Contract - Hutto ISD and Siena MUD No. 1 - 5/9/2019AGREEMENT FOR PASS-THROUGH WASTEWATER SERVICE
THIS AGREEMENT FOR PASS-THROUGH WASTEWATER SERVICE
(this "Agreement') is entered into effective as of the Effective Date (defined below), by and
among SIENA MUNICIPAL UTILITY DISTRICT NO. 1, a political subdivision of the State
of Texas operating under Chapters 49 and 54 of the Texas Water Code (the "District"), HUTTO
INDEPENDENT SCHOOL DISTRICT, an independent school district located in Williamson
County, Texas ("HISD"), and the CITY OF ROUND ROCK, TEXAS, a home rule municipality
located in Williamson County, Texas (the "C"). The District, HISD, and the City are
sometimes referred to individually in this Agreement as a "Party" and collectively as the
"Parties".
RECITALS•
A. The District purchases and receives wholesale wastewater service from the City
pursuant to the Wholesale Wastewater Agreement dated June 27, 2013 between the District and
the City (the "Wholesale Agreement").
B. HISD is planning to develop the ±74.826 acres of property adjacent to the
District more particularly described on EXHIBIT "A" attached hereto (the "School Tract") into
one elementary school site and one middle school site (the "Proposed Schools"). The City has
represented to HISD that 24 living unit equivalents ("LUEs") of wastewater capacity in the City's
wastewater system are available for use by HISD to serve the Proposed Schools on the School
Tract. However, because the City does not have existing wastewater lines in the area to which
the School Tract could readily connect, HISD has requested to use the District's wastewater
system on a pass-through basis in order to obtain retail wastewater service from the City to the
School Tract.
C. The Parties desire to enter into this Agreement to set forth the terms and
conditions on which the City and HISD may utilize the District's wastewater systems to provide
wastewater service to the School Tract on a pass-through basis.
AGREEMENT
For and in consideration of the mutual promises, covenants, obligations, and benefits of
this Agreement, the District, the City, and the Developer contract and agree as follows:
Section i. Recitals. The above and foregoing recitals are incorporated herein by
reference.
Section 2. Pass -Through Wastewater Service.
A. Authorization of Pass -Through Service. Subject to the terms and
conditions of this Agreement, the City may connect a wastewater line owned by HISD
(the "HISD Wastewater Line") to the District's wastewater line ("District Wastewater
Line") and wastewater collection system at the point of connection identified on
EXHIBIT "B" attached hereto (the "District Wastewater Point of Connection") to allow
the City to provide up to 24 LUEs of retail wastewater service to the School Tract for the
Proposed Schools using the District's wastewater system on a pass-through basis. The
District has reviewed its current capacity and has determined that it has the wastewater
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capacity to allow 24 LUEs of wastewater to pass from the School Tract through its
wastewater lines to the City's wastewater system in accordance with this Agreement.
B. Limitations and other Conditions of Service.
1. Notwithstanding anything else in this Agreement to the contrary,
in no event will the City or HISD, without the prior written consent of the
District, deliver through the District's wastewater collection system more than 24
LUEs of wastewater from the School Tract measured at the District Wastewater
Point of Connection.
2. The District has and will continue to have its guaranteed
reservation and commitment of 2,556 LUEs of wastewater capacity from the City
under the Wholesale Agreement. None of the LUEs of capacity guaranteed and
reserved to the District under the Wholesale Contract will be utilized to serve the
School Tract under this Agreement. Instead, the City is committing 24 LUEs of
wastewater capacity directly to the School Tract and will simply be using the
District's wastewater systems to provide retail wastewater service to the School
Tract on a pass-through basis.
