Ex. 10.10
SERVICES AGREEMENT
BETWEEN
SILVERLEAF RESORTS, INC.
AS CUSTOMER,
AND
ALGONQUIN WATER RESOURCES OF TEXAS, LLC
AND
ALGONQUIN WATER RESOURCES OF AMERICA, INC.,
AND
ALGONQUIN POWER INCOME FUND
DATED AS OF MARCH 8, 2005
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Services Agreement") is entered into as of the 8th
day of March, 2005, (the "Agreement Date") by and between SILVERLEAF RESORTS,
INC., a Texas corporation (the "Customer") and ALGONQUIN WATER RESOURCES OF
TEXAS, LLC., a Texas limited liability company ("Provider"). ALGONQUIN WATER
RESOURCES OF AMERICA, INC., a Delaware corporation and ALGONQUIN POWER INCOME
FUND, a Canadian income trust (together, the "Parent Entities") are also parties
to this Services Agreement solely for purposes of Section 17. The Customer, the
Provider and the Parent Entities are sometimes referred to herein individually
as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS Provider and Customer have entered into that certain Asset Purchase
Agreement dated as of August 29, 2004 (the "Asset Purchase Agreement");
AND WHEREAS Customer owns and operates land development, interval ownership
sales, property rentals, property management and other resort operation related
activities at the following resort properties ("Resorts") in Texas:
RESORT LOCATION
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Holly Lake Wood County, TX
Hill Country Resort Comal County, TX
Piney Shores Resort Montgomery County, TX
The Villages Smith County, TX
AND WHEREAS pursuant to the Asset Purchase Agreement Provider has agreed to
purchase from Customer all of the assets comprising the water supply and
distribution systems serving the Resorts (the "Water Assets") and all of the
assets comprising the wastewater collection and treatment systems serving the
Resorts (the "Wastewater Assets");
AND WHEREAS Provider expects to continue to provide water supply and wastewater
management services at the Resorts and the Customer desires to have the Provider
continue to provide such services at the resorts.
AND WHEREAS the entering into of this Services Agreement is a condition to the
closing of the transaction contemplated by the Asset Purchase Agreement.
IN CONSIDERATION of the mutual promises of the Parties, in reliance on the
covenants and conditions contained in this Services Agreement, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Parties hereby agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS
Unless otherwise stated in this Services Agreement, the following terms shall
have the following meanings:
1.1 CC&N. The Certificate of Convenience and Necessity granting the
Regulated Utility an exclusive franchise territory to provide public utility
service, as issued by the Regulatory Agency.
1.2 Excluded Expenses. Any and all costs attributable to maintaining the
Water Assets and the Wastewater Assets as provided in Section 2.3 of this
Services Agreement which are disallowed for recovery by the Regulatory Agency as
unreasonable or imprudent expenditures.
1.3 Excluded Investment. Any and all amounts associated with a capital
asset investment made by the Regulated Utility that are not allowed in the rate
base of the Regulated Utility for rate-making purposes by the Regulatory Agency.
1.4 Regulatory Agency. The Texas Commission on Environmental Quality
("TCEQ").
1.5 Regulated Utility. Any utility that is subject to the jurisdiction of
the Regulatory Agency that grants a CC&N to supply such services in a designated
geographic service area.
1.6 Unregulated Utility. Any utility that is not subject to the
jurisdiction of the Regulatory Agency.
1.7 Utility or Utilities. The operations of the Regulated Utility or
Unregulated Utility together with all assets, facilities, management,
authorizations and other assets being either tangible and intangible all
together providing Utility Services.
1.8 Utility Services. All services relating to the supply and distribution
of potable water or the collection and treatment of wastewater, or both of them.
SECTION 2. UTILITY SERVICES
2.1 Commencing upon the Closing Date as defined in Section 2.08 of the
Asset Purchase Agreement, Provider shall provide Utility Services to the Resorts
of a quality substantially similar to that which was previously supplied to the
Resorts by the
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Customer, consistent with applicable laws, ordinances, rules, regulations and
orders of the Regulatory Agency.
