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Home My WebLink AboutContract 26225 CITY SECRETARY r CONTRACT NO. TNRCC FORM: CONTRACT NO. 582-1-88029 STATE FUNDED GRANT AGREEMENT THIS AGREEMENT is entered by and between Texas Natural Resource Conservation Commission(hereinafter called TNRCC)and City of Fort Worth (hereinafter called PERFORMING PARTY). TNRCC and PERFORMING PARTY, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1. WORK 1.1. PERFORMING PARTY shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: 1.2. By statutory authority, FY 2000-2001 Appropriations Bill (Rider 7). As an eligible local air pollution program, the PERFORMING PARTY will provide air pollution control activities from the following menu of contract deliverables: 1.2.1. Comprehensive Compliance Inspections (CCI), including: a. ANBI: Non-Title V Major Source Inspections(Small, Medium, and Large) b. ANBI: Title V Major Source Inspections 1.2.2. CCI: Non-Major Source("Other"and Used Car Lot)Inspections(facilities defined as Non-Major sources in Section 12.1.1, "Penalty Policy," of the most recent version of the "Air Program Investigator's Manual") a. NMNC: Non-Checklisted Non-Major Source Inspections b. NMCL: Checklisted Non-Major Source Inspections c. BD04(REG. IV): Non-Major Used Car Lot Inspections 1.2.3. CMPL: Complaint Response 1.2.4. Stage II Vapor Recovery Inspections 1.2.5. Pre-Construction/Modification Permit Investigations a. PMSI and POSI: Permit Site Reviews b. PMPR: Permit Provisions Reviews 1.3. The intended outcome is the PERFORMING PARTY's assistance to the TNRCC in the enforcement of the Clean Air Act. 1.4. The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: 2 r^n •,,''� rf, Vu r ARTICLE 2. CONTRACT TIMES 2.1. This Agreement shall commence on September 1.2000 and shall terminate on August 31,2001. However, the Annual Performance Evaluation requirements identified in the Scope of Work (Section 01000) and certain reporting requirements as identified in this Contract shall survive the termination of this Contract. The agreement shall immediately terminate at the end of any state fiscal year for which the Texas Legislature fails to appropriate funds necessary to perform this Agreement. ARTICLE 3. CONTRACT AMOUNT 3.1. TNRCC and PERFORMING PARTY agree that the maximum amount to be paid by TNRCC for completion of the Work shall not exceed One Hundred Twelve Thousand.Five Hundred and Eighty Dollars f$112,580.00) unless the parties amend this amount in accordance with the Contract Documents. 3.2. The term "Local Air Program" is defined as the eligible local air pollution program conducted by PERFORMING PARTY under Section 382.0622,Texas Health and Safety Code. The combined federal and state share of the funding for the PERFORMING PARTY's Local Air Program (including the state funds under this Agreement)shall not exceed 67%(sixty-seven percent)of the PERFORMING PARTY's total cost for the program. The PERFORMING PARTY must provide matching funds such that the combined federal share,derived from the Section 105 pass-through funding from the TNRCC,and the state share,derived from the current Appropriations Act(Rider 7),shall not exceed 67%,or the total amount of this contract will be reduced proportionately so that this condition is met. ARTICLE 4. PAYMENT PROCEDURES 4.1. PERFORMING PARTY shall submit Applications for Payment in accordance with Article 7 of the General Conditions. ARTICLE 5. FUNDING 5.1. Availability offunds.The parties agree that this Agreement and all claims,suits,or obligations arising under or related to this Agreement are subject to and limited to the availability of funds appropriated by the Texas Legislature for the purposes of this Agreement or for the respective claim, suit,or obligation,as applicable. 5.2. Source of Funds and Legal Authority. This Agreement is funded through the Current Appropriations Act: TEX.WATER CODE&5.229:nx.HEALTH AND SAFETY CODE§§382.111-382.115. The PERFORMING PARTY certifies that it has authority to perform the services contracted for by authority granted in Fort Worth City ode 16,Article IX.Fort Worth Air Pollution Ordinance. This Agreement is subject to: the Uniform Grant and Contract Management Act (UGCMA). Texas Government Code. Section 783.001 et seg., and the Uniform Grant Management Standards(UGMS)for State Agencies, 1 Texas Administrative Code, Section 5.141 et sea. 5.3. PERFORMING PARTY agrees to place this notice in all subgrants and subcontracts. Contract No. 582-1-88029 2 t , ARTICLE 6. PERFORMING PARTY'S REPRESENTATIONS In order to induce TNRCC to enter into this Agreement PERFORMING PARTY makes the following representations: . 6.1. PERFORMING PARTY is familiar with and understands all federal,state and local Laws and Regulations that may affect cost, progress, performance or furnishing of the Work. 6.2. PERFORMING PARTY is aware of the general nature of work to be performed by TNRCC and others that relates to the Work as indicated in the Contract Documents. 6.3. PERFORMING PARTY has given TNRCC written notice of all conflicts, errors, ambiguities or discrepancies that PERFORMING PARTY has discovered in the Contract Documents and the written resolution thereof by TNRCC is acceptable to PERFORMING PARTY,and the Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. 6.4. PERFORMING PARTY hereby ratifies and attests to all certifications and deliverables it has provided to TNRCC during the offer process and agrees to give prompt written notice to TNRCC if there is any material change in these certifications or deliverables. ARTICLE 7. CONTRACT DOCUMENTS The Contract Documents which comprise the entire Agreement between TNRCC and PERFORMING PARTY concerning the Work consist of the following: 7.1. The TNRCC Form: State Funded Grant Agreement. 7.2. The General Conditions of the TNRCC State Funded Grant Agreement. 7.3. Bases for Calculating Payment. 7.4. Scope of Work(Section 01000). A. Statement of Services B. Deliverables 7.5. Other Documents. EMI 1BITS Exhibit A-1: Air Program Investigator's Manual Exhibit A-2: Open Records Decision No. 391 Exhibit A-3: Comprehensive Compliance Inspection Protocol(current version: Revision 2.0) Exhibit A-4: Stage II Vapor Recovery Policy and Procedure Manual Exhibit A-5: Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations Exhibit A-6: PST/Stage II Database Guidance Contract No. 582-1-88029 3 Exhibit A-7: Guidance Manual for Field Operations Division Investigation of Complaints(Draft) Exhibit A-8: Enforcement Standard Operating Procedures Exhibit A-9: Field Operations Division Standard Operating Procedures(Draft) Exhibit A-10: Upset/Maintenance Investigation Protocol Exhibit A-11: This exhibit has been deliberately left blankfor numbering purposes Exhibit A-12: Enforcement Action Referral Instructions Exhibit A-13: Chapter 9: Stage 11 Vapor Recovery Inspections (in the Petroleum Storage Tank Inspection Manual) FORMS FORM B-1: HUB/MWBE Progress Assessment Report FORM B-2: TNRCC STATE PURCHASE VOUCHER FORM B-3: TNRCC Invoice FORM B-4: Financial Status Report FORM B-5: Fiscal Analysis Package 7.6. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: Quarterly Work Plans, all Written Amendments, and other documents amending, modifying or supplementing the Contract Documents pursuant to the General Conditions. 7.7. There are no Contract Documents other than those listed above in this Article.The Contract Documents may be amended,modified or supplemented only as provided in the General Conditions. ARTICLE 8. MISCELLANEOUS 8.1. Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 8.2. Notwithstanding any provisions relating to assignment in the Uniform Commercial Code,no delegation by a party hereto of any duties or obligations nor assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound;and,specifically but without limitation,monies that may become due and monies that are due may not be assigned without such consent(except to an extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 8.3. TNRCC and PERFORMING PARTY each binds itself,its partners,successors,assigns and representatives to the other party hereto,its partners,successors,assigns and representatives in respectto all covenants,agreements and obligations contained in the Contract Documents. This Agreement is not transferable or otherwise assignable by the PERFORMING PARTY without the written consent of the TNRCC and any attempted transfer without such consent is void. 8.4. The parties hereby agree that this Agreement does not waive the State's sovereign immunity relating to suit, liability,and the payment of damages. Contract No. 582-1-88029 4 8.5. Any provision of the Contract Documents held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon TNRCC and PERFORMING PARTY,who agree that Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 8.6. The PERFORMING PARTY acknowledges and agrees thatbecause this Agreement has been executed,and will be administered in Travis County,Texas,that in this sense,the agreement is to be performed in said County. The PERFORMING PARTY acknowledges and agrees that any permissible cause of action involving this agreement will arise solely in Travis County. If a legal action related to this claim is permissible and there are two (2) or more counties of proper venue under the rules of mandatory, general, or permissive venue, and one such county is Travis County, the PERFORMING PARTY hereby agrees to venue in Travis County. This provision does not waive TNRCC's sovereign immunity. 