2017_10.19 CC Packet - Special )c
KENNEDALE
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www.cityoflcenne KENNEDALE CITY COUNCIL AGENDA
SPECIAL MEETING I October 19, 2017
CITY HALL COUNCIL CHAMBERS, 405 MUNICIPAL DRIVE
SPECIAL SESSION — 5:30 PM I WORK SESSION — 6:00 PM
I. CALL TO ORDER
NOTE:Pursuant to§551.071, Texas Government Code, City Council reserves the right to adjourn into
Executive Session at anv time during the Work Session or the Regular Session to discuss posted Executive
Session items or to seek legal advice from the City Attorney on any item posted on the agenda.
II. REGULAR SESSION
III. ROLL CALL
IV. REQUIRED APPROVAL ITEMS (CONSENT)
All matters listed under Required Approval Items(Consent)have been previously discussed, require little or no
deliberation, or are considered to be routine by the City Council. If discussion is desired, an item can be removed
from the Consent Agenda and considered separately.
A. Consider authorizing the City Manager to enter into an Agreement for Wastewater Service
Between the City of Fort Worth, Texas, and the City of Kennedale, Texas (Postponed on August 21
and September 18, 2017)
B. Consider approval of an amendment to the 2017 Interlocal Agreement for Rabies Control with the
City of Fort Worth, extending the contract through FY2018, and authorizing the City Manager to sign
the amendment
V. EXECUTIVE SESSION
The City Council may meet in closed session at any time during the Work Session or the Regular Session,pursuant
to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in
which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the
Open Meetings Act, including discussion on any item posted on the agenda and legal issues regarding the Open
Meetings Act.
The City Council may meet in closed session pursuant to the Texas Government Code for the
following matters:
A. Pursuant to Section 501.071: Consultation with the City Attorney pertaining to any matter in which
the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict
with the Open Meetings Act, including discussion on any item posted on the agenda and legal issues
regarding the Open Meetings Act.
B. Pursuant to Section 501.072: To deliberate the purchase, exchange, lease, or value of real
property, including Building 1 of Kennedale TownCenter, located at 201 W. Kennedale Parkway.
VI. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO
EXECUTIVE SESSION, IF NEEDED
VII. WORK SESSION
Council may convene into the conference Bury)room.
A. At this time, City Council will begin interviewing advisory board applicants.
405 Municipal Drive, Kennedale, TX 76060 1 Telephone: 817-985-2100 1 Fax: 817-478-7169
VIII. ADJOURNMENT
In compliance with the Americans with Disabilities Act, the City of Kennedale will provide for reasonable
accommodations for persons attending City Council meetings. This building is wheelchair accessible, and parking
spaces for disabled citizens are available. Requests for sign interpreter services must be made forty-eight(48)hours
prior to the meetings. Please contact the City Secretary at 817.985.2104 or(TDD) 1.800.735.2989
CERTIFICATION
I certify that a copy of the October 19, 2017, agenda was posted on the City Hall bulletin board next to the main
entrance of the City Hall building, 405 Municipal Drive, of the City of Kennedale, Texas, in a place convenient and
readily accessible to the general public at all times and said agenda was posted at least 72 hours preceding the
schedule time of said meeting,in accordance with Chapter 551 of the Texas Government Code.
Leslie Galloway, Cit ecretary
KENNEDALE
You're Here,Your Home
www.cityofkennedale.com Staff Report to the Honorable Mayor and City Council
Date: October 19, 2017
Agenda Item No: REQUIRED APPROVAL ITEMS (CONSENT) -A.
I. Subject:
Consider authorizing the City Manager to enter into an Agreement for Wastewater Service Between the
City of Fort Worth, Texas, and the City of Kennedale, Texas (Postponed on August 21 and September
18, 2017)
II. Originated by:
Larry Ledbetter, Director of Public Works
III. Summary:
The City of Kennedale's current wastewater contract with the City of Fort Worth expires at the end of
September 2017. The City of Fort Worth wishes to continue providing wastewater services and has
provided a new contract for consideration. The new contract would be effective October 1, 2017, and
expire September 30, 2037.
The contract with Fort Worth provides wastewater service for the area West of Village Creek(in the
Oakcrest Addition) and also includes businesses including QT, Popeye's, McDonald's, and Fort Worth
Tower(FWT). This area produces approximately 5% of Kennedale's total wastewater flow, with the
remaining 95% contracted through the City of Arlington.
Staff recommends authorizing the City Manager to enter into a contract Agreement for Wastewater
Service between the City of Fort Worth, Texas and the City of Kennedale, Texas.
IV. Fiscal Impact Summary:
V. Legal Impact:
VI. Recommendation:
Approve
VII.Alternative Actions:
VIII.Attachments:
1. CurrentConsideration_FW Wastewater CurrentConsideration_FW Wastewater
Contract 2017 Contract 2017. df
2. Historical FW Wastewater Contract 1994 Historical FW Wastewater Contract 1994. df
405 Municipal Drive, Kennedale, TX 76060 1 Telephone: 817-985-2100 1 Fax: 817-478-7169
AGREEMENT FOR WASTEWATER SERVICE BETWEEN
THE CITY OF FORT WORTH, TEXAS, AND
CITY OF KENNEDALE, TEXAS
Agreement for Wastewater Service
Table of Contents
RECITALS I
ARTICLE1. Definitions........................................................................................................... 2
1.1 Act or "the Act" ............................................................................................................ 2
1.2 Biochemical Oxygen Demand (BOD).......................................................................... 2
1.3 Calibration..................................................................................................................... 2
1.4 Capital Improvements................................................................................................... 2
1.5 Chapter 395................................................................................................................... 2
1.6 Customer Connection 2
1.7 Customer System.......................................................................................................... 2
1.8 Customer's Service Area (or "Service Area")............................................................... 2
1.9 Delivery Facilities.... 2
1.10 Director.......................................................................................................... 2
1.11 Domestic Accounts........................................................................................................ 2
1.12 Facility Expansion........................................................................................................ 2
1.13 Fiscal Year.................................................................................................................... 3
1.14 Fort Worth System......................................................................................................... 3
1.15 Impact Fee..................................................................................................................... 3
1.16 Industrial User............................................................................................................... 3
1.17 Industrial Wastes 3
1.18 Infiltration............................................................ 3
1.19 Inflow........................................................
1.20 Liquid Waste................................................................................................................. 3
1.21 Metering and sampling facility--••....................................................................... 3
1.22 Non-Domestic Accounts................................................... 3
1.23 Unmetered Area(s)........................................................................................................ 3
1.24 Parties........................................... 3
1.25 Per Connection.............................................................................................................. 4
1.26 PILOT........................................................................................................................... 4
1.27 Point of Entry................................................................................................................4
1.28 POTW........................................................................................................................... 4
1.29 Pretreatment..................................................................................................................4
1.30 Pretreatment Requirements.. ......................................................................................... 4
1.31 Sanitary Sewer Evaluation Survey................................................................................ 4
1.32 Significant Industrial User or "SIU"............................................................................. 4
1.33 Standard Methods ........................................................ 4
1.34 Street Rental.................................................. 5
1.35 System Cost ................................................................................................... 5
1.36 TCEQ............................................................................................................................ 5
1.37 Total Suspended Solids (TSS)...................................................................................... 5
1.38 TRA Contract................................................................................................................ 5
1.39 Wastewater.................................................................................... 5
1.40 Wastewater Permits 5
1.41 Wastewater Strength..................................................................................................... 5
Agreement for Wastewater Service Page i of iv
ARTICLE 2. Customer Connection t0 the Fort Worth System-----.----.-.-..----.. 5
2.1 �0o3�z�t0 �Oo��ot
' ----.-------.-.-.----.---.-.-----.------ 5
2.2 Delivery and Payment.---.--.----.-.-.------------.-----..--
2.3 Connection Points--.-.-.--.-.----.-.-.--.-..-------------.---
2.4 Customer D ����G
cu,cay -..-'--'-'-'-'-''---''--'-'------'----- 6
Z � T��G�x�a1trfcnzn ��aooz����aS
' -_� ------.-.--.---.---------.----- 6
ARTICLE 3. Operation and Maintenance------.---.-.--..------------.--.
3.1 Customer System.......................................................................................................... 7
] � �o�\�8zf�
. System........................................................................................................ 7
3.3 Metering and Sampling Facilities................................................................................. 7
ARTICLE 4. Metering and Sampling Facilities and System .-. 7
4.1 (�oat0z�er (�oz�ec�ooSand��utcciogand Sampling}�aoil��ea----..--..--..---. 7
4.2 Capacity Improvements_.__..._........__.___._.._....__.._.....___.._.._..__...
4.3 Cost ofNew, Enlarged or Additional Connections ...................................................... 9
4.4 Peak Flow and Remediation.--.-..---.-.-.-----.---..--._--_-.---_
4 � �tao�nz�3
. ..vu�uuu�ou .----.-.--.---.-.-.-.--.------..--.--.--- }0
4.6 Transfer t8 Customer upon Termination..................................................................... l0
ARTICLE 5. rugucrof-vvuy ................................................................................................... T0
I} Granted bv Customer......................................................................... 10
5'2 Granted 6n Fort Worth....................................................................... l0
5.3 Construction Standards 11
5.4 Conflicts----'--'-''--'-'---'''----'''''----'----''-'-''--..----. lI
ARTICLE 6. Metering and Sampling..................................................................................... Il
6.1 Meter Reading............................................................................................................. l}
6.2 Flows tObe Metered 11
6'3 UIineteTcd Areas .--.-.-.--.--.-.----.-.----.---.---..----.--- }}
8.4 Calibration 11
6.5 Customer Access.-.--.-----.-.--.-----.--.----..-..---..----.. }}
6.6 Records ....................................................................................................................... }2
0.7 Accuracy and Corrections........................................................................................... l2
6'8 Meter Out 0f Service................................................................................................... 12
6.9 Wastewater Strength S -.-.----.-.----.-.-.-----.-.----..-- I2
0.10 Compliance Monitoring-------.-.-----.--.--..--..--------..--' l2
6.1I System CoOt-..--.---.-.---.-----...-----.---..-----.-----... 13
ARTICLE 7. Rates and Charges-.-.--.------.-.-----.-------.-.-----.-- l3
7.1 Method of Rate Determination.----.---.---.--....-..-----..------. l3
7.2 Initial Rates................................................................................................................. l4
7.3 Billing and Payment-----.--.-.----.-.-----.--_-..--..------' l4
7'4 Billing Dispute---.-.---.-----------.--.--..---_-..----..-- 14
7.5 Services are Essential and Necessary ......................................................................... I5
7.6 Customer tOCollect Snffioieo1Revenues................................................................... }5
7.7 Customer t0 Adopt User Charge--.----.--.-..-.---..----.--------. T5
7.8 Rate Adjustments............................................:........................................................... }5
7'9 Wholesale Services Purchased br Fort Worth............................................................ l5
ARTICLE 8. Industrial Connection and Monitoring.--.-.----..----.--.---..--.. l6
8'I Additional Connections .............................................................................................. l6
Agreement for Wastewater Service Page iiofiv
8.2 Quality......................................................................................................................... 16
8.3 Sampling and Industrial User Disconnections............................................................ 16
8.4 Questionable or Prohibited Discharges....................................................................... 16
ARTICLE 9. Wastewater Quality........................................................................................... 16
9.1 Industrial Wastes......................................................................................................... 16
9.2 Customer Wastewater Quality Ordinance .................................................................. 16
9.3 Customer Wastewater Quality.................................................................................... 17
9.4 Customer SILT Permits ................................................................................................ 17
ARTICLE 10. Resale of Wastewater Services and Large Volume Retail Customers ............. 18
10.1 No Service Outside the Customer's Service Area....................................................... 18
10.2 Large Volume Users................................................................................................... 18
10.3 Wholesale Customer Compliance............................................................................... 18
ARTICLE 11. Infiltration and Inflow........................................................................................ 18
11.1 Prevention................................................................................................................... 18
11.2 Standards for Customer's Retail Connections............................................................. 19
11.3 Customer Overflows................................................................................................... 19
ARTICLE 12. Sludge Disposal................................................................................................. 19
ARTICLE13. Wastehaulers...................................................................................................... 19
ARTICLE 14. Reports and Records......................................................................................... 19
14.1 Data and Information.................................................................................................. 19
ARTICLE15. Notices ..............................................................................................................20
15.1 Required Notice..........................................................................................................20
15.2 Delivery and Receipt...................................................................................................20
15.3 Change of Address Notices.........................................................................................20
ARTICLE 16. Inspection and Audit.........................................................................................20
ARTICLE 17. Ownership and Liability ...................................................................................21
17.1 Ownership...................................................................................................................21
17.2 Liability.......................................................................................................................21
17.3 Independent Contractors.............................................................................................21
ARTICLE 18. Compliance with Permit Conditions................................................................. 21
ARTICLE19. Term..................................................................................................................22
ARTICLE20. Force Majeure....................................................................................................22
20.1 Notice and Suspension................................................................................................22
20.2 Definition....................................................................................................................22
ARTICLE 21. Breach, Termination and Other Remedies........................................................ 22
21.1 Termination by Mutual Consent................................................................................. 22
21.2 Termination for Material Breach................................................................................22
21.3 Termination for Repeated Breach............................................................................... 23
21.4 Material Breach...........................................................................................................23
21.5 Notice and Cure ..........................................................................................................23
21.6 Notice and Cure for Nonpayment of Impact Fees...................................................... 24
21.7 Notice and Cure for Breach of SIU Obligations......................................................... 24
21.8 Effect of Termination..................................................................................................24
21.9 No Waiver by Fort Worth...........................................................................................24
21.10 No Waiver by Customer.............................................................................................24
ARTICLE22. Impact Fees....................................................................................................... 25
Agreement for Wastewater Service Page iii of iv
22.1 Calculation of Impact Fees.........................................................................................25
22.2 Payment of Impact Fees..............................................................................................25
22.3 Use of Impact Fees......................................................................................................25
22.4 Impact Fee Report.......................................................................................................26
22.5 No Waiver...................................................................................................................26
22.6 Customer Impact Fee Committee ("CIFC") ............................................................... 26
22.7 Capital Improvements Plan.........................................................................................26
22.8 Dissemination of Documents......................................................................................26
22.9 Current Impact Fees....................................................................................................27
22.10 Changes to Chapter 395.................................................................
ARTICLE 23. Wholesale Wastewater Advisory Committee................................................... 27
ARTICLE24. Miscellaneous ...................................................................................................27
24.1 Favored Nations..........................................................................................................27
24.2 Subject to Laws and Permits....................................................................................... 27
24.3 Entry on Customer's Premises.................................................................................... 27
24.4 Alternative Dispute Resolution...................................................................................28
24.5 Inspection and Audit...................................................................................................28
24.6 Use and Sale of Treated Effluent................................................................................28
24.7 Diversion of Untreated Effluent..................................................................................28
24.8 Assignment.................................................................................................................29
24.9 No Waiver...................................................................................................................29
24.10 Venue..........................................................................................................................29
24.11 Construction................................................................................................................29
24.12 Effect of Agreement....................................................................................................29
24.13 Severability.................................................................................................................29
24.14 System Regulatory Actions......................................................................................... 30
24.15 Additional Contract Terms ......................................................................................... 30
24.16 Exhibits....................................................................................................................... 30
ARTICLE 25. Effective Date ................................................................................................... 30
EXHIBIT A—MAP - Boundaries of the Customer's Service Area and Mutually Agreed Point(s)
of Connection
EXHIBIT B —Example of Monthly Wastewater Bill Calculation
EXHIBIT C—Calculation of PILOT and Cost-of-Service Revenue Requirement to Recover the
Cost of PILOT
EXHIBIT D—Additional Terms
Agreement for Wastewater Service Page iv of iv
AGREEMENT FOR WASTEWATER SERVICE BETWEEN
THE CITY OF FORT WORTH, TEXAS, AND
CITY OF KENNEDALE, TEXAS
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 Jesus J. Chapa, its duly authorized Assistant City
Manager, hereinafter called"Fort Worth," and the City of Kennedale, located in Tarrant County,
Texas, acting by and through Brian Johnson, its duly authorized Mayor, hereinafter called
"Customer," and hereinafter collectively referred to as the"Parties".
RECITALS
A. WHEREAS the public health, welfare and safety of the residents of Fort Worth and
Customer require the development of adequate systems of sewage collection and
disposal, the elimination of water pollution and the preservation of the water resources
of the area; and
B. WHEREAS Fort Worth and Customer are required to comply with standards and
treatment methods for wastewater as set forth in federal, state and local laws and
regulations and permits; and
C. WHEREAS Fort Worth and Customer have an interest in maintaining and restoring the
chemical,physical and biological integrity of waters and water resources and preventing
pollution in said waters and water resources, and planning the use, development,
restoration,preservation and enhancement of said waters and water resources; and;
D. WHEREAS, Fort Worth and Customer have previously entered into a contract, being
known as Fort Worth City Secretary Contract No. 20141, dated February 8, 1994
together with any and all amendments thereto dated March 25, 1997 and May 6, 2008,
said contract[s] and amendments, if any, providing for wholesale wastewater services;
and;
E. WHEREAS, Customer desires to continue to contract for wholesale wastewater service
and Fort Worth desires to continue to provide wholesale wastewater service under
contract to Customer; and
F. WHEREAS, Chapter 552 of the Texas Local Government Code and Chapter 791 of the
Texas Government Code, authorize 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:
Agreement for Wastewater Service Page 1 of 31
ARTICLE 1. Definitions
The following definitions apply throughout this Agreement:
1.1 Act or "the Act". The Federal Water Pollution Control Act, also known as the Clean
Water Act("CWA"), as amended(33 U.S.C. 1251, et seq.).
1.2 Biochemical Oxygen Demand (BOD). The quantity of oxygen utilized in the
biochemical oxidation of organic matter specified by procedure in Method 5210B in the
Standard Methods for the Examination of Water and Wastewater, and results expressed in terms
of weight and concentration(milligrams per liter (mg/L))
1.3 Calibration. Verification of primary measuring device and secondary instrumentation
accuracy utilizing standard primary device procedures and calibration signals and/or a separate
flow measurement instrument.
1.4 Capital Improvements. Any of the following facilities which provide utility services and
that have a life expectancy of three (3) or more years, whether such capital improvements are
located within the extraterritorial jurisdiction or corporate limits of Fort Worth or Customer:
wastewater treatment facilities, metering and sampling facilities, control systems and
appurtenances, storage or retention facilities, and all major collectors and interceptors that are
eighteen inches (18") and greater in diameter and lift stations, if any, associated therewith.
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 Connection. See Point of Entry.
1.7 Customer System. The facilities of Customer used for pretreatment, collection and
transportation of wastewater to the Point of Entry.
