toring porttl w.ich !i.ha.11 l>i:a located s;o as:. to be a.ccassiblQ at , a.ll times to ·inspectors of such Contracting ?arty. I! inspection indicatas that daJnage might result from the discharge the pann.it s;;hall be revoJi::Qd unless and until the industry promptly ~s:-tablLshes acceptablcit reinedial m<iasures. At regular intervals the Authority will collect twenty-four hours composite sa111ples of a.11 Waste'l.·ater at eacl:l Point of Entry and cause same to bQ analyzed by Anerican PUblic Haalth Association Standard Methods. Such wa.stawater shall not exceed tha lillits or concentration s~oi!ied in Section 4 of this contract. Shoula tha analysis disclosa concentrations higher th.an thosa stipulated the Authority i.m:madiataly will inform the a!!ected Contracting Party of such di.squalification. It shall be the obligation o! such contracting Party to requ~re the offending originator of sa.id highly concentrated :materials to immediate.ly initiate and undertake re.medial pre-treatJnant o:r other legal means before discharge into such Contracting Party's sewers. ( c) Ordinances. Each Contracting Party, re:;pacti vely, agrees that it has enacted or will enact ordinanCQS a:: neces- sary to include the following provisions: ( 1) For each existing and future SIU, the Contracting P-arty ~hall require said usar to complete and submi~ a pennit application conta.ining that in.formation specified 'in the sal!lple 22 Ex hi bit C to Brookfie ld Who lesa le Was tewate r Serv ice Ag ree me nt Page 22 9735.2 ~pplication f ·onn which is attached. hereto as Zxhi.bit l. i .mme.di - ately following this Section 8 (c). The .A.uthority shall ~ provid~j a copy o! the perm.it application vithin thirty days after receipt by the Co:itracting Party. The Authority shall provide co1D1anU. on said application within thirty d .ays of receipt and rQturn com.ment~ to the Contracting ?arty. Failure to comment shall bQ coru:trued as concurrence. by the Authority. Aftar approval of the Parmit Application by both the Contracting ?arty· and the. Authority, tha Contracting Party shall issue a perz,.it to discharge. containing the requ.irenents: as shown on the form which is att~ched hereto as E)chibit 2 immediately following Exhibit 1 ~t the and o! this Section B (c). Said p&rmit to discharge shtll ba· required of all SIOs before said user will be allowed to discharge indw;trial wastas into the sewage system. A copy of the pc.rm.it to discharge shall be .forwarded to the Authority for approval prior to the issuance to the SIU. (2) Tba contracting Party shall require significant industrial users to comply .·ith app~icable Federal Categorical Pretreatment s ·tandards as well a .s any applicable state and local standards. (3) The Contracting Party shall maintai.n certain informa- tion contained in permit applications as confidential at SIU's request. 23 Ex hi bit C to Brookfield Wholesale Wastewate r Serv ice Agree men t Page 23 9735 .2 ( 4) The Contracting :.>arty s;hall disallow dilution a.s a :means ot: reducing pollutant concentrations in an SIU's v~te stre.!llll. (5) The Contracting ?arty slla.ll be authorized to enter SIU pramises at any ti.Ina for inde~ant monitoring, inspec- tion, or rev.i,e·.t ot applicable records to determine compliance. (6) The contracti~g ?arty shall deveJ.op and raquire adharence to SIO compliance schedules . (7) The Contracting Party shall require self-:r:nonitoring and r~porting at SIO's axpensQ. (8) The1 contracting Party shall choose or approve labora- tory to analyze industrial wastei.. (9) The Contracting ?arty .shall require SIU's to pay applicable fees for: ( i) sampling and testing to determine c0111pliance (ii) disconnection/reconnection of service resultin9 from noncompliance (iii) abnorlllal. strength wastes (iv) additional costs incurred by contracting ~arty or POTW in transporting or tre~ti ng wastes (v) filing, revision, or renewal of Permit Applic-ation (10) The Contra.ctin.g Party .:hall provide public notifica- tion for instances of violation. 24 Ex hibit C to B rookfie ld Who lesa le Was tewate r Service Agreement Page 2 4 9735 .2 ( ll) The Contritcting ?arty shall deny /revoke penrii t, dis~llow/di:co:ma=t ~ervice, assQSS civil or criJD.inal penal- ti~s, i!!.nd .eek other a"•ailabla l.;,al a.nd eq-..ii table re::nedies ~qain::t sro for: ., (i) d.ischarga .to sewerage. system resul t.inq in violation of POTW's discharge permit conditions (ii) hazard to health err lit~ of POTW personnel or users of receiving waters (iii) violation of a.ny applicable ordina.nco or regulation (iv) false inforl!lation transmitted to approving authority through Permit Application, monitoring reports, ate. The contracting Party shall furnish to the Authority all documents and records, in addition to thosa outlined herein, a~ necessary to demo·nstrate conpliai:ce by all industries. 25 Ex hi bit C to Brookfi e ld W ho lesale Wastewater Service Agreement Page 25 97 3 5.2 Ex hib it C to i I I I o,u: EXH 1 BIT l PtR~!T APPLlCATlOH CIH Of Ta: s ,,nHlunt lnd11~!rhl U~er s Subject; .c;>;,I Cc:Hion for I Pcl"ll(t lo D1i,1"~Pt ln~tr·l,t lo(UttwHtri !o l~ s,nitar, ~•er S11tca. Ordf11111a l'tal>er hu ~n 14o;,tcd r,r the ~r,,ine oC rt9111H1n11 the qullt.Y of 1114ustrtal 11,nevaters c:1>-11trlb11tcd t4 the ur.1t.ry sc•cr, The ~j tc:t I -,u of the Ordw11ce ,,... t.o pc-tYt11t d.lM~ °" oktNttt I on to Uie ,ewer, to «..old lnt,rCcrcncc v1tll tbe re9ion1l w1,tcwatcr Lrea~nt plant opcr,ted by t,.. Trl111tr ltlYcr-Alrthorlty, and to to111pl1 vith sutc , al\4 fder,1 ,..-g111Hlons reg trdf 11g prrtrutacnt or. 11\dustr 1,1 "utcs, Signlfl,~nt lndu~trl1l 11~ers a,st ~tlln I f'u'll .1t to lf1:clur~ lnd,atrl•I •uHNctcrs to tht uver. Tii.e Pcnott ••U•r>r1zu rovr dlir:l\&r-vc ind uts forth crl tcr ! • f:>r cshc:a.u~, qv111 ty alM$ ~qufr~acnu for rtpor-t Ing, T~ Ht,c:~~ 1pp1'tHfoft for • Pcl"lll1t -st ~ compltt«-d And returne-<1 to the ••fling ,aoreu S11own btll>w •1thtn UO dl)'S, A fee of muH ,c:toa?"'J' this ~Uc..tlQII. Th1 Cltr al\4 tbc Trlnttr Rlttr .i.:,:nor1t1 ..nll r.-,.ltv yo.., .. •ppl1c:.,it10ta. "661t1o.~I 1afo~t1on ~u-c:ll u nldtnce ~, tru:011 ity "-'J' be l"tquc,ttd (roa eltl>cr cnt!tr. The City "'111 return • ,,,..,., t to you vpon approul or .rour •119l lutton •lld w1 tl t i ther ,pprove ~r <ltny ~la ai,pt1cttloa w1tll1n ,c d1y, of IU ~tlpt boJ' Clt1. i'leHc u,e1rea qiiutlons C:011c.ernlt19 t.he lMuHrhl V.itewHcr OrC:IA•ncc P',r;ott to : Brook fi e ld Wh olesa le Wa stewate r Se rvice Ag ree ment Page 26 9 735.2 ::xH2 s n 1 (coNT • o ) A,fl;CJ.TfOI '-Cl A. P£K,.l(!T TO Ol~t:1-l..U~t UOC..!STttl.l Y~TC-d.iElt l:> M SAAliJJU SE'"rtt lb~c to Sf;,.il!og Orf'fclal: ,1ctu ~te~c An4 re,iur-n thf, •P~rl~tlr,Q vfUiln 1!~ .u,ri. S191\b9 crHc1a1s ant 11.,u ut>l~!utfosi to prod,e lnronut~on l)n l>eh.alr or the ~•11.r, lnfoM11t11>t1 col\,,l dued tl>tl(UtAt.C•l br yo11r c.oa~11.,. ,ho~lcf ~e dor1.r •utelf u tl'LH utr. ln.foraat ton cu be ., l11U1ntd In ,e,-u,a. l 1•1~td ,:i:cu fl l es. 1. z. ~Pi.tt1 auic ~ 11 '1\9 .1.dlfrt~~~s------------...,...-:------z,..1"':'.";>-~~· ..,a~c---- F,c1l t t1 lefdress 1cl ep11ccie iumcr l. (• Or!ru' wtiue SN-er_S_C_n'_lC_t __ \_,_l"t_qll_C_S~t-eCI~)------- Zs C(lll~111 c11rrut 11 1.n opc:rH 1 QI! &t r ,d 1 ft.r 1,ddr-cu? TtS MD c. $tCTI DK I. noro:rs OS: ~ net IKFORl'<AT, JON 1. at-ler descrlptfo11 or. aaDUf&ctud111 pri:>::ene, :ir-scnkt ,a.hlty ~t Ul4 t,cfl tt.r 1111:llrdt119 t'&t.e or pl"Od1o1c:tf011. 1f ,ppl1:;,bh: z. Prt.nc1pal r•tt 111tert,ts. ir.c:ludin9 d'leafuls, ca~al1,ts. soh·e11u, etc •• ust<I In •f'lf P'l•~e of tha aM\whcturfoJ pr11<:us or serrlce ,ttf·,H.r: _ l. Kunbe-t" of caployeu • tbun per ,., or opcratlon ___ • 04,ri p~ vect o( oi,cru,on _. (, St.lnd•rd lndwstrl&l Co<Se ~r ____. (4 dl91t,} • . S. tts: other ~.,irc~nul control pe1'1111t, ~ld ,t Chfs t1~. 6 • .1.tt,ch , p r,op~rt1 p,ht prcpued b)' u1 cniintcr or '"ldteet show-fng foCH1oM 1>r wUel" •nd SCWU Cetinect.lo rtS, runho\-cs, tr•·p,., Ht, Also lridlcHe th-t lout~e>as or "' 11:ccpt,ble 110n{tr;;rln-g stH1on for eoH~ct.lng s.aP9les ~~ •eu0urh19 rlOltJ or U1e 111:liHtc-ht wut.c,wit-tl" Hrttlll prlor to di.~~&l"ge to th p;nit•r1 icwcr, Exhibit C to Brookfield Who lesa le Wastewater Service Agreement Page 27 9735 .2 Exhibit C to £XHl8IT 2 ? E~~ IT FOR.~ ClT r c.tf ------- 'Clt11tT ~ DI~~ !KtKJSiR;J.1.L 'olASTE:i,LJ.HIZ:S re TliE S,I.Jcl T .UT ~ ... Cl ~N or [ndU~tr7 (hnslt~H} -------------------- 1.4~,t~S ~------...... --.--~----........ ..,..----------(loc.niM )t ,..,tr' ,,n1cet ,er.It Ito. -----------~count No, ----------- ' Tr>e ~O'Yt -d l'en1lttcc Js •uthorhed to df~c.Mr94t ti.dvstr!•I "'1Ht"lt~~ to tt• s,ntu17 ~er.911 t.,•st111 ,cc.oni1n; to the provision, or t.hh ~en,ft. "-v~l);dutfo,, is gr•,.tl<I f~ • perfocl ~1M1"' . vl>tll AiF.11or1 Zall i.prna"t•; 1 n Cft, or ______ _ Brookfield Wholesale Wastewater Service Agreement Page 28 9 73 5.2 Ex h ibit C to EXHJBIT Z {CDK T'D ) me ;11•lft1 or ;,e~i ttec·, lAd11nri ,1 d'!t01,rges '111 be l!11fad t>1 t ht prl>'I' 1s I CIC:' of C it1 0.