2.2 Provider shall supply Utility Services in compliance in all material
respects with and pursuant to all approved tariffs on file with the Regulatory
Agency, as may be amended from time to time.
2.3 Provider shall maintain the appearance of the Water Assets and the
Wastewater Assets to the reasonable standard and satisfaction of the management
of the Resort in which the Water Assets and Wastewater Assets are located (the
"Resort Management"). In the event that the appearance of the Water Assets or
Wastewater Assets fails to meet the reasonable standard and satisfaction of the
Resort Management, then the Resort Management shall communicate with specificity
and in writing to Provider those portions of the Water Assets and/or Wastewater
Assets which are deficient. Upon receipt of such written notice, Provider shall
immediately undertake such steps as may reasonably be required to address the
deficiencies identified by Resort Management. Customer shall reimburse Provider
for any and all Excluded Expenses attributable to any specific request made to
the Provider by the Customer for maintaining the Water Assets and the Wastewater
Assets as provided in this Section 2.3. Provider shall, from time to time as
applicable, invoice Customer (or Resort Management directly if requested by
Customer in writing) for any Excluded Expenses. Payment of such invoices shall
be due and payable within 15 days of receipt of the bill by Customer.
SECTION 3. JURISDICTION
3.1 Regulated Utilities. Provider and Customer agree that where Provider
is a Regulated Utility subject to the jurisdiction of the Regulatory Agency,
then the Utility Services shall be provided in accordance with all applicable
laws, ordinances, rules, regulations and orders of the Regulatory Agency.
3.2 Unregulated Utilities. This Section 3.2 applies to Unregulated
Utilities.
3.2.1 Provider and Customer agree that where Utility Services
provided to a Resort under this Services Agreement are not subject to the
jurisdiction of the Regulatory Agency, then all matters normally determined by
or approved by the Regulatory Agency (including but not limited to rate cases
and tariff filings) shall instead be resolved in accordance with Section 3.2.3
hereto.
3.2.2 To the extent reasonably possible, Provider shall provide
Utilities Services which are Unregulated Utilities utilizing the same standards,
methods, procedures and protocols as if the Provider were a Regulated Utility.
For purposes of this Services Agreement, and with regard to Utility Services
which subsequently become Unregulated Utilities, the Parties agree that rate
base shall be the rate base amount as of the date the Regulatory Agency issues
the order finding that the Utility is no longer subject to regulation by the
Regulatory Agency for the Water Assets or Wastewater Assets at that specific
Resort location.
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3.2.3 For purposes of establishing and modifying rate base and the
rates charged by Provider for Utility Services which are Unregulated Utilities,
the parties agree to follow the ratemaking procedures of the TCEQ, regardless of
the actual location where the Unregulated Utilities are provided, and such other
procedures as our mutually agreed upon from time to time. Provider shall charge
Customer rates which will result in a rate of return for Provider set by the
TCEQ (currently 12%) after accounting for hypothetical income taxes for
regulation purposes (the "Regulated Return").
3.2.4 For purposes of establishing and modifying rates charged by
Provider for Utility Services for unregulated utilities, each Unregulated
Utility shall be treated as a stand alone operation.
3.3 Change in Regulated Status of Utility
3.3.1 If Utility Services at a Resort are not subject to the
jurisdiction of the Regulatory Agency as of the Closing Date, but such Utility
Services subsequently become regulated and subject to the jurisdiction of the
Regulatory Agency, the applicable law of the state of Texas shall then apply and
take precedence over the terms of any previously executed Services Agreements(s)
and all matters shall then be conducted in accordance with the laws of that
state and Section 3.1 hereof.