1.8 Customer's Service Area(or "Service Area"). Unless otherwise shown on Exhibit A,the
Customer's Service Area is the area within the Customer's city limits (its corporate boundaries),
and does not include the Customer's extra-territorial jurisdiction.
1.9 Delivery Facilities. All facilities used for the transmission of wastewater to the Fort
Worth System that are on the Customer's side of the Point of Entry and directly connected to the
Fort Worth System, including all upstream pipelines of the same or larger diameter.
1.10 Director. The Director of the Fort Worth Water Department or his designee.
1.11 Domestic Accounts. Single-family and residential duplex dwellings served by one meter.
This definition is used only in the context of determining billing Per Connection.
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.
Agreement for Wastewater Service Page 2 of 31
1.13 Fiscal Year. The fiscal year of Fort Worth, which is from October 1"through September
30th.
1.14 Fort Worth System. Fort Worth's wastewater system, including all facilities for
wastewater collection, storage and retention,treatment, treated wastewater disposal, sludge
handling and disposal, and producing finished wastewater for beneficial reuse. As used in this
Agreement, the term "Fort Worth System" does not include any beneficial reuse pipelines and its
related distribution facilities.
1.15 Impact Fee. A capital contribution funding or recouping the cost of Capital
Improvements necessitated by and attributable to new development or new connections to the
Fort Worth System, subject to and as provided in Article 22 of this Agreement.
1.16 Industrial User. A person(as defined in the Act)that introduces pollutants into the Fort
Worth System from any nondomestic source regulated under Section 307(b), (c), or(d) of the
Act.
1.17 Industrial Wastes. Any waterborne liquid or solid substance that results from any process
of industry, manufacturing, mining, production, trade or business.
1.18 Infiltration. Water that has migrated from the ground into the wastewater system.
1.19 Inflow. Water other than wastewater that enters a sewerage system (including sewer
service connections) from sources such as,but not limited to, roof leaders, cellar drains, yard
drains, area drains, drains from springs and swampy areas, manhole covers, cross connections
between storm sewers and sanitary catch basins, cooling towers, storm waters, surface runoff,
street wash waters or drainage. Inflow does not include, and is distinguished from, Infiltration
water.
1.20 Liquid Waste. The water-borne solids, liquids, and gaseous substances derived from
certain sources including, but not limited to, grease trap, septic tank, chemical toilet waste and
sand trap waste.
1.21 Metering and sampling facility. The meter, meter vault, and all metering and telemetry
equipment required to measure and/or sample Customer wastewater flows that enter the Fort
Worth System.
1.22 Non-Domestic Accounts. Commercial, industrial, multi-family or other accounts that are
not considered Domestic Accounts. This definition is used only in the context of determining
billing Per Connection.
1.23 Unmetered Area(s). Areas within the Customer's corporate or certificated boundaries that
generate wastewater that do not drain into a part of the Customer System for which wastewater
flow is measured by an approved metering and sampling facility.
1.24 Parties. Fort Worth and the Customer, or each individually.
Agreement for Wastewater Service Page 3 of 31
1.25 Per Connection. Billing or charging "Per Connection" means charging for Unmetered
Area connections as provided in § 6.3.
1.26 PILOT. Payment in Lieu of Taxes, as described in Exhibit C.
1.27 Point of Entrv. The Point of Entry (or "Customer's Connection") is the upstream entry
point to each metering and sampling facility from which the Customer's wastewater flows into
the Fort Worth System, as shown on Exhibit A and described in §2.3.
1.28 POTW. Publicly owned treatment works.
1.29 Pretreatment. The reduction of the amount of pollutants, the elimination of pollutants, or
the alteration of the nature of pollutant properties in wastewater to a less harmful state prior to or
in lieu of discharging or otherwise introducing such pollutants into a Publicly Owned Treatment
Works. The reduction or alteration can be obtained by physical, chemical or biological
processes, or process changes by other means, except as prohibited by 40 CFR Section 403.6(d).
1.30 Pretreatment Requirements. Pollutant concentration discharge limitation and reporting
requi
rements stipulated in Fort Worth City Code Article VI: Industrial Wastewater, and any
amendments thereto, and the Customer's Code, as hereinafter amended, and Federal Pretreatment
Standards promulgated by the U.S. Environmental Protection Agency.
1.31 Sanitary Sewer Evaluation Survey. A Sanitary Sewer Evaluation Survey or "SSES" is a
survey as described in § 4.4
1.32 Significant Industrial User or "SIU".
(a) All Industrial Users subject to Categorical Pretreatment Standards under 40 CFR
§ 403.6 and 40 CFR Chapter I, Subchapter N, as amended from time to time;
(b) Any other Industrial User that discharges an average of twenty-five thousand
(25,000) gallons per day or more of process wastewater to the POTW (excluding
sanitary, noncontact cooling and boiler blow-down wastewater); contributes a
process wastestream which makes up five percent(5%) or more of the average
dry weather hydraulic or organic capacity of the POTW treatment plant; or is
designated as such by the Director on the basis that the Industrial User has a
reasonable potential for adversely affecting the POTW's operation or for violating
any pretreatment standard or requirement (in accordance with 40 CFR §
403.8(f)(6)); or
(c) Any other person or entity that falls within the definition of Significant Industrial
User in the Fort Worth City Code, as it may be amended from time to time.
1.33 Standard Methods. Those testing or analysis procedures as prescribed in the then current
edition of"Standard Methods for Examination of Water and Wastewater," published by the
American Public Health Association and/or the U.S. Environmental Protection Agency Manual
of Methodologies for the Examination of Water and Wastewaters, or as will otherwise comply
with procedures specified in state and federal discharge permits held by Fort Worth.
Agreement for Wastewater Service Page 4 of 31
1.34 Street Rental. The Street Rental charged to the wholesale customers of the Fort Worth
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 cannot be decreased without the consent of Fort 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, and shall
never exceed the rate being collected from the natural gas franchised utility serving the City of
Fort Worth or the rate collected from the retail wastewater customers of Fort Worth, whichever
is less.
1.35 System Cost. System Cost, as provided in § 7.1.2.
1.36 TCEQ. The Texas Commission on Environmental Quality or its successor agency.
1.37 Total Suspended Solids (TSS). Solids, measured in mg/L, that either float on the surface
of, or are in suspension in, water, wastewater or other liquids, and which are largely removable
by a laboratory filtration device. Also referred to as Total Non-Filterable Residue.
1.38 TRA Contract. Fort Worth City Secretary Contract No. 16054 "Trinity River Authority
of Texas—Denton Creek Regional Wastewater Treatment System Contract," and Fort Worth
City Secretary Contract No. 8632 between the Trinity River Authority of Texas and the City of
Fort Worth entered into as of the 20th day of February, 1976, and any amendments to those
agreements.
1.39 Wastewater. All liquid or water-carried waste products from whatever source derived,
together with such Inflow and Infiltration as may be present, whether treated or untreated,which
is discharged into or permitted to enter into the Fort Worth System. The words "wastewater" and
"sewage" are interchangeable.
1.40 Wastewater Permits. The TCEQ Texas Pollutant Discharge Elimination System permit
issued to Fort Worth for the Village Creek Water Reclamation Facility, as it may be renewed or
amended from time to time or any another POTW,wastewater treatment plant or water
reclamation facility that is owned or operated (directly or through contract) by Fort Worth.
1.41 Wastewater Strength. The concentrations of BOD and TSS and, where relevant or
applicable under TCEQ or EPA regulations, concentrations of other wastewater pollutants or
contaminants.
ARTICLE 2. Customer Connection to the Fort Worth System
2.1 Consent to Connect. All subject to the Customer's compliance with the terms and
conditions of this Agreement, Fort Worth agrees that the Customer may connect its System to the
Fort Worth System at the agreed Point(s) of Entry and that Fort Worth will accept for collection,
transportation, treatment and disposal the wastewater that the Customer delivers to the Fort
Worth System through the agreed Point(s) of Entry.
Agreement for Wastewater Service Page 5 of 31
2.2 Delivery and Payment. Customer agrees to deliver wastewater into the Fort Worth
System and to pay for Fort Worth's wastewater services all in accordance with the terms and
conditions of this Agreement.
2.3 Connection Points. Customer shall connect its System to the Fort Worth System only at
the Point(s) of Entry designated on Exhibit "A" and at such additional points of entry as may
later be mutually agreed upon in writing signed by both Parties. Where no metering facility is
used (Unmetered Area connections),the Point of Entry is where the Customer's System connects
to the Fort Worth System, unless otherwise mutually agreed upon in writing.
2.4 Customer Delivery Facilities. Unless otherwise agreed by the Parties in writing,
Customer is responsible for the design, contracting, construction and financing of its Delivery
Facilities and the acquisition of any necessary rights-of-way and easements for,to and from such
facilities. All designs, materials and specifications shall conform to or be at least as stringent as
Fort Worth's requirements for such facilities. The Customer shall submit to the Director for
written approval all plans and specifications for any Delivery Facilities. Such approval shall not
be unreasonably withheld; however, no construction of such Delivery Facilities will begin until
such approval has been given. Upon completion, Customer shall provide record drawings in a
format reasonably acceptable to Fort Worth. Customer agrees that Fort Worth has the right to
make periodic inspections during construction of the Delivery Facilities. Final completion and
connection of such Delivery Facilities to the Point of Entry is subject to the continuing
inspection and written approval of the Director.
2.5 Wastewater from Adjacent Areas. At the request of the Director, Customer agrees to
allow wastewater from areas and premises adjacent to the Customer's boundaries and within the
boundaries of Fort Worth's or another Fort Worth wholesale customer's service area,to flow
through Customer's System, subject to the Texas Water Code and TCEQ regulations regarding
service areas. The metered quantity of wastewater from this area transported into the Fort Worth
System each month shall be measured Per Connection or, at the option of Customer or Fort
Worth, and where the wastewater flows are of sufficient volume that metering is practicable,
metering and sampling facilities may be installed at the expense of Fort Worth to meter and
sample all wastewater from this adjacent area. The quantity of wastewater from this adjacent
area shall be deducted from the quantity of the Customer's wastewater passing through the
Customer's connection to the Fort Worth System before volume charges for wastewater service
to Customer are computed and, if the meter serving those customers has been equipped to
measure it,the Customer's billing shall also be adjusted for differences in the Wastewater
Strength of the adjacent area. When additional pipeline capacity is required to transport the
flows, Customer agrees that it shall be responsible for its proportional cost of the additional
capacity needed to serve Customer's current or projected future flows as agreed upon by the
Customer and Fort Worth. The cost of additional infrastructure shall be borne by the Customer
and Fort Worth, in proportion to the projected flow volumes of each. Customer shall not be
responsible for the cost of additional capacity needed solely to serve adjacent areas not under
Customer's jurisdiction.
Agreement for Wastewater Service Page 6 of 31
ARTICLE 3. Operation and Maintenance
3.1 Customer System. Customer agrees to maintain its System in good condition and to
make repairs in a timely manner. Fort Worth shall not have any responsibility or liability now or
ever for the operation or maintenance of the Customer System, except as the Parties may
otherwise agree in writing.
3.2 Fort Worth System. Fort Worth agrees to maintain its System in good condition and to
make repairs in a timely manner. Customer shall not have any responsibility or liability now or
ever for the operation or maintenance of the Fort Worth System, except as otherwise provided in
this Agreement.
3.3 Metering and Sampling Facilities. After transfer to Fort Worth as provided in Article 4,
Fort Worth shall become solely responsible for the operation and maintenance of metering and
sampling facilities connected to its System.
ARTICLE 4. Metering and Sampling Facilities and System Infrastructure Improvements
4.1 Customer Connections and Metering and Sampling Facilities. Either Customer or Fort
Worth, with written consent of the Director and execution of the necessary agreements, may
construct the Customer Connection, Metering and Sampling Facilities.
4.1.1 Cost of Customer Connection. Customer shall pay the cost of each new, enlarged
or additional Customer connection to the Fort Worth System and related metering
and sampling facilities, including new or modified wholesale meters as necessary
to accommodate increased Customer flows. Such Customer costs include costs
of. design, engineering; site acquisition and preparation; construction and
inspection; the facility equipment, the final connection, and all necessary
easements and rights-of-way, including those for access to the meter site.
4.1.2 Facilities Transfer to Fort Worth. Customer shall transfer (or arrange for transfer)
to Fort Worth all metering and sampling facilities connecting the Customer's
System to the Fort Worth System, together with the sole authority to operate and
maintain the facilities. All transfers shall be within 60 days of the Effective Date
or the completion of the facilities, whichever is later, and shall be accomplished
with documents in a form satisfactory to Fort Worth. Thereafter, Fort Worth shall
be solely responsible for the operation, and maintenance of the metering and
sampling facilities, and such costs shall be a System Cost.
4.1.3 Site Transfer to Fort Worth. Unless otherwise prohibited by law or contract,
Customer shall transfer to Fort Worth all of Customer's fee simple or other
property rights in the land that is the site for the metering and sampling facilities.
To the extent that the property is larger than necessary, or Customer needs to
retain a portion of the property for other purposes, Fort Worth or Customer may
choose to exclude that portion of the property that is not reasonably necessary for
the operation, maintenance, sampling and testing, repair or replacement of the
facilities. All transfers shall be within 60 days of the Effective Date or the
Agreement for Wastewater Service Page 7 of 31
completion of the facilities, whichever is later, and shall be accomplished with
documents in a form satisfactory to Fort Worth.
4.1.4 Access. Customer will secure and transfer to Fort Worth continuous rights of
access, ingress and egress to the Customer metering and sampling facilities and,
subject to any necessary consents, transfer or assign to Fort Worth any permits,
access agreements, licenses, easements or rights-of-way that Fort Worth agrees
are needed for the continuous operation and maintenance of, and access to, all
metering and sampling facilities for as long as this Agreement is in effect.
4.1.5 Credit for Transfers. The Customer's transfers to Fort Worth under§§ 4.1.2 -
4.1.4 above shall be treated as a Customer contribution for rate purposes,but the
transfers shall not be any indicia of equity ownership in the metering and
sampling facilities or in the Fort Worth System.
4.1.6 Fort Worth Optional Construction. As determined by the Director for the
efficient operation of the Fort Worth System or service to its customers, and
unless otherwise agreed in writing by both Parties, Fort Worth shall have the
option, but not the obligation, to design and construct,to acquire site property,
and to obtain necessary permits, ingress, egress and access agreements, licenses,
easements or rights-of-way for:
(a) Additional Customer metering and sampling facilities not in
existence on the Effective Date (for example, for Unmetered
Areas), including any modifications to the Customer's Delivery
Facilities necessary to accommodate a complete initial installation
satisfactory to Fort Worth; and
(b) Improvement, expansion,upgrading or replacement of existing or
future Customer metering and sampling facilities.
Customer has the right to review Fort Worth's proposed construction, expansion,
and replacement plans for such construction before it begins. All costs of such
optional construction undertaken by Fort Worth shall be a System Cost.
4.1.7 Operation and Maintenance Expenses. Expenses incurred by Fort Worth for the
operation and maintenance of Customer metering and sampling facilities shall be
System Costs and shall include the following:
(a) Electricity at the facility;
(b) Initial telemetry connection to the facility and the control center,
and any routine periodic charges for telephone, data or other
communication services;
(c) Meter calibration;
Agreement for Wastewater Service Page 8 of 31
(d) Parts, materials and supplies for calibration, repair and
maintenance of the facilities;
(e) Labor cost plus fringe benefits and indirect costs for calibration,
repair and maintenance of the facilities; and
(f) Maintenance of ingress, egress and meter facility site.
4.2 Capacity Improvements Customer and Fort Worth agree to cooperate in determining the
need for additional downstream Capital Improvements, and related construction schedules and
cost-participation and will seek to manage downstream flows and/or peak flows consistent with
Fort Worth's and the Customer's master planning or capital improvement planning. Customer
agrees to notify Fort Worth before it begins constructing significant expansions or additions to its
System.
4.3 Cost of New, Enlarged or Additional Connections . Except for the System Cost
authorized in § 4.1.6 above, Customer shall pay the cost of each new, enlarged or additional
Customer connection to the Fort Worth System, including the cost of the Delivery Facilities,the
Metering and Sampling Facilities, and the Customer's proportionate share of any improvements
required for that connection or related service to be provided after the Point of Entry. The
Customer's cost shall be calculated in the same manner as the "developer's cost" for special
facilities, including pipelines, under Fort Worth's then-existing Water and Wastewater
Installation Policy, as determined by the Director. Customer will pay that amount to Fort Worth
before making the new, enlarged or additional connection to the Fort Worth System, and the
amount shall not be a System Cost.
4.4 Peak Flow and Remediation. In any 12-month period, if the volume of the Customer's
wholesale wastewater flow into the Fort Worth System for any one day exceeds 4 times the
average of the Customer's actual daily flow, averaged over the prior 3 fiscal years, then a
Sanitary Sewer Evaluation Survey (SSES) is required in response to the exceedance, as follows.
4.4.1 Within a reasonable time after such an exceedance, Fort Worth will send a Notice
to Customer stating the specific date(s) and volumes of the flows that resulted in
the exceedance, and describing the schedule and procedures for submitting the
results and implementing the required SSES.
4.4.2 The SSES is a survey of the affected portion of the Customer System sufficient to
identify the cause or source of the wastewater flows that have resulted in the
exceedance. The SSES may include activities such as additional flow
measurements, smoke tests or inspections and the final report shall list specific
remedial actions. The costs of the SSES and performance of the remedial actions
recommended in the SSES must be borne by Customer,to the extent necessary to
eliminate or accommodate the Customer's increased flows.
4.4.3 If Customer fails to perform the SSES and pay the costs of the remedial action as
required by this § 4.4 and the exceedance is repeated then, in addition to any
remedies available under Article 21, Fort Worth has the right to recover from the
Customer all of Fort Worth's incremental costs of handling the increased flows,
Agreement for Wastewater Service Page 9 of 31
such as infrastructure improvements and any regulatory agency fines that may be
levied, or corrective action required by TCEQ, as a result of the Customer's
repeated exceedance(s). Fort Worth shall provide documentation that the
Customer's exceedances resulted in such incremental costs and any costs
recovered from Customer shall not also be included as a System Costs.
4.4.4 The Director may waive the requirement for the Customer to perform the SSES or
to implement recommended remedial action if, in his sole opinion, the SSES or
the recommended remediation is not necessary to protect the interests of Fort
Worth.
4.5 Construction Standards. Any design, construction, installation or replacement of
wholesale meters, sampling facilities, Delivery Facilities, or other Capital Improvements for
providing service under this Agreement shall comply with 30 Texas Administrative Code
Ch. 217 and Fort Worth's standards and specifications, as they are in effect at the time of the
construction. After initial construction, the "time of the construction" is the date of any
subsequent upgrade or replacement.