-d I 1una lie. ~d :.he 114 ti oM I Pnt re ,t.ot,n t ltg\iht lWil "'11:b lncl11~1 the fo ·llow1n9 nuaerlc•I liaHHlo~s: ,on uuet or Poll vt&nt Prop:rt.1 STA.'QWS . PYxfia:= .lllc,,ut>le Co~cntr•:fon, ag/1 Aw-cr,91 Con c entration tlVJ/or !.o&d .._n c,;" lbta,, Tht dBc~uge ~f lit! po II uUnt ,t • 1 !Vt 1 h C.tCCU or t.hH ldent HI Cd ;nd •utl'l~rtzea b.1 th.ls ~,,.it, ~•ll c11t1st1tutt a vlolatlon of t~t ttnil •nd con41Uons of th1; p.enait, Suell • Y1olatlo• ••.1 rts11lt lo pc:r11lt ~,~1ti011 tnd/or t~ t11p,o11 t1on o·r chtl 1nd/r>r ,r1•iM1 pen&hlu. l. Pera1ttee t>lill col lttt rc?resentath~ "D?l.S of ~ wutevtte.r d I s~'1« •~ u•lr:c tlw!u •aterl f ,C>T the pol 1 vtuiu 11'<1 I cHed fn Section A. llbere feuiblt, n"'plu 11,h1ll be obulned irs1ng flow proport!D1Ul CCll9a-titt u:npll~J te-eh'nlqvu SptcHltd 111 tll.t ar,pllc.oh CHtgortc, l P'rttl"Ht.a:nt Stu.dud. V?iotre tOll90~I te u~ 1 ln9 Is r>0:. fcasH,tt, s~•b nmplln9 h ,cce.pt&t>ll . Tht pc.rulthe th&ll tollti;t ,nd 1•-41.ru Ul!Qle(s) 1111rtnq & per-feo:I, r~cr) {1nttrv1l) z. Ptn1ittee tl'l1ll fllffnHhc a.oni 't orl111 i 11foraitfon oe1 • ,on or tM HtHl'I~ •s19n Hi c,nt lndustd1 l Var S~l f l\::mi torfo~ Report• fora. t>u:'11cnu or thh for11 shall bt tu~11 l ttc_~ d11r\ri 9 tb.t nonths of ,n~ of etch rr ar t~: Clt1 Engine,r- Clt.1 of ------- wl tll o:,p1 t~: Pr1tr•1~ent Propr•• l!.Jn.,gtf' Trl11lt1 R!Yer Allthol"'I t1· or Tun P. o. au ZCD Arlln9~on, Tex.ti 1&010 Brookfie ld Who lesa le Was tewater Ser v ice Agreem e nt Page 29 9735 .2 Exhibit C to E~HISIT 2 (CDNi'D } l. ~• lhrc to i.11fnft Jrty rtp,or-t ~ lnfon-U{e>n ~qirl re~ 1>1 thi, ~r,•dt ,~1 l c~,t(tlrtt I T{O\&tiOII. <. Ari, ~age~ tn t.ht o.ar.eter-1 n IC$ or tilt I ~ustr-1, 1 ~5 ic:har9ts ,, • rc~111t of ~Hlt.,t1o.,s to UIC thd1w;rhl J):"C.Ceaes; cu.:n be rcport..cd. ,io11f r1c•t10CIS to tht pe1'111t a.7 theft ~ IU:dt to rtO"t u.:r 11e,:~a,.r1 ch,~;es 1" procc:.s COMlftfCJlls. fl';1udhlt ~r Mc:esu.,..,. ,rnvcat 1 fa(t,tfon, r,.,-~, pol lutu1U n:>t Identified And 1 Cattelf herefo. Thfs pcnait r, •ot triiisferr,.~11 to c:049-uln or procn~s ot.h(;r th•n ~cru tD ~fc.h ft. ts or1;Sn~ll1 hsua~. S. Per=ittct .s.~11 l~ht1l1 s»t1f1 tht t.l'"u~ut p1•nt 114M9cr ,c (21') zzs.JHZ h the utQt o·f • s:1119 l1ucUng of po-1111.:uu u: a r~ult or u op,er .. ~1cm.) r,11ur1 or pr~trutJncnt fat111t(u or accfdent1l ,pills. 6. l"etilfuu •~t auht~,111 1:"0Co.rds or •11 hifo.--aHh>11 re,111 tfo~ (rCQ a111 ir.on1to.rta9 ,c:tl'fH1ts; for .a 111htcr.A pulo4 or l r11u;. Svc.h nc:Qr,a wll I (iv.: 1 vdc for-• l 1 aD:9 l u : (f }° The d•tt • ex.let pl.ace, -~~. aM t(•e of U11t?l l n9 and tht n._U or ~ pcr;C111 1W" pr:rsoni uktnit ttic u119les; { I {) TM dHe~ tl\e &aa I ~u wert p,e:r ( on:ad ; {If 1} IC'O perro~ the •"" 1 nu: (h} The .u,alytfal t.cchnlqi,es/octhod; uud: •od {T} ~ rc,olts of ~1teh 11\allT"tS· ~~rds ,~11 be M.4e n&fhblc: ro.r tn.,pccUon •nit CC>?11n7 b1 the c:tt1, DI'" its rei,reiCAt.atH-ei. 7. ~ l hl'ICC Sci1e-d111e: S. ,.,rl'litttt 1, td"i:c:d t:hH he "'1 11ccd to toNplr ,dth •~ditlon,1 re~1 Hfons II nt4 u follows: Brookfield Wholesa le Wastewater Se rvice Agreement Page 30 9735 .2 Exhibit C to E!Xl 3 IT l ( COHT' D) l. [nO !a ~c t ht t..r.?:$ ,nd q-J,ntltr of lt1d1.1nrt•l "'tttC"•lar b1 c:.oes,li:tln<; t.1\e t,~1c bc1~: CMct 1114~$tr[• l r, lht Flo"' Flo1t -',Dp,oprl ct: n~ l'(ttr.r-cd £nilwted P'r:>?C~e~ J.u hr A,erJ ge D.a H.r / (elie:t ( c.hect For l!cw Type ,or XU1Clla C.111 H .ru) sf res) !n~r:Strl ll1,tcw1!er { C:t-.TCk 1f re,) (1} PrCKHS (t>) (c) ( i:) (t) ICHtl""Attr: Cont I n11011s OHct:.&r·9e ' li~h Dl:~rvc I !o [ l er Bl w:Sown I Coat f 1\9 ll1tcr ltltHt I ,t.nt lll4 Eq11i P.Cl\t I lo'uh.dt>Vft Otll,er I (,pc_cilri I for e.c.11 .,,utevatu streu Htac:h • $-C.heaAt I c or -,Ater now t.h1t dcpl ct, Che w,ter sou-rc:c. {"d11arl•l untu where w•tcr t, ua~ and prttru~cnt units. 2. liHte•attr Ou•llt1. ~ 1p~Hcut 11111:t present inforw .. t1r;.n on i.11, q111lft.1 or lnd11i'tri1t wutew.tcn . S..11plts c:11llcc:trd fr.,11 wntcwct.cr Hruit., ~h11uld bt rcprcunt1tl'f'1 o( d1tl1 optr1tlons. I.A1lytfc,l 'procedvrc~ $bo11ld f11llott U,o~c iri St,na,rd KethocH for the Eumin.ttlon of \titsr ,n,t J<'utevuer • .IJ>HA.-AWl-11,CF, [ttii £~it10C"1, !:,IS. Brookfie ld Who lesa le Wa stewater Se rvice Ag ree men t Page 3 1 973 5.2 Ex hibit C to EXHIBI T l (CO HT'O) (IJ lrlarl\, ,.1 1,..,. .. t 1 .. r...-.1 .. , ,Sent 1"41~U •1 ,i,ct•t "" ·~ It \lot ,,..,.._r-i,t.e -l>t 11:• llllN c:'-lc:,I ~~-It h •i.n.-,C\'4 L, ~t ~h•L•, "(,,,.-U ~-.... t•L", "~>t~tl le W P.,.,1-t•, ,... "I-\• ~ truut ' II r••I' ••••f1chrl•t •r U t ~1U •~~t,d t f •r tr ""'r,trf H I .,.,.....-.\. I ~·1-=l~il-i I ,,,. i= i .. n fl' I rta c... ;':11("8~~ • -S --"" .. :,O,C.I( - t. •••nt" frt ....... J t' f i 1 r I "· 1.1..iu.1-,._ t. ~"::, 'i:.:!f I ! I ! f "· 1.1~1ua-..- 1. ~ u ... u.i,u1--,. ·-,._.,, ... ,.,41c.Lle,........., ,. """'711'-f\ ..... lJ I I 111, J-·~· .. ·---,. ::-:_c~!I, n . c.JO I -) 1.,~i..•S.. ---,. Tl. _..,ari. .. _,, ..... 11 I Tl. •l•l"rl --.L.u ,. , .... fL"•' I N, 1. .... -~__. ... -,, ..... , I'\. .;.u,1 ,..,.., ... ii. "•tc'41 1, .. ,1 J ~-41 ••ot.r• ,-1 .. ,~. u . .. , ..... , .. 011 fl, '1-l,, _ .. i.u :1. UI-(loe,IJ f n. ·~·•l&rw-U\'t-1 , .. ""-lH-fl ... •11 "· , .......... ~. rl . "« ,, .. ,, I M. '-~''"""'-IC. ~,., ..... "· l ,•.-u.r-- 11, _ .. ,..."'r._ 11 IL. 1.i·..i-,,.,., •• , .. I L .. ,.. ... .... _, .. , u. _,._ . .,, ... I I l •1. -11 .. 11 "· •'--I\. _., .... ,., .... "· ... __ Ko _. .. ct. --,,. -·· .,_, .. n ... ... ,Wlw I 11, .~,--, .. -.. 1·1 ~--••• ,, __ u. ..... . ........... ! I ' ... ,__ "· -.. l. ,~--ll, -.t ... , ... tr . -.. 'i~' -,~ n. ... .. _i-_ .. n. -.. r '"""-u. .................. l't, ~ •L"'4) -11 IC. .... _._.,,_ )&.. ~ ..... , rt. '-t,a.14ir•,<I-....Ml ... ll, ..-(al&.! .... ._..n...._ ...... u. ~,.-••• -(l ,t.J-c•J .,.._ ~ ·" 11-c ... _.,,1 .,._ "· ........... )I, .. , t-c..i-,11 .,_ I "· _..,,_ ............. n . . ,, ('-'--11 ...... Ir 11 I IA. _ ... _ "· ... Ni ........ ....,. .,~ ... ·--Jr. •• , ,~ .. , .. ,1 J ... ~, ..... 1, I 1oa. ,_,, ___ ... _,.,....wt .... II ,.,_ ,_,,# ......... n. -·-.... .... U"M~lrtir-t-... -.. _._ ..... .._.,, .. -1 ,....,...,, ...... 41 . !::,,.._,;;'!::E!,~ f q f I I -.._,,,.....,.,....,.t ... , ... •t. .,. KJ,ttlJ u.. ,.,, ... &,,.\.t eA! ....... f ! ! i I f .... oa-tro ... .......... ..... ,u.1~i: "· -·~--. .., ........ L ,.-. n •.tz cr ... • ..i ............... CI Ill. ,a.u q . ,. , ................ fl 11 I I i Ill. ,u.:rr.e u . t•cu ...... ~, .... ,, ~, . Ill, 'ti-t i .. ,, .. ~.....,.,,. ( I ..... "-..u.a ..... ,... ... a M.. c•t ~ l l n I 111 , ,.. • ...-1,.,...... u .. ,.~.,.........,.., ... ,,.... 111. ---u ...... 1~-· Ill, ..,_.. \I , .,,1., ....... ,&.,.....,a .c..., !l I 11 II .. I .1. , .• 1-t fl ... .,..,.,.,...•._.,..• .... r: ..... , ...... .. ........... ~i. ....... Cl I JI I ", l.l .--t.1.cn,1<11 1..,. .. ,......, 14. ••••• ,o( l I l1' t n..r •<•l~ .... ,,. • .. 1 •. IDI Ill, l••--..... ,, .... ,. ~.•J ........ u ... ( J I ltf. l ............ \1 • .-.~_ .................. 11 J i I µ.L ,.., ...... ,..,., ...... ...., H . L.Z•••f'91..,._,_ IIC. 1.1 ., ..... , .. , __ .,_ L..-~--·,··•~r-. I I ! I l f I LM.. l.l -.t•i r1t111.,.....,..,. IL L ...... ,C'II ,_....._.,_ 1 ! H I ,t1.. \rip•.............., ... J.)'•w.•• .... ~·· ...... u,. l rt.c•l..,..,..CI,.......,.,~ ... ,1n1. ....... ,n .... , .. u-.... lfl. l.4.,-v•c•l--1 H .. I .. I ~ .. , •• ..-a.t...,,. t I I I I Ll't, ,..,,, r=-ler t.., Bro ok fi e ld Who lesa le Was te water Se rvi ce Agreem e nt I · I I· :: i;:;_ .,,.._ -.... .. i~ pg ! -: ' .... I I CI ( l q ! I I l I 1 I l I l I ! l I . I q I! ! ! I I I I l l l I l I ! I 11 I l I f fl I l l l I f t I l l ! r I ! ! l I I I ! I 1 l I i I l I 11 I ( I I q 11 CI ! J fl I, l) ! l ! I ! I ii r I l 1 C I J ! 11 11 I l I I 1 I II ! l I > I l I J I I I I t I ( I I I Page 32 9735 .2 Exhibit C to EXK !SIT l (CONT'D) Fo.r ~arc,! COQ.1>0ull.d1 -..h1ell •rt lru:H~t:ed to b,t ~~ Pree t ~n t • plua l ln •r>4 pro.-loe t.ht r1:111~ .. 1r..s C:LU for t•c::h. (Hh~ ,d~ltloo,l .htc:U l f ~e.coti::). tnlluttd J..nn;t Mlx 1aun J.,viu•l lt'H 7:, ConcCt1t.rtt.t :x, COl'IC::tllt r, t I O!'I U ten Ut.tgc kvtf" 1.n D1 ich• rge 111 DI ·""' rg t Jlo. C?,eolt1. l Conpo11D~ (lb,) {lb;/1c•r) c .... 11 > {aifl} I ' Brookfield Wholesale Wastewater Service Agreeme nt Page 33 9735.2 Ex hibit C to EX.'-113 n 1 (co m-· o) l . Is ;rour c:lstl',tqe .ir~Jtt:t to r.it i o e.,l PrttreH"'~"'t St,MHcB tH.,~l!thtd 1.111 der •o Crt , Ch1ptcr l, .S.U~ho~er H. tlt ,t>o.,.t ~11cstlD11 11'1St la &.11S1ttrtd l<'!t~ i:c r t1l t t1. for ,,oitlor,c1 In ro:-a.n 1 on rtg1rdt=9 "'t 1 o~ I 1'rctreH&nerit St•~•rds, • n · 11 c:u.t ,bou 1 d c:,ntlCt ~;f:1n YI or the tnYlrC>."lncnt,1 ~rotect.1 )n .i.,c•c.r tt (ZlC) 757-HlO l>I' C!ic Trl.ntt1 ~her 1'41tl'l1>rH1, Northern ae9loA orrtct lt (Blt} (1.7-HZJ, C, F~r ut,ttng s;!9n!f1c.ut ttMhr,trhl l'Ctrs:0 H' the us~r to tl"C ,b~t q•esC!Dft Is ru. pleue lradlc,tc, the ,ppl le.able. ,pretru~ent stucur11s tn the spac.e p."'OYldtd t.«loot ab4 attach , sUtca.nt ·rcyi~cd b.1 •ppl1"nt •s ,uU>:irh::ed rcpre,e-Jit:ltlu· ud c.ertlfhll by , qu, lHltCI . proCtu !OM 1, [t>d{ut tag i.tietber app,11 ~.bh ;,rttre• tat11t i:.tnd'uds; &rt ~1119 ..e"t oa • ,o.ns:lnent b.lsH. tr 1ppl1lc:1)le ?N~U~nt st.ani:,rts ,re •:it btll)9 eet 011 • Cl>Cltls:.cnt buh. otrt1rt.e4 s;uteaeat ~111 tnll{"tt the folto•f~3 : ,. l(h.ether •ddtt.tOt1d opctU.loci ind Mi&te~rm: (0,-1) uod/or •~:SHtoul · p.ntrutaent I$ l"tqgfred ror ,:;.pH cut to 9teet pntrutllent ,taa.dardi; lllrS I>. Tb~ $hor-tut schedule b1 ~(cJI applicant v1ll proTide addt t 1Cfl•I 0'1t or pretr-e.atae11t. The ecmplttfoa <=•te ID thh $c:hc-dutc 11u~t n.ot be Iner thu ec.z.;,llu1ee d&tt c,eab1 !~bed fet'" •~l Sc1blt pretreat&ertt ,tandard. Af>?11t1ble S~•111U~~ 1 Constltcrtr1t l1&1 t(q Brookfield Who lesa le W as tewater Serv ice Agreeme nt Page 34 9735 .2 Exhibit C to EXHIB I T l (COH'T'D) I ~. For ne .. i;t911Hlu.nt foairnrltl ~Hri Oe1::l"ll>t th& prctrtJU>CJlt pc-oecuct pr.ipcrse-4 rrir ,ro1.lt" fadl ft, to •tct tl>e rcqY1r.--l'IU \ l;ttd l.11 ltt:tl '· (Cuap l ts: nclftr,1 luth•, aatcr!,l, rte.over)", 9r:!Ht tl"1;,, ,ana trtpt, ct:.) I tM ur,&1tl",!gnc:d .ap;>11cu,t, ~l1tg tht iuthor!:td r?:~t"UtnUtl'l't or the ~~tn n.iacd o:n~ny, :lo her~r re~ue,t & Ptririlt to i;.onttnYt t., 1ae or to eHabthh an 11\dintrf•l u-.,er ~I\AtCtl~ u. the \o:.atfon (nct{~ttd ~NII\ IMZ i» •irtt to c;oa;,11 with pr°" I$ \0111 of ~H1 Orctt ri.anct ----- SI lltlltl!Nr of Appl lc:tnt --------------DHt ------ l<aoe or S19n~ -----T"{/>""l.