8.7. Any notice issued pursuant to these Contract Documents shall be addressed to the respective party at the addresses set out below,or at such other address as they have theretofore specified by written notice. Such notices shall be sent by certified mail,return receipt requested,or by nationally recognized courier,and evidenced by the confirmation of delivery rendered by the courier service, or shall be delivered in hand and a receipt provided therefor. Any notice or other written communication shall be considered delivered upon receipt. ADDRESSES FOR NOTICE: TNRCC: PERFORMING PARTY: Sue P.McColl, MC-174 T. C. Michael (Printed Name)(TNRCC Contract Manager) (Printed Name)(PERFORMING PARTY Representative) Field Operations Division Air Quality Program , Texas Natural Resource Conservation Commission Dept. of Environmental Management P.0. Box 13087, Capitol Station 5000 MLK Freeway Austin, Texas 78711-3087 Fort Worth,TX 76119 (Address) (Address) TNRCC: Frank Esping (Printed Name)(Project Field Representative) Rion 4, Arlington CONTINUED ON NEXT PAGE Contract No. 582-1-88029 5 y IN WITNESS WHEREOF,TNRCC and PERFORMING PARTY have signed four(4)originals of this Agreement. One counterpart has been delivered to PERFORMING PARTY and three counterparts have been delivered to TNRCC. This Agreement will be effective on September 1,2000,which is the Effective Date of the Agreement. Texas Natural Resource Conservation PERFORMING PARTY Commission CITY OF FORT WORTH By / By Signature: Signature:(16n.. �Q, zw" Printed N me: V oe jlOGj a l Printed Name: Charles Boswell Title: 1-76 c• Y 1,/,)lrcc7Z 4 V Title: Assistant City Manager Date: Vi f dG Date: Z Z. APPROVED AS TO FORM: By Signature: Printed Name. Cynthia Garcia Title: Assistant City Attorney Date: ATTEST: I By "I Signature: (, Contract Authorization Printed Name: Gloria Pearson Date Title: City Secretary 7 Date: — 1 ' GU Contract No. 582-1-88029 6 BASES FOR CALCULATING PAYMENT Comprehensive Compliance Inspections (CCI) The PERFORMING PARTY shall receive$2,640.00 for each Small(1-25 Emission Point Numbers(EPNs))ANBI Non-Title V Major Source task completed as described in Part A,Statement of Services and in Part B, Deliverables (Scope of Work, Section 01000). The PERFORMING PARTY shall receive$3,960.00 for each Medium (26-100 EPNs)ANBI Non-Title V Major Source task completed as described in Part A, Statement of Services and in Part B, Deliverables(Scope of Work, Section 01000). The PERFORMING PARTY shall receive$5,280.00 for each Large(>100 EPNs)ANBI Non-Title V Major Source task completed as described in Part A,Statement of Services and in Part B, Deliverables(Scope of Work,Section 01000). The PERFORMING PARTY shall receive $5,280.00 for each ANSI Title V Major Source task completed as described in Part A, Statement of Services and in Part B, Deliverables(Scope of Work, Section 01000). The PERFORMING PARTY shall receive$990.00 for each NMNC Non-Checklisted Non-Major(other than Used Car Lot)Sources task completed as described in Part A,Statement of Services and in Part B, Deliverables(Scope of Work, Section 01000). The PERFORMING PARTY shall receive$660.00 for each NMCL Checklisted Non-Major(other than Used Car Lot) Sources task completed as described in Part A, Statement of Services and in Part B, Deliverables(Scope of Work, Section 01000). The PERFORMING PARTY shall receive $330.00 for each BD04 (REG IV)Non-Major Used Car Lot Sources task completed as described in Part A,Statement of Services and in Part B, Deliverables(Scope of Work,Section 01000). Investigations of Non-Major Sources that are subject to more than one Chapter shall be considered one investigation for payment purposes. CMPL: Complaint Response The PERFORMING PARTY shall be paid a monthly rate of$2,814.50 per month for the completion of this task as described in Part A, Statement of Services and in Part B, Deliverables (Scope of Work, Section 01000). Pre-Construction/Modification Permit Investigations: The PERFORMING PARTY shall be paid a monthly rate of $440.00 per month for the completion of the PMSI/POSI Permit Site Review and PMPR Permit Provisions Review task as described in Part A, Statement of Services and in Part B, Deliverables (Scope of Work, Section 01000). Stage IQ Vapor Recovery Program The PERFORMING PARTY shall be paid a monthly rate of$3,575.00 per month for the completion of this task as described in Part A, Statement of Services and in Part B, Deliverables (Scope of Work, Section 01000). Contract No. 582-1-88029 7 SCOPE OF WORK -SECTION 01000 A. STATEMENT OF SERVICES The PERFORMING PARTY shall perform the following tasks by the deadlines indicated below or in Part B, Deliverables. 1. Grants The PERFORMING PARTY shall complete all the Work described in this Scope of Work and fully comply with all requirements of the current Appropriations Act(Rider 7)from which it receives funds during the term of this Agreement. 2. Administrative Regulations The PERFORMING PARTY shall provide adequate recordkeeping and reporting to ensure conformance to the financial,property,and procurement regulations. Guidelines or criteria for accomplishment: Uniform Grant Management Standards. The TNRCC may update any or all of the exhibits referred to in this Agreement. The PERFORMING PARTY shall implement updated editions of any such updated exhibits within 30 days of receipt. If the PERFORMING PARTY does not agree to comply with updated editions of these documents,the PERFORMING PARTY shall have the option of turning down particular tasks as task is defined by this Scope of Work which require use of these documents. If the PERFORMING PARTY turns down all or part of a task, it will not receive any payment for that task. 2.1. Fiscal Analysis of Fixed Payment Within 30 days of receipt of the Contract Documents from the TNRCC, the PERFORMING PARTY shall submit to the TNRCC its current Fiscal Analysis Package(Form B-5). The analysis shall include the following: 2.1.1. An analysis of funding expenditures shall be submitted on Form B-5,through completion of the Table of Estimated Funding, the Budget Information Work Sheet: Sections A-E, and the Staffing List Information Work Sheet. 2.1.2. The PERFORMING PARTY must demonstrate how it will provide matching funds for its share of the State Compliance Contract funds as required by Article 3, Contract Amount, Section 3.2 of this Agreement. 2.2. Requests for Payment On a quarterly basis,the PERFORMING PARTY shall submit requests for payment to TNRCC in accordance with Article 7, Payments to Performing Party (General Conditions of the TNRCC State Funded Grant Agreement)of this Agreement. Contract No. 582-1-88029 8 2.3. Purchase of Property Items Prior to purchase,the PERFORMING PARTY shall submit notification and a justification to the TNRCC for approval to purchase property items with a unit acquisition cost of$1,000 or more. 2.4. Financial Status Report By 9/30/01,the PERFORMING PARTY shall submit a final Financial Status Report(FSR)(Form B-3)for this contract. With the final FSR,the PERFORMING PARTY shall submit a list of property purchased wholly or partially with funds from this contract and having a unit acquisition cost of$1,000 or more. The FSR shall satisfy state financial reporting requirements for this contract. The requirements of this section shall survive the termination of this Agreement. 3. Annual Performance Evaluation Within 90 days of the on-site review as described in 3.2 below,the TNRCC will submit the Annual Performance Evaluation report on the activities of the PERFORMING PARTY and its progress in meeting contract requirements. The report will include quality assurance findings and recommended solutions to any quality assurance problems noted. A copy of the report will be provided to the PERFORMING PARTY. The requirements regarding the Annual Performance Evaluation shall survive the termination of this Agreement. The Annual Performance Evaluation process shall be conducted as follows: 3.1. FY-00 Annual Performance Evaluation(encompassing 9/1/99 through 8/31/00) If the TNRCC identifies deficiencies in the air program compliance and enforcement activities upon its FY-00 Annual Performance Evaluation required by previous agreement,the PERFORMING PARTY shall,within 90 days after receipt of TNRCC comments or as recommended by the TNRCC,correct any similar deficiencies in the work performed under this contract and report to the TNRCC any deficiencies that cannot be corrected within the allocated time-frame. If the deficiencies are not corrected to the satisfaction of the TNRCC, in addition to other rights the TNRCC may have against the PERFORMING PARTY,it may result in the TNRCC withholding payment to the PERFORMING PARTY for future air program compliance and enforcement activities and/or in the PERFORMING PARTY becoming ineligible for future funding. 3.2. FY-2001 Annual Performance Evaluation(encompassing 9/1/00 through 8/31/01) 3.2.1. By 8/15/01, the TNRCC will provide an Annual Performance Evaluation Questionnaire to be completed by the PERFORMING PARTY. The response to the Questionnaire will be used as the basis for the on-site evaluation of air program compliance and enforcement activities. 3.2.2. By 9/15/01,the TNRCC will provide a schedule for the Annual Performance Evaluation. 