3.3.2 If Utility Services located at a Resort are not subject to the
jurisdiction of the Regulatory Agency as of the Closing Date, but such Utility
Services subsequently become regulated, and the rate base approved by the
Regulatory Agency with jurisdiction over the Utility Services is less than the
rate base as determined by the Parties pursuant to Section 3.2.3 above as of the
date of the conversion, thereby resulting in a loss of rate base to the
Provider, the Parties agree to include the amount of rate base that is
disallowed by the Regulatory Agency, up to a maximum of $400,000, in the rate
base of another Unregulated Utility, if any, for which there is a Services
Agreement between the Provider and the Customer.
3.3.3 If a Regulated Utility ceases to be regulated and is no longer
subject to the jurisdiction of the Regulatory Agency, then the provisions of
Section 3.2 above shall apply.
SECTION 4. FEES, CHARGES AND PAYMENTS
The rate to be paid by Customer for Utility Services shall be:
4.1 With regard to a Regulated Utility, the rate set forth in applicable
tariffs, as may be amended from time to time, and as established in compliance
with the laws, rules, ordinances, regulations and order of the Regulatory
Agency.
4.2 With regard to an Unregulated Utility, the rates as established
pursuant to Section 3.2 above.
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4.3 If the Customer fails to make payment, the Unregulated Utility will
follow the rules for non-payment and termination of service as established by
the Regulatory Agency in the State of Texas.
SECTION 5. CAPITAL EXPENDITURE FUNDING AND RATE BASE
5.1 Provider-Funded Capital Additions
5.1.1 Provider agrees to fund sufficient future capital additions at
each Resort as is required to provide at least the same level of Utility
Services to all current and future occupants of the Resort as is provided to the
current occupants.
5.1.2 Upon request by Customer, Provider shall expand utility
infrastructure in a timely manner to accommodate additional development at any
of the Resorts. In such event, Provider and Customer shall cooperate in good
faith to develop a construction schedule which is mutually agreeable to the
Parties.
5.1.3 Notwithstanding anything contained herein, Provider shall not
be obligated to finance the cost of any capital improvement which either (i)
cannot reasonably be expected to be included in rate base; and/or (ii) which is
subsequently disallowed for inclusion in rate base by the Regulatory Agency in a
future rate case proceeding. Provider shall be reimbursed by Customer for all
capital expenditures requested by Customer that do not satisfy the requirements
of this Section 5.1.3 in accordance with Section 5.3 of this Service Agreement.
5.2 Customer-Funded Capital Additions
5.2.1 In those jurisdictions where state regulation requires the
costs of certain utility infrastructure additions be borne by either the
developer or new customers and not by the existing customer base of the utility,
the Provider shall not be required to fund such asset additions and such funding
shall be the obligation of the Customer.
5.2.2 Any Excluded Investment is the responsibility and obligation
of the Customer and Customer shall reimburse Provider all such amounts.
5.2.3 The Provider shall not fund the cost of capital assets that
are unlikely to be eligible for inclusion into rate base.
5.3 Funding Process
5.3.1 Provider shall seek input from the Customer in preparing a
5-year forward Capital Expenditure Plan (the "Capital Plan"). The Capital Plan
shall set out in reasonable detail the capital expenditures that are anticipated
to be required in respect of the Utility on a quarterly basis during the
upcoming five year period to deal with routine asset replacements, environmental
compliance obligations and system expansions or enhancements.
5.3.2 The Capital Plan shall be updated quarterly and shall detail
the expected Utility capital additions necessitated by the expansion plans of
the Customer at
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each of the Resorts including, but not limited to, anticipated requirements for
both Utility backbone infrastructure and piping and transmission lines together
with time lines for such expansion.
5.3.3 Customer, with input from the Provider, shall enter into
contracts for the capital expansion work to be undertaken from time to time.