-c~,-;-,""'>c-.-- 1 -t1.,.t ... ) ______ _ ~111t ud p~c M1Abcr of ;,erso,11 ~o co«1tact rc9.ardfo9 !'craft toror,r.1til>fl. r~ sr.ur Of rr us. coorr.r OF------ t cor-portt{~, t:.no-t~ .nc to be tile pcr,o.'I ,.,,cse n.111c h tubtcrlbed to tbc (ore9oln9 iutruaent, u,a •cuuwlcd9cd to ne t.Mt he cxcc11~cd the u111e for purpose, .and c:oruicscrHion., therein exprcuc.d, In the c:&p1tity there!" tttter: 1na H the Kt &.nd !Seed or utd c.or;:,orltl04'. :il•itfl 11~r:er-mr h,r,d u~ $Ul or ofri" on this _ ,d,y or 19 ____ • --------~ llot,r1 Fut>l1c \R ud for-------- Cou..ty , Teus Brookfie ld Who lesa le Wastewate r Se rvice Ag ree ment Page 35 9735.2 Section 9. OT'".:1ER CON'I.'RA.CTS. (a) The Au'thority rese::_.r13.; t..'f}e right, with the approval of a m!ljority vote of ";.be Advisory Comm.itt.e<t, to anta.r into contracts t-o pro-vido the Wa.ste-..•atar services of th9 syst~m to Add.ition~l Contracting ?artic.5 under contracts similar to th.is Contract, ~ubject to the raquire1nants concerning "minimuns" as hereinafter p~ovided. ::ach contract with any Add.itiona.l Contracting ?arty sh.a.1.1 comply vith the requirements of this contract, shall substantially re.state tha ~sentia1 provisions of this Contra.ct, and shall he structur~d to ba similar hereto to the .tullest extant appli~lo and pract~ca.blo, ~ith such additions or changes as are necessary to neat the actual circunstance.s, ,i'ith the effect that each Additional contracting Party will substantially adopt the provisions of this contract, as supple1nented and necessarily chang~d by its contract. Ho•..revar, the Authority shall not obligate itself to receive Wastewater into the systOlll from any futura Additional Contracti'ng Party i:t, in the judgment and discretion of thGl Authority, such obligation woul.d jeopardize the Authority's ability to lneet its obligation to receive, transport, treat, and dispos<:) of Wastewater discharged into the system by prior Contracting Partie.s, including spocitically the Initial contracting Parties. (b) It is further recognized and zigreed that in the future _the Authority may provide services of the System to parties which are not Additional Contracting Parties, provided 25 Ex hibit C to Brookfield Wh o lesa le Wa stewate r Service Agreem e nt Page 36 9735 .2 that a11 such ~ervicas of the System to parties Yhich arQ not Additional. contracting ?a.rties; sho..11 L'l ~ll :c-e.spects be sub- ordin ate to tha prior rights ot tha Contracting P~-ti~, and all contracts or other arra.nqemants relating to such services sha.11 racogni z; e, and l:>e mad.a subordinate to, ;iUCh pr i'or rights. (c) Each Contracting Party shall have the right, with the approval of a ~ajority vote of the Advisory colDJl....i.ttae a.""1.d the approval of the Authority, to negotiate and enter into sub-con- tracts with any other city or other entity under which such oth.Clr city or ent.ity may dischar·ge Was:tewate.r gene.rated within the drainagg area of Denton creek, but outside tha boundaries of such contracting Party, into such Contracting Party' !i severs, to b~ _transported into tha SystQlll at :.uch Contracting Party's Point or Points · of Entry along with s;uch Contracting Party's Wa.stewat<lr generated. within the drainaga araa o~ D~nton Creek. In such case such c1.dditional wastewater ~hall be regard.ad as being the Wastewater of such Contracting Party for all purposes of this Contract. The consideration a::; between or among such cities or other entities may be determined by such parties, but no such transaction shall relieve tha Contracting Party of its obligations to the Authority under the terms of this contract. Sa ct ion l O. ADVISORY COMMITTEE. (a) The governing body of each of tho Contrac::ting Parties annually shall appoint one of the ~embers of its gove:i:ning body or one of its employees as 27 Exhibit C to Brookfie ld Who lesa le Wa ste water Service Agreeme nt Page 37 9735 .2 a vo~in; mClllbe.r of tha Aavi=ory com:ittee fer the systcn, whic~ Advisory CcllllD.i "ttQ~ is h~reby creat'3d L'1d established. Tha .A.tr..risory Co:i:ri.i.ttea, at its first meeting, shall elect a Chairman, a Vica Chairman, and a Secre:tary. The .Advisory co~ttee may asta.blish byla .. ·s governing tha election of officers, meet~ng dates, and other 1I1atters pertinent to the functioning ot th~ Advisory Cowu.ttaa. Tha Advisory Con::in.ittee shall consult Yi th and advise tha Authority, throug-h it~ General M~~ager or his dasign~tad representative, with regard to the following mZtttsrs _pertaining to the System: Exhibit C to {i) The issuance of Bonds; (ii) The operation and ll.laintcn.ancc of the Sy:;;tcu:i; (iii) Additional. Contracting Parties and the tenns and conditions of the contracts with such parties, consistent with the provisions o! this Contract; (iv) Contracts for services to entities which are not Additional Contracting Parti~s, and the prices, terms, and conditions of such contracts consistent with the provisions o! this contract; (v) The Authority's Annual Budget, prior to its sublllission by the Authority's General Manaqer to the Authority's Board; (vi) ReviQw of the Authority's Annual Audit; (vii) A.11 other pertinent matters. relating to the manageJnent of the System.; and 28 Brookfield Wholesale Wastewater Service Agreement Page 38 9735.2 (viii) !1:prova111ents !!..Dd ert.ansions of the System. Tbo11 Advi~ory Co'IlllD.ittee shall b.ava access to a....'"'ld may inspoct at llllY reasonable timai;; all physica.l alements of thQ System a.."'ld all racords a.nd accounts of the Authority pe.rtaining to the sy.r:te'lll. A co;,y of tha minutes of the :meetings of the Advisory co111ll.ittea and all other pertinent data, sh~ll be provided to the ?lle.Jllbg,r~ of the A.dvisory Collllllittee. (b) The t.arm of xn~rship on the Advi~ory committee shall be at tha pleasure of each governing body repr~sented, respectively, and each mambcr shall serve until replaced by such governing body. ll l expenses or the Adv i.sory camni t ta.a in discharging its dutie3 under this Section shall be considered as an ope.ration and Maintenance Expense. of the Syste111.. Section 1.1. FISCAL PROVISION'S. (a) Subject to the terms and provisions of' this Contract, the Authority will provide and pay for the cost of the acquisition and construction of thQ Syste:m and all systelll facilities, by issuing .its Bonds in amounts which will be sufficient to accomplish such purpo!:es, and the Authority will ow-n and operate the System. It is acknowledged and agreed that payments to be ma.de under this contract and sa.ilar contracts with Additional Contracting Parties, if any, will be the pri.:mary source available to the Authority to provide the Annu~l Raquir(ment, and that, in compliance with the Authority's statutory duty to fix and from. time to t~m.e revise the rates of compensation or charges -for 29 Ex hi bit C to Brookfie ld Who lesa le Wastewa te r Se rvice Agree me nt Page 39 97 35.2 Ex hib it C to s~rv ices o! tbe Systc:.;n rc::n::ler~::l ~'id :ir..ad.e a-,rail~le by tbe Authority, tha A.."'U'lual RequireJne..."'lt .,.ill change t':-o?ll time to tiln-e, 11.nd that each s:uch Annual :R.equire,ll)e.;,t shall be allocated among tha contracting Partie.i. a.s; hllrair.a!t.Qr provi::lad, and. that thQ Annual Re-quirem.ant for aach Annual. ?ayment ?e.rio:i shall be provided for in ~ach Annual .crudget and shall at all times ba not less than an a.JDount sufficient to pay or provide !or the payment of: (A) An "Operation ~nd Kaintana.nce COlllponent" equal to the a1Dount paid or payable for all Operation ~~d Mainte- nance Expo-nse.s o:f the System and the Waste-water Interceptor sys.te.i:n. It is understood and agreed that although the Wastewater Interceptor System will not be a part of the Systelll as defined in this Contra.ct, it ~ill consist o! facilitias which are ancillary to and integrated into the operation of the SysteD, and therefore will be operated and maintained in effect as a part of the system under the provisions of this Contract, consi~tent with the terms or tha Interceptor contract; and (B) A 11 Bond Service Co111ponent 11 equa.l to: (l) the principal of, redemption premiwn, if any, and interest on, its Bonds, as such principal, r~demption premium, if any, and interest beco~e due, less interest to be paid out of Bond proceeds or from. other sources if permitted by 30 Brookfie ld Wh o lesa le Was tewate r Se rvic e Ag ree ment Page 40 9735.2 !:..nY Bond Resol i.tion, and a.11 al:lou=its re.qr.1ir~:i to r&:iee.lll any Bonds prior to naturi ty when and a.s- providcd in any Bond Resolution, plus th.Q fees, expenses, and ch.a.rges of ~ach Paying Agant/Registrar ror paying the principal of and. interest on the Bonds, and for authenticating, registering, a.n.d transferring Bonds on the registration books; !Uld {2) the proportionate amount o! any special, contingency, or ras;a,rva funds required to be a.ccumulat~ and -maintained by the provisions of a.ny Bond Resolution; and {3) any amount in ~ddition thereto ~ufficient to rastore any daticiency in any of such funds roquircd to be acoumulated a.nd maintained by tho provisions of any Bond Resolution. Section 12. ANNUAL BUDGET. Each Annual Bud.get for the System shall always provide for amounts su.tfioiont to pay the Annual RequireJDent. The Annual Budget for tho SysteJil for all or any pa.rt of the Annual Payment Period during which the. system is first placed into operation shall be prepared by the Authority based on estimates m.ade by the Authority after, consultation with tha Advisory Collllaittee. on or-before August l of each year aft.er the system is first placed in operation, the Authority shall furnish to each Contracting Party a 31 Exhib it C to Brookfie ld Who lesa le Wastewater Se rvice Agree me nt Page 41 9735 .2 prali.ln.inary estilnate of the A.nm ... a.l ?aymant required fro:tz1 ea.ch Cont:-acting Pa.::rty f .or the next :follo'lo'ing Annual. ?aY1De.nt ?e.ricd. not l es. than !orty days ~fore the co:;mi.eoc~cnt of tha Annual ?ayncnt Pariod after th.a Systen is tirst placed into operation, and not less tha.., forty days ba!ora tha col!llnanceme.nt o~ c.a.ch .A.nnua.l Payment ?erioci thereatter, the Authority shall cause to be prepared as ber8in provided its prelininary budget for the system for the ncixt ensuing Annual Paj'lllent Pe.rfod, which budget shall specifically include the · Operation and Maintenance Component and the Bond sarvice co11:1ponent. A copy of such praliminary budget sha.11 be. filed with each· Contracting Party. The preliminary budget shall be subject to examination, a.t reasonable times during business hours, at the office o! the City Secretary o!