3. To the extent that HISD desires to make improvements to the
School Tract that would impact wastewater generation, HISD will submit all
plans and specifications for such improvements to the District prior to
construction of such improvements so that the District may confirm that
wastewater generated from such improvements will not exceed the maximum
limits set forth in this Agreement. Each submission will include an engineer's
calculation of LUEs of wastewater service proposed and the peak wet weather
wastewater flows that will be generated by the improvements, and such
calculation will be subject to confirmation and approval by the District. Further,
within ten days after approval by the applicable governmental authority, HISD
will provide the District with a copy of all approved site plans, and amendments
thereto. HISD will be solely responsible for the cost of any infrastructure
improvements to HISD's or the City's wastewater systems that are necessary to
enable the City to provide retail wastewater service to the School Tract, including
the HISD Wastewater Line from the School Tract to the District Wastewater
Point of Connection (the "HISD Wastewater Facilities") and HISD will, at its sole
cost and expense, operate and maintain the HISD Wastewater Facilities in
compliance with all applicable rules and regulations; provided, however, that the
HISD Wastewater Facilities may be dedicated to the City, in which case the City
will accept the HISD Wastewater Facilities for operation and maintenance.
4. THE DISTRICT WILL HAVE NO LIABILITY OF ANY
KIND OR NATURE WITH RESPECT TO THE HISD WASTEWATER
FACILITIES, AND HISD WILL INDEMNIFY, DEFEND, AND HOLD
THE DISTRICT HARMLESS FROM AND AGAINST ANY AND ALL
COSTS, DAMAGES, LIABILITIES (INCLUDING REASONABLE
ATTORNEYS' FEES AND COSTS OF LITIGATION), SUITS, ACTIONS,
LEGAL, OR ADMINISTRATIVE PROCEEDINGS, DEMANDS, FINES,
PUNITIVE DAMAGES, LOSSES, COSTS, OR CLAIMS OF ANY KIND
OR NATURE (COLLECTIVELY, "COSTS") THAT ARISE BECAUSE OF
OR IN CONNECTION WITH THE USE, OPERATION, OR
MAINTENANCE OF THE HISD WASTEWATER FACILITIES. SUCH
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OBLIGATION APPLIES WHETHER ACTUAL OR ALLEGED
NEGLIGENT ACTS OR OMISSIONS OF THE DISTRICT CAUSED THE
LOSS IN WHOLE OR IN PART; PROVIDED HOWEVER, IN THE
EVENT OF ANY JOINT OR CONCURRENT LIABILITY BETWEEN THE
DISTRICT AND HISD, HISD'S OBLIGATIONS HEREIN WILL BE
REDUCED BY THE PERCENTAGE OF NEGLIGENCE OR FAULT
APPORTIONED TO THE DISTRICT.
5. HISD and the City will be responsible for ensuring that all
discharges of industrial waste from the School Tract comply with federal, state,
and municipal requirements regarding pretreatment and monitoring of industrial
waste and other prohibited waste. Any compliance or enforcement efforts or
pretreatment requirements will be established and monitored by the City in
accordance with the City's ordinances; however, the District will be entitled to
inspect the facilities constructed to serve the School Tract and the connections at
the District Wastewater Point of Connection and to test the wastewater received
at the District Wastewater Point of Connection. If any test reflects that any
wastewater other than domestic wastewater is being received at the District
Wastewater Point of Connection, pretreatment of such wastewater will be
required, in accordance with the City's ordinances, at the expense of the
discharging party. The District will not have any obligations regarding the
required pretreatment of such wastewater. The City will not impose any fee,
charge, or fine upon the District for any violation of any ordinance, rule,
regulation, or agreement caused by wastewater received at the District
Wastewater Point of Connection, nor will the City impose upon the District any
surcharge that is caused by wastewater received at the District Wastewater Point
of Connection.
6. The 24 LUEs of wastewater service authorized under this
Agreement may only be used to provide wastewater service to HISD for the
Proposed Schools. Except as expressly authorized by this Agreement for
pass-through wastewater service to the School Tract, neither HISD nor the City
may connect, or allow any other person or entity to connect, directly or indirectly,
any other facilities, persons, or property to the District's water or wastewater
utility systems without the prior written consent of the District. If HISD or the
City does so, the District may immediately terminate this Agreement and/or
require HISD or the City, as applicable, to immediately terminate service to the
facilities, persons, or property that have been connected in violation of this
Agreement. The District reserves the right to deny for any reason any request by
HISD or the City to increase the level of service under this Agreement or to serve
any other facilities, persons, or property. The City will provide retail water
service to the School Tract directly from City -owned water facilities, and neither
HISD nor the City may utilize any District facilities to provide water service to the
School Tract.