4.6 Transfer to Customer upon Termination. Upon expiration or termination of this
Agreement under its terms by either Party, Fort Worth shall transfer back to Customer any
metering and sampling facilities,rights of access, ingress and egress, and any permits, access
agreements, licenses or easements and rights-of-way that Customer previously conveyed,
transferred or assigned to Fort Worth under the terms of this Article 4.
ARTICLE 5. Rights-of-Way
5.1 Rights-of-Way Granted by Customer. Customer shall grant, without charge to Fort
Worth, such easements and rights-of-way along public highways or other property owned by
Customer, as requested by Fort Worth, in order to construct and maintain wastewater mains or
facilities within the Customer's Service Area to provide wastewater service to Customer and to
other areas. If two or more locations are mutually acceptable to Fort Worth and Customer, then
Customer may select the final location from among them. Upon notice from Customer and at
Fort Worth's expense, Fort Worth will move its wastewater lines or other facilities located in
such street rights-of-way or on other property owned by Customer when reasonably necessary to
the performance of essential governmental duties by Customer. Fort Worth's relocation costs
under this § 5.1 shall be a System Cost to the extent that the lines are related to service to Fort
Worth's wholesale wastewater customers.
5.2 Rights-of-Way Granted by Fort Worth. 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 wastewater mains or
facilities within Fort Worth to provide wastewater service to Customer under this Agreement. If
two or more locations are mutually acceptable to Fort Worth and Customer,then Fort Worth may
select the final location from among them. Upon notice from Fort Worth and at the Customer's
expense, Customer will move such wastewater 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.
Agreement for Wastewater Service Page 10 of 31
5.3 Construction Standards. 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 Party will use its best efforts to
restore the others' property to as near original condition as feasible unless otherwise mutually
agreed in writing.
5.4 Conflicts. Fort 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 6. Metering and Sampling
6.1 Meter Reading. Fort Worth will read all Customer Point of Entry meters at monthly
intervals, and the Parties shall have free access to read these respective meters daily, if either
Parry so desires. Each Party has the duty to give immediate notice to the other of any meter that
it finds is not functioning properly, and Fort Worth shall promptly investigate and make any
necessary repairs.
6.2 Flows to be Metered. All flow discharged into the Fort Worth System by Customer shall
be metered, unless specifically agreed otherwise by both Parties in writing. Fort Worth agrees to
allow those Customers served on a per connection basis, with prior approval from Fort Worth to
remain on per connection until conditions allow for the flow to be metered.
6.3 Unmetered Areas. If, in the judgment of the Director,the sewage generated within one or
more areas of the Customer cannot be accurately measured by an approved type of metering
station, then the charge for sanitary sewer service within that drainage area will be calculated Per
Connection as follows: For monthly billing purposes, the total gallons of sewage for the
Unmetered Areas will be calculated as the sum of: (i)the total gallons of metered water of all
Non-Domestic Accounts within the area plus (ii)the number of Domestic Accounts within the
area times 10,500 gallons. The Parties agree that the 10,500 gallons for Domestic Accounts
already accounts for Inflow and Infiltration, and therefore needs no further adjustment for it.
The total volume so derived each month will be used as the basis for calculating the total
wastewater charges due each month for that Unmetered Area and such charges will be added to
any other charges for metered connections. For all such Unmetered Areas, Customer will be
responsible for providing data each month on the number of Domestic Accounts and the metered
water volume of all Non-Domestic Accounts. This data will be provided by Customer to Fort
Worth no later than the 5th of each calendar month.
6.4 Calibration. Fort Worth shall calibrate and routinely service the meters no less than once
during each six (6)month period. Copies of the results of such calibration and all related
information shall be provided to Customer. Fort Worth shall notify the Customer at least
seventy-two (72) hours in advance of the date and time for any calibration and Customer may
observe, if so desired.
6.5 Customer Access. Customer shall have access to the metering and sampling facilities at
all reasonable times; provided, however that any reading, calibration or adjustment to such
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metering equipment shall be done only 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. Notice of any proposed third-party calibration shall be
provided to all Parties at least seventy-two (72) hours in advance.
6.6 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 totalizer readings for each Customer Point of Entry metering and
sampling facility.
6.7 Accuracy and Corrections. Upon any calibration, if it is determined that the accuracy
envelope of such meter is found to be lower than ninety-five percent (95%) or higher than one
hundred five percent(105%) expressed as a percentage of the full scale of the meter, the
registration of the flow as determined by such defective meter shall be corrected for a period
extending back to the time such inaccuracy began, if such time is ascertainable; or, if such time
is not ascertainable, then for a period extending back one-half(1/2) of the time elapsed since the
date of the last calibration, but in no event further back than a period of six (6) months
6.8 Meter Out of Service. If any meter used to determine volume from Customer 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 on 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. If
Parties cannot reach agreement on the extrapolated estimate of wastewater volume delivered,
then agreement on the flow volume will be determined by § 24.4 dispute resolution.
6.9 Wastewater Strength Sampling. Fort Worth shall periodically sample and test the
wastewater at the metering and sampling facilities or other agreed upon sampling points for the
purposes of billing for the Wastewater Strength. Unless otherwise agreed in writing, sampling
and testing of wastewater shall occur three times per year. To determine the Wastewater
Strength, Fort Worth shall collect twenty-four(24) hour flow-weighted composite samples for a
period of not less than five (5) consecutive twenty-four(24)hour periods. Fort Worth will
provide Customer with a minimum of seven(7) day advance notice of intent to sample, or such
notice as is sufficient to allow Customer to arrange the services of a qualified laboratory. If, at
the request of Customer or at the request of the Director,more extensive sampling and testing is
desired, it shall be paid for by the Party making the request and shall be done in compliance with
this Article 6. If Customer requests such additional sampling and testing,then Fort Worth shall
invoice Customer and payment shall be made within ten(10) days after receipt of invoice. The
notice required in this section shall include the planned dates, times, and location(s) of sampling.
Fort Worth shall analyze the samples collected in accordance with standard methods. Customer
may be present during the initial setup of sampling equipment and at the time of pickup for each
twenty-four(24)hour composite sample. Fort Worth agrees, if requested, to split the wastewater
samples with Customer.
6.10 Compliance Monitoring. If in the opinion of the Director, compliance monitoring is
required,the Director may order that additional monitoring be performed with or without prior
Agreement for Wastewater Service Page 12 of 31
notice to Customer. Such compliance monitoring is to be in addition to the periodic sampling
and testing set forth in§ 6.9. All information obtained as a result of such compliance monitoring
shall be provided to the Customer upon request. Fort Worth will provide notice of such
compliance monitoring to Customer within a reasonable time thereafter.
6.11 System Cost. Costs incurred by Fort Worth under this Article 6 will be a System Cost.
ARTICLE 7. Rates and Charges
7.1 Method of Rate Determination.
7.1.1 Wholesale wastewater 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 § 7.1.4. The independent utility rate consultant shall
be selected by the Director from a list of qualified firms submitted to the Director
by the Wholesale Wastewater Advisory Committee. All firms to be considered
must identify all employees previously employed by the City of Fort Worth
within 5 years of the submittal date. All cost-of-service studies shall be
conducted utilizing the utility cost basis of determining revenue requirements
applicable to the wholesale customer class and shall be a System Cost.
7.1.2 The System Cost(i.e.,the cost-of-service for the wholesale customer 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 § 7.1.3; general and administrative costs; commodity charges; the
cost of treating wastewater, including Inflow and Infiltration; TRA Contract
charges; Street Rental (calculated as provided in § 1.34); and Payment In Lieu of
Taxes ("PILOT" calculated as provided in Exhibit Q. 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 Strength, metering, and customer related
costs such as accounting, billing, monitoring, and pretreatment and SIU
permitting. 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 wastewater rate study completed and approved by the Fort Worth City
Council before the Effective Date, which Customer acknowledges having
received prior to executing this Agreement. Records of the original cost and the
accumulated depreciation of all capital facilities shall be maintained in the Fort
Worth computerized asset tracking system. These records shall be available for
inspection at the Fort Worth Water Department during reasonable business hours
upon request by Customer.
Agreement for Wastewater Service Page 13 of 31
7.1.3 Fort Worth shall be allowed to earn and recover in rates a rate-of-return on the
rate base as described in § 7.1.2. 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 Parties agree that this rate of return is reasonable.
7.1.4 Every three years,beginning with Fiscal Year 2020, a detailed wholesale
wastewater rate study will be performed by an independent utility rate consultant
selected by the Director in conformance with§ 7.1.1. 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 wastewater 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 30th 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.
7.1.5 Changes in the wholesale wastewater rate methodology will be allowed if
recommended by a majority vote of the Wholesale Wastewater Advisory
Committee and approved by the Fort Worth City Council. For purposes of this
§ 7.1.5, a majority is defined as any combination of Fort Worth wholesale
customers that generated more than fifty percent(50%) of the wholesale
wastewater flows into the Fort Worth System during the immediate past Fiscal
Year.
7.2 Initial Rates. The rates and charges as of the Effective Date shall be those calculated by
the most recent wholesale wastewater cost of service study and adopted by the Fort Worth City
Council to take effect during the current Fiscal Year, and include the Volume Charges,
Wastewater Strength Charges (per pound of BOD and TSS) and Monthly Customer Charges.
7.3 Billing and nd Payment. Bills for wastewater service under this Agreement shall be
rendered to Customer monthly by Fort Worth, and shall be due and payable by Customer 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 are the amount due for wastewater services provided
since the prior billing period. Past-due charges shall be the total amount unpaid from all prior
billings as of the current billing date. Payments received by Fort Worth shall first be applied to
the past-due charges, if any, and thereafter to the current charges.
7.4 Billing Dispute. 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 determined by §24.4 dispute
resolution procedures. Dispute of a bill is not 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
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 overcharged will be credited to Customer's account together with an interest charge of ten
Agreement for Wastewater Service Page 14 of 31
percent(10%)per annum calculated from the date Fort Worth received payment of the disputed
bill.
7.5 Services are Essential and Necessary. The Parties agree that services obtained pursuant
to this Agreement are essential and necessary to the operation of Customer's System and that all
payments made by Customer hereunder shall constitute reasonable and necessary operating
expenses of Customer's System 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.
7.6 Customer to Collect Sufficient Revenues. Customer agrees, throughout the term of this
Agreement,to fix and collect such rates and charges for wastewater 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 other amounts
as required by law and the provisions of the ordinances or resolutions authorizing its revenue
bonds or other obligations now or hereafter outstanding, including the amounts required to pay
all principal of and interest on such bonds and other obligations.
7.7 Customer to Adopt User Charge. Customer specifically agrees to adopt and maintain in
effect for the life of this Agreement an ordinance providing for a user charge system in full
accord with relevant EPA and TCEQ regulations
7.8 Rate Adjustments. 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 Wastewater Advisory Committee a draft copy of the cost-of-service
study of the proposed rates sixty(60) days prior to Fort Worth submitting a rate increase request
to its City Council. Within thirty(30) days of receiving the draft study,the Wholesale
Wastewater 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 Wastewater Advisory Committee has not provided its written comments within said
period,the Wholesale Wastewater 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 Worth City Council. The rates approved by the Fort Worth City Council
shall be the rates to be used in this Agreement for the succeeding Fiscal Year.
7.9 Wholesale Services Purchased by Fort Worth. Fort Worth purchases wholesale
wastewater services under the terms of the TRA Contracts. Any future wholesale contracts
between Fort Worth and a regional wastewater utility service provider that may be needed for
Fort Worth to properly operate its System or meet the needs of its retail and wholesale
wastewater customers will be included in calculating the System Cost as provided in§ 7.1.2 in a
similar manner as the TRA Contract charges.
Agreement for Wastewater Service Page 15 of 31
ARTICLE 8. Industrial Connection and Monitoring
8.1 Additional Connections. Customer agrees that it will not permit any Significant
Industrial User within its jurisdiction to connect directly or indirectly either to the Customer
System or to the Fort Worth System without at least ninety (90) days'prior written notice to the
Director of such intent to connect. Customer shall provide the Director with such information
pertaining to volume and composition of flow as may be requested by the Director.
8.2 Quali . Customer agrees to conduct any and all monitoring, sampling and inspection of
Customer System and Industrial Users as necessary to insure that Industrial Waste introduced
into the Customer System meets the quality standards set out in§ 9.3. Upon request to
Customer, a representative of Fort Worth will be permitted to observe Customer's collection of
samples from Industrial Users, and Customer agrees to furnish Fort Worth separate duplicate
samples for independent testing, and, upon request, to provide the Director sample analysis
results and pretreatment records.
8.3 Sampling and Industrial User Disconnections. Customer agrees that Fort Worth shall
have the right to sample wastewater at all Points of Entry and such other locations as may be
mutually agreed in writing by both Parties for the purpose of determining the volume and quality
of wastewater entering the Fort Worth System. Customer agrees to disconnect from the
Customer's System any Industrial User found to be in violation of allowable discharges or who
refuses access to its facilities for the purpose of sampling wastewater being discharged into the
Customer System; provided, however, that the disconnected Industrial User shall be afforded the
same rights, privileges of appeal and deficiency cure periods as are Industrial Users operating
within Fort Worth's jurisdiction.
8.4 Questionable or Prohibited Discharges. Following Fort Worth's notice to the Customer,
Customer shall grant to Fort Worth the right to enter Customer's jurisdiction if Fort Worth has
information or evidence that questionable or prohibited discharges are entering the Fort Worth
System from the Customer System. Customer agrees to assist Fort Worth in investigating such
discharges and in locating and eliminating any prohibited discharges.
ARTICLE 9. Wastewater Quality
9.1 Industrial Wastes. The potential effects of certain types of Industrial Wastes upon sewers
and sewage treatment processes require careful consideration of each industrial connection, and
is of concern both to Fort Worth and the Customer. Accordingly, Customer shall regulate the
discharge of Industrial Waste as required by this Article 9.
9.2 Customer Wastewater Quality Ordinance. Customer agrees that on or before thirty (30)
days from date of execution of this Agreement it shall enact and cause to be enforced an
ordinance or resolution enabling Customer to enforce within its jurisdiction regulations
governing industrial waste that are at least as stringent as the provisions of the current Fort
Worth City Code Ch. 12.5, Articles VI (Industrial Wastewater) and VII (Liquid Waste) and any
necessary and reasonable amendments thereto, and state and applicable federal regulations
relating to 1) discharged substances; 2) prohibited discharges; 3)pretreatment requirements; 4)
industrial discharge permitting system; and 5) industrial self-monitoring reports. Customer
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agrees to enact and enforce ordinances or any amendments to these Fort Worth Code Articles, or
any future Fort Worth ordinances relating to Industrial Waste discharges, prohibited or
controlled wastes or pretreatment requirements and such amendments and future ordinances shall
become incorporated as additional exhibits to this Agreement; provided,however, Fort Worth
shall provide Customer with a copy of such proposed ordinances or amendments at least sixty
(60) days prior to the presentation of such ordinances or amendments to the Fort Worth City
Council during which time Customer shall have an opportunity to review same. Customer shall
adopt and enforce such proposed ordinances or amendments no later than the effective date of
the Fort Worth ordinance or amendment.
9.3 Customer Wastewater Quality. Customer agrees that the quality of the wastewater
discharged into the Customer System shall be equal to or better than the quality standards
established by Fort Worth City Code Ch. 12.5, Articles VI (Industrial Wastewater) and VII
(Liquid Waste) or any amendment adopted pursuant to Section § 9.2.
9.4 Customer SIU Permits. Customer shall require all Significant Industrial Users within its
jurisdiction that ultimately discharge into the Fort Worth System to apply for and obtain a permit
from Customer allowing such discharge. Such permit shall require SIUs to abate prohibited
substances from their discharge as a condition to discharging wastewater into the Customer
System. The permit application shall contain, as a minimum, the following information required
by Fort Worth City Code § 12.5-632 (or other information as the section may require upon
amendment from time to time):
9.4.1 All information required by Fort Worth City Code § 12.5-651;
9.4.2 Description of activities, structures, equipment and plant processes on the
premises, including a list of all raw materials and chemicals used or stored at the
facility which are, or could accidentally or intentionally be, discharged to the
Customer System;
9.4.3 Number and type of employees,hours of operation, and proposed or actual hours
of operation;
9.4.4 Each product produced by type, amount, process or processes and rate of
production;
9.4.5 Type and amount of raw materials processed (average and maximum per day);
9.4.6 Site plans, floor plans,mechanical and plumbing plans, and details to show all
sewers, floor drains and appurtenances by size, location and elevation, and all
points of discharge;
9.4.7 Time and duration of discharges; and
9.4.8 Any other information as may be deemed necessary by the Director to evaluate
the wastewater discharge or the discharge permit application.
Agreement for Wastewater Service Page 17 of 31
Customer shall provide Fort Worth a copy of such application and permit, if issued, within
fourteen(14) days after issuance.
ARTICLE 10. Resale of Wastewater Services and Large Volume Retail Customers
10.1 No Service Outside the Customer's Service Area. Customer shall not provide any
wastewater service to retail or wholesale customers outside of its Service Area unless it obtains
the express written consent of the Director and an amendment to its Service Area for the
proposed service, and such consent may also require additional improvements as provided in
§ 4.3. Customer shall not share its wastewater facilities with any other governmental or
corporate entity outside of the Customer's Service Area without the express written consent of
Fort Worth. Fort Worth neither recognizes nor approves any existing agreements between
Customer and any developer, landowner, governmental entity, industrial customer or other large-
volume customer for existing or projected wastewater service outside of the Customer's Service
Area, unless authorized by Additional Terms attached as Exhibit D and shown on the Service
Area map attached as Exhibit A.
10.2 Large Volume Users. Unless Customer obtains the prior written consent of the Director,
the Customer shall not provide or agree to provide future wastewater service within its Service
Area to any developer, landowner, governmental entity, industrial customer or other large-
volume customer for existing or projected wastewater flows that would exceed 500,000 gallons
per day to be served through the Fort Worth System. The Director agrees that consent for such
wastewater service within the Customer's Service Area shall not be unreasonably withheld,but
may require improvements as provided in§ 4.3. The consent required by this § 10.2 does not
replace and is in addition to other requirements of this Agreement, including Articles 8 & 9 for
industrial connections.
10.3 Wholesale Customer Compliance. If Customer has Fort Worth's consent to provide any
wholesale wastewater service through the Fort Worth System, Customer shall require its
wholesale customers: to comply with Article 8 (Industrial Connection and Monitoring),
Article 9 (Wastewater Quality) and Article 22 (Impact Fees) of this Agreement,and any other
provisions of the Agreement required by the Director, and to enact and enforce any and all
ordinances necessary to comply with these requirements.