· ·each contracting Party. If no protest or request for a hearing on such preliminary budget is presented to the Authority within ten days a.fter such filing of the prQl i.minary budget by one or moro Contracting Parties or. by the o .. -ners of a nnir.iWI o! 25% in principal amount of th.e Bonds then outstanding, tha preli.lninary budget for the Systelll shall be considered for all purposes as tho n.Annual Budget" for the next en!;uing Annua1 Payment Period. But if protest or request for a hearing is duly filed, it shall be the duty of the Authority to fix the date and time !or a hearing on the prelim- inary bu.dgot, and to give not less than ten days notice thereof to the Contracting Parties. An appropriate committee of the 32 Ex hibit C to Brookfie ld Who lesa le Wa stewa ter Service Agree ment Page 42 9735 .2 Authority shall consid~r the ustim.ony c,.,..""1~ showings m.ada in such h~ing ~ shall report its fi.nilngs to the Boa.rd ot Directo~s o~ t.;i.a Authority. Tbe Boa.rd of Director~ ~ay adopt the preli:m.ina.ry budget or 1ndlce such a.Jlen.ciments t:hereo:f as to it may SQ.em proper . . The bud.get thus approv·ed by the B-oard o ! Directors of the Authority shall be the Annual 3udget tor the next ensuing Annual Payment P~riod. The Annual Bu.dget (includ- ing the first Annual Budget) may be aine.nded by the Authority at ·any time to tra.ns.!ar from one division t.hareof to another funds which will not be needed by such diviidon. The a:mount for any d~ vision, or thQ a:mount for any purpose, in the Annual Budget may ba increased through forJD.a.l action by the Boa.rd of Direc- tor'S of the Authority even though such action xnig.ht cause the total amount of the Annual Budget to bQ a.xcaadad; provided that such action shall be taken only in the event o.! an 9.lnergency or spacial circwnstances which sh~ll be clearly stated in a rt:solution at the tima such action is taken by the B,oard o~ Directors. Certified copies of the aJDended Annual Budget and resolution shall be filed immediately by the Authority with each Contracting Party. Soction 13. PAYMENTS BY CONTRACTING PAR.TIES. (a) For th~ wa.tewater i;orvicas to be provided to the Contracting Parties und~r this: Contract, each of the Contracting Parties agrees to pay, at the time and in the manner hereinafter provided, its proportionate share of the }innual Requirement, 33 Exhibi t C to Brookfie ld Who lesa le Wastewater Se rv ice Agreement Page 43 97 35 .2 which shall be dete~ea ~s herein d~scrib~~ o..nd ~h~ll consti- tute a Contracting Party's A..."ln~ Pay:.e.tit. ~ac.h of tha con- tracting ?a.rtie.s shall pay it~ part ot the Annual Requiranant for each Annual Payment Pario:i d ,irectly to the Authority, in 1n0nthly installments., on or befora the .l.Ot.h day of ea.ch I!lonth, in accordance with the schedule of p!lymcnta furni~he>d by the Authority, as hareinafter provided. (b) For each Annual Payment Period each Contracting Party's proportionate share of the Ann.ual Requiramnnt shall be a parcanta.ge obt~ined by di·.fiding th~ nwr.bcr o! gallons of contributing flow of Wa .stewatar estimated to be disch.irged into the syste.J1 by such Contracting Party during such Annual Payment Period, as determined by the Authority a!'ter consultation with such contracting Party, by the aggregate total number of gallons of contributing !low or Wastewater · estimated. to be di~charged into the System by all Contracting Parties during such period, as determined by the Authority arter consu1tation with i1ll of the Contracting Parties. It is provided, however, that in estimating costs; for services the Authority is specifi- cally authorized, in ib; discretion, to 8stimate such costs based on an arbitr~ry asstll:lption that the Annual Payment Period for which tho calculation is being 1nad.e will ba an extrru:iely dry year, rath.er than a normal or average yaar, and that accordingly the contributing flow of Wastewater discharged into the System '«ill be less than. expectod nonnally or on an 34 Exhibit C to Brookfi e ld Whol esa le Waste w ate r Service A g ree ment Page 44 9735 .2 average, all with tha rQ.Su.lt that the monthly pa}'llle.nt3 nada by tba Contracting Parties nay ba higher than 'lr.'ou.ld. hav~· bee... required on thQ b.a.:is of a normal or av~:::-agca }'ear, and with th~ furthQr result that the total c?l..lDount required to meet the then currant A.ru1ual Budget for the System may be collactcd by the Authority b-e.fore the end o:f the then currant Annual ?aymant Pariod. This re.sul t is expressly approved by th.e Contracting Parties and is deemed by the pa.rti.es · ha.reto to be beneficial L, the fiscal :managemant of the Systel!l, and will a.ssure the tine.ly availability of tunds even under unexpected circumstances. However, upon recaipt during any Annual Payment Period of an aJDount sufficient to n1eet the then current Annu.al Budget of the sy~te:m for the renaindar o~ tha then current Annual Payment Period, the Authority illmadiataly shall notity the Contracting Parties, and th~y shall not be obligated to make further payments under this Section for the re.111ainder o~ that An .nual PaYlJlent Period, unless othQrwi&e specifically hereinafter provided in the event of une.xpocte:d ~r additional Annual Budget requirE!lllents. It is further provided that the Authority may revise its estimates of contributing !low either :monthly or for any other period within an Annual PaY1J1.ent Period, as dotermined by tha Authority, and such revised estimates IDay be made on the basis o~ actu.al metered contributing flow during the precoding month or other period, to the end that the Authority may use its best efforts to avoid to th~ cxtc.mt practicablQ unnecessary 35 Exhibit C to Brookfi e ld Who lesa le Wa stewate r Service Agree ment Page 45 9735 .2 tin~l adjustmant~ a.mong the Contracting ?ari:ie.$ !or each Annual ?ay:nant Period, All such pa::t·1Dents for each Annual ?ayment P~riod shall be mada in accord.an~a ,...ith a. -..ritten schedule of pay:ne.nts for the approp:r:ia.te Annual ?ay~ent ?e:rio:1 which will be supplied to aa.ch of thg Contracting Parties by the Authority. such schedule or payments may be revised by tha Aut.hori ty periodically ba.sed on any changes in its estimates of contributing flow as provided above, and 0 .ac::h revised schedule o! payments s:ha.~l be supplied to each Contracting Party be.fore tba beginning of. the period to whic::h it is applical:>lo. At the close of oach Annual PaY111ent Period the Authority $hall deternina the actual meter.ad number o! gallons of contributing flow of Wastewater dis.charged into the System by each contracting Party during said period and determine each Contracting Party's actu.al percantage of the Annual Require.tlle.nt by dividing such Contracting Party's actual mete.red contributing flow by the actual :mete.red contributing flow of all contracting Pa.rt~as. Each Contracting Party's Adjustgd Annual Pay.:nant shall bQ ca.lculatcd ~y ~ultiplying each ~uch Contracting Party's redeter11ined percentage times the actual Annual Requirement. The difference between the alnounts which actually have been paid by each Contr.:icting Party an.d the ai;iounts actually due from such Contracting Party hereunder shall be applied as a credit or a debit to such Contracting Party's account with tha Authority and shall be credited or 36 Exhibit C to Brookfie ld Wh o lesa le Wastewater Se rv ice Agree m e nt Page 46 9735.2 debited to such ContractL"lg ?arty's next monthly paymgn~, ~r as otharvise agreed bet-waan the Authority and th~ ~t!ected Con- tracting Pa.rty, ;;:irovided that 11.ll such cr~dits a.nd debits shall be ~Ade in a timQly manner not later than the end of tha nQX't !olloving Annual Payment Period. (c) Notwithsunding the provisions of (b), above, and aa an e)(Caption thereto, it is agreed that if, du.ring any Annual Pa~nt Period, the .estimated and/or actual metered contribut- ing !low of Was:te.-ater into the Sys;tem o! any Contracting Party is;, for any ra.ason whats;oevar, less than the minimu:m a.mount harein~fter prescribed and provided ~or it, such contracting Party ~hall pay its sha.re of each Annual Re.quirement a.s it its as;ti.mated and/or actual materad contributing flow of Wastewater into the. systQm vora s;uch minimum_ amount. Ho;.