C. Capacity Charge. HISD will pay to the District a non-refundable capacity
charge of $74,238.49 for the 24 LUEs ($3,093.27 per LUE) of pass-through wastewater
service capacity made available under this Agreement to the School Tract (the "Caj2acitY
Charge"). The Capacity Charge for 8 of the 24 total LUEs (i.e., $24,746.16) will be paid
on or before the Effective Date (the "Initial Capacity Payment"). The Capacity Charge
for each of the remaining 16 LUEs will be paid by the earlier of (i) ten days after a site
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plan application that includes such LUE(s) is approved by the applicable governmental
authority; or (ii) three years after the Effective Date (the "Capacity Charge Payment
Deadline"). The Capacity Charge for all or any of the 24 LUEs may be prepaid at any
time; however, if the District has not received full payment of the Capacity Charge for all
24 LUEs by the Capacity Charge Payment Deadline, then the capacity of the pass-
through wastewater service made available to the School Tract under this Agreement will
be limited to the number of LUEs for which payment has been received as of the
Capacity Charge Payment Deadline.
D. Operation & Maintenance Payment. The District will invoice HISD for a
prorata portion of the costs of the operation and maintenance of the District's
Wastewater Line used to provide pass-through wastewater service to the School Tract
under this Agreement (the "Operation & Maintenance Payment"). The Operation &
Maintenance Payment will be allocated based on the ratio of the number of LUEs for
which HISD has paid a Capacity Payment (provided that such number will not include
any LUEs for which the Capacity Charge has been prepaid until such LUEs are actually
being utilized) to the total number of wastewater LUE capacity in the District
Wastewater Line, as set forth on EXHIBIT "C" attached hereto (the "Prorata
Allocation"). The Operation & Maintenance Payment will be paid by HISD within 30
days after receipt of the invoice. The Operation & Maintenance Payment will be in
addition to any other payments required by this Agreement. Interest charges for any
overdue Operation & Maintenance Payments will be paid by HISD in accordance with
Texas Government Code Section 2251.025.
E. Debt Service Payment. On or before October 31s' of each year during the
term of this Agreement through and including 2042, HISD will pay the District an
annual fee of $112 per LUE for which HISD has paid a Capacity Payment for the debt
service for the District's Wastewater Line used to provide pass-through wastewater
service to the School Tract under this Agreement (the "Debt Service Payment"), except
that any LUEs that the Capacity Payment has been prepaid for will not be factored into
the Debt Service Payment until such LUEs are actually being utilized. The Debt Service
Payment is HISD's Prorata Allocation of the debt service owed for the District's
Wastewater Line. The $112 per LUE charge may be adjusted by the District annually to
reflect the actual debt service for the District's Wastewater Line, if such debt service
changes; provided, however, the District shall provide written notice to HISD of any
adjustment at least thirty days prior to the effective date of such adjustment. The Debt
Service Payment will be in addition to any other payments required by this Agreement.
Interest charges for any overdue Debt Service Payments will be paid by HISD in
accordance with Texas Government Code Section 2251.025.
F. Payment for Retail Service. The City will bill wastewater customers
within the School Tract directly for retail wastewater services furnished to such
customers.
Section 3. Default. In the event of default by a Party, each nondefaulting Party may
give to the defaulting Party written notice of such default specifying the failure or default in
question. If the defaulting Party fails to fully cure the default specified in such notice within
thirty days after receipt of such notice, each nondefaulting Parry will have the right to terminate
this Agreement as of the date of the event of the default and/or pursue all other legal or
equitable remedies. Each nondefaulting Party may employ attorneys to pursue its legal rights
and, if it prevails before any court or agency of competent jurisdiction, the defaulting Party will
be obligated to pay all expenses incurred by the nondefaulting Party, including reasonable
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Agreement for Pass -Through Wastewater Service 4
attorneys' fees. In addition to all other remedies available to the District, if, for any reason,
HISD or the City violates any provision of this Agreement, the District will, after the notice and
opportunity to cure period described above, have the right to disconnect the School Tract from
the District's systems and to terminate this Agreement if, in which event, HISD will be solely
responsible for all actual costs and standard District fees related to disconnection from the
District's systems.