3.2.3. By 9/15/01 or within 30 days of receipt, the PERFORMING PARTY shall provide a written response to the Annual Performance Evaluation Questionnaire to the TNRCC. 3.2.4. By 11/15/01,the TNRCC will complete the on-site evaluation of the air program compliance and enforcement activities. The on-site review will include discussion of preliminary findings and recommendations. Contract No. 582-1-88029 9 3.3. Within 30 days of receipt of the FY-2001 Annual Performance Evaluation,the PERFORMING PARTY shall provide information to the TNRCC concerning action(s)that will be taken to correct any deficiencies noted in the Annual Performance Evaluation report. This response will include a schedule to bring any deficiencies in the air program activities up to TNRCC standards and will identify resources to accomplish necessary corrections. 3.4. Within 90 days after receipt of TNRCC comments oras recommended by the TNRCC,the PERFORMING PARTY shall correct deficiencies and report to the TNRCC any deficiencies that cannot be corrected within the allocated time-frame. If the deficiencies are not corrected to the satisfaction of the TNRCC,in addition to other rights the TNRCC may have against the PERFORMING PARTY, it may result in the TNRCC withholding payment to the PERFORMING PARTY for future air program activities and/or in the PERFORMING PARTY becoming ineligible for future funding. 4. ANBI: Comprehensive Compliance Inspections(CCI) 4.1. Major Sources Program: Title V and Non-Title V A complete task under this section shall include all of the requirements listed below. In order to receive the compensation set out in the section incorporated herein as the "Bases For Calculating Payment," the PERFORMING PARTY must fulfill all of the following subsections,including investigation and enforcement, direct data entry,and training. The PERFORMING PARTY shall implement and conduct a handling program for facilities defined as"major sources" in Section 12.1.1, "Penalty Policy," of the most recent version of the "Air Program Investigator's Manual" incorporated herein as Exhibit A-1,as required by the following: 4.1.1. Investigation and Enforcement The PERFORMING PARTY shall implement and conduct a Major Source investigation and enforcement program that complies with the requirements of the Deliverables in Part B(Scope of Work,Section 01000) and the most recent version of each of the following: • "Air Program Investigator's Manual"incorporated herein as Exhibit A-1, • "Comprehensive Compliance Inspection Protocol" incorporated herein as Exhibit A-3, • "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5, • "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8, • "Field Operations Division Standard Operating Procedures" (Draft) incorporated herein as Exhibit A-9, and • "Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12. a. The TNRCC will,as soon as possible,provide the PERFORMING PARTY with an annual Work Plan for Major Sources that lists the specific Major Sources for which inspections shall be performed during the contract term and specifies whether they are categorized as Small,Medium,or Large. The PERFORMING PARTY shall inspect all Major Sources identified in the list to determine compliance with all applicable rules and regulations. The list of Major Sources may be revised upon the agreement by both parties. No additional compensation will be paid for any Major Source inspections performed which are not included on the list. Contract No. 582-1-88029 10 b. The PERFORMING PARTY shall submit a summary of its compliance findings (inspection report)to the appropriate TNRCC regional office. c. The PERFORMING PARTY shall issue a notice of violation and initiate the enforcement action required by the most recent version of the"Criteria for Initiation of Formal Enforcement Action for Air, Water,and Waste Violations"incorporated herein as Exhibit A-5,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8,the"Field Operations Division Standard Operating Procedures" (Draft) incorporated herein as Exhibit A-9, and the "Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12 on all violations detected during Major Sources inspections. d. The PERFORMING PARTY shall refer cases requiring consideration for enforcement action to the TNRCC within 60 days from the last day of the investigation in which the violation was detected. e. In cases which present or may present an imminent and substantial danger to the environment or to the health or welfare of persons, the PERFORMING PARTY may seek enforcement through municipal agencies or take enforcement action when referral to the TNRCC will result in unacceptable delay. In the event that the PERFORMING PARTY decides to enforce using this subsection,oral notice must be given immediately to the TNRCC regional office with written notice following within five days of any oral notification. f. TNRCC may update the"Air Program Investigator's Manual"incorporated herein as Exhibit A-1, the "Comprehensive Compliance Inspection Protocol" incorporated herein as Exhibit A-3, the "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, the "Field Operations Division Standard Operating Procedures" (Draft) incorporated herein as Exhibit A-9,and the"Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12. The PERFORMING PARTY shall implement updated editions of these documents within 30 days of receipt. If the PERFORMING PARTY does not agree to comply with updated editions of these documents, the PERFORMING PARTY shall have the option of turning down particular tasks as task is defined by this Scope of Work which require use of these documents. If the PERFORMING PARTY turns down all or part of a task, it will not receive any payment for that task. 4.1.2 Direct Data Entry a. The PERFORMING PARTY shall provide direct entry of all required enforcement and investigation data into the TNRCC the Point Source Data Base (PSDB) (Title V and Non-Title V data)or any successor TNRCC computer data bases,as follows: 1. The PERFORMING PARTY shall maintain the necessary license compatibility with the TNRCC. 2. The PERFORMING PARTY shall maintain the necessary equipment,personnel,and other resources (including telecommunication access and software other than PSDB or successor database);and Contract No. 582-1-88029 11 3. The PERFORMING PARTY shall perform direct data entry of all required enforcement and investigation data into TNRCC PSDB systems, which shall be an ongoing requirement throughout the term of this Contract. b. The PERFORMING PARTY shall provide data entry at the appropriate TNRCC Regional Office of all required enforcement and investigation data into the TNRCC Information Management System (IMS)(Title V data only)or any successor TNRCC computer data bases,which shall be an ongoing requirement throughout the term of this Contract. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY, an unsatisfactory rating, and/or other remedies available under the contract documents or applicable law. 4.1.3 Training a. It shall be the responsibility of the PERFORMING PARTY to ensure that its staff is adequately trained and qualified in order to perform designated tasks. b. Training and qualification for investigators must include but is not limited to: 1. Annual TNRCC Air Investigators Training;and 2. Visible Emissions Evaluator's Certification(required for investigators who will be making opacity readings using EPA Method 9). c. It shall be the responsibility of the PERFORMING PARTY to identify and obtain any safety training necessary. d. Managers or manager-appointed representatives for the PERFORMING PARTY shall attend TNRCC-sponsored Local Program Managers'Meetings in Austin,Texas,on an as-scheduled basis. 4.2 Non-Major Source Program: Non-Checklisted, Checklisted,and BD04 (REG IV)Used Car Lots A complete task under this section shall include all of the requirements listed below. In order to receive the compensation set out in the section incorporated herein as the "Bases For Calculating Payment," the PERFORMING PARTY must fulfill all of the following subsections,including investigation and enforcement, direct data entry,and training. The PERFORMING PARTY shall implement and conduct a handling program for facilities defined as Non- Major sources in Section 12.1.1,"Penalty Policy,"of the most recent version of the"Air Program Investigator's Manual" incorporated herein as Exhibit A-1,as required by the following: Contract No. 582-1-88029 12 4.2.1 Investigation and Enforcement The PERFORMING PARTY shall implement and conduct a Non-Major source investigation and enforcement program that complies with the requirements of Part B,Deliverables(Scope of Work,Section 01000)and the most recent version of each of the following: • "Air Program Investigator's Manual"incorporated herein as Exhibit A-1, • "Comprehensive Compliance Inspection Protocol" incorporated herein as Exhibit A-3, • "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5, • "Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, • "Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9, and • "Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12. a. The PERFORMING PARTY shall inspect Non-Checklisted,Checklisted,and BD04(REG IV) Used Car Lot Non-Major sources to determine compliance with all applicable rules and regulations. Inspections shall be carried out at sources in the categories