•ever, if such Contracting Party's estilsated and/or actual metQrQd contribut- ing flow of Wastevater into the systQlll is equal to or in excess of such minimum runount, its share of all of each Annual Re- quire111ent shall bo calculated on the basis of estimated and actual contributing flow as provid_ed in (b), above. All contracts with Additional contracting Parti~s shall provide for equitable minimums similar to those provided for below. such m.inimwn.s s.hall be fixed in amounts: at least sufficient, as determined by the Authority, to assure an initial annual payment by such Additional Contracting Party for not less than the amount of its estim.atcd contributing flow of Wastewater 37 Exhib it C to Brookfie ld Who lesa le Wastewate r Se rvi ce Ag ree ment Page 47 9735.2 i.nto tha S}'!;tetm :iu.ring the first yea.r of s~rv ic::e t:.nder such =ntrac::t. !'or ~a purpose. o! ca.lc:ulating the. minaWII pe.r- cantaga of ~ach An."'lua.l Raquire.:ie.nt !or which each Initial Contracting ?a.rty is unconditionally liable, .dthout offset or count~rclaim (also sea Section 16 hereof), tbe contributing flow o! Wa.stei.•ater into the System of each Initial Contracting Party, during each .l.nnua.l Payment Period, shall be dee.nied to be not less than the 111.inilnum amount (regardless o! ..-heth~r or not such amount was actually discharged into the SysteJ11) specified for such Initial Contracting Party as follows: city of Fort Worth: city of Haslet: City of Roanoke: 43,158,695 gallons 22,082,500 gallons 40,150,000 gallons. (d) Notwithstanding the foregoing, thf! Annual RequirQ- ment, and. each contracting Party's: share thereof', shall be redeterminad, after consultation with each of the Contracting Parti~s, at any til:De during any Annual Payme.nt Pe~iod, to the extent deemed nacassary or advisable by the Authority, if: Exhibit C to (i) The Authority commences furnishing services of ·the systen to an Additional contracting Party or Parties; (ii) Unusual, oxtraordinary, or unexpected expenditures for Operation and Maintenance Expenses aro rcquirod which a.re not provided for in the Authority's Annual Budget for the system or in any Bond Resolution; (iii) Operation and Maintenance Expenses are substantially JB Brookf-ie ld Wholesale Wastewater Service Ag ree men t Page 48 9735 .2 lai.s than esti.lr.ated; (iv) The Authority is:s:u~s Bo:lds which require a.n increase in tha Bond. Service Component ot the .An..-iua.1 Paym2nt ~ or (v) T".oe Authority recaive.s eith.er s:ic;ni.ficantly lllore or significantly lessi re~,tenuas or other aJnounts tha.n those anticipated. (e) During each Annual Pa.YJnent Period all revenues received by tho Authority from providing services of the system to parties which a.re not Contracting Parties, and al 1 sur- charge:. collected from ,any Contracting Party under Section 4, aboYe, shall (i) first be craditad to th.ct Operation a.nd Mainte- nance Co111ponent ot the Annual Requirement, and (ii) then any ... rama.inder credited to the 'Bond Service Component of the Annual Requirement, with the result that such credits under (i) and . (i ~·), respectively, sha.11 reduc;e, to the extent ot such credits, the amounts ot such Components, respectively, which otherwise would be payable by the contracting Pa.rtiQs pursuant to the method prcs:cribed in (b) and (c), abovo. Th& Authority may e.stim.a.tQ all s:uch cr"Qdits which it c.xpocts: to make during each Annual Payment Period in ~lcula.ting each Annual Pa}'lllent. ( f) Each Contra.ctin.g Party hereby agrees that it will make payments to the Authority required by this Section on or ba!orE~ the 10th day of each month of each Annua.l Payment Period. If any contracting Party at any time disputes the. 39 Ex hibit C to Brookfi e ld Wholesa le Wa stewat er Service Agreement Pa ge 49 9735 .2 aJn::>u.nt t.o be pa.id. by it to the .Authority, :iuch coi:pl a i ning party s.h.all neYert.haless prOlllptly Ill.lla such payin=Iit or pay- :lllents, b-..zt if it ii; s:u.bsaquantly deter.c:i.ined by a,greement or court decision that such disputed payments :i:.ada by such com- plaining party should have baa.."'.l less, or lllore, the Authority sha.11 promptly revise and reallocate the ch4rgas a.IDon .g all contracting Parties in such manner that such complaining party will recov er its ovorpaymcnt or the Authority will recover the amount due it. All aJDounts due and owing to the Authority by each contracting ?arty or due and o...,ing to any Contracting Party by the Authority shall, if not paid When due, bear interest at the rate of tan (10) percent per annum fron the dnte ._.hen du~ until paid. The Authority shall, to the exte.nt perlllitted by law, discontinue the services of the Syste.l:l to any contracting Party ;.•hich remains delinquent in any payments ·duo hereunder for a period of sixty days, and shall not ras\llle such sarvicas whilo such Contracting Party h: s:o delinquent. It i:; further provided and agreed th.at if any Contracting Party should remain delinquent in any paytnents due hereunder for a period of one hundred twenty ~~ys, and if such delinquency continues du.ring any period ·thereafter, such Contracting Party's minimUlll alllount of gallons of Wastewater specified and described in (c), above, shall be deemed to have been zero gallons during all periods of such delinquency, !or the purpose of calculating and redetermining the I)D_rcentage of each Annual 40 Ex h ibit C to Brookfie ld W ho lesa le Was tewater Se rv ice Agree m e nt Page 50 9735 .2 Payment to ba paid by tll.e non-delinquent contracting Partie3, and the Authority shall r~~eterm.ine such parcent~ge on that bA.si3 in such eVQnt s.o that tha non-delinque."'lt Contracting ?arti•~ collectively 3hall ba required to pay all of tha Annual Requirement. Rowaver, tha Authority shall pur~a all le~al reJne:iie.s agaL"1st any such dal.ing,.1ent contracting Party to antorce and protect the rights o! the A.uthori ty, the othar Contracting ?arties, and the holders of the Bonds, and such del inque.nt Contracting Party shall not be relieved of the liability to the Authority for tha paJ'lllent of all aiDounts vhich would have l::>ean due .h9re~"ldar, in the absenca of the next precQding sentence. It is understood that th.e :toregoing provis::ions are for the bene.fit of tha holders of the Bonds so as: to insure that all of tha Annual. Require.ment will be paid by the non-detlinquent Contracting Partie·s during each .Annual Payment Period regardless of the delinquency o~ a Contracting Pa.rty. If any amount due and owing by any Contracting Party to the Authority is placed with an attorney for collection, such contracting P~y shall pay to the Authority all attorneys fees, in addition to all other pa}'lllants provided for herein, including interest. (g) If, during any Annual Payment Period, any Contracting Party's Annual Payment is redatermined in any manner as pro- vided or required in this S8ction, the Authority will promptly 41 Exhibit C to Brookfie ld Who lesa le Wastewater Service Agreeme nt Page 51 9735 .2 furnish .s:u.ch Contract ing ?arty 'with an u p:ia.t,ed schedule of ~onthly paymant~ re!lecti:ng such redetentl~a.tion . Se.ction 14, S?ECIAL ~OV'ISIONS. (a.) Tb.Q Authority ·will continuously o;>era.te a.nd :caintain the Syste.'tll in a.n Qf!'icien t ma.nne.r and in accorda.nca t,dth good businas::s;; and ~ngineering practice.s, and at re,&.5onable cost a.."'l.d e>..-pense. (b) The Authority agrees to carry fire, caE>ua..lty, public liability, and. other insurance (including self-insurance to tho extent deemed advisable by the Authority) on the ·syste.n for pu.rposes and in alllounts which ordinarily would oo carri(}d by a privataly owned utility company . owning a.nd operating such facili tie.s, except that the Authority shall not be requ.ired to carry liability in~uran.ce except to insure itself ag-ainst risk of loss due to claims ror which it can, in the opinion of th.e Authority's legal counsel, be liable under the Texas Tort Claims Act or any s i milar law or judicial decision. such. insurance vill provide, to the erte.nt feasible and practicable, !or the restoration of damaged or destroyed properties and equ.ipment, to minb:n.ize the interruption of the service,s of such f acilities. All premiums for such insurance shall constitute an Operation zmd Maintenance Exponse of the ·sytitem. (c) rt is the intent of the parties that the Systen \iill be placed in operation in 1989, and the Authority agrees to proceed diligently with the design and construction of the system to meet such schedule, subject to the othnr terms and 42 Exhibit C to Brookfie ld Who lesa le Wastewater Se rvice Agree m ent Page 52 9735 .2 condi tioru; in this: Contract. !tis expressly understood and agreed, h.owevar, that a.ny cblir;ra.tion$ on the part of the Authority to aequ.ira, COl'l$truc:t, and eomplata the Sys;to'llt a.nd to provida tha ~~r..riceii of the Systen to the con t racting Parties shtll ba conditioned (i) upon the J.uthority'3 ability to obtain all nece.£:~a.xy pernits, material, labor, and equipment, (ii) upon the ability of t.ha Authorit.y to fina.ncc.l the eost of th~ systen through the actual sale of the Authority's Bonds, and (iii) . subj act to al 1 present and future val id laws, orders, rules, and regu.lations of the United states of America, the State .of Texas , and any regu.la tory body having j ur isdi ct ion. (d) The Authority sha.ll navar hava tha right to de111And payment by any Initial. contracting Party ot any obligations asswned by it or illposed on it under and. by virtue of this contract from funds raised or to be raised by taxes, and the obligations under this contract shall naver be construed to be a debt of such kind as to require any ot the Initial Contract- ing Pa.rtie.s to levy and collect a tax to discharge such obli- gation. (e) Each of tha Initial contracting Parties, raspact- ively, raprai.onts and covenants that all payments to bo ~ado by it under this Contract shall constitute reasonable and neces- sary "ope.rating e.xpanses" of its colllbined w21.terworks and sewer systC!lD, as defined in Vernon's Ann. Tex. civ. st. Article lllJ, and that all such paYJ!lents will bQ made from the reve'nues o:f 43 Ex hi b i t C to Broo kfi e ld Who lesa le Wastewate r Se rvic e Agree ment Page 53 ')7 35.2 Exhibit C to its. co:a:binad .. ~at.e.n.orks. and !;;e;.,,er syst.n:. 