Section 4. Severability. The provisions of this Agreement are severable, and if any
provision or part of this Agreement or the application thereof to any person or circumstance is
ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any
reason, the remainder of this Agreement and the application of such provision or part of this
Agreement to other persons or circumstances will not be affected thereby.
Section 5. Modification. This Agreement will be subject to change or modification
only with the mutual written consent of all Parties.
Section 6. Assignability. This Agreement may not be assigned by HISD or the
City, in whole or in part, without the prior written consent of the District. This Agreement will
be recorded in the Official Public Records of Williamson County, Texas, will run with the land
comprising the School Tract, and will be binding upon and inure to the benefit of HISD, the
District, the City, their respective successors and permitted assigns, and all future owners or
occupants of any portion of the School Tract.
a
Section 7. Applicable Law. This Agreement will be governed by, and construed in
accordance with the laws of the State of Texas. All of the obligations contained in this
Agreement are performable in Williamson County, Texas.
Section 8. Parties at Interest. This Agreement will be for the sole and exclusive
benefit of the Parties hereto and will never be construed to confer any benefit to any third parry.
Section 9. Waiver. Each Party may specifically, but only in writing, waive any
breach of this Agreement by another Party, but no such waiver will be deemed to constitute a
waiver of similar or other breaches by such other Parry.
Section io. Notices. All notices to the District will be in writing and mailed by
Certified Mail, Return Receipt Requested, addressed to:
Siena Municipal Utility District No. 1
c/o Armbrust & Brown, PLLC
Attn: Kevin M. Flahive
loo Congress Avenue, Suite 1300
Austin, Texas 78701
with a copy to:
Armbrust & Brown, PLLC
Attn: Kevin M. Flahive
loo Congress Avenue, Suite 1300
Austin, Texas 78701
All notices to HISD will be in writing and mailed by Certified Mail, Return Receipt Requested,
addressed to:
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Agreement for Pass -Through Wastewater Service 5
Hutto Independent School District
Attn: Henry Gideon, Assistant Superintendent of Operations
200 College Street
Hutto, Texas 78634
with a copy to:
Attn:
All notices to the City will be in writing and mailed by Certified Mail, Return Receipt Requested,
addressed to:
City of Round Rock
Attn: City Manager
221 East Main Street
Round Rock, Texas 78664
with a copy to:
Sheets & Crossfield, P.C.
Attn: Stephan L. Sheets
309 East Main Street
Round Rock, TX 78664
Any Party may change its address by giving written notice of such change to the other Parties.
Section ii. Term. This Agreement will be in force and effect for a term of ten years
from the Effective Date.
Section 12. Effective Date. The effective date of this Agreement (the "Effective
Date") will be the date that the District executes this Agreement after receipt of fully executed
original counterparts from HISD and the City.
Section 13. Multiple Originals. This Agreement may be executed in a number of
counterparts, each of which will for all purposes, be deemed to be an original, and all such
counterparts will together constitute and be one and the same instrument.
Section 14. Entire Agreement. This Agreement, including Exhibits, constitutes the
entire agreement of the Parties and supersedes all prior agreements and understandings related
to the subject matter hereof.
Section 15. Authority. Each Party represents and warrants that it has the full right,
power, and authority to execute this Agreement and all related documents. Each person
executing this instrument on behalf of a Party represents that he or she is an authorized
representative of and has the authority to sign this document on behalf the respective Party.
[counterpart signature pages follow]
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Agreement for Pass -Through Wastewater Service 6
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
effective as of the Effective Date.
THE STATE OF TEXAS §
COUNTY OF _ R,0V IS §
DISTRICT•
SIENA MUNICIPAL,UTILITY DISTRICT NO. i
By:
of Directors
Date: ADM a%&10�`
This instrument was acknowledged before me on the a!i* day of
Amik , 2oig, by Douglas Kuenstler, President of the Board of Directors of
Sie a Municipal Utility District No. 1, on behalf of said District.