designated in the written Work Plan's list of facilities provided by the PERFORMING PARTY and approved by the TNRCC,as described in "b"below. b. The PERFORMING PARTY shall,as soon as possible,submit to the TNRCC an annual Work Plan for Non-Checklisted,Checklisted,and BD04(REG IV)Used Car Lot Non-Major sources which specifies the number and type of Non-Major Source inspections to be conducted from the PERFORMING PARTY's data base in a given year and/or provide the TNRCC with a written list of facilities to be inspected. The initial Work Plan is subject to TNRCC approval. The Work Plan may be revised periodically upon agreement of both parties. No additional compensation will be paid for any Non-Major Source inspections performed beyond the number and type identified in the Work Plan. c. The PERFORMING PARTY shall submit a summary of its compliance findings (inspection report)to the appropriate TNRCC regional office. d. The parties to this agreement may provide for fewer inspections, or a smaller percentage of inspections,or inspections of different types ofNon-Major sources by mutual agreement. Any such agreement must be in writing and must be signed by the appropriate TNRCC Project Field Representative and the Director ofthe City ofFort Worth Department of Environmental Management. e. The PERFORMING PARTY shall issue a notice of violation and initiate the enforcement action required by the most recent version of the"Criteria for Initiation of Formal Enforcement Action for Air,Water,and Waste Violations" incorporated herein as Exhibit A-5,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8,the"Field Operations Division Standard Operating Procedures" (Draft) incorporated herein as Exhibit A-9, and the "Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12 on all violations detected during Non- Major Sources inspections. f. The PERFORMING PARTY shall refer cases requiring consideration of enforcement action to the TNRCC within 60 days from the last day of the investigation in which the violation was detected. Contract No. 582-1-88029 13 g. In cases which present or may present an imminent and substantial danger to the environment or to the health or welfare of persons, the PERFORMING PARTY may seek enforcement through municipal agencies or take enforcement action when referral to the TNRCC will result in unacceptable delay. In the event that the PERFORMING PARTY decides to enforce using this subsection,oral notice must be given immediately to the TNRCC regional office with written notice following within five days of any oral notification. h. TNRCC may update the"Air Program Investigator's Manual"incorporated herein as Exhibit A-1, the "Comprehensive Compliance Inspection Protocol" incorporated herein as Exhibit A-3, the "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, the "Field Operations Division Standard Operating Procedures" (Draft ) incorporated herein as Exhibit A-9,and the"Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12. The PERFORMING PARTY shall implement updated editions of these documents within 30 days of receipt. If the PERFORMING PARTY does not agree to comply with updated editions of these documents, the PERFORMING PARTY shall have the option of turning down particular tasks as task is defined by this Scope of Work which require use of these documents. If the PERFORMING PARTY turns down all or part of a task, it will not receive any payment for that task. 4.2.2 Direct Data Entry For a specific description of this sub-task please refer to 4.1.2 (a), (b), and (c)of this Scope of Work. 4.2.3 Training For a specific description of this sub-task please refer to 4.1.3 (a),(b),(c), and(d)of this Scope of Work. 5. Complaints Response A complete task under this section shall include all of the requirements listed below. In order to receive the compensation set out in the section incorporated herein as the "Bases For Calculating Payment," the PERFORMING PARTY must fulfill all of the following subsections, including complaint handling, investigation and enforcement, direct data entry, and training. 5.1 Investigation and Enforcement The PERFORMING PARTY shall implement and conduct a complaint handling system for sources as required by the Deliverables in Part B(Scope of Work, Section 01000)and the following: 5.1.1 The PERFORMING PARTY shall respond to all citizen air pollution complaints within its jurisdiction received or referred to it as expeditiously as possible. Complaint response and documentation shall conform with procedures described in the most recent version of each of the following: • "Air Program Investigator's Manual" incorporated herein as Exhibit A-1, • "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5, Contract No. 582-1-88029 14 . S • "Guidance Manual for Field Operations Division Investigation of Complaints"(Draft) incorporated herein as Exhibit A-7, • "Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, • "Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9, and • "Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12. The documentation shall specifically contain information relative to the nature of the complaint and, if possible,corrective action taken. If a TNRCC complaint number is assigned,it shall be noted on the report_ Any investigation performed which is not required by the Exhibits listed in this section or policy shall be considered outside the scope of this contract,but if a violation is detected,it may be referred to TNRCC for consideration of enforcement action,where appropriate. 5.1.2 The PERFORMING PARTY shall protect from disclosure information regarding the identity of a complainant to the extent allowed by the Texas Public Information Act,GOVT.CODE Chapter 552. (See also Exhibit A-2, Attorney General of Texas Open Records Decision No. 391 (1983)). In the event that information which tends to identify a complainant is requested pursuant to the Texas Open Records Act, PERFORMING PARTY shall seek to protect that information through a request for opinion of the Attorney General's Office. The PERFORMING PARTY shall also maintain an information file about each complaint filed with the PERFORMING PARTY. 5.1.3 In accordance with Section 5.177 of the Water Code,the PERFORMING PARTY shall provide to complainants a quarterly status report for any unresolved written complaint received from within its jurisdiction. 5.1.4 The PERFORMING PARTY shall immediately coordinate with the appropriate TNRCC regional office and, as necessary, the Office of Compliance& Enforcement, Enforcement Division, on action to respond to any complaints that are substantial in terms of concentration, duration, or potential health impacts. 5.1.5 The PERFORMING PARTY shall issue a notice of violation and initiate the enforcement action on all cases of nuisance, confirmed complaints, or any other violations of state air pollution laws or rules detected during a complaint investigation,as required in the most recent version of each of the following: • "Air Program Investigator's Manual" incorporated herein as Exhibit A-1, • "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5, • "Guidance Manual for Field Operations Division Investigation of Complaints' (Draft) incorporated herein as Exhibit A-7, • "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8, • "Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as ExhibitA-9, and • "Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12. 5.1.6 The PERFORMING PARTY shall refer cases requiring consideration of enforcement action to the TNRCC within 60 days from the last day of the investigation in which the violation was detected. Contract No. 582-1-88029 15 5.1.7 In cases which present or may present an imminent and substantial danger to the environment or to the health or welfare of persons, the PERFORMING PARTY may seek enforcement through municipal agencies or take enforcement action when referral to the TNRCC will result in unacceptable delay. In the event that the PERFORMING PARTY decides to enforce using this subsection,oral notice must be given immediately to the TNRCC regional office with written notice following within five days of any oral notification. 5.1.8 TNRCC may update the"Air Program Investigator's Manual"incorporated herein as Exhibit A-1,the "Criteria for Initiation of Formal Enforcement Action for Air,Water,and Waste Violations" incorporated herein.as Exhibit A-5, the"Guidance Manual for Field Operations Division Investigation of Complaints" (Draft)incorporated herein as Exhibit A-7,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8,the"Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9,and the"Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12. The PERFORMING PARTY shall implement updated editions of these documents within 30 days of receipt. If the PERFORMING PARTY does not agree to comply with updated editions of these documents, the PERFORMING PARTY shall have the option of turning down particular tasks as task is defined by this Scope of Work which require use of these documents. If the PERFORMING PARTY turns down all or part of a task, it will not receive any payment for that task. 5.1.9 The PERFORMING PARTY shall make available to the TNRCC,upon request,information regarding the investigation and handling of complaints. Available information shall include the number of citizen air pollution complaints investigated by the PERFORMING PARTY each month. 