ARTICLE 11. Infiltration and Inflow
11.1 Prevention. The Customer covenants and agrees that it has an obligation to prevent
Infiltration and Inflow into its System and then into the Fort Worth System. Customer further
covenants and agrees to maintain strict supervision and maintenance of its System to prevent
connections through which surface drainage can enter ultimately into the Fort Worth System, and
to employ best management practices to reduce Inflow and Infiltration to the extent practicable.
Customer shall not make, nor shall it permit to be made, any connection which will contribute
storm water run-off from rainwater spouts,rainwater areas, streets, gutter drains or other source
into its System.
Agreement for Wastewater Service Page 18 of 31
11.2 Standards for Customer's Retail Connections. Customer covenants and agrees that all
sewer connections within its jurisdiction that ultimately enter into the Fort Worth System shall be
constructed in accordance with applicable specifications and standards that are equal to or more
protective than those of the Fort Worth Water Department.
11.3 Customer Overflows. If Customer reports any sewer overflow to TCEQ containing any
reference in the report to Fort Worth's System or Fort Worth's Wastewater Permits,then
Customer shall send a Notice to Fort Worth with an attached copy of the report at the same time
that it sends the report to TCEQ.
ARTICLE 12. Sludge Disposal
Customer recognizes the importance of utilizing sludge in a timely and proper manner.
Customer will cooperate with Fort Worth in any environmentally sound sludge utilization
program meeting federal and state standards within the Customer's Service Area.
ARTICLE 13. Wastehaulers
Customer agrees to adopt the North Central Texas Council of Government's model ordinance, or
one similar to it, regulating liquid wastehaulers within Customer's Service Area. At a minimum
such ordinance shall require liquid wastehaulers to be permitted and provide for a manifest
system. Further, the Customer's ordinance shall prohibit the introduction of liquid waste,
including waste from septic tanks and chemical toilets, into the Customer System, directly or
indirectly.
ARTICLE 14. Reports and Records
14.1 Data and Information. If requested by the Director, and/or Customer,the other Party
shall provide quarterly the following:
14.1.1 Actual number of customer accounts discharging directly or indirectly into the
Fort Worth System and/or Customer System within the Customer's Service Area;
14.1.2 Classification of Domestic Accounts and Non-Domestic Accounts within its
Service Area by number and percentage of accounts discharging directly or
indirectly into the Fort Worth System and/or Customer System within the
Customer's Service Area.
14.1.3 Customer's contracts for wastewater services from all providers other than the
Fort Worth System, including collection and treatment contracts with other
entities;
14.1.4 Customer's Water and Wastewater Master Plans, Capital Improvements Plans and
Land Use Plans; and
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14.1.5 Additional data which may assist Fort Worth and/or Customer in developing
methodology for cost of service studies and Impact Fees; provided, however,that
Fort Worth shall not request data that will require Customer to incur unreasonable
expenses in providing such data.
ARTICLE 15. Notices
15.1 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 addressed as follows:
To Fort Worth: Water Director
City of Fort Worth
200 Texas Street
Fort Worth, TX 76102
To Customer: City Manager
City of Kennedale
405 Municipal Drive
Kennedale, Texas 76060
With an additional copy to be given to a Customer representative, if designated in writing by
Customer.
15.2 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; forty-eight (48) hours
after deposit if sent by mail; and twenty-four(24) hours after deposit if sent by nationally
recognized overnight carrier for next day delivery. If requested by Fort Worth or Customer,
notices shall also be sent to specified email addresses.
15.3 Change of Address Notices. Each Party shall provide notice in writing, as provided in
§ 15.1 of any change in its address.
ARTICLE 16. 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 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.
Agreement for Wastewater Service Page 20 of 31
ARTICLE 17. Ownership and Liability
17.1 Ownership. No provision of this Agreement shall be construed to create any type of
joint or equity ownership of any property, any partnership or joint venture, nor shall same create
any other rights or liabilities and Customer payments (whether past, present, or future) will not
be construed as granting Customer partial ownership of, pre-paid capacity in, or equity in the
Fort Worth System.
17.2 Liability. Liability for damages arising out of the receipt,transportation, delivery,
storage,treatment, handling and/or disposal of all wastewater discharged into the Fort Worth
System shall remain with the Customer,together with title to the wastewater, until the
wastewater passes through the Point of Entry. Thereafter, Fort Worth shall have liability for
damages arising out of the receipt, transportation, delivery, storage, treatment, handling and/or
disposal of all wastewater discharged into the Fort Worth System, save and except that title to,
and liability for a discharge from the Customer's System that violates this Agreement shall
remain with the Customer. Each Party agrees to save, release and hold harmless the other Party
from all claims, demands, and causes of action, damages, losses and costs, fines and expenses,
including reasonable attorneys' fees, and all response, remediation and corrective action costs
(collectively "Liabilities")that may be asserted by anyone, including state and federal
administrative agencies, at any time on account of the contents,transportation, delivery,
reception, storage,treatment handling and/or disposal of the wastewater while it is in the control
of such Party, except that Customer shall save, release and hold harmless Fort Worth from all
Liabilities that may be asserted by anyone at any time on account of any discharge originating in
the Customer System that does not comply with the terms of this Agreement, even if the liability
arises out of Fort Worth's strict liability. To the extent that the liability of Fort Worth is
attributable to wholesale customer discharges, but cannot be attributed to a specific wholesale
customer, the liability shall be a System Cost. This covenant is not made for the benefit of any
third party.
17.3 Independent Contractors. Contracts 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 contracts must also provide that the
independent contractor(s) covenant to indemnify, hold harmless and defend both the Customer
and Fort Worth against any and all suits or claims for damages of any nature arising out of the
performance of such contracts.
ARTICLE 18. Compliance with Permit Conditions
Customer acknowledges that Fort Worth is the holder of discharge permits issued by the United
States and the State of Texas. Customer agrees that it will comply with all permit conditions in
any way relating to the collection system and the discharge into the Fort Worth System.
Customer agrees,that if a fine is assessed against Fort Worth for any violation of any permit
condition, and the violation is attributable to any act of omission or commission by Customer,
that it shall indemnify and hold Fort Worth harmless from all Liabilities that result from the
omission or commission by the Customer as provided in§ 17.2. If the permit violation cannot be
attributed to any specific customer or if the Liabilities are not reimbursed by the responsible
Agreement for Wastewater Service Page 21 of 31
customer for any reason then,to the extent that the fines and expenses are attributable to
wholesale customers, such fine is a System Cost.
ARTICLE 19. Term
This Agreement expires on September 30, 2037. It may be renewed on terms mutually agreeable
to the Parties.
ARTICLE 20. Force Majeure
20.1 Notice and Suspension. If by any reason of force majeure either Party shall be rendered
unable, wholly or in part, to carry out its obligations under this Agreement, other than the
obligation of the Customer to make payments required under this Agreement,then if such Parry
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.
20.2 Definition. The term "force majeure," as used in this Article, means acts of God, strikes,
lockouts or other industrial disturbances, acts of public enemy, orders of any kind of the
government of the United States or the State of Texas, or any civil or military authority,
insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, 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 wastewater
collection,transportation, storage or treatment facilities, and inability on the part of Fort Worth
to provide the wastewater services hereunder or of the Customer to deliver wastewater hereunder
on account of any other cause not reasonably in the control of the Party claiming such inability.
ARTICLE 21. Breach, Termination and Other Remedies
21.1 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
consent to termination remains within its sole discretion; however, before consenting to
termination, Fort Worth shall consult with WCAC regarding the circumstances of the proposed
termination.
21.2 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 Party in the
manner set forth in this §21.2. 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 Party fails or refuses to cure such breach pursuant to the terms and
Agreement for Wastewater Service Page 22 of 31
conditions of this Agreement,then the non-breaching Party shall have the right to terminate this
Agreement with six months additional notice to the breaching Party.
21.3 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
six (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.
21.4 Material Breach. The following breach, default or failure to perform a duty or obligation
under this Agreement is a material breach:
a. Failure to adopt and enforce any ordinance that the Customer is required by this
Agreement to adopt and enforce;
b. Failure to pay any bill, charge, or fee as required by this Agreement, including Impact
Fees.
c. Connecting to or discharging into the Fort Worth System at any point that is not
expressly authorized under the terms of this Agreement;
d. Failure to provide Fort Worth ingress and egress for purposes of sampling or operation
and maintenance of any Customer Point of Entry, including the metering and sampling
facility;
e. Failure to permit any sampling of wastewater authorized by this Agreement,whether at
the point of connection or within the Customer's System;
f. Failure to provide to Fort Worth the rights-of-way that Customer is required to provide
under the terms of this Agreement;
g. Failure to investigate discharges or disconnect Industrial Users of Customer pursuant to
§§ 8.3 and 8.4;
h. Failure to comply with Article 9 (Wastewater Quality), including failure to maintain the
required quality of discharge and failure comply with the requirements pertaining to SIU;
i. Failure to comply with Article 10 (Resale of Wastewater Services and Large Volume
Retail Customers); or
j. Failure to comply with Article 18 (Compliance with Permit Conditions).
All other breaches are deemed to be non-material.
21.5 Notice and Cure. In the event of a material or non-material breach, default or failure to
perform a duty under this Agreement,the non-breaching Party 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
repeated breach, and may result in termination of this Agreement as provided in§ 21.3 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 perform 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.
Agreement for Wastewater Service Page 23 of 31
21.6 Notice and Cure for Nonpayment of Impact 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 §§21.2 or 21.5,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.
21.7 Notice and Cure for Breach of SIU Obligations. If Customer breaches its obligations to
enforce the provisions of§§ 9.2 or 9.4,then the § 21.2 90-day notice provisions do not apply and
the Director, in his sole discretion, may send a notice setting the time in which the Customer
shall cure the breach, and may surcharge Customer an amount developed and calculated to
reimburse Fort Worth for any damages each month, including 10% interest, until Customer cures
that breach. If Customer fails or refuses to cure the breach within the stated time then, in
addition to other remedies available under this Agreement, Fort Worth shall have the right to
declare this Agreement terminated after six (6)months additional notice to Customer.
21.8 Effect of Termination. Upon termination of this Agreement under this Article 21, 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 termination 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 § 21.8 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 21, then this Agreement requires Customer to develop alternative or replacement
wastewater services 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.
21.9 No Waiver by Fort Worth. Any failure by Fort Worth to terminate this Agreement, or the
acceptance by Fort 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 Fort
Worth of any rights to terminate this Agreement for any subsequent material breach, default or
failure.
2 1.10 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 determined to be a waiver by
Customer of any rights to terminate this Agreement for any subsequent material breach, default
or failure.
Agreement for Wastewater Service Page 24 of 31
ARTICLE 22. Impact Fees
22.1 Calculation of Impact Fees
22.1.1 The amount of the Impact Fee to be paid by Customer shall be based upon the
size of water meter and shall be equal to the amount of the Impact Fee adopted by
Fort Worth and collected for the same size water meter and type of connection
within the jurisdiction of Fort Worth. However, regardless whether the
connection would qualify as "new development" for purposes of the Customer's
System,the Impact Fee due to Fort Worth shall include an amount equal to the
Impact Fee for each connection not only to new construction, but also to existing
structures or connections not previously served through the Fort Worth System,
for example those taken off septic systems or diverted from other city, developer
or homeowner wastewater systems
22.1.2 The dollar amount of the Impact Fee shall be consistent with the Fort Worth
ordinance adopting Impact Fees in accordance with all applicable state and
federal regulations, including Chapter 395, and its calculation shall include only
those costs allowed under § 395.012 (or its amended or successor statute)that are
associated with Capital Improvements necessary to provide service to new
development.
22.1.3 Nothing in this Agreement shall be deemed to prevent either Fort Worth or
Customer from charging their own retail customers an Impact Fees that differs
from the Impact Fee amount authorized by this Agreement.
22.2 Payment of Impact Fees.
22.2.1 On a quarterly basis, Customer shall pay to Fort Worth an Impact Fee for each
new, enlarged or newly served connection for wastewater service made within
Customer's Service Area served by the Fort Worth System.
22.2.2 As part of the Customer's application to Fort Worth for any new Point of Entry,
and before construction of the facilities required for the Point of Entry, Customer
shall pay to Fort Worth an amount equal to the Impact Fee for each existing sewer
connection that will flow through the new or enlarged Point of Entry when it is
first completed, and is not currently being served by the Fort Worth System.
Upon connection of the new Point of Entry, Customer shall pay all unpaid Impact
Fees for connections made since the initial payment with the application, and
begin quarterly payments for additional connections to the Point of Entry as
required in§ 22.2.1.
22.3 Use of Impact Fees. As required by Chapter 395, Fort Worth agrees that all money
remitted to it pursuant to this Article 22 will be placed in an interest bearing account to pay only
for the cost of constructing Capital Improvements included in Fort Worth's 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
Agreement for Wastewater Service Page 25 of 31
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.
22.4 Impact Fee Report. Customer shall provide to Fort Worth 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 22.
22.5 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 § 22.3.
22.6 Customer Impact Fee Committee ("CIFC"). The Wholesale Wastewater Advisory
Committee created pursuant to Article 23 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 Fort Worth will update the land use
assumptions and capital improvements plan upon which the Fort Worth 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 Worth Impact Fee projects and expenditures to the Wholesale
Wastewater Advisory Committee Rate Subcommittee. Every five years in conjunction with Fort
Worth's updates,the CIFC shall submit a list of qualified engineers or planning consultants to the
Director, and the Director shall select a consultant from such list to assist Fort Worth in
developing land use assumptions, identifying capital improvements, and formulating capital
improvement plans and Impact Fees. The consultant shall be responsible to Fort Worth and its
citizen's advisory committee, but shall also report to the CIFC. The cost of the consultant shall
be deemed a System Cost, to the extent that its work pertains to the wholesale customer class,
and except to the extent that such cost is recovered through Impact Fees. If the CIFC fails to
submit a list of consultants to Fort Worth, Fort Worth shall select the consultant.
22.7 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 Wastewater 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.
22.8 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 assumptions, capital improvement plans or Impact Fees at least thirty
(30) days prior to any scheduled hearing thereon. Any revised Impact Fee adopted pursuant to
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such updated capital improvements plan shall not take effect for a period of at least ninety (90)
days after adoption by Fort Worth.
22.9 Current Impact Fees. Customer agrees to pay Impact Fees in the amounts determined
pursuant to this Article 22. On the Effective Date,those impact fees are the Impact Fees most
recently adopted by the Fort Worth 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, or additional retail customers are added to Customer System flows that enter
the Fort Worth System.
22.10 Changes to Chapter 395. Fort 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 Wastewater 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 23. Wholesale Wastewater Advisory Committee
Customer's governing body shall annually appoint a representative to be a voting member of the
Wholesale Wastewater Advisory Committee which Committee is hereby created and established
and whose purpose shall be to consult with and advise Fort Worth, through the Director, on
matters pertaining to planning, improvements, grants, rate studies,budgets, administration, and
additional wholesale customers, whether same be wholesale customers of Customer or Fort
Worth. The Committee, at its first meeting, shall elect a Chairman, Vice Chairman and
Secretary. The Committee may establish bylaws governing the election of officers,meeting
dates and other matters pertinent to its functioning.
ARTICLE 24. Miscellaneous
24.1 Favored Nations. Fort Worth and Customer agree that if Fort Worth should enter into
any future Agreement for supplying wholesale wastewater service 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 wastewater service to be provided to
Customer under this Agreement.
24.2 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 in this Agreement
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 made necessary by any new, amended, or revised state or federal regulation; however
the Parties may not enact rules or laws that conflict with this Agreement.
24.3 Entry on Customer's Premises. Upon prior notice by the Director, Customer shall allow
any duly authorized employee of Fort Worth who presents proper credentials to access any
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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
Worth representative. To the extent permitted by law, Fort Worth agrees to be responsible to
Customer for any damage or injury to person or property caused by the negligence of such duly
authorized employee while such employee is in the course and scope of their employment.
24.4 Alternative Dispute Resolution.
24.4.1 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 by amicable negotiations.
24.4.2 Any and all disputes arising out of or relating to this Agreement that cannot 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 purchase of
wastewater treatment services. 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 Parties' mediated
resolution of the controversy. Each Party shall initially bear its own costs and
expenses; however, unless otherwise agreed in mediation, Fort Worth'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.
24.4.3 If mediation is not successful, either Party may commence litigation to resolve the
dispute. Fort Worth's litigation costs shall be a System Cost.
24.5 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 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. The responding Party shall make the records
available promptly upon request.
24.6 Use and Sale of Treated Effluent. Customer agrees that Fort Worth has the right to own
and to use or sell any effluent produced from the Customer's wastewater as a result of the
services rendered under this Agreement. Customer agrees that it is not entitled to credit of any
type, either in the exchange of water, money, or other consideration, for any effluent delivered to
Fort Worth's Village Creek Water Reclamation Facility, another wastewater treatment plant or
water reclamation facility that is owned and operated by Fort Worth, or another POTW.
Diversion of Untreated Effluent.
Agreement for Wastewater Service Page 28 of 31
24.7 Diversion of Untreated Effluent. Because cost recovery, as well as management of
capacity and operation of the Fort Worth System, require continuous and predictable wastewater
flows, Customer shall not divert any wastewater flows or wastewater connections (except as
necessary to cease prohibited discharges) once they have begun discharging into the Customer
System for treatment under this Agreement.
24.8 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 wastewater utility is designated as a regional wastewater
or sewer utility agency by a duly authorized regulatory body, or if Fort Worth elects to contract
with or assign this Agreement to a regional wastewater or sewer 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 authority
or utility shall assume 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.
24.9 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 same term or condition.
24.10 Venue. 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.
24.11 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.
24.12 Effect of Agreement. This Agreement is for the collection and treatment of Customer's
wastewater and for related infrastructure and capital contributions as set forth herein. Unless
expressly stated in this Agreement, any other Agreements that may be in effect between the
Parties for the construction of infrastructure or other subject matters shall remain in full force
and effect.
24.13 Severability. If any term or provision in this Agreement is held to be invalid or
unenforceable by any legislative act or court 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.
Agreement for Wastewater Service Page 29 of 31
24.14 System Regulatory Actions. Customer agrees,upon Fort Worth's request, to give
reasonable consideration to supporting Fort Worth, and shall not oppose Fort Worth, on any
permit applications or governmental approvals related to the Fort Worth System.
24.15 Additional Contract Terms. Additional contract terms that apply to the Customer,but not
Fort Worth's other wholesale customers, are contained in Exhibit D "Additional Terms."
24.16 Exhibits. 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 Map showing the boundaries of the Customer's Service Area and mutually
agreed point(s) of connection.