3:a.ch of the Con-tracting Parties, res-:pective.ly, :-eprcu::it.nts. and has de.te-"'"1Il.i.iad that thQ ~ervicQS ';.o be provided by tbe syste..n are necessary an::i assQ:itial to tbe present a.."'l:i tuture ope.r.ation of it!i aforesa.id systQlll, and that the Syste111 constitutes the only available and a.dequata method fo:r discharging, receiving, troating, and disposing of its wastewater frolil the D·enton Creek draino1ge are.a, and, accordingly, all payni~ts requir~d by this Contract to be made by each Contracting Party shall constituto reasonable and nece.s.sary operating e.xponses: of it~ systems,. respectively, as described above, with the effect that the obligation to inue such pnymcnts fro111 revanuas of such syste..::n.s, respectively, shall have priority over any obligation to niake any pay.ients tram such revenues of principal, intarc!.t, or otherwise, with respect to all bonds or other obligation~ hore.tofora or hereafter issued by such Contracting Party. (f) ~Zach of the Contracting Parties ag:rce5 throughout the term of this Contract to continuously operato and maintain its combinad waterworks and sewer system, and to fix and collect such rates and charges for water and sewer services and/or sewer services to be supplied by its system as aforesaid as will produce revenues in an am~unt equal to at least (i) all of the e.xpen:.es of operation and maintenance expenses of such systelll, including spoci:t'ically its payments under this Con-tract, and (ii) all other aznounts as required by law and the 44 Brookfield Wholesale Wastewater Service Agreement Page 54 9735.2 provisions ot: tbe ord.ina.nc~ or resolutions autho=-izing its revenue bon~s; or othar obligations now or heraAfter outst~nd- i.ng, incluilng the amounts required to pay a.11 p rincipal of and. interest on such bonds and other obligations. {g) The Authority covenants and agrees that nai thar tbe proceeds from tha sale of tbe Bciods, nor the moneys paid to it pursuant to this Contract, nor any aarnings from the invest~ent of a...."'ly of the foregoing, will ba us:~ for a..-iy purposes except thosG d.irectly relating to tha Systen, the wastewater Int~rceptor systQm, and the Bonds as providad in this. Contract; provid.ed that the Authority may ra.bato any excess arbitrage earnings !rem such invastmant ct.llrnings: to the United Statas of A.Jnarica in order to pravant any Bonds from bacon.ing ''arbitrage bonds" within the moaning of the IRS Code of 1986 or any amencbaents _thereto in effect on the date of issue of such Bonds.· Each of the Contracting Partias covenants and zi.groas that it wil not use or permit the use of the SysteJD in any manner that would cause t!he interest on any of the Bonds to~ or oecome subject to federal income taxation und.er the IRS coda of 1986 or a.ny amendments thereto in e"t~ect on the date of issue or ~uch Bonds. Section 15. FORCE M&J"EURE. If by r~ason of forca majaura any party hereto shAll :be rendered unabla wholly or in part to carry out its obligations under this Contract, other than the obligation of each Contracting Party to make the payments 45 Exhib it C to Brookfie ld Wholesa le Wa stewate r Se rvice Ag reement Page 55 97 3 5 .2 rQqu.ircd u.nd,:µ-S~ction 13 o! this Contract, then i~ s uch party shall give notice anj full pa.rticula.rs of such force ~ajeura in writing to the other parties vithin a re~sona.bl• time ~ft~r occur;ren.ca of the event or ca.use ralied o:i, the obligation of tha party gi•.ring such notice, so ta.r as it is a.t!ected by s •.J.ch force ~ajeure, s.ha.11 be susi;>ended during the continua..-ice of tho inability then cla.imed, but for no longe.r period, and any such party shall ende~vor to ramove or overcome s;uch inability with all reasonable di~patch. Tha term "Force Majeure" as employed herein shall lllQan acts of God, strikes ( loclcoots, or other industrial disturbanc~~, acts of public ene.~y, orders of any ~ind of the Government of th2 United States or the State o! Tex.as, or any .Civil or military authority, insurroction, riots, epidemics, lands_lides, li.ghtning, earthquake, fires, hurri- canes, stonns, floods, washouts, droughts, arrests, r~s;traint of goverrunent and people, civil disturbances, explosions, breakage or accidents ·to machinery, pipelines: or canals, part~al or entire failure of water supply, or on account of any other causes not reasonably within the control of the party claiming such inability. Section 16. UNCONDITIONAL OBLIGATION TO MAKE PAYMENTS. Recognizing the fact that the contracting Parties urgently require the facilities and services of the System, and that such facilities and services are essential and necessary for actual use a.nd for standby _purposes, a .nd recognizing the fact 46 Exhib it C to Brookfie ld W ho lesa le Wastewate r Service Agr eement Page 56 9735.2 that tbQ Authority ~ill use pay·ments receiv&j rrou tha con- tr~cting Pa.rtia.s .to pay and secure its Bonds, it is harQby agreed that eac...l;. of thca contracting Parties s.ha1l be uncon- ditionally c!:>ligated to pay, ·*'i thout offset or countercla.i:n, its proportionate share of the .Annua.l R&quiremQn t, as provided and. d.eteruined by this Contra.ct ( including tb.a obligations. for paying for ":n.inilnum: 11 as; de::;cril:>ed in Section l3 hereof) , rega.rdle.ss of whether or not the Authority actually 11cquirQ$,;, constructs, or complete::; the Sys:tel!I or is actually operating or providing services of the system to any Contracting Party hereunder, or whether or not any Contracting Party actually uses tha services; o! the System whether due to Force Maj aura or any other reason whatsoever, regardless of any other provisions o! this or any other contract or agraemant between any o! the parties hereto. This covenant by tha ·contracting Parties shall be for the benefit of and cn!orceabl• by the holders o! the Bonds andjor the Authority. section 17. TERM OF CONTRACT; MODIFICATION; NOTICES; STATE OR FEDERAL LAWS, RULES, ORDERS, OR REGULATIONS. (a) This Contract shall be effective on and from the Contract Date, subjact to its execution by al;!. of the Initial Contrncting Partias and the Authority, and this Contract shall continua in force and e!!ect until the principal o! and interest on all Bonds shall have be.en paid, and thereafter shall continue in force and effect during the entire useful life of the system. 47 Exhi bit C to Brookfie ld Who lesa le Wastewate r Se rvice Ag ree ment Page 57 9 735 .2 ':'hi$. co::i tract constitute.=. the sole a;racm~nt :>etween the p!!..rties hereto ;,d th respect to the Systel!I. (b) Mo dificgtiop. No cha.,ge, cllllend.lllant, or modification of t.his Contract sh.a.11 be ?!lade or be ej:fective ;.·hich , • .-ill af:fect adversely the pr0111pt paYJl)ent •«hen due of all monays required to be paid by each Contracting Party under the tcntS. or this contract and no such change, ~mendJDent, or modification shall be made or be effective which would cause a violation ot any provisions of any Eond Resolution. (c) Addresses and Notice. Unless otherwise provided horein, any notice, col!llDunication, request, reply, or advice (herein severally and collectively, for convenience, called "Notice") herein provided or per:aitted to be givan, · mado, or accepted by any party to any other party must be in writing and may be given or be ~o.rvad by depositing the same in the United states ~ail postpaid and registered or certified and addressed to the party to be notified, ~ith. return receipt requested, or by delivering the sanie to an officer of such party, or by prepaid tolegra~ when nppropriatc, addressed to the pnrty to ba notified. Notice deposited in the nail in the manngr harein- above described shall bo conclusively deened to bQ o!foctiva, unloss · otherwise !;tated herein, froz:a and after the expiration or three days a .!tor it · is so deposited. uotice given in any other manner shall be e!fective only if and when received by the party to be notified . For the purposes of notice, the Exhibit C to Brookfie ld Who lesa le Wastewater Service Agree m ent Page 58 9735 .2 provided, be a; !ollo~~: If to the Authority, to: Tri...~ity Rivar Authority c! Taxas 5300 S. Collins P. O.· Box 24.0 Arlington, Texas 76010 I! to the Initial Contracting Parties, as follows: City of Fort Worth 1000 Throc}::morton Fort Worth, T~xas 76102 City o! Haslet i>. o. Box a Haslet, Texas 76052 City of Roanoke P. 0. Box JB6 Roa.noka, Texa.s 76252 The parties hereto sh.All have the right from. tima to time and at any tune to changa their respective addresses and each sha.11 have the right to specify as its addrei;;s any other address by at least fi~een (15) days' written notice to the other parties hereto. (d) state or Federal Laws, Rules. Order$, or Regulations. This contract is subject to all applicable Federal and State laws and any applicable permits, ordinances, rules, orders, and regulations of any local, state, or federal governmental authority having or asserting jurisdiction, but nothing con- tainad herein shall be construed as a waiver ot any right to question or contest any such law, ordinance, o:rd.er, rule, or regulation in any formn having jurisdiction_. 49 Exhibit C to Brookfield Who lesa le Wa stewater Service Agreeme nt Pag e 59 97 3 5.2 Sect i o n la. S:E'"v"ZR..