(seal)
JAIME 0 COLMENERO
` �PAy.P�a..
o• .'•
1?_ *
NOTARY PUBLIC ti
IO# 12815006-1
c�'•N• •'y:
State of Texas
Comm. Exp. 01-15-2022 �
ty,///lJltl/I!/.�lllllll//!!�
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IiIii r1,141
ary Public Signature
FN
HISD•
HUTTO INDEPENDENT SCHOOL DISTRICT
By:
Printed Name: A
Title: SYjo e r2 n +e
Date:
THE STATE OF TEXAS
COUNTY OF
This instrument was acknowledged before me on the .4-0 day _ of
"' 2012e", by ' I *% rO—C--,+a Aa-- 'hD tYYX S , %pc rri e r,dew� - of
Hutto Independent School District, an independent school district located in Williamson
County, Texas, on behalf of said independent school district.
(seal)
=,,LrNDAEYNAGA PublicF I fASJune Zrrw
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Agreement for Pass -Through Wastewater Service
Notary Public Signature
CITY•
CITY OF ROUND ROCK, TEXAS
By:
Craig Mo gan,'AYyor
Date:
THE STATE OF TEXAS §
COUNTY OF W i W k' 2Wl S0J §
This instrument was acknowledged before me on the 1�t day of
UI- , 2019, by Craig Morgan, Mayor or City of Round Rock, Texas, on behalf
of said City.
(seal)
o,�PFiY PUB '• �'.
`a
cd""' CO s
qTFOF Irc:
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Agreement for Pass -Through Wastewater Service
Notary Public Signature
it
EXHIBIT "A"
SCHOOL TRACT
74.826 Acres
THAT MART OF THE ROBERT McNUTT SURVEY, ABSTRACT No. 422 IN WILLIAMSON
COUNTY, TEXAS, BEING A PART OF THAT 89.693 ACRE TRACT OF LAND CONVEYED TO
D&M CARMEL CREEK TWO, LLC, BY DEED RECORDED IN DOCUMENT No. 20120063,66 OF
THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS, AND PART OF
THAT 4.0 ACRE TRACT OF LAND DESCRIBED IN THE DEED TO D&M CARMEL DREEK
TWO, LLC, RECORDED IN DOCUMENT No, 2012093145 OF THE OFFICIAL PUBLIC
RECORDS OF WILLIAMSON COUNTY, TEXAS, SAVE AND EXCEPT THAT 2.000 ACRE
TRACT OF LAND CONVEYED TO GERALD J. HERNANDEZ AND TERESA HERNANDEZ BY
DEED RECORDED IN DOCUMENT No. 2011015549 OF THE OFFICIAL PUBLIC RECORDS
OF WILLIAMSON COUNTY, TEXAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGIN at a 112" iron rod ,found do the West Line of that 390.68 Acre Tract conveyed to Charles
N. Avery, III, et al, by deed recorded in Document No. 2002071339 of tt^e Official Public
Records of Williamson County, Texas, at the Northeast Corner of Lot 31, Block A, Garden Park
Section One, according to the plat thereof recorded in Cabinet E, Slides 276-278 of the Plat
Records of Williamson County, Texas, the same beng the Southeast Corner of said 4.0 Acre'
Tract;
THENCE S.87022'36"W. along the South Line of sa d 4.0 Acre Tract ar'd the North Line of sad
plat of Garden Park Section 1 (at 251.70 feet pass the Southwest Comer of said 4.0 Acre Tract
and continue along the South Line of said 89.693 Acre Tract) in all a distance of 989.71 feet to
a 112" iron rod found,
T14ENCE S.8761 T38"W. along the South Line of said 89.693 Acre Tract a distance of 422.99
feet to a 112' iron rod found at the Southwest Corner of said 89.693 Acre Tract,
THENCE N.02"32'09"W. along the West Line of said 89.693 Acre Tract (at 173.55 feet pass a
112" iron rod with RJ Surveying cap found at the Northeast Corner of Lot 56A, Block G, Siona
Section 21, according to the plat thereof recorded n Document No. 2014037293 of the Official
Public Records of Williamson Counsy, Texas, and at 2333.37 feet pass a 112" iron rod found
with RJ Surveying cap at the Northeast Corner of Lot 47, Block G, Siena Section 27, according
to the plat thereof recorded in Document No. 2015018917 of the Official Public Records of
Williamson County; Texas,) in all a distance of 2347.42 feet to at 112" Iron rod found at the
Southwest Corner of Lot 1, Block E, Green Haver Subdivision Phase 1, according to the plat