Exhibit B Example of Monthly Wholesale Wastewater Bill Calculation
Exhibit C Calculation of PILOT and Cost-of-Service Revenue Requirement to
Recover the Cost of PILOT
Exhibit D Additional Terms [if any]
ARTICLE 25. Effective Date
The effective date and time of this Agreement for all purposes is October 1, 2017 at 12:01 a.m.
Upon the Effective date, the Wholesale Wastewater Contract then in effect between Fort Worth
and the Customer is terminated and superseded by this Agreement.
IN TESTIMONY WHEREOF, after proper action by the respective governing bodies of the Parties,
this Agreement has been executed in quadruplicate copies, each of which is considered to be an
original.
ATTEST: CITY OF FORT WORTH
Mary Kayser Jesus J. Chapa
City Secretary, City of Fort Worth Assistant City Manager, City of Fort Worth
Date:
APPROVED AS TO FORM AND LEGALITY:
Christa R. Lopez-Reynolds
Sr. Assistant City Attorney, City of Fort Worth
Agreement for Wastewater Service Page 30 of 31
APPROVAL RECOMMENDED:
John Carman,Director
City of Fort Worth Water Department
By signing I acknowledge that I am the person responsible for the monitoring and administration
of this contract, including ensuring all performance and reporting requirements.
Name of Employee
Title
ATTEST: CITY OF KENNEDALE
By:
City Secretary Mayor
APPROVED AS TO FORM AND LEGALITY:
City Attorney
Date:
APPROVAL RECOMMENDED:
Print Name:
Title:
Agreement for Wastewater Service Page 31 of 31
EXHIBIT A
MAP
Boundaries of the Customer's Service Area and
Mutually Agreed Point(s) of Entry
Exhibit A
Service Area Map Page 1
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•Wholesale Sewer Meter
OSewer Service Area
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,.HT I FORT WORTH
UN AL T,1 r ICTINN TIRII -E III Kennedale:
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�.-Vdy6-'Rdf HL OF-0 Elk 6,I_aELLLfI I I I I+�J.ili Wastewater Service Area WATER
u ev_e THE r� rFOrT NOR I tis LIM n,i-. err,
rorTII-A ur c ur AIDP T�� 0 0.0475 0.095 0.19
Miles
EXHIBIT B
EXAMPLE OF MONTHLY WHOLESALE WASTEWATER BILL CALCULATION
Sample Wholesale
Wastewater Bill.
Oct 1 to Oct
Billing for 31, 2015
FY14 Rates Volume $1.2784 BOD $0.3532 TSS $0.2514
Service $75.00
Meter Readings:
Current 443,683,000
Previous 409,666,000
Gallons 34,017,000
Billing Calculations:
Volume:
Gallons * Rate/1,000 $43,487.33
BOD:
Strength * 8.34
Gallons/1,000,000
Strength: 220 $22,044.76
TSS:
Strength* 8.34
Gallons/1,000,000
Strength: 213 $15,191.72
Service: $75.00
Total Due $80,798.82
Exhibit B
Annual Bill Calculation Page 1
EXHIBIT C
CALCULATION
of PILOT and Cost-of-Service Revenue Requirement to Recover the Cost of PILOT
Original Accumulated
NARUC Description Cost Depreciation CWIP Net Asset Base
310.00 Land&Land Rights $714,375 $714,375
325.00 Electric Equipment-Treatment $160,720 $36,562 $124,158
332.00 Water Treatment Equipment $87,010 $11,601 $75,409
334.00 Computer Equipment $5,845 $2,776 $3,069
350.00 Land&Land Rights-Collection $2,253,986 $1,750 $95,000 $2,347,236
Structures&Improvements-
351.00 Collection $8,602,142 $2,633,660 $5,968,482
354.00 Metering Equipment&Structures $886,955 $886,955 $0
355.00 Meter Stations $3,185,037 $2,831,134 $6,999,264 $7,353,166
360.00 Land&Land Rights-Pumping $675,016 $675,016
361.00 Structures&Improvements $11,214,763 $2,620,965 $8,593,798
363.00 Electric Pumping Equipment $5,185,660 $2,773,039 $2,412,621
370.00 Land&Land Rights-Plant $8,417,155 $8,417,155
Structures&Improvements-
371.00 Pumping $122,803,279 $81,871,598 $144,829 $41,076,510
372.00 Treatment&Disposal Equipment $182,373,057 $118,349,068 $4,834,395 $68,858,385
373.00 Odor Conrol System $9,750,516 $3,375,404 $6,375,112
374.00 Outfall Sewer Lines $1,359,125 $693,135 $665,990
375.00 Other Treatment&Disposal $84,867,001 $12,465,183 $72,401,817
389.00 Land&Land Rights $365,360 $365,360
390.00 Other Structures&Improvements $1,942,178 $679,575 $14,215 $1,276,818
391.00 Office Furniture and Equipment $4,367,875 $4,151,297 $216,578
392.00 Transportation Equipment $15,447,320 $12,983,736 $2,463,584
393.00 Stores Equipment $90,520 $86,444 $4,076
Tools, Shop and Garage
394.00 Equipment $1,201,618 $818,843 $382,776
395.00 Laboratory Equipment $1,456,642 $936,524 $520,117
396.00 Power Operated Equipment $460,353 $381,031 $79,322
397.00 Communications Equipment $260,308 $255,170 $5,138
398.00 Miscellaneous Equipment $16,443 $8,222 $8,222
Total $468,150,258 $248,853,671 $12,087,703 $231,384,290
Tax Rate/$100 $0.8550
PILOT $1,978,336
Wholesale
Share 25.29%
Wholesale
PILOT $500,338
All Data from City of Fort Worth Financial
System
Exhibit C
Calculation of PILOT Page 1
EXHIBIT D
ADDITIONAL TERMS
Exhibit D
Additional Terms Page 1
CITY SECRET
CQNTR AMY
AC 1' No. C, s[
WHOLESALE WASTEWATER.-CONTRACT
STATE OF TEXAS S
COUNTY OF TARRANT S
This contract made and entered into this, the
of / day
1994, by and between the City of Fort Worth,
Texas, a munici al corporation, acting herein by and through its If
Assistant City Manager, Mike Groomer, who is duly authorized so to
act, hereinafter referred to as "Fort Worth, " and the City of
Kennedale, Texas, a municipal corporation, acting herein by and
3
3
through its City Administrator, Ted Rowe, who is duly authorized so
to act, hereinafter referred to as "Customer "
WHEREAS, the public health, welfare and safety of the
residents of Fort Worth and Customer require the development of
adequate systems of sewage collection and disposal, the elimination
of water pollution and the preservation of the water resources of
the
area; and ` `� f• is
s I
WHEREAS, Fort Worth is required to comply wittnt� i
(r
treatment methods for wastewater as set forth in f el � tenc
local laws and regulations and permits; and
WHEREAS, Fort Worth and Customer have an interest in
�4
maintaining and restoring the chemical, physical and biological
integrity of waters and water resources and insurin g action r the red it
Of pollution in said waters and water resources, and planning the
use, development, restoration
preservation and enhancement of said
waters and water resources; and
e
WHEREAS, Customer desires to contract for wastewater treatment
service for a particular area located within Customer's service
area, and Fort Worth is agreeable to provide wastewater treatment
service to that particular area of Customer's service area; and
WHEREAS, Sections 402.001 and 402.075 of the Texas Local
Government Code and Chapter 791 of the Texas Government Code
authorize Fort Worth and Customer to enter into this agreement;
NOW, THEREFORE, Fort Worth and Customer, in consideration of
the terms, covenants and conditions herein contained, hereby agree
as follows:
1. Definitions
When used in this contract, these terms shall be defined as
follows:
1. 1 Act or "the Act" - The Federal Water Pollution Control
Act, also known as the Clean Water Act ( "CWA" ) , as amended (33
U.S.C. 1251, et seq. ) .
1 .2 Biochemical Oxygen Demand (BOD) - The quantity of oxygen
utilized in the biochemical oxidation of organic matter specified
by procedure in Standard Methods, and results expressed in terms of g
weight and concentration (milligrams per liter (mg/1) ) .
1 . 3 Calibration - Verification of primary measuring device
and secondary instrumentation accuracy utilizing standard primary
device procedures and calibration signals and/or a separate flow
measurement instrument.
1 .4 Customer System -- That portion of Customer's
facilities within the particular service area described in Exhibit
2
ey
"A" attached hereto and incorporated herein. Used for pretreatment,
collection and transportation of wastewater to the point of entry.
1.5 Delivery facilities - That portion of Customer's
facilities necessary for the transmission of wastewater to the Fort
Worth System that are on the Customer's side of the point of entry
that are constructed specifically to allow Fort Worth to serve
Customer, solely limited to that particular service area described
in Exhibit "A" .
1 .6 Director - The Fort Worth Water Department Director or
his designee.
1.7 Domestic accounts - Single-family and residential
duplex dwellings served by one meter. This. definition is used only
in the context of determining billing on a per-connection basis.
1 .8 Fort Worth Expense - Expenses incurred by Fort Worth
related to the wastewater utility, such expenses to be allocated as
a System Cost if so determined "in future cost-of-service studies.
1.9 Fort Worth System - Fort Worth's wastewater collection
and treatment system.
1. 10 General Benefit Capital Facilities - Wastewater
facilities that provide utility services and benefits common to all
customers; this includes wastewater treatment facilities, metering
and sampling facilities, control systems and appurtenances, and all
major collectors and interceptors that are eighteen inches ( 1811 )
and greater in diameter.
1 . 11 Indirect Discharge - The discharge or the introduction
of industrial wastes from any source regulated under Section 307(b)
3
fl
or (c) of the Act, (33 U.S.C. 1317) , into the Fort Worth System
(including holding tank waste discharged into the system) .
1. 12 Industrial User - A source of indirect discharge which
does not constitute a "discharge of pollutants" under regulations
issued pursuant to Section 402, of the Act, ( 33 U.S.C. 1342) .
1. 13 Industrial wastes - All water--borne solids, liquids or
gaseous substances resulting from industrial, manufacturing or food
processing operations, or from the development of a natural
resource, or any mixture of these with water or domestic sewage.
1 .14 Infiltration -- Water that has Migrated from the ground
into the wastewater system.
1 . 15 Inflow - Water other than wastewater that enters a
sewerage system (including sewer service connections) from sources
such as, but not limited to, roof leaders, cellar drains, yard
drains, area drains, drains from springs and swampy areas, manhole
covers, cross connections between storm sewers and sanitary catch
basins, cooling towers, storm waters, surface runoff, street wash
waters or drainage, Inflow does not include, and is distinguished
from, infiltration water.
1 . 16 Liquid Waste - The water-borne solids, liquids, and
gaseous substances derived from certain sources including, but not
limited to, grease trap, septic tank, chemical toilet waste and
sand trap waste.
1 . 17 Metering and sampling facility - The meter, meter
vault, and all metering and telemetry equipment required to measure
4
fk
and/or sample wastewater flows of the Customer at point of entry or
other such locations, as may be mutually agreed upon in writing.
1. 18 Non-domestic account - Commercial, industrial,
multi-family or other accounts that are not considered domestic
accounts. This . definition is used only in the context of
determining billing on a per-connection basis.
1 . 19 Non-metered area - Areas within the Customers
corporate or certificated boundaries that generate wastewater that
do not . drain into a part of the Customer System for which
wastewater flow is measured by an approved metering and sampling
facility,
1.20 Point of entry - The metering facility or, where no
metering facility is utilized, the point of connection to the Fort
Worth System, unless otherwise mutually agreed upon in writing.
1 .21 Pretreatment - The reduction of the amount of
pollutants, the elimination of pollutants, or the alteration of the
nature of pollutant properties in wastewater to a less harmful
state prior to or in lieu of discharging or otherwise introducing
such., pollutants into a Publicly Owned Treatment Works. The
reduction or alteration can be obtained by physical, chemical or
biological processes, or process changes by other means, except as
prohibited by 40 CFR Section 403.6 (d) .
i
1 .22 Pretreatment requirements - Pollutant concentration
discharge limitation and reporting requirements stipulated in Fort
Worth Ordinance No. 10880 and any amendments thereto, and the !
5
Customer's Code, as hereinafter amended, and Federal Pretreatment
Standards promulgated by the U.S. Environmental Protection Agency.
1.23 Significant industrial user - Any industry which
discharges industrial wastes directly or indirectly into the Fort
Worth System or Customer System that:
discharges 25,000 gallons per day or more of
industrial wastes;
is subject to the National Pretreatment Standards:
Categorical Standards of the U.S. Environmental
Protection Agency; or,
- has a reasonable potential, in the opinion of the
Director, to adversely affect the Fort Worth System.
due to discharge of wastewater with abnormally high
strength or limited and/or prohibited substances.
1 .24 Standard methods - Those testing or analysis procedures
as prescribed in the then current edition of "Standard Methods for
Examination of Water and Wastewater," published by the American
Public Health Association and/or the U.S. Environmental Protection
Agency Manual of Methodologies for the Examination of Water and
Wastewaters, or as will otherwise comply with procedures specified
in state and federal discharge permits held by Fort Worth.
1.25 System cost - Operating expenses and capital related
costs incurred by Fort Worth pursuant to the provision of
wastewater collection and treatment service to the wholesale class
of sewer customers. Such costs are to be collected by Fort Worth
6
as a component of the annual cost of providing wholesale wastewater
service.
1.26 Wholesale System Access Fee - A capital contribution
funding or recouping the costs of General Benefit Facilities
Capital Improvements, or Facility Expansions necessitated by and
attributable to new development.
1.27 Total Suspended Solids (TSS) - Solids, measured in mg/l,
that either float on the surface of, or are in suspension in
water, wastewater or other liquids, and which are largely removable
by a laboratory filtration device. Also referred to as Total
Non-Filterable Residue.
1.28 Wastewater - All liquid or water-carried waste products
from . whatever source derived, together with such ground water
infiltration and surface water inflow as may be present, whether
treated or untreated, which is discharged into or permitted to
enter into the Fort Worth System. The words "wastewater" and
"sewage" are interchangeable.
1.29 Capital Improvements - means any of the following
facilities which provide utility services and benefits common to
all customers and that have a life expectancy of three or more
years, whether such capital .improvements are located within the
jurisdictional limits of Fort Worth or Customer: wastewater
treatment facilities, metering and sampling facilities, control
systems and appurtenances, and all major collectors and
interceptors that are eighteen inches ( 1811 ) and greater in diameter
and lift stations, if any, associated therewith.
r
7
n
1 . 30 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.
2. Connection to the Fort Worth System
2 . 1 The parties -hereto covenant and agree that this contract
solely provides for wastewater service to that portion of
Customer's service area described in Exhibit "A" attached hereto
and incorporated herein. Nothing contained herein shall be
construed so as to affect the existing contract between -the parties
hereto, same being City of Fort Worth City Secretary Contract -No.
7182 , as amended by City of Fort Worth City Secretary Contract Nos.
7927, 9047 and 13391, it being the intent of the parties that this
agreement is strictly limited to that portion of Customer's service
area described in Exhibit "A. No addition to the area being served
hereunder shall be permitted except by written amendment to this
contract. Any and all references to service area, customer system,
impact fees, metering and sampling facilities and the like
contained herein are also limited to that area described in Exhibit
"A"
2 .2 Fort Worth agrees to accept all wastewater generated from
Customer's service area described in Exhibit "A" at the point of
connection as shown on Exhibit "B" , attached hereto and
8
f
incorporated herein, and at such additional points as may later be
mutually agreed upon in writing signed by both parties hereto.
2.3 The cost of all delivery facilities necessary to convey
wastewater to the designated points of entry, whether shown on
Exhibit " " or mutually agreed upon at a later date, together with
the cost of connection of the Customer System to the Fort Worth
System, with the exception of metering and sampling facilities,
shall be borne by Customer.
2 .4 Unless mutually agreed to in writing by Fort Worth and
Customer, Customer shall be responsible for the design,
contracting, construction and financing of delivery facilities and
acquisition of any necessary rights-of-way and easements to and
from such facilities. All designs, materials and specifications
shall conform to Fort Worth's requirements as a minimum. Plans and
specifications for any delivery facility which actually connects to
the Fort Worth System shall be submitted to the Director for
written approval. Such approval shall not be unreasonably withheld.
No construction shall begin until such approval has been given.
Customer agrees that Fort Worth has the right to make periodic
inspections during the construction phase of the delivery
facilities. Final acceptance of such facility from' the point of
connection up to and including the metering and sampling facility
is subject to the inspection and written approval of the Director.
2 .5 After the date of this contract, Customer agrees not to
provide retail service to any new customer whose need for
wastewater service would exceed 500, 000 gallons per day without
9
written notice to and the written approval of the Director.
3. Maintenance of Customer System
Customer agrees 'to maintain its system in good condition and
to make repairs in a timely manner. Fort Worth shall not have any
responsibility or liability now or ever for the operation of the
Customer System, except as agreed to in writing by the parties
hereto.
4 . Maintenance of Fort Worth System
Fort Worth agrees to maintain its system in good condition and
to make repairs in a timely manner. Customer shall not have any
responsibility or liability now or ever for the operation of the
Fort Worth System, except as otherwise provided herein.
5 . Metering and Sampling Facilities
5. 1 Beginning on the effective date of this contract, Fort
Worth shall have the exclusive right to use, operate, and maintain
Customer metering and sampling facilities and Fort Worth shall
become solely responsible for the operational and maintenance
responsibilities associated with such facilities. Customer will
continuously provide a route of ingress and egress to said metering
and sampling facilities for Fort Worth, Fort Worth shall have the
discretion to construct improvements, expansions, and replacements
to said- facilities as a system cost and at the timing of Fort
Worth's needs subject to the review by Customer of all proposed
construction, expansion, and replacement plans. Customer will also
grant and provide to Fort Worth such permits or easements as are
necessary for the continuous operation and maintenance of all
10
metering and sampling facilities. All such costs incurred by Fort
Worth for operation, maintenance, construction, expansion, and
replacement of Customer metering and sampling facilities shall be
considered system costs.
5-.2 Fort Worth shall have the right to use the flume
described in paragraph 7 . 1 hereof for VurRoses of metering- and
sampling. Fort Worth at its sole discretion may install such
additional_ facilities as may be necessary, including, but not
limited to the installation_ of electricity and other equipment, to
place in operation a metering station located at or near the flume.
Any costs incurred by Fort Worth under this section shall be a
system cost. If Customer constructs the additional -facilities;
Customer may either transfer ownership of such newly constructed
facilities, together with all necessary access easements and
rights-of-way to Fort Worth in a form satisfactory to Fort Worth or
may grant to Fort Worth the right of ingress and egress to such
facilities, together with the authority to operate and maintain the
facilities as specified in Section 5. 1, within sixty (CO) days of
such completion. Thereafter, Fort Worth shall operate and maintain
the facilities as a system cost and treat any ownership transfer as
a contribution for rate purposes, but same shall, not be an indicia
of equity ownership.