Customer will, in working with contractors for construction matters in relation
to the expansion of the Resorts, request contractors to provide bids and quotes
for work that may be required for the capital expansion of the Utility. Provider
and Customer shall jointly review such quotes and bids, and determine whether
the costs are likely to be approved by the Regulatory Agency for inclusion in
rate base of the Regulated Utility. If the Provider is satisfied that the costs
will likely be included in rate base, the Provider and the Customer will select
the contractor to complete the capital expansions to the specifications agreed
to by both the Provider and the Customer. The Customer will engage the
contractor to perform and complete the contract. All work must be performed to
the satisfaction of the Provider. Provider has the right to inspect all work
performed by the contractor related to the capital expansion of the Utility's
facilities. The Customer will submit copies of all invoices, bills, as-built
surveys and any other documentation related to the construction of the capital
expansion that the Provider deems necessary. Provider will reimburse Customer
within forty-five days of completion of the work to the satisfaction of the
Provider and receipt of all documents that the Provider deems necessary. The
Provider will not be liable for any costs of rework due to poor workmanship or
faulty design.
5.3.4 For any Excluded Investments, Provider and Customer shall
enter into a Line Extension Agreement ("LXA"). The terms of each LXA will be in
accordance with and pursuant to the Line Extension rules and policies of the
Regulatory Agency having jurisdiction over the Regulated Utility. Customer shall
determine any terms and conditions in the LXA that are not already set out in
the rules or policies of the Regulatory Agency. The Provider will submit the LXA
to the Regulatory Agency for approval and will use its best efforts to obtain
such approval. The LXA will be performed only as approved by the Regulatory
Agency. The Provider is not obligated to perform or liable for any terms that
are not approved by the Regulatory Agency.
5.3.5 Upon the expiration of the LXA the residual value of the
underlying capital asset not yet recovered by the Customer (being the difference
between the depreciated value of the underlying asset at the time of expiration
of the LXA and the amount recovered by the Customer in payments from the Utility
under the corresponding LXA) shall be added to the Utility's Contribution in Aid
of Construction balance and shall thus not become part of the Utility's rate
base and shall not be available for recovery by the Utility in its future rates
and tariffs.
5.3.6 Any Excluded Investments for which a LXA cannot be obtained
shall be funded by Customer and contributed to the Utility as a Contribution in
Aid of Construction and is not part of the Utility's rate base for ratemaking
purposes.
5.3.7 In the event that the Customer desires Provider to make
improvements or add service capabilities to the Utilities, which the Provider
deems are unnecessary or are untimely, Customer shall have the option of having
that construction
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done at Customer's expense unless such improvements or additional service
capabilities would be detrimental to the safe and efficient operation of the
Utilities. All plans and permits required for such construction must have
Provider's prior review and approval, which approval shall not be unreasonably
withheld. Provider agrees to reimburse Customer for such expenditures as they
become used and useful and includable in rate base. All unreimbursed
expenditures shall be deemed to be "developer contribution in aid of
construction" for future rate-making purposes.
SECTION 6. DISPUTE RESOLUTION
If a dispute arises between the Parties regarding the provision of Utility
Services including, but not limited, the determination of rate base, setting of
rates and charges for the Unregulated Utility, the parties will enter into good
faith negotiations to attempt to resolve such dispute. In the event such good
faith negotiations fail to resolve such matters to the mutual satisfaction of
the parties within thirty (30) days of the negotiation process, or such longer
period of time as the Parties may mutually agree, then such dispute shall be
resolved through binding arbitration under the Commercial Arbitration Rules (the
"Rules") of the American Arbitration Association (the "AAA"), which shall be the
exclusive mechanism for dispute resolution. The conduct of the arbitration shall
be solely within the jurisdiction of the state court of the State of Texas. The
arbitrator shall be Mark H. Zeppa of the Law Offices of Mark H. Zeppa, PC,
Independent Water & Sewer Companies of Texas, 4833 Spicewood Springs Road, Suite
202, Austin, Texas 78759-8436, (512) 346-4011, providing he is not representing
either party as an attorney on any other matter. If Mark H. Zeppa is unwilling
or unable to act as arbitrator, then the Parties shall each appoint one
arbitrator, and the two arbitrators appointed by the Parties shall select a
third arbitrator. The task of the three arbitrators shall be to resolve the
matter in dispute, and the decision of any two arbitrators so appointed shall be
in all cases binding and conclusive upon the Parties and shall be the basis for
a judgment entered in any court of competent jurisdiction. Each arbitrator so
appointed must be familiar with utility regulation, the customary practices of
the Regulatory Agency deemed to have jurisdiction over the Utilities, and the
National Association of Regulatory Utility Commissioners guidelines and
standards.