thereof recorded in Document No. 2012003555 of the Officlal Public Records of Williamson
County, Texas, the same being the Southwost Comer of that Less, Save and Except 72.091
Acre Tract described in the said deed recorded in Document No. 2012006386 of the Official
Public Records of Williamson County, Texas;
THENCE across said 89.693 Acre Tract and along the South Line of said 72.091 Acre Tract
and the South Line of said plat of Green Haven Subdivision Phase 1 the following two courses -
N.87`27'39" E. a distance of 796.79 feet to a 112" iron rod found;
N.77"3.5'31 "F. a distance of 619.20 fact to a 112" iron rod found in the East Line of said
89.693 Acre Tract and the West L no of that 148 Acre Tract conveyed to J. B. Pace and
Beulah B. Pace by deed recorded in Volume 526, Page 648 of the Deed Records of
Williamson County, Texas;
THENCE S.03"02'23"E, along the East Line of said 89.693 Acre Tract and the West Line of
said 148 Acre Tract a distance of 875.60 feet to a 112" iron rod found at the common West
Comer of said 148 Acre Tract and said 390.68 Acrd Tract,
THENCE S.02027'55"E. along the West Line of said 390.68 Acre Tract and the East Line of
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Agreement for Pass -Through Wastewater Service
74.826 Acres
said 89.693 Acre Tract a distance of 741.63 feet to a 112" iron rod found at the Northeast corner
of said 2.000 Acre Tract of land conveyed to Gerald J. Hernandez and Teresa Hernandez;
THENCE S.87"33'46"W, across said 89.693 Acre Tract and along the North Line of said 2,000
Acre Tract a distance of 251.37 feet to a 112" iron rod found at the Northwest Corner of said
2.000 Acre Tract;
THENCE S.02"25'32"E. along the West line of said 2.000 Acre Tract (at 142 68 feet pass a
112' iron rod found at the Northeast Corner of said 4.0 Acre Tract and an interior comer of said
89-693 Acne Tract and continue along the West Line of said 2.000 Acre and the East Line of
said 89.693 Acre Tract) in all a distance of 346.38 feet to a 112" iron rod found at the Southwest
Comer of said 2.000 Acre Tract;
THENCE N.87033 58"E. across said 4.0 Acre Tract and along the South Line of said 2.000 Acre
Tract a distance of 251.49 feet to a 112" Iron rod found in the West Line of said 390.68 Acre
Tract and the East Line of said 4.0 Acre Tract;
THENCE S.02'29'36"E_ along the East Line of said 4.0 Acre Tract and the West Line of sa-d
390.68 Acre Tract a distance of 487.87 feet to the said Point of Beginning.
Containing 74.826 acres, more or less, as shown on the sketch attached
Kenneth Weigand
Registered Professional Land Surveyor No. 5741
Stale of Texas
RJ Surveying & Associates, Inc.
1212 East Braker Lane
Austin, Texas 78753
F-10015400
All iron rods set have RJ Surveying caps
Bearings are Texas State Plane Central Zone NAD 83
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EXHIBIT "B"
DISTRICT WASTEWATER POINT OF CONNECTION
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EXHIBIT "C"
Developer Interest Calcualtions
Series 2018 Bonds 373%
Subtotal Section 24 Costs
Completed 12/13
Assume 2119 close 62 months
Series 2017 Bonds 3,59%
Subtotal Section 21 Costs
Completed 4114
Assume 2/19 close 44 months
Total Developer Interest
Total Costs
Construction
Pro -rated share through Section 24
Pro -rated share through Section 21
Engineering and Testing @ 12% construction costs
Section 24
Section 21
Developer Interest
Section 24
Section 21
Total Cost for Pass- Through Service
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Costs Interest
$9,741,43
$1,876.19
Costs Interest
$49,098.33
$6,461.77
$8,337.96
$9,741.43
$49,098.33
$1,168.97
$5,891.80
$1,876.19
$6,461.77
$74,238.49
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