>..BILIT'l. Tha p~rt i o. h~roto S:?ec i ficai- ly agraa th~t i n casa a...~y onQ or ~ore ot th~ i:cction~, ~ubsec- tionl., prov is ions, claus:~s, or words o ! th.is: Contract or tbe application of such sections, sub.;:actio_ns, provisions., claus:&s, or wordi: to any s: i tua tion or c ir~stance ~hould be, or should be held to ba, for any reason, invalid or unconstitutional, under thQ laws or constitutions: ot the Stat~ of Texa~ or the United States of Amarica, or in.contravention of a n y such lavs _ .Q.J;: @n~ti,._tu_t;j.cin_~, ~u~ JFV<3::\J di; ~y ,. .~CC?~ti 1;ut.i:?.;-i.~l:~.!:Y..1_ _ or contra·.;rention shall not affect any other se.ctioni;:;, i;ub:;Qctions:, provisions, clauses, or word$ of this Contract or the applica- tion of such sections, subsections, provisions, clauses, or words to · any 'other situation or circu:m.stanc<3, and it is in- tended that this contract shall be severable and sball be cons.trued and ,applied as if any such in:va.lid or unconstitu- tional section, subsection, provision, clause, or word had not bee.n included heroin, and the rights and opligations of the parties 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 rem8dy for any default, b ~t all such other remedies (other than t~rmination) existing at law or in equity m.ay be availed of by any party hereto and shall be cumulative. Recognizing howevor, that the Authority~s 56 Ex hibit C to Brookfie ld Whole sa le Was tewate r Service Agree ment Page 60 9735 .2 un:ia.rtaki.ng to provide a.nd m.ainta.in tba sar-,•ic~= o! tha Sys::tem is an obliq?ttion, failure in t.ha pert'orma.noe of \thich ca.n...-.ot ba adequAtaly cozc.pens:ated in 1noney dan.a.g~s.. a.lona, tho Authority agrees, in the eva.."lt of any dafault on ita pa.rt, that aach Contracting ?arty ~hall have available to it tha a~~i~ble r~y ot: ma.ndalnus and specific parforl!la...'lc<: in addition to any cthar legal or aqui tabla remadie.s (other than te.rnination) '*'hich may also ba available. Recognizing that failure in th.c pertorn.anca of any Contracting Party's obligations heraunder could not be adequately compensated in money damages alone, eacb Contracting Party agrees in the evClnt ot any de!aul t on its pa.rt that the Authority _shall have available to it the aquita.bla remedy ot 111andanus and specific performance in addition to any 0th.er lag-al or e:qui table remedies ( othe.r than termination) which may also be avail.able to the A.uthori ty. lfotwit~ta:iding anything to the contrary containe<i in this Contract, any · right or rQlllady or any d .efaul t hereunder, except the right of the Authority to receive the Annual Payment which shall never be detennined to be waiv~d, shall be deemed to be conclusively waived unless asserted by a proper proceeding at lav or in equity within two (2) years plus · one (1) day after the occurrence of such da!auJ.t. No waiver or wa.ivers of any breach or default (or any breaches or defaults) by any party hereto or of performance by any other party of any duty or obligation hereunder ~hall bQ deQmcd a waiver thereof in the 51 Exhibi t C to Brook fi e ld Wh o lesa le Was tewater Se rvic e Ag ree men t Page 6 1 9735.2 t'uture, nor s.ha.ll any such wai Y¢:::' o::-wo.i vers b-e. de~ed or construed to be a .·aivar of subsequent breaches or defaul t3 ot a.ny kind, c:b.~racter, or description, under any circumstances. Saction 20. VENtra • .All a.mounts due under this Contra.ct, including, but ·not li.m..it~ to, payments due t:ndar th.is Contract . or damages for the breach of this Contract, shall ba pa-id and be due £n Tarrant County, Texas, which is th9 County in which the . principa.1 adlll.inistrative offices of: the Authority .:i.re located. It is specifically agreed among the parties to this Contract that Tarrc,.nt Courjty, Texas, is the place of per!or- manca of this Contract; and in the event that any le~al pro- ceeding is brought to en!orce this contract or any provision hereof, the same shall be brought ' in Tarrant County, Texas. IN WITNESS WHEREOF, the parties hereto acting under authority o! their respective governing bodies have caused this Contract to be cluly executed in several counterparts, ~ach of which shall constitute an original, all as of the day and year rirst above •crittan, which is the date of this Contract. ATTES:T: ,, / r:·~),~ ~tary, Soard of Direct ( .MJTHO~T'l SUL) 52 Ex hib it C to Brook fie ld Wh o lesale W astewater Serv ic e Agreem e nt Page 62 97 3 5.2 (CITY SEAL) APPROVED AS TO FORM A.ND LEGALITY ,t._ 1 city iorne.y, city of Fort Worth, Contn..ot .lu.thori.z:a.t1oll /r>r•~ Texas #~2v'-r:f7 Da.te ATTEST: City Secretary {CITY SEAL) ATTEST: ~ (CITY SEAL) Ex hi b it C to Brookfie ld Wh o lesale Was tewate r Serv ice Agreem en t CITY OF HASLET,· TEXAS BY C>. l,,1A-(E,&l.. W C?4 r::: Mayor 53 Page 63 9735.2 ,t Exhibi.tDt.o Wbole:.:.Je W:i.~tcW='.C: Scrvicc.A,i:r:emcot Ex hibit C to ExhibitD Points of Entry Brookfield Wholesale Wastewater Service Ag reeme nt Page 64 97 35 .2 Ex hibi t 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 vi ---c:=iif ~ z ( ' I ··~-- ' .. :;:--.... , \ ) I I I ',, ',, Brookfield Wh o lesa le Wa stewater Service Agreement Page I 9735 .2 Exhibit E Rate Methodology I . Wholesale wastewater rates will be based upon cost-of-service rate studies performed by independent utility rate consultants. The independent utility rate con s ultant shall be selected by Director from a list of five qualified firms submitted to the Director by the Fort Wo1ih "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 co st of service study shall be perfonned by an independent utility rate consultant during the first two (2) calendar quarters of 2007, based on audited data for the immediate past fiscal year ended September 30, 2006. On a three (3) year cycle thereafter , a complete detailed rate study will be performed with the same methodology used in the previous rate study by an independent utility rate consultant, subject to modifications recommended by a majority of the Wastewater Advisory Committee and approved by the Fort Worth City Council. In the interim period between complete detailed rate studies, wholesale wastewater rates shall be adjusted by Fo1i Worth using the same methodology adopted at the time of the last complete detailed rate study, utilizing the actual operating data for the twelve month period ending September 30th of the prior year, adjusted for known and measurable changes in cost data which may have occurred since the last audited statement. 3. The cost of service for the wholesale class shall include allocated reasonable and necessary operation and maintenance expense, depreciation expense and a fair and reasonable return on allocated capital facilities. To determine the allocation and distribution of costs to the wholesale customer class , the independent utility rate consultant shall consider at least the following factors: total volume, rate of flow , wastewater quality , metering, and customer related costs such as accounting, billing , and monitoring. Capital related costs will consist of depreciation expense and return on original cost rate base. On a periodic basis as determined by the Director the depreciation rates on all General Benefit Capital Facilities shall be studied , and new salvage values, useful lives , and annual rates of depreciation shall be developed from such studies. The rate base shall consist of all allocated capital facilities, net of depreciation and appropriate contributions, and shall include construction work in progress, a reasonable allowance for working capital, and a reasonable inventory of materials and supplies necessary for the efficient operation of the Fort Worth System. On a periodic basis as determined by the Director, a cash "lead lag" study shall be conducted to determine the appropriate level of working capital at the same time as the above depreciation rate study is done. Records of the original cost and the accumulated depreciation of all capital facilities shall be Ex hibit E to Brookfield Wholesale Wastewater Service Agreement Page I 973 5.2 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. Ex hibit E to Brookfi e ld Whole sal e Wa ste water Service Agreement Page 2 9735.2 Ex hib it F to Brookfie ld Water and Wastewater Uti lity Service Agreement E xhibit F Brookfield Offsit e U tili ty Ex hibit Page I ID 0 __, ;:: :, 0:: w f-en ~ t ,_; iii :i: X w .:, ;:: :, d, ~ M .; 9 I "' M g 0 __, ~ 'i5' g; ;.: GRAPHIC SCALE l 2000 ( IN FEET ) inch = 2500ft. d ; '\" 7000 ~ POSSIBLE FUTURE SERVICE AREA (BOUNDARY OF SHALE CREEK DEVELOPMEN1) SERVICE AREA PER 11US I AGREEMENT(BOUNDARY I OF BROOKFIELD DEVELOPMEN1) POSSIBLE FUTURE SERVICE AREA (BOUNDARY OF ALPHA RANCH DEVEWPMEN1) SENDEJU /UNCH PUMP STATION POSSIBLE FUTURE SERVICE AREA (BOUNDARY OF ELIUBETH CR£ElC DEVEWPMEN1) 2) POSSIBLE FUTURE SERVICE AREAS THAT WIU BE DETERMINED BY THE CITY OF FORT WORTH INCLUDE ELl2ABETH CREEK, SHALE CREEK AND ALPHA RANCH . 3) SENDERA RANCH AND SENDERA RANCH EAST ARE SHOWN FOR COORDINATION PUPOSES ONLY . LEGEND NO/"O.S6DU•r. ELIZABETH CREEK I I --__ !'1!