5.2 Direct Data Entry The PERFORMING PARTY shall provide direct entry of all required complaint, enforcement and investigation data into the TNRCC Point Source Data Base (PSDB), TNRCC Complaint Handling Data System(CHDS), or any successor TNRCC computer data bases as follows: 5.2.1 The PERFORMING PARTY shall maintain the necessary license compatibility with the TNRCC. 5.2.2 The PERFORMING PARTY shall maintain the necessary equipment,personnel,and other resources (including telecommunication access and software other than the PSDB,CHDS,or successor database);and 5.2.3 The PERFORMING PARTY shall perform direct data entry of all required enforcement and investigation data into the TNRCC PSDB and CHDS systems, which shall be an ongoing requirement throughout the term of this Contract. 5.2.4 The PERFORMING PARTY shall record all required complaint information on the appropriate PSDB and CHDS forms and complete data entry of the complaint information within five (5) business days following the completion of the PSDB documentation. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY,an unsatisfactory rating,and/or other remedies available under the contract documents or applicable law. Contract No. 582-1-88029 16 5.3 Training For a specific description of this sub-task please refer to 4.1.3 a, b, c, and d of this Scope of Work. Additionally,Complaint Coordinator Training,when provided by the TNRCC,is required for appropriate staff and a manager,as changes may affect handling procedures. 6. Pre-Construction/Modification Permit Investigations A complete task under this section shall include all of the requirements listed below. In order to receive the compensation set out in the section incorporated herein as the "Bases For Calculating Payment," the PERFORMING PARTY must fulfill all of the following subsections, including investigation and enforcement, direct data entry,documentation,and training. The PERFORMING PARTY shall implement and conduct a handling program for Permit Site Reviews and Permit Provision Reviews as defined in Section 6,Regional Permit Related Issues,of the most recent version of the"Air Program Investigator's Manual" incorporated herein as Exhibit A-1, and the most recent version of the "Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9,as required by the following: 6.1 Permit Site Reviews and Permit Provision Reviews The PERFORMING PARTY shall implement and conduct a Permit Site Reviews and Permit Provision Reviews program that complies with the requirements of the Deliverables in Part B(Scope of Work,Section 01000),the most recent version of the"Air Program Investigator's Manual"incorporated herein as Exhibit A-1,and the most recent version of the"Field Operations Division Standard Operating Procedures"(Draft) incorporated herein as Exhibit A-9: 6.1.1 The PERFORMING PARTY shall respond within the required time frames to all requests for Permit Site Reviews and Permit Provision Reviews within its jurisdiction referred to it by TNRCC. Permit Site Reviews and Permit Provision Reviews shall conform with procedures and documentation described in the most recent version of each of the following: • Section 6,Regional Permit Related Issues,of the "Air Program Investigator's Manual" incorporated herein as Exhibit A-1, • "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5, • "Enforcement Standard Operating Procedures"and associated appendices incorporated herein as Exhibit A-8, • "Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9, and • "Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12. 6.1.2. The PERFORMING PARTY shall issue a notice of violation and initiate the enforcement action on all violations detected during Permit Site Reviews and Permit Provisions Reviews, as required by the most recent version of the"Criteria for Initiation of Formal Enforcement Action for Air,Water,and Waste Violations" incorporated herein as Exhibit A-5, the "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8,the"Field Operations Division Standard Operating Procedures"(Draft) Contract No. 582-1-88029 17 incorporated herein as Exhibit A-9,the"Upset Maintenance Investigation Protocol"incorporated herein as Exhibit A-10, and the"Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12. 6.1.3. The PERFORMING PARTY shall refer cases requiring consideration for enforcement action to the TNRCC within 60 days from the last day of the investigation in which the violation was detected. 6.1.4. In cases which present or may present an imminent and substantial danger to the environment or to the health or welfare of persons,the PERFORMING PARTY may seek enforcement through municipal agencies or take enforcement action when referral to the TNRCC will result in unacceptable delay. In the event that the PERFORMING PARTY decides to enforce using this subsection, oral notice must be given immediately to the TNRCC regional office with written notice following within five days of any oral notification. 6.1.5 TNRCC may update the Section 6,Regional Permit Related Issues,of the most recent version of the "Air Program Investigator's Manual"incorporated herein as Exhibit A-1,"Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations" incorporated herein as Exhibit A-5, "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8,the"Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9,and the"Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12. The PERFORMING PARTY shall implement updated editions of these documents within 30 days of receipt. If the PERFORMING PARTY does not agree to comply with updated editions of these documents, the PERFORMING PARTY shall have the option of turning down particular tasks as task is defined by this Scope of Work which require use of these documents. If the PERFORMING PARTY turns down all or part of a task, it will not receive any payment for that task. 6.2 Direct Data Entry For a specific description of this sub-task please refer to 4.1.2 (a),(b), and(c)of this Scope of Work. 6.3 Training For a specific description of this sub-task please refer to 4.1.3 (a),(b), (c), and d of this Scope of Work. 7. Stage II Vapor Recovery Program A complete task under this section shall include all of the requirements listed below. In order to receive the compensation set out in the section incorporated herein as the "Bases For Calculating Payment," the PERFORMING PARTY must fulfill all of the following subsections,including complaint handling, investigation and enforcement, performance tracking,and training. The PERFORMING PARTY shall implement and conduct a Stage II Vapor Recovery Program as required by the following: Contract No. 582-1-88029 18 7.1 Investigation and Enforcement The PERFORMING PARTY shall implement and conduct a Stage II Vapor Recovery investigation and enforcement program that complies with the requirements of the Deliverables in Part B(Scope of Work,Section 01000),and the most recent version of each of the following: • "Stage II Vapor Recovery Policy and Procedure Manual" incorporated herein as Exhibit A-4, • "Criteria for Initiation of Formal Enforcement Action for Air,Water,and Waste Violations"incorporated herein as Exhibit A-5, • "Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, • "Field Operations Division Standard Operating Procedures"(Draft)incorporated herein as Exhibit A-9, • "Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12, and • Chapter 9: Stage II Vapor Recovery Inspections (in the "Petroleum Storage Tank Inspection Manual") incorporated herein as Exhibit A-13. The Stage II Vapor Recovery investigation and enforcement program includes investigation and enforcement with respect to Stage I vapor recovery equipment at motor vehicle fuel dispensing facilities where Stage II vapor recovery equipment is required. All documented violations regarding facility-based Stage I equipment, at facilities where Stage II is required, shall be reported and tracked in accordance with Stage II procedures and policies. The following goals and procedures are to be accomplished and coordinated through the appropriate TNRCC Regional Director or his or her designee. 7.1.1 The PERFORMING PARTY shall submit a Work Plan to TNRCC identifying those motor vehicle fuel dispensing facilities within the PERFORMING PARTY'S territorial jurisdiction where Stage II vapor recovery equipment is required pursuant to the TNRCC rules(30 TAC§§115.221- 115.229 and§§115.241- 115.249). 7.1.2 The PERFORMING PARTY shall conduct at least one inspection annually at each motor vehicle fuel dispensing facility in its territorial jurisdiction where Stage II vapor recovery equipment is known to be required(hereinafter referred to as "Stage II facility"). a. The PERFORMING PARTY'S compliance with this provision for a particular calendar month shall be determined on the basis of the total number of Stage II facilities known to the TNRCC on the first day of that calendar month. During any calendar month,if the PERFORMING PARTY inspects at least one-twelfth(1/12)of the number of Stage 11 facilities known to the TNRCC on the first day of the calendar month, the PERFORMING PARTY shall be deemed to have complied with this provision for that calendar month. If the PERFORMING PARTY complies with this provision for the twelve calendar months between September 2000 and August 2001,the PERFORMING PARTY shall be deemed to have complied with this provision for the period of this Agreement. Excess inspections performed during any calendar month may be credited toward the inspection requirements for another preceding or succeeding calendar month. 