5 .3 Expenses incurred by Fort Worth for the operation and
maintenance of Customer metering and sampling facilities shall be
system costs and shall include, but not necessarily be limited to,
the following:
11
i
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
Y
repairs, calibrations and upgrading of the facilities;
F. Maintenance of ingress and egress and meter facility
site.
5.4 Replacement of facilities described in this. section or
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 Fort Worth's standards and
specifications.
5 .5 . Upon expiration or termination of this .agreement by
either party, Fort Worth shall transfer to Customer ownership of
any property easements, metering and sampling facilities and
rights-of-way conveyed to Fort Worth pursuant to the terms of this
Section 5.
6. Rights-of--Way
6. 1 Customer shall grant, without charge to Fort Worth, such
easements and rights-of-way along public highways or othez property
owned by Customer, as requested by Fort Worth, in order for Fort
12
Worth to construct or maintain mains or facilities within the
corporate limits of Customer to provide wastewater collection to
Customer and to other areas. Upon notice from Customer and at Fort
Worth expense, Fort Worth will move such wastewater mains or
facilities located in such street right-of-way, or other property
owned by Customer when reasonably necessary to the performance of
essential governmental duties by Customer.
6.2 Fort Worth shall grant, without charge to Customer, such
easements and rights-of-way along with public highways or other
property owned by Fort Worth, as requested by Customer, in order
for Customer to construct and maintain wastewater mains or
facilities within Fort Worth to provide wastewater collection to
Customer. Upon notice from Fort Worth and at Customer's expense,
Customer will move such wastewater mains or facilities when located
in such street rights-of-way or other property owned by Fort Worth
ix
when reasonably necessary to the performance of essential
governmental duties by Fort Worth.
6.3 All work done by or on behalf of Fort Worth under this
Section 6 will be performed in accordance with specifications equal
to those applying to work of a similar nature performed within Fort
;s
Worth, but neither party hereto will be required to restore the
other's property to a condition exceeding its original condition,
unless otherwise mutually agreed in writing. Fort 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 reasonably practicable.
13
�1.
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Y
7 . Metering and Sampling
7 . 1 Customer agrees to have its engineer consult with Fort
Worth on the installation of a flume at or near the point of
connection to the Fort Worth System and within the delivery
facility. Customer is responsible for the cost of the design of
the flume and the design must be approved in writing by the
Director prior to installation and connection to the Fort Worth
System. The cost of .the .installation of the flume shall be borne by
Customer.
7 .2 The parties agree that as of the date of this contract,
the wastewater to be introduced into the Fort Worth system by
Customer will not be recorded by a meter. The volume af_wastewater
for billing purposes will be determined by using the total water
sold by Customer to consumers located within the service area
described in Exhibit °A" plus 1% for infiltration ' and inflow,
provided, however, that any __water sold by Kennedale within the
service area that is measured by an irrigation or -yard meter and
which is not connected to the sanitary sewer system shall not be
included in calculating the total water sold. Customer will be
responsible for providing to Fort Worth data each month of all
metered water. This data will be provided by Customer to Fort. Worth
no later than the 5th of each calendar month. Upon activation of
the meter, billing will be based upon the readings from the meter
registering the volume of wastewater flowing through the meter.
14
i
7 .3 - At such time as the Director may determine in his/her
sole discretion, a meter may be installed. The cost of same shall
be that as provided for in Section 5 .2 hereof .
7 .4 Customer 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 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 tests shall be provided to
the Customer at least seventy-two (72) hours prior to such -tests
being conducted.
7 .5 All readings of meters will be entered in ink upon bound
journals maintained by Fort Worth. Customer 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.
7 . 6 Fort Worth shall calibrate and routinely service the
meters no less than once during each six (6) month period. Copies
of the results of such calibration and all related information
shall be provided to Customer. Fort Worth shall . notify the
Customer at least seventy-two (72) hours in advance of the date and
time for any calibration and Customer may observe, if so desired.
7 .7 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
15
( 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.
7 .8 If any meter used to determine volume from Customer 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. In the event that the parties hereto
cannot agree on the extrapolated estimate of wastewater volume
delivered, agreement on the flow volume will be determined by
third party arbitration.
7 .9 Fort Worth shall periodically determine the quality ' of
the wastewater 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 done
in accordance with the wholesale wastewater customer monitoring
handbook, dated October, 1990, prepared by Gutierrez, Smouse,
Wilmut and Associates, Inc. , as it may be amended from time to
16
time. Fort Worth will provide Customer with a minimum of seven (7)
day advance notification of intent to sample, or such notification
as is sufficient to allow Customer to arrange the services of a
qualified Laboratory. If, at the request of Customer or at the
request of the Director, more extensive monitoring' is desired, such
additional monitoring shall be paid for by the party making the
request and shall be done in compliance with Section 7 . If Customer
requests such additional monitoring, Fort Worth shall invoice
Customer and payment shall be made within ten ( 10) days after
receipt of invoice.
The notification required in this section shall include the
planned dates, times, and location( s) of sampling. Fort Worth
shall analyze, the samples collected in accordance with standard
methods. Customer may be present during the initial setup of
sampling equipment -and at the time of pickup for' each twenty-four .
(24 ) hour composite sample. Fort Worth agrees, if .requested, to
split said wastewater samples with Customer.
7 . 10 If in the opinion of the Director, compliance
monitoring is required, the Director may order that additional
monitoring be performed with or without prior notice to Customer.
Said compliance monitoring is to be in addition to the periodic
sampling set forth in Section 7 .8. All information obtained as a
result of such compliance monitoring shall be provided to the
Customer upon request. Fort Worth will provide notice of such
compliance monitoring to Customer within a reasonable time
thereafter.
17
7 . 11 If Customer disputes Fort Worth results of analyses and
the parties hereto cannot settle such dispute, such dispute will be
determined by third party arbitration.
7 . 12 All costs incurred by Fort Worth under this section
will be considered to be a system cost.
8. Rates and Charges
8 . 1 Wholesale wastewater rates will be based upon cost-of-
service rate studies performed by independent utility rate
consultants, as provided for in Section 8 .4 hereof. The
independent utility rate consultant shall be selected by the
Director from a last of five highly qualified firms submitted by
the Wastewater System Advisory Committee. The cost of such studies
will be a system cost. All cost--of-service studies shall . be
E'
conducted utilizing " the utility cost basis of determining revenue
requirements applicable to the wholesale customer class.
'4
8 .2 The cost-of-service for the wholesale customer class
shall include allocated reasonable and necessary operation and
maintenance expenses, 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
3
depreciation expense and return on original cost rate base. On a '
!E
periodic basis as determined by the Director the depreciation
E
E
18
E
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
l
working capital at the same time as the above depreciation. rate
study is done. Records of the original cost and the accumulated
depreciation of all capital facilities shall be -maintained in the
Fort Worth Fixed Asset Tracking System. These records shall be
available for inspection at the Fort Worth Water Department during
reasonable business hours upon request by Customer.
8.3 Fort Worth shall be allowed an adequate opportunity to
earn a reasonable rate of return. The return shall be sufficient
to assure confidence in the financial soundness of the utility,
shall be adequate to maintain and support its credit, shall enable
it to raise the money necessary for the. proper discharge of its
public duties, and shall be equal to the weighted average imbedded ;§
cost of outstanding debt plus one-and-one-half percent (1-1/2%) .
8.4 For the fiscal years beginning October 1, 1995, 1998,
2001, 2004, 2007, 2010, 2013, and 2016, a complete detailed rate
study will be performed by an independent utility rate consultant
19
selected by the Director in conformance with Section 8 . 1 hereof.
The same methodology as used in the immediate previous rate study
will be utilized by the utility rate consultant so selected. In the
interim period between complete detailed rate studies, wholesale
wastewater rates shall be adjusted by Fort Worth using the same
methodology adopted at the time of the last complete detailed create
study utilizing the actual operating data for the most current
twelve month period ending September 30th, adjusted for known and
measurable changes in cost data which may have occurred since the
last audited statement.
8.5 Changes in the wholesale wastewater rate methodology
will be allowed if recommended by a majority of the Wastewater
System Advisory Committee and approved by the Fort Worth City
Council. For purposes of the section, a majority is defined as any
combination of Wholesale Customers contributing a total of more
than fifty percent (50%) of the wholesale sewage flow in the
immediate past fiscal year.
8 .6 The charges for the initial period of this contract shall
be from the date of its execution through September 30, 1993, and
are as follows:
Volume Charge $0.3542 per 1000 gallons
BOD Strength
Charges $0. 1723 per pound of BOD
TSS Strength
Charges $0. 1389 per pound of TSS
Monthly Billing Charges $75 .00
20
8.7 Bills for wastewater treatment and disposal service
shall be rendered to Customer monthly by Fort Worth. All such
bills shall be due and payable by Customer not mote than thirty
(30) days from the billing date. The bills will show current
charges, as well as past-due charges, if any. Current charges
shall be the amount due for wastewater collection, treatment and
disposal service provided since the prior billing period. Past-due
charges shall be the total amount unpaid from all prior billings as
of the current bilking date. Payments received by Fort Worth shall
first be applied to the past--due charges, if any, and thereafter to
the current charges.
8 .8 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 determined by third
party arbitration. Dispute of a bill is not grounds for
non-payment. In the event a payment is not paid as - specified in
this agreement, a finance charge of ten percent ( 10%) per annum
will be calculated from the date which the payment was required to
be made. In the event the bill established by 'arbitration is less
than the disputed bill, then the amount found to be incorrect will
be credited to the 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.
21
8.9 The parties hereto agree that services obtained pursuant
to this contract are essential and necessary to the operation of
Customer's waterworks and wastewater facilities and that all
payments made by each Customer hereunder shall constitute
reasonable and necessary operating expenses of Customer's
waterworks and wastewater systems within the meaning of Article
1113, Vernon's Annotated Texas Statutes, and the provisions of any
and all ordinances of Customer authorizing the issuance of any
revenue bond issues of Customer which are payable from its
waterworks and wastewater systems.
8. 10 Customer agrees, throughout the term of this agreement,
to fix and collect such rates and charges for wastewater 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 other amounts as required by law and the provisions of the
ordinances or resolutions authorizing its revenue bonds or other
obligations now or hereafter outstanding, including the amounts
required to pay all principal of and interest on such bonds and
other obligations.
8 . 11 Customer specifically agrees to adopt and maintain in
effect for the life of this contract an ordinance providing for a
user charge system in full accord with relevant EPA regulations.
8. 12 if a court, the Texas Water Commission, or any federal
or state regulatory authority finds that Fort Worth's rates,
policies, or methodologies for calculating rates for the collection
22
and/or treatment of wastewater delivered by Customer to Fort Worth
under this agreement are unreasonable or otherwise unenforceable,
Fort Worth has the option to terminate this agreement without
liability to Customer. By signing this agreement, Customer
stipulates and agrees that Fort Worth and its other customers will
be prejudiced if Customer avoids the obligation to pay the rates
for the wastewater services specified in this agreement while
accepting the benefits of obtaining such services from Fort Worth.
Nothing in this agreement shall be' construed as an undertaking by
Fort Worth to furnish wastewater services to Customer except
pursuant to this agreement. If Customer initiates or participates
in any proceeding regarding Fort Worth's rates, policies, or
methodologies for calculating rates under this agreement and
advocates a position that is adverse to Fort Worth and Fort Worth
prevails, Customer shall pay Fort Worth for its expenses including
attorney's fees in the proceeding within fifteen ( 15) days after
Fort Worth's demand for payment. Customer stipulates and agrees
that the rates, policies and methodologies for calculating rates
are just, reasonable and without discrimination.
9. Industrial Connection and Monitoring
9 . 1 Customer agrees that it will not permit any significant
industrial user within its jurisdiction to connect directly or
indirectly either to its system or to the Fort Worth System without
at least thirty (30) days' prior written notification to the
Director of such intent to connect. Customer shall provide the
23
Director with such information pertaining to volume and composition
of flow as may be requested by the Director.
9 .2 Customer agrees to conduct any and all monitoring,
sampling and inspection of Customer System and industrial users as
necessary to insure that industrial waste introduced into the
Customer System meets the quality standards set out in Section 10.2
hereof. Upon request to Customer, a representative of Fort Worth
will be permitted to observe Customer's collection of samples from
industrial users, and Customer agrees to furnish Fort Worth
separate duplicate samples for independent testing, and, upon
request, to provide the Director sample analysis results and
pretreatment records.
9.3 Customer agrees that Fort Worth shall have the right to
sample wastewater at all points of entry and such other locations
as may be mutually agreed to in writing by both parties for the
purpose of determining the volume and quality of wastewater
entering the Fort Worth System. Customer agrees to disconnect from
its system any industrial user found to be in violation of
allowable discharges or who refuses access to its facilities for
the purpose of sampling wastewater being discharged into the
Customer System; provided, however, that said disconnected
industrial user shall be afforded the same rights, privileges of
appeal and deficiency cure periods as are industrial users
operating within Fort Worth's jurisdiction.
9.4 Following notice to Customer by Fort Worth, Customer
grants to Fort Worth the aright to enter Customer's jurisdiction if
24
Fort Worth determines that questionable discharges or prohibited
discharges are entering the Fort Worth System emanating from the
Customer System. Customer agrees to assist Fort Worth in locating
and eliminating such prohibited discharges.
10. Wastewater Quality
10. 1 Customer agrees that on or before thirty (30) days from
date of execution of this contract it shall enact and cause to be
enforced an ordinance enabling Customer to enforce within its
jurisdiction regulations governing industrial waste that are at
least as stringent as the provisions of the current Fort Worth
Ordinance No. 10880 and any necessary and reasonable amendments
thereto, (attached hereto and marked as Exhibit "C" and_ made. a part
hereof for all intents and purposes) and state and applicable
federal regulations relating to 1) discharged substances; 2 )
prohibited discharges; 3) pretreatment requirements; 4) industrial
discharge permitting system; and 5) industrial self-monitoring
reports. Customer agrees to enact and enforce ordinances or any
amendments to Ordinance No. 10880, or any future ordinances
relating to industrial discharges, prohibited or controlled wastes
or pretreatment requirements and such amendments and future
ordinances shall become incorporated as additional exhibits to this
contract; provided, however, Fort Worth shall provide Customer with
a copy of such proposed ordinances or amendments at least sixty
(60) days prior to the presentation of such ordinances or
amendments to the Fort Worth City Council during which time
Customer shall have an opportunity to review same. Customer shall
25
i
II
adopt and enforce such proposed ordinances or amendments no later
than the effective date of the Fort Worth ordinance or amendment.
10.2 Customer agrees that the quality of the wastewater
discharged into the Customer System shall be equal to or better
than the quality standards established by Fort Worth Ordinance No.
10880, or any amendment adopted pursuant to Section 10.1.
10.3 Customer shall require all significant industrial users
within its jurisdiction that ultimately discharge into the Fort
Worth System to apply for and obtain a permit from Customer
allowing such discharge. Such permit shall require industrial users
to abate prohibited substances from their discharge as a condition
to discharging wastewater into the Customer System. The permit
application shall contain, as a minimum, the following:
1. Name and address of discharger;
2. Agent for discharger;
3. Type of industry;
4 . Products produced or services rendered; and
5 . Chemicals being stored and/or used.
Customer shall provide Fort Worth a copy of such application and
permit, if issued, within fourteen ( 14 ) days after issuance.
11. Resale of Wholesale Wastewater Services
11. 1 Customer is prohibited from providing wholesale
wastewater services without the prior recommendation of the
Wastewater System Advisory Committee and without the prior written
consent of the City Council of Fort Worth. Customer shall provide
26
the Director a copy of the proposed contract with its wholesale
customer.
11.2 If the consent as required in Section 11. 1 is given,
Customer shall require its wholesale customer to comply with
Sections 9, 10 and 28 of this contract and to enact and enforce any
and all necessary ordinances.
12. Infiltration and Inflow
Customer agrees that it has an obligation to prevent
infiltration and inflow into its System and then into the Fort
I
Worth System. Customer further agrees that all sewer connections
within its jurisdiction which ultimately enter into the Fort Worth
System will be constructed in accordance with - applicable
specifications and standards at least equal to those of the Fort
Worth Water Department or the Standard Specifications for Public
Works Construction issued to the North Central Texas Council of
Government. Further, Customer covenants and agrees, to maintain
strict supervision and maintenance of its System to prevent
connections through which surface drainage can enter ultimately '
into the Fort Worth System. Customer shall not make, nor shall it
permit to be made, any connection which will contribute storm water
run-off from rainwater spouts, drainage areas, streets, gutter
drain or other source into its sanitary sewer system.
13. Sludge Disposal §
Customer recognizes the importance of utilizing sludge in a
timely and proper manner. Customer will cooperate with Fort Worth
27
li
in any environmentally sound sludge utilization program meeting
federal and state standards within the area served by Customer.
14 . Wastehaulers
Customer agrees to adopt the North Central. Texas Council. of
Government's model ordinance, or one similar to it, regulating
liquid wastehaulers within Customer's service area. At a minimum
such ordinance shall require liquid wastehaulers to be permitted
and provide for a manifest system. Further, said ordinance shall
prohibit the introduction of liquid waste into the Customer System,
directly or indirectly.
15. Assistance
15 . 1 In the event Customer requests assistance with its
System, Fort Worth may, at its option, assist Customer. Customer
agrees to pay Fort Worth its actual costs incurred, including, but
not limited to, labor and material expended. Nothing herein shall
be construed to require Fort Worth to assist Customer. Such costs
will be invoiced to Customer and payment made within ten ( 10) days
after receipt of invoice.
15 .2 In the event Fort Worth requests assistance with its
System, Customer may, at its option, assist Fort Worth. Fort Worth
agrees to pay Customer its actual costs incurred, including, but
not limited to, labor and material expended. Nothing herein shall
be construed to require Customer to assist Fort Worth. Such costs
will be invoiced to Fort Worth and payment made within ten ( 10 )
days after receipt of invoice.
15. Payment and Finance Charge
28
The parties hereto agree that the failure to make any payments
within the times provided for herein results in additional cost to
the party to be paid; therefore, the parties agree that any payment
required herein not made within thirty (30) days of the balling
date shall be subject to a finance charge of ten percent ( 10%) per
annum to be calculated from the date which the payment was required
to be made.
17 . Reports and Records
If requested by the Director, and/or Customer, the other party
shall provide quarterly the following data: Actual number of
customer accounts discharging directly or indirectly into the- Fort
Worth System and/or Customer System within their respective service
areas; classification of domestic and nondomestic accounts within
its service area by number and percentage of accounts discharging
directly or indirectly into the Fort Worth System and/or Customer
System within its service area.