~~~:! SEWER LINE PROPOSED WATER LlNE "Approach Waler Main" FLOW ARROW F111wr< ,ewu main. IIOI required for the Broo/ifield tkvelopmenl. I l inch = 1300 ft. I rORTWOA IH(TJ [)(NTON COUNTY ;-:"\. DOWO£Y, ANDERSON & ASSOCIATES, INC. Future water mCWI , not req11iredfor the Broolfu!.ld dnoelopment. ;,.., \ " SZ25 c.t°"',Mi• f1N.1-751Bl m.tJMBI Exhibit G ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and entered into as of the day of between _____________ , a ("Assignor"), and -----------------, a ("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and singularly as a "Party"). RECITALS: A. Assignor is the owner of the rights of the Owner under that certain "Brookfield Water and Wastewater Utility Service Agreement" (City Secretary Contract No. , M&C (the "Agreement") effective as of , among Brookfield Acquisitions , L.P. as "Owner", the City of Fort Worth , Texas as the "City ", and the South Denton County Water Control and Improvement District No. 1 as the "District", relating to the providing of water and wastewater utility service to the 231 .579-acre Brookfield Development in Denton County, Texas (the "Development"), to the extent that the Agreement covers , affects , and relates to the lands described on Exhibit A attached to and made a part hereof of this Assignment for all purposes (the "Transferred Premises"). B. Assignor desires to assign certain of its rights and obligations under the Agreement as it relates to the Transferred Premises to Assignee , and Assignee desires to acquire such rights and obligations , on and subject to the terms and conditions of thi s Assignment. NOW , THEREFORE , in consideration of the premises , the mutual covenants and obligations set forth herein, and other good and valuable consideration , the receipt and legal sufficiency of which are hereby acknowledged , the Parties hereby agree and act as follows: 1. Certain Defined Terms. Unless indicated otherwise herein , capitalized terms in this Assignment shall have the same respective meanings as are ascribed to them in the Agreement. 2. Assignment. Subject to all of the terms and conditions of this Assignment, Assignor hereby assigns all [or describe specifically assigned rights if partial] of its rights under the Agreement, insofar as the Agreement covers , affects , and relates to the Transferred Premises. 3. Assumption. Assignee hereby assumes all obligations of Assignor and any liability that may result from acts or omissions by Assign ee under the Agreement as it relates to the Transferred Premises that may arise or accrue from and after the effective date of this Assignment, and Assignor is hereby released from all such obligations and liabilities from and after the effective date of this Assignment; provided, however this Assignment does not release Exhibit G to Brookfi eld Water and Was tewater Utility Se rvic e Ag ree ment Page Assignor from any liability that r esulted from an act or omission by Assignor that occurred prior to the effective date of this Assignment unless the City approves the release in writing. 4. Governing Law. THIS ASSIGNMENT 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. 5. Counterpart/Facsimile Execution. This Assignment has been prepared in multiple counterparts , each of which shall constitute an original hereof, and the execution of any one of such counterpmis by any signatory shall have the same force and effect and shall be binding upon such signatory to the same extent as if the same counterpati were executed by all of the signatories. Facsimile copies of signatures may be appended hereto with the same force and effect as legally delivered original signatures. 6. Notice to City . A copy of this Assignment shall be provided to the City within fifteen (15) days after execution . 7. Binding Effect. This Assignment shall be binding upon and shall inure to the benefit of Assignor and Assignees and their respective heirs , personal representatives , successors , and assigns. EXECUTED as of the day and year first above written. Exhibit G to Brookfie ld Wa ter a nd Wastewate r Ut ili ty Serv ice Agree me nt ASSIGNOR: By: _________________ _ Printed Name: -------------- Title: ----------------- ASSIGNEE: By: ------------------ Printed Name : -------------- Title : ----------------- Page STATE OF TEXAS COUNTY OF ------- § § § SWORN TO AND SUBSCRIBED before me on the ___ day of _____ _ 2005 , by _____________ ~ STATE OF TEXAS COUNTY OF ------- § § § Notary Public , State of Texas SWORN TO AND SUBSCRIBED before me on the ___ day of _____ _ 2005 , by --------------- [Add Acknowledgments] Ex hibit G to Brookfield Water and Waste water Ut ili ty Serv ic e Agreement Notary Public , State of Texas Page Exhibit H to Brookfield Water and Wastew ater Utility Service Agreement EXHIBIT "A" The Transferred Premises Page M&CReview Page 1 of 2 Official site of the City of Fort Worth, Texas CITY COUNCIL AGENDA FORT WORTH DATE: CODE: 1/25/2011 C COUNCIL ACTION: Approved on 1/25/2011 REFERENCE NO.: C-24720 TYPE: NON- CONSENT LOG NAME: PUBLIC HEARING: 60BROOKFIELD NO SUBJECT: Authorize the Execution of the Strategic Partnership Agreement , Development Agreement , Agreement Concerning Operation of South Denton County Water Control and Improvement District No . 1 and Agreements Concerning Water and Wastewater Utility Service for the Brookfield Development Located Contiguous to State Highway 114 in the Extraterritorial Jurisdiction of the City of Fort Worth RECOMMENDATION: It is recommended that the City Council authorize the City Manager or a designee to execute the following agreements: 1. Strategic Partnership Agreement between the City and South Denton County Water Control and Improvement District No. 1; 2. Development Agreement between the City and Brookfield Acquisitions , L.P.; 3. Agreement Concerning Operation of the District between the City and the South Denton County Water Control and Improvement District No . 1 4. Water and Wastewater Utility Service Agreement between the City , South Denton County Water Control and Improvement District No. 1, Brookfield Acquisition L.P ., and Aqua Utilities , Inc .; 5. Wholesale Water Service Agreement between the City and Aqua Utilities , Inc.; 6. Buy-Out Option Contract between the City , Aqua Utilities, Inc ., Brookfield Acquisition L.P., South Denton County Water Control and Improvement District No. 1 7. Wholesale Wastewater Service Agreement between the City and Aqua Utilities , Inc . DISCUSSION: Brookfield owns and intends to develop approximately 231 acres in Fort Worth's extraterritorial jurisdiction as a mixed use development (the Development). The property fronts on State Highway 114 and is in Aqua Utilities, lnc.'s, water certificate of convenience and necessity (CCN). The property is in South Denton County Water Control and Improvement District (District) created by order of the Texas Commission on Environmental Quality dated April 19, 2007 . The City Council consented to creation of the District by adoption of Resolution No.3157-01-2005 on January 4 , 2005. The District and Brookfield have requested the City to consent to the issuance of bonds by the District to fund roads to serve the Development and have asked the City to provide water service to the Development in order to provide fire protection for residents . As consideration for approval of the documents listed above, Brookfield will extend 4.3 miles of 24-inch and 30-inch off-site water mains and 4 . 7 miles of 24 inch off-site sewer mains to connect the Development to the City's water and wastewater systems . The facilities will be constructed to City standards and will be over-sized at http://apps.cfwnet.org/council_packet/mc _rev iew.asp ?I D= 14 623 &councildate= 1/25 /2011 ~ 8/12/2 011 M&C Review Brookfield's expense , to serve other proposed developments in the area , subject to reimbursement pursuant to City policies . The Development will also be subject to City land use and development regulations . The documents, which are available for public inspection and copying in the City Secretary's Office , can be summarized as follows: The Strategic Partnership Agreement authorizes the City to annex property within the Development designated for retail development for the limited purpose of imposing sales and use tax. The agreement provides that the City and the District will divide the sales tax proceeds equally for the first 19 years. The City's share will increase to 75 percent commencing in year 20 . The Development Agreement provides for the enforcement of municipal building codes and establishes land use and development regulations for the Development. The Agreement Concerning Operation of the District establishes conditions for operation of the District, including conditions on issuance of bonds and requirements to provide information concerning the District to the City . The four remaining agreements identified as items 4 through 7 above relate to utility service for the Development. Aqua Utilities, Inc ., (Aqua Utilities) will provide the retail water and wastewater service to customers within the Development. Aqua Utilities will provide wholesale water and wastewater agreement for the first 190 residences constructed in the Development. Commencing with the 191 st residence constructed , the City will sell treated water service and wastewater service to Aqua Utilities on a wholesale basis . The City has the option to purchase the water and wastewater facilities in the Development from Aqua Utilities for $10 , and to obtain the CCN for the Development and become the retail water and wastewater provider for the Development at any time after 17 years after the Development is connected to Fort Worth's water system. The Infrastructure and Transportation Committee received a presentation concerning the Development on October 12 , 2010 and recommended approval of the documents . FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds . TO Fund/Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS 60Brookfield WCID-FWSD ITC 10-7-2010 .ppt FROM Fund/Account/Centers Fernando Costa (6122) S. Frank Crumb (8207) Paul Bounds (8567) http://apps.cfwnet.org/ council _packet/me_ review .asp ?ID= 14623 &councildate= 1/25/2011 Page 2 of2 8/12/2011