7.1.3 The PERFORMING PARTY shall submit a summary of its compliance findings(inspection report, associated letters,and site documentation forms)to the Waste Section Manager of the appropriate TNRCC regional office. The summary shall conform with the requirements specified in the most recent version of the"Stage II Vapor Recovery Policy and Procedure Manual,"incorporated herein as Exhibit A-4,the"Field Operations Standard Operating Procedures,"incorporated herein as Exhibit A-9,and Chapter 9:Stage II Vapor Recovery Inspections(in the"Petroleum Storage Tank Inspection Manual")incorporated herein as Exhibit A-13. Contract No. 582-1-88029 19 7.1.4 The PERFORMING PARTY shall issue a notice of violation and initiate enforcement action on all violations detected during Stage II investigations, as required by the most recent version of the "Stage II Vapor Recovery Policy and Procedure Manual' incorporated herein as Exhibit A-4, the "Criteriafor the Initiation of Formal Enforcement Action For Air, Water, And Waste Violations" incorporated herein as Exhibit A-5, the "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8, the "Field Operations Standard Operating Procedures"incorporated herein as Exhibit A-9,the"Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12,and Chapter 9:Stage II Vapor Recovery Inspections(in the"Petroleum Storage Tank Inspection Manual') incorporated herein as Exhibit A-13. 7.1.5 The PERFORMING PARTY shall refer cases requiring consideration of enforcement action to the Waste Section Manager of the appropriate TNRCC regional office as required by the most recent version of the "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations," incorporated herein as Exhibit A-5,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, and the"Enforcement Action Referral Instructions" incorporated herein as Exhibit A-12. 7.1.6 TNRCC may update the"Stage II Vapor Recovery Policy and Procedure Manual'incorporated herein as Exhibit A-4, the "Criteria for Initiation of Formal Enforcement Action for Air, Water, and Waste Violations,"incorporated herein as Exhibit A-5,the"Guidance Manual For Field Operations Investigation of Complaints," incorporated herein as Exhibit A-7, the "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8,the"Field Operations Division Standard Operating Procedures,"(Draft) incorporated herein as Exhibit A-9,the"Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12, and Chapter 9: Stage II Vapor Recovery Inspections (in the "Petroleum Storage Tank Inspection Manual') incorporated herein as Exhibit A-13. The PERFORMING PARTY shall implement updated editions of these documents within 30 days of receipt. If the PERFORMING PARTY does not agree to comply with updated editions of these documents, the PERFORMING PARTY shall have the option of turning down particular tasks as task is defined by this Scope of Work which require use of these documents. If the PERFORMING PARTY turns down all or part of a task, it will not receive any payment for that task. 7.2 Complaints The PERFORMING PARTY shall implement and conduct a complaint handling system for Stage II sources as required by Part B, Deliverables(Scope of Work, Section 01000)and the following: 7.2.1 The PERFORMING PARTY shall respond to all citizen Stage II complaints within its jurisdiction received or referred to it as expeditiously as possible. Complaint inspections shall follow the current TNRCC complaint response and documentation procedures described in the most recent version of the "Stage II Vapor Recovery Policy and Procedure Manual"incorporated herein as Exhibit A-4,the"Guidance Manual for Field Operations Investigation of Complaints," incorporated herein as Exhibit A-7, the "Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8,the"Field Operations Standard Operating Procedures" incorporated herein as Exhibit A-9, and Chapter 9: Stage II Vapor Recovery Inspections(in the"Petroleum Storage Tank Inspection Manual')incorporated herein as Exhibit A-13. Contract No. 582-1-880029 20 8 The PERFORMING PARTY shall submit reports which shall specifically contain information relative to the nature of the complaint and, if possible, corrective action taken. If a TNRCC complaint number is assigned,it shall be noted on the report. Any investigation performed which is not required by the TNRCC guidelines or policy shall be considered outside the scope of this Agreement,but if a violation is detected, it may be referred to TNRCC for consideration of enforcement action,where appropriate. 7.2.2 The PERFORMING PARTY shall protect from disclosure information regarding the identity of a complainant to the extent allowed by the Texas Public Information Act,GOVT.CODE Chapter 552.(See also Exhibit A-2, Attorney General of Texas Open Records Decision No. 391 (1983)). In the event that information which tends to identify a complainant is requested pursuant to the Texas Open Records Act, PERFORMING PARTY shall seek to protect that information through a request for opinion of the Attorney General's Office. The PERFORMING PARTY shall also maintain an information file about each complaint filed with the PERFORMING PARTY. 7.2.3 In accordance with Section 5.177 of the Water Code,the PERFORMING PARTY will provide to complainants a quarterly status report for any unresolved written complaint received from within its jurisdiction. 7.2.4 The PERFORMING PARTY shall immediately coordinate with the appropriate TNRCC regional office and, as necessary, the Office of Compliance & Enforcement, Enforcement Division, on action to respond to any complaints that are substantial in terms of concentration, duration, or potential health impacts. 7.2.5 The PERFORMING PARTY shall issue a notice of violation and initiate enforcement action on all cases of violations of Stage II laws or rules detected during a complaint investigation, as required by the most recent version of the"Stage II Vapor Recovery Policy and Procedure Manual"incorporated herein as Exhibit A-4,the"Guidance Manual For Field Operations Investigation of Complaints"incorporated herein as Exhibit A-7,the"Enforcement Standard Operating Procedures"incorporated herein as Exhibit A-8, the "Field Operations Standard Operating Procedures," incorporated herein as Exhibit A-9, and Chapter 9: Stage II Vapor Recovery Inspections(in the"Petroleum Storage Tank Inspection Manual") incorporated herein as Exhibit A-13. 7.2.6 The PERFORMING PARTY shall refer cases requiring consideration of enforcement action to the Waste Section Manager of the appropriate TNRCC regional office as required by the most recent version of the"Stage II Vapor Recovery Policy and Procedure Manual," incorporated herein as Exhibit A-4,the "Criteria for Initiation of Formal Enforcement Action for Air,Water,and Waste Violations"incorporated herein as Exhibit A-5,the "Enforcement Standard Operating Procedures" incorporated herein as Exhibit A-8,the"Enforcement Action Referral Instructions"incorporated herein as Exhibit A-12,and Chapter 9: Stage 11 Vapor Recovery Inspections(in the"Petroleum Storage Tank Inspection Manual") incorporated herein as Exhibit A-13. 7.2.7 The PERFORMING PARTY shall make available to the TNRCC,upon request,information regarding the investigation and handling of complaints. Available information shall include the number of citizen Stage 11 complaints investigated by the PERFORMING PARTY each month. Contract No. 582-1-88029 21 7.3 Performance Tracking The PERFORMING PARTY shall provide direct entry of all required inspection and violation data into the PST/Stage II Database,or any successor TNRCC Field Operations Division PST/Stage II computer data bases according to the most recent version of the"PST/Stage II Database Guidance,"incorporated herein as Exhibit A-6,as follows: 7.3.1 Direct Data Entry The PERFORMING PARTY shall provide direct entry of all required inspection and violation data related to each complaint investigation that results in the issuance of verbal or written violations and to each Stage II facility inspection or investigation into the PST/Stage II Database, or any successor TNRCC Field Operations Division PST/Stage II computer data bases as follows: a. The PERFORMING PARTY shall use Paradox 8.0 or 9.0 software to maintain the performance tracking system; b. The PERFORMING PARTY shall enter all inspection and violation data into the PST/Stage II Database system according to the most recent version of the "PST/Stage II Database Guidance," incorporated herein as Exhibit A-6, print a copy of the form, attach a copy of the form to the inspection report, and submit the report to the appropriate Field Operations Regional Office; and c. The PERFORMING PARTY shall submit the PST/Stage II Database information via E-mail,on or before the third working day of each month. The data shall be submitted via E-mail to the TNRCC Field Operations Division Central Office Data Management Work Leader at the E-mail address: ibarbee(a,tnrcc.state.tx.us. A copy of this information shall be submitted via E-mail to the appropriate Regional Office Local Program Liaison. 