Either party may request additional data which may assist them
in developing methodology for cost of service studies, planning
studies for analyzing federal grants, and wholesale system access
fees; provided, however, that neither party shall request data that
will require the other party to incur unreasonable expenses in
providing such data.
18. Notices
Any notice, communication, request, reply or advice herein
provided or permitted to be given, made or accepted by either party
to the other party must be in writing to
29
City of Fort Worth: Water Director
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Customer: City Administrator
City 'of Kennedale
209 North Hope Rd
Kennedale, Texas 76060
The parties hereto shall indicate in writing* any change that may
occur in such respective addresses from time to time.
19. Inspection and Audit
Complete records and accounts required to be maintained by
each party hereto shall be kept for a period of five (5) years.
Each party shall at all times, upon notice, have the right at
reasonable times to examine and inspect said records and accounts
during normal business hours; and further, if required by any law,
rule or regulation, make said records and accounts available to
federal and/or state auditors.
20. Consent
20. 1 Whenever, under the terms of this agreement, Fort Worth
is permitted to give its written consent or approval, Fort Worth,
in its discretion, may give or may refuse such written consent or
approval and, if given, may restrict, limit or condition such
30
consent or approval in any manner it shall deem advisable; however,
consent will not be unreasonably withheld.
21 . Waiver, Remedy, Severability
21. 1 No waiver by either 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.
. 21 .2 In addition to any other remedy as may be provided by
law, this agreement shall be.- specifically enforceable by the
parties hereto. Venue for any action shall be in Tarrant County,
Texas.
21. 3 It is agreed that, in the event any term or provision
herein contained is held to be invalid by any court of competent
jurisdiction, the invalidity of such term or provision shall in no
way affect any other term or provision contained herein; further,
this agreement shall then continue as if such invalid term or
provision had not been contained herein.
22 . ownership and Liability
22 . 1 No provision of this agreement shall be construed to
create any type of joint or equity ownership of any property, any
partnership or joint venture, nor shall same create any other
rights or liabilities and Customer payments (whether past, present,
or future) will not be construed as granting Customer partial
ownership of, pre-paid capacity in, or equity in the Fort Worth
System.
31
22 .2 Liability for damages arising out of the
transportation, delivery, reception, treatment, and/or disposal of
all wastewater discharged into the Fort Worth System shall remain
in Customer, together with title thereto, until such wastewater
passes through the point of connection to the Fort Worth System, at
which time liability for such damage shall pass to Fort Worth, save
and except that title to any prohibited discharge and any liability
therefor shall not pass to Fort Worth unless such prohibited
discharge originated in the Fort Worth System. Further, the
parties hereto agree to indemnify, save and hold the other party
harmless from any and all claims, demands, causes of action,
damages, losses, costs, fines and expenses, including- reasonable
attorney's fees, that may be asserted by anyone at any time. on
account of the transportation, delivery, reception, treatment
and/or disposal while- title to the wastewater is in such party. If
such liability for damages is not attributable to a specific
customer or Fort Worth, such liability becomes a Fort Worth
expense.
22 .3 Contracts made and entered into by either Customer or
Fort Worth for the construction, reconstruction or repair of any
delivery facility shall include the requirements. that the
independent contractor(s) must provide adequate insurance
protecting both the Customer and Fort Worth as insured. Such
contract must also provide that. the independent contractor(s)
covenant to indemnify, hold harmless and defend both the Customer
32
and Fort Worth against any and all suits or claims for damages of
any nature arising out of the performance of such contract.
23. Compliance with Permit Conditions
Customer acknowledges that Fort Worth is the holder of
discharge permits issued by the United States and the State of
Texas. Customer agrees that it will comply with all permit
conditions in any way relating to its collection system and the
discharge into the Fort Worth System. Customer agrees, that in the
event a fine is assessed against Fort Worth for any violation of
any permit condition, and the violation is attributable to any act
of omission or commission by Customer, to indemnify Fort Worth and
pay to Fort Worth the amount of such fine. if such fine is -not
attributable to a specific customer, such fine becomes a Fort Worth
expense.
24 . Life of Contract
This contract shall expire on September 30, 2017 and
thereafter shall be subject to renegotiation between the parties
hereto.
25. Force Majeure
No party hereto 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
beyond the control of the parties, including but not limited to,
the failure of facilities, flood, earthquake, tornado, storm, fire,
33
I
lightning, epidemic, war, riot, civil disturbance or disobedience,
labor dispute and action or non-action by a failure to obtain the
necessary authorizations and approvals from any governmental agency
or authority or the electorate, labor or material shortage,
sabotage, or restraint by a court order or public authority, which
by the exercise of due diligence and foresight such party could not
have reasonably been expected to avoid and which by exercise of due
diligence it shall be unable to overcome. Either party rendered
unable • to fulfill any obligation by reason of an uncontrollable
force shall exercise due diligence to remove such inability with
all reasonable dispatch.
In the event the. proper operation of the Fort Worth System, as
a result of the above, requires Fort Worth to temporarily interrupt
all or part of the services to Customer, no claims for damage shall
be made by Customer against Fort Worth. Fort Worth will exercise
its best efforts to insure that such interruptions will not
adversely affect the health and welfare of Customer's residents.
26. Termination
This agreement may be terminated in whole or in part by the
mutual consent of Customer and Fort Worth. Notwithstanding anything
contained herein to the contrary, any material breach by either
party hereto to perform any of the duties or the obligations
assumed by such party hereunder or to faithfully keep and perform
any of the terms, conditions and provisions hereof shall be cause
for termination of this agreement by Fort Worth in the manner set
forth in this paragraph. Fort Worth shall deliver to Customer
34
ninety (90) days prior written notice of its intention to so
terminate this agreement if Customer fails to cure or adjust such
material breach, including in such notice a reasonable description
of the breach. If within said ninety (90) days Customer shall fail
. or refuse to cure such default to the satisfaction of Fort Worth,
then and in such event, Fort Worth shall have the right with six
months advance written additional notice to Customer and without
any liability whatsoever on the part of Fort Worth to declare this
agreement 'terminated. In the event of termination of this
agreement, all rights, powers, and privileges of Customer
hereunder shall cease and terminate and Customer shall make no
claim of any kind whatsoever against Fort Worth, its agents or
representatives, by reason of such termination or any act incident
thereto, provided Fort Worth acted reasonably and such termination
was not unreasonable, arbitrary and capricious. Fort Worth shall
advise Customer in writing immediately upon acceptance of the cure
of any default. The following breach, default or failure to
perfo.rm a duty or obligation shall be considered to be a material
breach:
a. Failure to adopt and enforce any ordinance required to
be adopted and enforced herein,
b. Failure to make any payment of any bill, charge or fee
as provided for in this agreement;
C. Making any connection to the Fort Worth system at any
point except as provided in Section 2 .2 hereof;
d. Failure to provide Fort Worth ingress and egress for
35
purposes of sampling and operation and maintenance of
any metering or any sampling facility;
e. Failure to provide Fort Worth rights-of-way as
required herein;
f. Failure to permit any sampling of wastewater as
provided for herein;
g. Failure to disconnect industrial users of Customer
pursuant to Section 9 .3;
h. Failure to maintain the quality of discharge as
required in Sections 10.2 and 10 .3;
i. Failure of Customer to comply with Section 11 .2
hereof;
j . Failure of Customer to comply with Section 23 hereof.
k. The provision of wholesale wastewater service without the
prior written consent of the City Council of the City of Fort
Worth.
In the event of any other nonmaterial breach, default or
failure to perform duties under this agreement, Fort Worth shall
deliver to Customer sixty (60) days advance written notice of such
default. if Customer fails to cure such breach, default or
failure, then Fort Worth shall give Customer written notice of such
failure to cure and may surcharge Customer Five Thousand Dollars
($5, 000) per month until such time as Customer cures such
nonmaterial default.
36
Any failure by Fort Worth to so terminate this agreement or
the acceptance by Fort Worth of any benefits under this agreement
for any period of time after such material breach, default or
failure by Customer shall not be determined to be a waiver by Fort
Worth of any rights to terminate this agreement for any subsequent
material breach, default or failure.
Any failure by Customer to so terminate this agreement or the
acceptance by 'Customer of any benefits under this agreement for any
period of time after such breach, default or failure by Fort Worth
shall not be determined to be a waiver by Customer of any rights to
terminate this agreement for any subsequent material breach,
default or failure.
27 . Regional Wastewater Authority
In the event Fort Worth is designated as a regional wastewater
authority or agency by a duly authorized regulatory body, or if
Fort Worth should elect to contract with or assign this contract to
a regional wastewater authority to provide all or part of the
services covered by this agreement, the parties hereto agree that
any such regional wastewater authority may, by way of assignment of
this agreement, assume the same obligations and receive the same
benefits as Fort Worth. Customer hereby grants to Fort Worth the
specific right to assign this agreement subject to the provisions
of this section.
28. Wholesale System Access Fees
28. 1 On a quarterly basis, Customer agrees to pay Fort Worth
a Wholesale System Access Fee for each new or enlarged connection
37
for wastewater service made within Customer's service area served
by the General Benefit Capital Facilities of the Fort Worth system.
The Wholesale System Access Fee to Customer for each such
connection shall be based upon the size of water meter and shall be
equal to the Wholesale System Access Fee collected for the same
size water meter made within the jurisdiction of Fort Worth. The
calculation of said Wholesale System Access Fee shall°be consistent
with all applicable state and federal regulations, including
Chapter 395, Texas Local Government Code, or any amendment or
successor statute thereto, and shall include only those costs
associated with General Benefit capital expansions and capital
improvements necessary to provide service to new development.
Nothing within this contract shall be deemed to prevent either Fort
Worth or Customer from charging their own retail customers impact
fees in excess of the Wholesale System Access Fee charge provided
for herein.
26.2 Fort Worth agrees that all monies remitted to it
pursuant to this Section will be placed in a separate interest
bearing account to pay only for the cost of constructing capital
improvements or facility expansions as permitted by Chapter 395,
Texas Local Government Code, or any amendment thereto, or by any
successor statute thereto, 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.
38
28.3 Customer shall provide to Fort Worth such information
that relates to the making of new and/or enlarged connections
within its jurisdiction as may be requested by the Director,
including but not limited to building permits, with each quarterly
payment required in this section.
28 .4 Neither Fort Worth nor Customer shall waive any impact
fee due from a retail customer for a new or enlarged connection to
its respective system within its- jurisdiction. However, either
Fort Worth or Customer may pay such impact fee into the fund
required for paying for the capital improvements.
28.5 The Wastewater System Advisory Committee created
pursuant to Section 29 hereof shall select five (5) of its members
to a subcommittee to be known as the Customer Impact Fee Committee
(CIFC) . Every three years, beginning June, 1993, Fort Worth will
update the land use assumptions and capital improvements plan upon
which the Wholesale System Access Fees are based. In June 1993 and
every three 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 Fort
Worth in developing land use assumptions, identifying capital
improvements, and formulating capital improvement plans and access
fees. The consultant shall be responsible to Fort Worth and its
citizen's advisory committee, but shall also report to the CIFC.
The cost of the consultant shall be deemed a System Cost. In the
event the CIFC fails to submit a list of five consultants to Fort
39
Worth, Fort Worth shall select a consultant to perform in the
manner described herein.
28. 6 Fort Worth agrees that only those capital improvements
as defined in section 1 .29 hereof shall be included in the capital
improvements plan for the purpose of determining Wholesale System
Access 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 capital improvements in any capital improvements plan.
The CIFC shall be responsible for working with Fort Worth and its
consultant to determine the capital improvements to be included in
the calculation of any Wholesale System Access Fees.- The CIFC
shall recommend to the Wastewater System Advisory Committee which
capital improvements should be included in the calculation of any
Wholesale System Access 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.
28. 7 Prior to the adoption of any land use assumptions,
capital improvements, or access fees, the CIFC shall be furnished
a copy of the proposed land use assumptions, capital improvement
plan or access fees at least 30 days prior to any scheduled hearing
thereon.
28.8 Each year Fort Worth shall provide to the Wholesale
Wastewater Advisory Committee an audited financial statement of the
Fort Worth Water Department's records.
40
26 .9 Fort Worth and Customer agree that the methodology for
the calculation of Wholesale System Access Fees required herein is
consistent with the methodology prescribed by Chapter 395, Texas
Local Government Code. In the event that such statutory
methodology is amended or replaced by a new statute, the Wholesale
Wastewater Advisory Committee may engage Legal counsel to work with
Fort Worth to propose amendments. to this contract to conform it to
such amendment or new statute. The reasonable cost of such legal
counsel shall be a system cost.
29. Wastewater System Advisory Committee
Customer's governing body shall annually appoint a
representative -to be a voting member of the Wastewater Advisory
Committee, whose purpose shall be to consult with and advise Fort
Worth, through the Director, on matters pertaining to planning,
improvements, grants, rate studies, budgets, administration, and
additional wholesale customers, whether same be wholesale customers
of Customer or Fort Worth. The Committee may establish bylaws
governing the election of officers, meeting dates and other matters
pertinent to its functioning.
30. Effective Date
This contract, together with all terms and conditions and
-covenants, shall be effective as of the date of connection of the
Customer system to the Fort Worth System.
31. Miscellaneous
31. 1 This agreement is subject to all applicable federal and
state laws and any applicable permits, ordinances, or amendments
41
• adopted pursuant to Section 10. 1 rules, orders and 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, ordinance,
order, rule or regulation in any forum having jurisdiction.
31 .2 The Customer agrees to abide by any changes in this
agreement made necessary by any amendment or revision to state or
federal regulations.
31.3 Upon prior notice by Fort Worth, any duly authorized
employee of Fort Worth bearing proper credentials and
identification shall notify Customer of need , for access to any
premises located within Customer's city. limits or - served by
Customer as may be necessary for the purpose of inspections and
observation, measurement, sampling and testing and/or auditing, in
accordance with the provisions of this. contract. Customer may
elect to accompany the Fort Worth representative. To' the extent
permitted by law, Fort Worth agrees to indemnify Customer for any
damage or injury to person or property caused by. the negligence of
such duly authorized employee while such employee is in the course
and scope of his employment.
31 .4 In each instance herein where reference is made to a
federal or state regulation, it is the intention of the parties
that, at any given time, the current federal or state regulation
shall apply. If a publication or reference work referred to herein
is discontinued or ceases to be the generally accepted work in its
field, or if conditions change, or new methods or processes are
42
implemented by Fort Worth, new standards shall be adopted which are
in compliance with state and federal laws and any valid rules and
regulations pursuant thereto.
31.5 Fort Worth must comply with all federal, state and local
government requirements to obtain grants and assistance for system
design, system construction and studies. Customer agrees to assist
Fort Worth in compliance by setting adequate rates, establishing
proper user charges and complying with governmental requirements.
31 .6 Section headings in this agreement are for convenience
only and do not purport to accurately or completely describe the
contents of any section. Such headings are not to be construed as
a part of this agreement or any way defining, limiting or
amplifying the provisions hereof.
31 .7 Whenever any disputed matter herein is to be specifically
determined by the use of an arbitrator, the following procedure is
to be followed. The party requesting that the dispute be settled
by arbitration shall serve on the other party a request in writing
that such matter be handled by arbitration. Customer and Director
shall mutually agree in writing on the selection of an impartial
arbitrator. Such agreement shall be made within ten ( 10) days from
the date that the request for arbitration is received. if an
agreement is not reached on the selection of the impartial
arbitrator on or before the tenth (10th) day after the date that
notice is received, the Director shall immediately request a list
of seven qualified neutral arbitrators from the American
Arbitration Association of the Federal Mediation and Conciliation
43
Service, or their successor in function. The Customer and Director
f the seven arbitrators on the list. If
may mutually agree on one o
they do not agree Within five (5) working days after the receipt of
the list, Customer and Director shall alternate striking a name
from the list and the name remaining shall be the impartial
arbitrator. Customer and Director shall mutually agree on a date
for the arbitration hearing. The decision of the arbitrator shall
be final, and judgment may be entered upon it in accordance with
' applicable law in any court having jurisdiction thereof .
31.8 Customer agrees to notify Fort Worth in writing within
five (5) business days iri the event that Customer issues any, type
of permit authorizing the drilling of a water well or becomes aware
that a water well has been drilled within the service area
described in Exhibit "A" .
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed by their respective officers thereunto
duly authorized.
1
ATTEST: CITY OF FART W RTH
1
GL� Hy'
City Man ger
City Secretary
APPROVED AS TO FORM AND LEGALITY:
Date:
City Attorn /
Contract Authorization
Date
44
i
ATTEST: CITY OF KENNEDALE
By :
Ci Ly Seci C Lary CA y Adm4lili9 rte or
APPROVED AS TO FORM AND LEGALITY:
I
Dry Le
C' y A L Lo-E• fey
45
KENNEDALE
You're Here,Your Home
www.cityofkennedale.com Staff Report to the Honorable Mayor and City Council
Date: October 19, 2017
Agenda Item No: REQUIRED APPROVAL ITEMS (CONSENT) - B.
I. Subject:
Consider approval of an amendment to the 2017 Interlocal Agreement for Rabies Control with the City of
Fort Worth, extending the contract through FY2018, and authorizing the City Manager to sign the
amendment
II. Originated by:
Tommy Williams, Police Chief
III. Summary:
This is a one-year extension of the contract with the City of Fort Worth for the impoundment of seized and
stray animals as well as other services.
IV. Fiscal Impact Summary:
V. Legal Impact:
VI. Recommendation:
Approve
VII.Alternative Actions:
VIII.Attachments:
1. Current Consideration FY2018 Rabies ILA Extension lKennedale ILA A Rabies Control FY18. d1
P. Historical 2017 Rabies Control Contract P01 7+Rabies+Control+ILA.pd f
405 Municipal Drive, Kennedale, TX 76060 1 Telephone: 817-985-2100 1 Fax: 817-478-7169
AMENDMENT TO
CITY SECRETARY CONTRACT NO. 48788
INTERLOCAL AGREEMENT
FOR RABIES CONTROL
CITY OF FORT WORTH AND CITY OF KENNEDALE
THIS AMENDENT AGREEMENT TO CITY SECRETARY CONTRACT
(CSC) NO. 48788 is made and entered into by and between the CITY OF FORT WORTH,
a home-rule municipal corporation situated in Tarrant, Denton, Parker, and Wise Counties,
Texas, acting by and through its duly authorized Assistant City Manager (hereinafter referred
to as "City"), and CITY OF KENNEDALE, Texas ("Kennedale"), collectively known as
"the parties".