SECTION 7. TERM AND TERMINATION
The Services Agreement will continue until such time as it is terminated by
mutual agreement of the parties or as provided in Section 4.3 of this Services
Agreement for termination for non-payment of services.
SECTION 8. NOTICES
All notices, demands, or other communications of any type (herein collectively
referred to as "Notices") given by the Customer to the Provider or by the
Provider to the Customer shall be void and of no effect unless given in
accordance with the provisions of this Section 9. All Notices shall be in
writing and delivered to the person to whom the notice is directed, either (a)
by telephonic facsimile communication, (b) by United States Mail, as a
registered or certified item, return receipt requested or (c) by nationally
recognized overnight or local courier service. Any of the Notices may be
delivered by
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the parties hereto or by their respective attorneys. Any notice delivered by
telephonic facsimile communication shall be deemed effective after being
transmitted to the applicable telephone facsimile numbers set forth below.
Notices delivered by overnight or local courier shall be effective upon receipt.
Notices delivered by registered or certified mail shall be deemed effective two
(2) days after being deposited in a post office or other depository under the
care or custody of the United States Postal Service, enclosed in a wrapper with
proper postage affixed, with return receipt requested, or on the date of refusal
to accept delivery of the notice, and addressed as follows:
If to Customer: Silverleaf Resorts, Inc.
Attn: Robert E. Mead
1221 River Bend Drive, Suite 120
Dallas, Texas 75247
Telephone: (214) 631-2266
Facsimile: (214) 905-0514
With copy to: George R. Bedell, Esq.
Meadows Owens Collier Reed Cousins & Blau, L.L.P.
901 Main St., Suite 3700
Dallas, TX 75202
Telephone: (214) 744-3700
Facsimile: (214) 747-3732
If to Provider: Algonquin Water Resources of America, Inc.
Attn: Ian Robertson
2845 Bristol Circle
Oakville, Ontario L6H 7H7
Telephone: (905) 465 4500
Facsimile: (905) 465 4540
With copy to: Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren
Phoenix, Arizona 85004-2202
Phone: (602) 382-6381
Facsimile: (602) 382-6070
Attn: Michael M. Donahey
Either party hereto may change the address for notice specified above by giving
the other party five (5) days advance written notice of such change of address.
SECTION 9. ASSIGNMENT OF AGREEMENT
This Agreement shall be binding on and inure to the benefit of the parties to
this Agreement and their respective successors and permitted assigns. This
Agreement may be assigned by the Provider to one or more of its subsidiaries or
affiliates; provided, however, that any such assignment shall in no way diminish
the continuing obligation of
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Provider in respect of all obligations and undertakings set out in this Services
Agreement. This Services Agreement may be assigned by the Provider to a
non-subsidiary or non-affiliate with written approval from the Customer. Such
approval shall not be unreasonably withheld.
SECTION 10. GOVERNING LAW
This Services Agreement shall be construed and governed by the laws of the State
of Texas.
SECTION 11. FORCE MAJEURE
In the event either Party is rendered unable, wholly or in part, to perform its
obligations under this Service Agreement due to acts of God, floods, fires,
explosions, weather, strikes, lockouts or other industrial disturbances, wars or
any law, rule, order or action of any court or instrumentality of the federal or
any state government, or due to exhaustion, reduction or unavailability of water
at the source of supply from which deliveries are normally made, failure of
third Party transportation or any other cause or causes (except financial)
beyond its control whether similar or dissimilar to those stated above, it is
agreed that the obligations of each Party shall be suspended for the continuance
of any inability so caused but for no longer period. The Party claiming force
majeure shall immediately notify the other Party by telephone and with written
confirmation sent by facsimile, overnight courier, etc. describing the nature
and estimated duration of such inability to perform. The cause of such inability
to perform shall, so far as possible, be remedied with all reasonable dispatch.