7.3.2 The PERFORMING PARTY shall maintain the necessary equipment,personnel,and other resources needed to complete the terms of this contract(including telecommunication access and software other than the PST/Stage II Database or successor database); and 7.3.3 The PERFORMING PARTY shall perform direct data entry of all required inspection and violation data into the TNRCC PST/Stage II Database system,which shall be an ongoing requirement throughout the term of this Contract. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY,an unsatisfactory rating,and/or other remedies available under the contract documents or applicable law. Contract No. 582-1-88029 22 7.4 Training 7.4.1 The PERFORMING PARTY shall ensure that its personnel are adequately trained arid qualified to properly and completely perform designated tasks. 7.4.2 Training and qualification for investigators must include but is not limited to: a. TNRCC-sponsored Stage II Vapor Recovery Annual Training on an as-scheduled basis. 7.4.3 It shall be the responsibility of the PERFORMING PARTY to identify and obtain any safety training necessary. 7.4.4 Managers or manager-appointed representatives for the PERFORMING PARTY shall attend TNRCC- sponsored Local Program Managers' Meeting in Austin,Texas,on an as-scheduled basis. Contract No. 582-1-88029 23 B. DELIVERABLES The PERFORMING PARTY shall provide the appropriate TNRCC regional office with a report on its accomplishment of each of the tasks included in Part A,Statement of Services,of this Agreement. PERFORMING PARTY shall provide this report within 30 calendar days after the end of each calendar month of the state fiscal year for which this Agreement is in effect. The PERFORMING PARTY shall implement and maintain internal quality control procedures to ensure completeness and accuracy of all Deliverables. The reports shall provide the following information on Tasks listed in Part A: 1. Grants No associated deliverable. 2. Administrative Regulations a. Within 30 days of receipt of the Contract Documents from the TNRCC,the PERFORMING PARTY shall submit to the TNRCC its current Fiscal Analysis Package(Form B-5), as prescribed under section 2.1 in Part A, Statement of Services,of this Agreement. b. By 9/30/01,the PERFORMING PARTY shall submit a final Financial Status Report(FSR)(Form B-3)for this contract, as prescribed under section 2.4 in Part A, Statement of Services of this Agreement. c. A copy of the annual independent financial audit required by the Uniform Grant Management Standards shall be provided by the PERFORMING PARTY to the TNRCC Contract Manager. 3. Annual Performance Evaluation The requirements regarding the Annual Performance Evaluation shall survive the termination of this agreement. a. By 9/15/00,or 30 days after receipt,whichever is later,the PERFORMING PARTY shall provide a written response to the FY-00 Annual Performance Evaluation Questionnaire to the TNRCC,as prescribed under section 3.2 in Part A, Statement of Services, of this Agreement. b. The PERFORMING PARTY and the TNRCC must conduct at least two joint overview investigations during the review period,rotating through sources in a manner that insures that all sources are investigated. c. Within 30 days of receipt of the FY-00 Annual Performance Evaluation,the PERFORMING PARTY shall provide to the TNRCC information concerning action(s)that will be taken to correct any deficiencies noted in the Annual Performance Evaluation report, as prescribed under sections 3.3 and 3.4 in Part A, Statement of Services,of this Agreement. Contract No. 582-1-88029 24 0 4. ANBI: Comprehensive Compliance Inspections(CCI) 4.1 Major Sources: Title V and Non-Title V A section of the monthly report shall include,at a minimum,the following information regarding Major Sources investigated for the month covered by the report and cumulative for the fiscal year: a. A summary of progress against the Work Plan specifying the number,type,and size(Small,Medium., or Large)of Major Source inspections conducted; b. A revised description of the Work Plan to inspect Major Sources whenever any changes occur to the initially submitted document; c. A list and number of NOVs,rules violated,type enforcement action initiated,and resolution of those NOVs and enforcement actions issued and initiated as result of the inspections of Major Sources;and d. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY, an unsatisfactory rating, and/or other remedies available under the contract documents or applicable law. 4.2 Non-Major Sources:Non-Checklisted,Checklisted,and BD04(REG IV)Used Car Lots A section of the monthly report shall include,at a minimum,the following information regarding Non-Major sources investigated for the month covered by the report and cumulative for the fiscal year: a. A summary of progress against the Work Plan specifying the number and type of Non-Major source inspections conducted; b. A revised description of the Work Plan to inspect Non-Major sources whenever any changes occur to the initially submitted document; c. A list and number of NOVs,rules violated,type enforcement action initiated,and resolution of those NOVs and enforcement actions issued and initiated as result of the inspections of Non-Major sources;and d. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY, an unsatisfactory rating, and/or other remedies available under the contract documents or applicable law. Contract No. 582-1-88029 25 5. Complaints Response A section of the monthly report shall include, at a minimum,the following information regarding complaints investigated for the month covered by the report and cumulative for the fiscal year: a. A list and number of complaints responses conducted; b. A list and number of NOVs,rules violated,type enforcement action initiated, and resolution of those NOVs and enforcement actions issued and initiated as result of the investigations of complaints; and c. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction ofthe TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY, an unsatisfactory rating, and/or other remedies available under the contract documents or applicable law. 6. Pre-Construction/Modification Permit Investigations A section of the monthly report shall include,at a minimum,the following information regarding the Permit Site Reviews and Permit Provision Reviews conducted for the month covered by the report and cumulative for the fiscal year: a. A list and number of Permit Site Reviews and Permit Provision Reviews performed; b. A list and number of NOVs,rules violated,type enforcement action initiated, and resolution of those NOVs and enforcement actions issued and initiated as a result of the Permit Site Reviews and Permit Provision Reviews conducted; c. An explanation for any referred Permit Site Reviews and Permit Provision Reviews which do not conform with procedures and documentation prescribed under Section 6.1 in Part A,Statement of Services, and particularly those cases where the PERFORMING PARTY did not respond within the required time frame; and d. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC,it may result in the TNRCC withholding payment to the PERFORMING PARTY, an unsatisfactory rating, and/or other remedies available under the contract documents or applicable law. 7. Stage II Vapor Recovery Program The PERFORMING PARTY shall submit a separate monthly activity summary report on the Stage II vapor recovery inspection program to the Waste Section Manager of the appropriate TNRCC regional office no later Contract No. 582-1-88029 26 e e than thirty(30)days after the end of the calendar month covered by the report. This report shall be submitted in both hard copy format and via E-mail. The PERFORMING PARTY shall use Paradox 8.0 or 9.0 software to maintain the required computer file. The PERFORMING PARTY shall submit the PST/Stage II Database information via E-mail,on or before the third working day of each month. The data shall be submitted via E- mail to the TNRCC Field Operations Division Central Office Data Management Work Leader at the E-mail address: ibarbeeQtnrcc.state.tx.us. A copy of this information shall be submitted via E-mail to the appropriate Regional Office Local Program Liaison.At a minimum,the monthly Stage II activity report shall include the following information and data: a. A brief narrative report describingthe PERFORMING PARTY'S Work Plan and activities for the following: 1. Identifying additional motor vehicle fuel dispensing facilities within the PERFORMING PARTY'S territorial jurisdiction where Stage II vapor recovery equipment is required,as prescribed under section 7.1.1 in Part A, Statement of Services,of this Agreement. 2. Conducting annual inspections at all known motor vehicle fuel dispensing facilities within the PERFORMING PARTY'S territorial jurisdiction where Stage II vapor recovery equipment is required,as prescribed under section 7.1.2 in Part A, Statement of Services,of this Agreement. 3. Identifying complaint responses conducted,as prescribed under section 7.2.1 in Part A, Statement of Services,of this Agreement. b. Lists or tables showing those Stage II facilities within the PERFORMING PARTY'S territorial jurisdiction as follows: 1. Stage II facilities which were newly identified by the PERFORMING PARTY during the calendar month covered by the report(pursuant to section 7.1.1 in Part A,Statement of Services),including the total number identified during the calendar month and the cumulative number identified since September 1,2000; 2. Stage II facilities which were inspected or investigated by the PERFORMING PARTY during the calendar month covered by the report(pursuant to section 7.1.2 in Part A,Statement of Services),including the total number inspected and investigated during the calendar month,the types of inspections conducted (e.g., initial inspections,follow-up inspections,record reviews,and so forth),and the cumulative number inspected and investigated since September 1,2000. 