RECITALS
WHEREAS, on March 6, 2017, the City and Kennedale made and entered into an
Interlocal Agreement (CSC No. 48788) ("Agreement") in accordance with Chapter 791 of the
Texas Government Code for the purpose of limited rabies control under Chapter 826 of the
Texas Health and Safety Code, also known as the Rabies Control Act of 1981; and
WHEREAS, Section 3 of the Agreement provides that the Agreement will terminate
on September 30, 2017, unless otherwise extended in writing by the parties; and
WHEREAS, Kennedale and the City wish to renew the Agreement for an additional
one year term, unless extended as provided below; and
NOW, THEREFORE, City and Kennedale acting herein and by and through their
duly authorized representatives mutually agree to the following amendment of the Agreement:
1. Section 3. Term of the Agreement is deleted in its entirety and replaced with the
following:
3.
TERM
Unless terminated pursuant to the terms herein, this Agreement shall be for a term of
one year, beginning October 1, 2017, and ending on September 30, 2018. In addition, the term
may be extended by mutual written agreement of the parties, for up to two (2) one-year terms.
2. Except as amended by this Amendment, all of the terms and conditions of the
Agreement, as amended, are ratified and remain in full force and effect.
This Amendment shall be effective on October 16,2017.
CITY OF FORT WORTH CITY OF KENNEDALE
Fernando Costa George Campbell
Assistant City Manager City Manager
Date: Date:
RECOMMENDED
Dr. Timothy Morton
Asst. Code Compliance Director
APPROVED AS TO FORM APPROVED AS TO FORM
AND LEGALITY AND LEGALITY
Melinda Ramos Wayne Olson
Sr. Assistant City Attorney City Attorney
ATTEST: ATTEST:
Mary J. Kayser Leslie Galloway
City Secretary City Secretary
M&C C-28077
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person responsible for the monitoring and administration of
this contract, including ensuring all performance and reporting requirements.
By:
Name:
Title:
2017-2018 ILA-A Kennedale for Rabies Control
STATE OF TEXAS §
COUNTY OF TARRANT §
INTERLOCAL AGREEMENT FOR RABIES CONTROL
CITY OF KENNEDALE
THIS AGREEMENT is made and entered into by and between the City of Fort Worth, a
home-rule municipal corporation situated in Tarrant, Denton, Parker, and Wise Counties, Texas,
acting by and through its duly authorized Assistant City Manager (hereinafter referred to as
"City"), and the City of Kennedale, Texas, a home-rule municipal corporation located in Tarrant
County, Texas, acting by and through its duly authorized Mayor (hereinafter referred to as
"Kennedale").
WHEREAS, Chapter 791 of the Texas Government Code authorizes the formulation of
interlocal cooperation agreements between and among municipalities and counties for the
performance of governmental functions; and
WHEREAS, Chapter 826 of the Texas Health and Safety Code, also known as the
Rabies Control Act of 1981 (hereinafter referred to as the "Act"), requires governing bodies of
each municipality to designate a local rabies control authority to enforce the Act and minimum
standards for rabies control adopted by the Texas Department of State Health Services; and
WHEREAS, Section 826.016 of said Act authorizes a municipality to enter into
agreements with public entities to carry out activities required or authorized under the Act; and
WHEREAS, Kennedale wishes to participate in an interlocal agreement with City for the
purpose of limited rabies control in the City of Kennedale; and
WHEREAS, Kennedale and City mutually desire to be subject to the provisions of
Chapter 791 of the Texas Government Code, also known as the Interlocal Cooperation Act.
NOW,THEREFORE, it is agreed as follows:
1.
PURPOSE
The purpose of this Interlocal Agreement is to enter into an Agreement between City and
Kennedale whereby, subject to the terms and conditions hereinafter set forth and consideration
specified below, City agrees to provide Kennedale with limited rabies control services in the City
of Kennedale, and City agrees to provide impoundment and quarantine facilities for animals
pursuant to this Agreement for the benefit of Kennedale.
2.
DEFINITIONS
For the purposes of this Agreement, the following definitions shall apply:
ACT shall mean the Rabies Control Act of 1981, codified as Chapter 826 of the Texas Health
and Safety Code.
ANIMAL shall mean any living, vertebrate creature, domestic or wild, other than homo sapiens.
ANIMAL CARE AND CONTROL CENTER shall mean a facility located in Fort Worth,
Texas, which is operated by the City for the purpose of impounding and caring for animals as
prescribed by law.
BITE shall mean a bite or scratch capable of transmitting rabies, which is inflicted by an animal
on a human.
CAT shall mean a commonly domesticated member of the Felidae (feline) family, other than a
lion, tiger, bobcat,jaguar, panther, leopard, cougar, or other prohibited animal.
DANGEROUS DOG shall mean a dog that makes an unprovoked attack on a person that causes
bodily injury and occurs in a place other than an enclosure in which the dog is being kept and
that was reasonably certain to prevent the dog from leaving the enclosure on its own; or commits
unprovoked acts in a place other than an enclosure in which the dog was being kept and that was
reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause
a person to reasonably believe that the dog will attack and cause bodily injury to that person.
DAY shall mean a calendar day or any part thereof.
DOG shall mean canis familiaris.
QUARANTINE shall mean the strict confinement of a biting animal, in accordance with the Act
and the Rules.
RABIES shall mean an acute viral disease of man and animal affecting the central nervous
system and usually transmitted by an animal bite.
RULES shall mean the rules adopted by the Texas Department of State Health Services for
rabies control and eradication under 25 TAC § 169.21 et seq.
STRAY shall mean roaming with no physical restraint beyond the premises of an animal's owner
or keeper.
Interlocal Agreement with Kennedale for Rabies Control Page 2 of 11
3.
TERM
Unless terminated pursuant to the terms herein, this Agreement shall be for a term of one
year, beginning on October 1, 2016 and ending on September 31, 2017. In addition, the term
may be extended by mutual written agreement of the parties, for up to three additional (3) one-
year terms.
4.
SERVICES BY CITY
A. Hours
City agrees to perform the services described herein for Kennedale in the City of
Kennedale, between the hours of 8:00 a.m. and 4:00 p.m. weekdays and weekends,
excluding holidays,with no after hours service provided.
B. Rabies Response
In the manner and to the extent that it deems appropriate and in accordance with the
Rules and the Act, bite animals which are presented by Kennedale to the City will be
handled by the City in accordance with the Act and Texas Administrative Code, §169.33
Submission of Specimens for Laboratory Examination.
C. Impoundment of Dogs
City will board dogs delivered to the City's Animal Care and Control Center by
Kennedale officials pursuant to Section 6.
5.
DUTIES OF KENNEDALE
A. Kennedale agrees that it will retain all responsibility for enforcement of all aspects of the
Act not covered in Paragraph 4 of this Agreement, including criminal enforcement.
B. Kennedale agrees that it will pursue, at its discretion, the issuance and execution of
warrants or other court orders necessary for the seizure of animals requiring quarantine or
testing under Section 4 (C) of this Agreement, whose owners have failed or refused to
place them for quarantine or testing. Kennedale further agrees that City is not required to
pursue the issuance and execution of such warrants.
6.
IMPOUNDMENT AND DISPOSITION OF ANIMALS
A. A live, stray dog impounded by the City under this Agreement shall be held for a period
of not less than seventy-two 72 hours, unless released earlier to its owner ("Animal
Owner") or as described in subsection 6.D. below. A quarantined animal shall be held or
presented for testing according to the Act and the Rules. Kennedale shall provide in
Interlocal Agreement with Kennedale for Rabies Control Page 3 of 11
writing to the City the date of the bite incident and the animal's date of release from
quarantine. Kennedale shall pay charges for impounded dogs as specified in Exhibit"A."
B. Prior to the expiration of the impoundment period, the City may destroy an impounded
dog if the Animal Services Administrator or Animal Control Manager of the City or the
Animal Care and Control's veterinarian recommends and approves such action.
C. Impounded animals will be released to their owners upon:
(1) Proof of identification;
(2) Payment of Exhibit"B" fees;
(3) The animal is vaccinated against rabies at the owner's expense if the animal is a
dog or a cat over 12 weeks of age and the owner does not have an unexpired
rabies vaccination certificate for the animal.
D. The ownership of impounded or quarantined animals that have not been released to their
owners on the expiration of the impoundment or quarantine period shall lie with
Kennedale, and Kennedale authorizes the City to place the animals for adoption, to
transfer them to other animal welfare organizations, or to be euthanized at the sole
discretion of the City or as required by law. Kennedale specifically requests the City
euthanize all animals from Kennedale that are not adopted or transferred.
E. All quarantined animals from Kennedale not reclaimed by their owner will be disposed of
pursuant to Section 6D. above, and Kennedale will be billed for the cost in accordance
with the fee schedule.
F. Kennedale will be billed for all impounded dogs and quarantined animals delivered by or
from the Kennedale in accordance with Exhibit"A"below.
G. The City will impound and hold dogs from Kennedale which have been seized by
Kennedale only under Chapters 821 or 822 of the Texas Health and Safety Code.
Kennedale agrees to request, pursuant to Chapters 821 and 822, an Appeals Bond to cover
the fees estimated to be charged to the Animal Owner under Exhibit "B" and Kennedale
agrees to pay the City all fees which would have been charged the Animal Owner in the
event the court does not require the Animal Owner to pay the fees or where the Animal
Owner is ordered by the court to pay and fails to pay.
7.
EXCLUSIONS
A. Nothing in this Agreement shall be deemed as designating the City or an officer or
employee of the City as the "local health authority" or "local rabies control authority" of
Kennedale as those terms are defined or used in Title 10 of the Texas Health and Safety
Code,Vernon's Texas Codes Annotated.
B. Nothing in this Agreement shall be deemed as requiring the City to investigate reports of
dangerous dogs, to register dangerous dogs, or otherwise regulate dangerous dogs in the
Interlocal Agreement with Kennedale for Rabies Control Page 4 of 11
City of Kennedale under the authority of Chapter 822 Subchapter D. of the Texas Health
and Safety Code,Vernon's Texas Codes Annotated.
C. Nothing in this Agreement shall be deemed as requiring the City to quarantine or present
for testing domestic animals that have been bitten by or directly exposed by physical
contact to a rabid animal or its fresh tissues.
D. City shall not impound stray animals if Kennedale fails to enact and maintain rules or
ordinances pursuant to Sections 826.015 and 826.033 of the Texas Health and Safety
Code that require animals to be restrained at all times.
8.
RESPONSIBILITY FOR EMPLOYEES
City employees who provide services under this Agreement are deemed to be City
employees when providing such services. City will exercise complete control over the hiring,
training, supervision, and conduct of such employees. City will be responsible for all wages and
applicable payroll deductions, unemployment taxes, workers' compensation insurance,
vacations, holidays, and fringe benefits for such employees and for all uniforms, vehicles, and
equipment used by such employees for providing services under this Agreement. Kennedale
shall have no direct supervisory authority over such employees except in emergency situations
where the exercise of supervision by Kennedale becomes necessary for resolution of the
emergency. Regarding workers' compensation insurance, the City shall not waive its right to
subrogate against Kennedale for losses incurred in the course of City's services rendered to
Kennedale under this Agreement.
9.
COMPENSATION
A. As fair compensation for the services rendered Kennedale agrees to pay City for its services
based on the schedule attached hereto as Exhibit "A", as pertinent, which is hereby
incorporated as a part of this Agreement as if it were set forth at length. City may adjust any
fee listed in Exhibit"A" during the term of this Agreement by giving Kennedale 120 days
B. Head and shipment preparation fees shall be as described in Exhibit"A".
C. Kennedale will not pay City more than $55,000.00, in total per contract year, for services
rendered during the term of this Agreement. This amount shall herein constitute a not to
exceed limitation placed upon this Agreement, and when such amount is reached, City will
cease providing such services. City agrees to provide the Kennedale with an itemized
monthly bill. Kennedale agrees to promptly pay such bills upon presentation by the City,
such payments to be made from current revenues available to Kennedale, within thirty (30)
days of receipt. In the event of the termination of this Agreement, City shall bill Kennedale
for any outstanding balance, regardless of the amount, and Kennedale agrees to promptly pay
such bill,within thirty (30) days of receipt.
Interlocal Agreement with Kennedale for Rabies Control Page 5 of 11
D. Pursuant to the requirements of Section 791.011(d)(3) of the Texas Government Code, the
amount due City shall be paid from revenues available to Kennedale in that current fiscal
year.
10.
FEES CHARGED ANIMAL OWNERS
Kennedale hereby agrees that City may charge, or cause to be charged, the fees set out in
"Exhibit B" to the owners of animals that have been impounded or quarantined. "Exhibit B" is
hereby incorporated as a part of this Agreement as if it were set forth at length. City is hereby
authorized to increase said fees during the terms of this Agreement by giving Kennedale 120
days' notice. Notwithstanding the fees charged to animal owners, Kennedale shall remain
responsible to the City for the fees set out in Exhibit"A."
11.
LIABILITIES
A. To the extent permitted by law, Kennedale shall be responsible for all work-related
deaths, injuries or diseases of Kennedale employees, and for property damage, personal
injury or death caused by such employees, relating to work provided pursuant to this
Agreement.
B. To the extent permitted by law, City shall be responsible for all work-related deaths,
injuries or diseases of City employees, and for property damage, personal injury or death
caused by City employees or volunteers relating to work provided pursuant to this
Agreement.
C. Kennedale shall be responsible for all property damages, personal injuries and death
caused by the use of City and Kennedale equipment and vehicles caused by Kennedale
employees or volunteers pursuant to this Agreement. Furthermore, Kennedale shall be
responsible for the repair or replacement of all such equipment and vehicles damaged,
destroyed, lost or stolen by Kennedale employees or volunteers during the provision of
services hereunder.
D. City shall be responsible for all property damages, personal injuries and death caused by
the use of City equipment and vehicles caused by City employees or volunteers pursuant
to this Agreement. Furthermore, City shall be responsible for the repair or replacement
of all such equipment and vehicles damaged, destroyed, lost or stolen caused by City
employees or volunteers during the provision of services hereunder.
12.
IMMUNITY& THIRD PARTIES
A. Kennedale expressly waives its right to assert immunity from suit for a claim forming the
basis of a suit between the City and Kennedale alleging a breach of this Agreement.
Kennedale does this as consideration for the City's offer to enter into this Contract with
Interlocal Agreement with Kennedale for Rabies Control Page 6 of 11
Kennedale. No third party may use this waiver in any way and no waiver of immunity in
favor of a third party is intended by this Agreement.
B. Nothing in this Agreement shall be construed to expand the liability of City or Kennedale
beyond the scope of Chapter 101 of the Texas Civil Practice and Remedies Code unless
specifically stated herein.
13.
TERMINATION
It is further agreed by and between City and Kennedale that City and Kennedale shall
each have the right to terminate this Agreement upon thirty (30) days written notice to the other
party.
14.
ENTIRETY
This Agreement contains all commitments and agreements of the parties hereto, and no
other oral or written commitments shall have any force or effect if not contained herein.
15.
MODIFICATION
This Agreement may be modified by the mutual agreement of the parties, if the
modification is in writing and signed by City and Kennedale.
16.
SEVERABILITY
In case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision thereof and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provisions had never been contained
herein.
17.
AUTHORITY
This Agreement is made for City and Kennedale as an Interlocal Agreement pursuant to
VTCA, Government Code, Chapter 791.
18.
AUTHORIZATION
The undersigned officer and/or agents of the parties hereto are properly authorized
officials and have the necessary authority to execute this Agreement on behalf of the parties
Interlocal Agreement with Kennedale for Rabies Control Page 7 of 11
hereto, and each party hereby certifies to the other that any necessary resolutions extending such
authority have been duly passed and are now in full force and effect.
19.
FORCE MAJEURE
It is expressly understood and agreed by the parties to this Agreement that if the
performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of
God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes;
lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any
other circumstances which are reasonably beyond the control of the party obligated or permitted
under the terms of this Agreement to do or perform the same, regardless of whether any such
circumstance is similar to any of those enumerated or not, the party so obligated or permitted
shall be excused from doing or performing the same during such period of delay, so that the time
period applicable to such design or construction requirement shall be extended for a period of
time equal to the period such party was delayed.
20.
FISCAL FUNDING LIMITATION
If for any reason, at any time during any term of this Agreement, either city fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, that City
may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery
of written notice of the city's intention to terminate or (ii) the last date for which funding has been
appropriated by the City Council for the purposes set forth in this Agreement.
Remainder of Page Intentionally Blank
Interlocal Agreement with Kennedale for Rabies Control Page 8 of 11
SIGNATURE PAGE
INTERLOCAL AGREEMENT FOR RABIES CONTROL
CITY OF FORT WORTH AND KENNEDALE
CITY OF FORT WORTH CITY OF KENNEDALE
Fernando Costa By:
Assistant City Manager Title: Mayor or Manager
Date:
RECOMMENDED
Dr. Timothy Morton
Asst. Code Compliance Director
APPROVED AS TO FORM APPROVED AS TO FORM
AND LEGALITY AND LEGALITY
Melinda Ramos City Attorney
Assistant City Attorney
ATTEST:
Mary J.Kayser
City Secretary
M&C
Interlocal Agreement with Kennedale for Rabies Control Page 9 of 11
EXHIBIT A
SCHEDULE OF FEES PAID BY KENNEDALE
Impoundments/Boarding Fee:
Kennedale shall pay the City a flat fee of$400.00 per dog or quarantine animal delivered to the
City by Kennedale officials during the term of this agreement.
SPECIMEN HEAD PREPARATION AND SHIPMENT
Per Animal Head Specimen $200.00 per specimen
Interlocal Agreement with Kennedale for Rabies Control Page 10 of 11
EXHIBIT B
SCHEDULE OF FEES TO BE PAID TO CITY
BY OWNERS RECLAIMING ANIMALS
Rabies vaccination fee $ 9.00 per reclaimed dog or cat
Spay or neuter fee $50.00 per cat
$80.00 per dog
Microchip Fee $12.00 per reclaimed dog or cat
Daily board fees:
Kenneling (dog, cat, small animal) $30.00 per day
Kenneling (other than dogs, cats or small animal) $30.00 per day
Quarantined animals and dangerous dogs $50.00 per day
Interlocal Agreement with Kennedale for Rabies Control Page 11 of 11
KENNEDALE
You're Here,Your Home
www.cityofkennedale.com Staff Report to the Honorable Mayor and City Council
Date: October 19, 2017
Agenda Item No: WORK SESSION -A.
I. Subject:
At this time, City Council will begin interviewing advisory board applicants.
II. Originated by:
III. Summary:
IV. Fiscal Impact Summary:
V. Legal Impact:
VI. Recommendation:
VII.Alternative Actions:
VIII.Attachments:
405 Municipal Drive, Kennedale, TX 76060 1 Telephone: 817-985-2100 1 Fax: 817-478-7169