SECTION 12. AMENDMENTS; WAIVER
This Services Agreement may be amended only in writing by the mutual consent of
all of the parties, evidenced by all necessary and proper corporate authority.
No waiver of any provision of this Services Agreement shall arise from any
action or inaction of any Party, except an instrument in writing expressly
waiving the provision executed by the Party entitled to the benefit of the
provision.
SECTION 13. ENTIRE AGREEMENT
This Services Agreement, together with any documents and exhibits given or
delivered pursuant to this Services Agreement, constitutes the entire agreement
between the Parties. No Party shall be bound by any communications between them
on the subject matter of this Services Agreement unless the communication is (a)
in writing, (b) bears a date contemporaneous with or subsequent to the date of
this Services Agreement, and (c) is agreed to by all Parties to this Services
Agreement.
SECTION 14. FURTHER ASSISTANCE
The Parties shall utilize their best efforts, consistent with sound business
practice, to take such further action and execute such further documents,
assurances and certificates as either Party may reasonably request of the other
in order to effectuate the purpose of this
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Services Agreement. In addition, each Party agrees that it will not take any
action which would adversely affect the rights granted by it to the other Party
hereunder.
SECTION 15. GBRA AGREEMENT
Customer hereby assigns and Texas Provider hereby assumes Sections 1, 2, 6, 7,
11 and 16 of that certain Sewage System Modification, Construction and Wholesale
Service Agreement Between Guadalupe-Blanco River Authority and Silverleaf
Resorts, Inc., dated June 8, 1998 (as amended, the "GBRA Agreement"). Customer
hereby represents to Texas Provider that Customer has full right, power and
authority to assign such Sections of the GBRA Agreement to Texas Provider. No
other section, provision, or obligation contained in the GBRA Agreement,
including, but not limited to the Amendment to the GBRA Agreement dated August
31, 2000, shall be assigned to, or assumed by, Texas Provider.
SECTION 16. APPROVAL OF REGULATORY AGENCY
In the event that the Parties determine that this Services Agreement must be
submitted to and approved by the Regulatory Agency, then the Parties shall
jointly prepare and file an application for such approval. In the event that the
Regulatory Agency declines to approve this Services Agreement, then the Parties
shall work together in good faith to modify this Services Agreement so that it
conforms to the requirements of the Regulatory Agency. In the event that this
Services Agreement cannot be so modified, then the Services Agreement shall be
deemed null and void.
SECTION 17. PARENT ENTIES
The Parent Entities hereby agree to cause Provider to satisfy each of its
obligations hereunder and the Parent Entities hereby agree to indemnify Customer
for any losses incurred by Customer which are caused by the failure of the
Parent Entities to so cause Provider to perform hereunder.
IN WITNESS WHEREOF, the Parties have executed this Services Agreement as
of the date and year first above written.
PROVIDER: PARENT ENTITIES:
ALGONQUIN WATER RESOURCES OF ALGONQUIN WATER RESOURCES OF AMERICA, INC.
TEXAS, LLC
By: /s/ IAN ROBERTSON By: /s/ IAN ROBERTSON
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Name: Ian Robertson Name: Ian Robertson
Title: _____________________ Title: Authorized Signing Officer
CUSTOMER: ALGONQUIN POWER INCOME FUND
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SILVERLEAF RESORTS, INC. By: /s/ IAN ROBERTSON
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By: /s/ HARRY J. WHITE, JR. Name: Ian Robertson
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Name: Harry J. White, Jr. Title: Authorized Signing Officer
Title: CFO
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