3. Complaint responses conducted during the calendar month covered by the report(pursuant to section 7.2.1 in Part A,Statement of Services),including the total number identified during the calendar month and the cumulative number identified since September 1,2000. The lists or tables prescribed above in(b)(1), (b)(2),and(b)(3)of this section shall include,at a minimum, information and data as prescribed under section 7.3 in Part A, Statement of Services,of this Agreement. c. The PERFORMING PARTY shall enter all inspection and violation information into the PST/Stage II Database,print a copy of the form,attach a copy of the form to the inspection report,and submit the report to the appropriate Field Operations Regional Office. Contract No. 582-1-88029 27 d. The quality and/or timeliness of the data and data submittal report will be a factor in the PERFORMING PARTY's Annual Performance Evaluation. Any deficiency related to the quality and/or timeliness of the data and data submittal report will be documented and reported by the TNRCC to the PERFORMING PARTY. If the deficiencies are not corrected to the satisfaction of the TNRCC, it may result in the TNRCC withholding payment to the PERFORMING PARTY, an unsatisfactory rating, and/or other remedies available under the contract documents or applicable law. END OF SCOPE OF WORK -SECTION 01000 Contract No. 582-1-88029 28 GENERAL CONDITIONS OF THE TNRCC STATE FUNDED GRANT AGREEMENT ARTICLE 1. DEFINITIONS Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof: I.I. Accrued expenditures-means the charges incurred by the PERFORMING PARTY during a given period requiring the provision of funds for: (1)Goods and other tangible property received; (2) services performed by employees, and(3)other amounts becoming owed under programs for which no current services or performance is required, such as annuities, insurance claims, and other benefit payments. 1.2. Accrued income - means the sum of: (1) Earnings during a given period from services performed by the PERFORMING PARTY and goods and other tangible property deliverable to purchasers, and (2) amounts becoming owed to the PERFORMING PARTY for which no current services or performance is required by the PERFORMING PARTY. 1.3. Acquisition cost - of an item of purchased equipment means the net invoice unit price of the property including the cost of modifications,attachments,accessories,or auxiliary apparatus necessaryto make that property usable for the purpose for which it was acquired.Other charges such as the cost of installation,transportation,taxes, duty or protective in-transit insurance, shall be included or excluded from the unit acquisition cost in accordance with the PERFORMING PARTY's regular accounting practices. 1.4. Addenda-written or graphic instruments issued prior to the execution of the Contract which clarify,correct or change the Proposal Requirements or the Contract Documents. 1.5. Administrative requirements - mean those matters common to grants in general, such as financial management, kinds and frequency of reports, and retention of records. These are distinguished from "programmatic"requirements,which concern matters that can be treated only on a program-by-program or grant- by-grant basis, such as kinds of activities that can be supported by grants under a particular program. 1.6. Agreement-refers to the"TNRCC Form: State Funded Grant Agreement"which contains the salient terms of the contract between TNRCC and the PERFORMING PARTY and covers the Work to be performed; also includes any additional Contract Documents which may be attached to the Agreement and made a part thereof as provided therein. 1.7. Awarding agency-means the TNRCC. 1.8. Bonds-Bid,Performance and Payment bonds and other instruments of security. 1.9. Cash contributions - means the PERFORMING PARTY's cash outlay, including the outlay of money contributed to the PERFORMING PARTY or subgrantee by other public agencies and institutions, and private legislation,federal funds received from other assistance Agreement may be considered as PERFORMING PARTY or subgrantee cash contributions. Contract No. 582-1-88029 29 1.10. Common rule - means the Uniform Grant Management Standards which were promulgated by the Texas Governor's Office of Budget and Planning pursuant to the Uniform Grant Conditions and Management Act,Tex. Govt.Code Chapter 783. 1.11. Contract-means (except as used in the definitions for"grant"and"subgrant"in this section and except where qualified by "federal") a procurement contract under a grant or subgrant, and means a procurement subcontract under a contract. 1.12. Contract Documents-as set forth in the Agreement. 1.13. Contract Price-the moneys payable by TNRCC to PERFORMING PARTY for completion of the Work in accordance with the Contract Documents as stated in the Agreement(subject to the provisions of these General Conditions). 1.14. Contract Times -the number of days or dates stated in the Agreement to complete the Work so that it is ready for final payment. 1.15. Cost sharing or matching- means the value of the third party in-kind contributions and the portion of the costs of a State assisted project or program not borne by the State. 1.16. Cost-type contract-means a'contract or subcontract under a grant in which the PERFORMING PARTY or subcontractor is paid on the basis of the costs it incurs,with or without a fee. 1.17. defective-an adjective which when modifying the word Work refers to Work that is unsatisfactory,faulty or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection,reference standard,test on approval referred to in the Contract Documents,or has been damaged prior to final payment. 1.18. Effective Date of the Agreement -the date indicated in the Agreement on which it becomes effective,but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 1.19. Equipment- means tangible,nonexpendable,personal property having a useful life of more than one year and an acquisition cost of$1,000 or more per unit. A PERFORMING PARTY may use its own definition of equipment provided that such definition would at least include all equipment defined above. "Equipment" definition pertaining to acquisition cost of$1,000 or more per unit as modified to subject state funds to the state definition or minimum cost for capitalized equipment. A state awarding agency will advise a PERFORMING PARTY of the rules for capitalizing equipment purchased from state funds and ultimate disposition thereof. 1.20. Expenditure report - means(1)For nonconstruction grants the"Financial Status Report"(Form B-5)(or other equivalent report);(2)for construction grants,the SF-271 "Outlay Report and Request for Reimbursement" (or other equivalent report). 1.21. Final Completion-the Work is completed in the judgment of TNRCC. Contract No. 582-1-88029 30 1.22. General Conditions-refers to the"General Conditions of the TNRCC State Funded Grant Agreement." 1.23. Government- means a State agency or local government. 1.24. Grant- means an award of financial assistance, including cooperative Agreement, in the form of money, or property in lieu of money, by the State to an eligible PERFORMING PARTY. The term does not include technical assistance which provides services instead of money,or other assistance in the form of revenue sharing, loans, loan guarantees, interest subsidies, insurance, or direct appropriations. Also, the term does not include assistance, such as a fellowship or other lump sum award,which the PERFORMING PARTY is not required to account for. 1.25. Grantee- means the government to which a grant is awarded and which is accountable for the use of the funds provided. The grantee is the entire legal entity even if only a particular component of the entity is designated in the grant award document. Also means the PERFORMING PARTY. 1.26. HUB- Historically Underutilized Business as defined by Texas law. The State Purchasing and General Services Act, amended September 1, 1995, defines a historically underutilized business as a corporation or a partnership in which fifty-one percent(51%)or more of the corporation's stock(or other equitable securities)or partnership's assets and interest are owned by one or more economically disadvantaged persons, who have a proportionate interest and actively participate in the corporation or partnership control,operation,and management. If the business is a sole proprietorship,the economically disadvantaged person must completely own,operate and control the business. Economically disadvantaged person includes members of certain groups including American Women,Asian Pacific Americans, Black Americans, Hispanic Americans, and Native Americans. 1.27. Intellectual Property - 1) any and all inventions, discoveries, improvements, or creations for which copyright,trade secret, patent or other proprietary rights may be acquired, 2) any photographs, graphic designs, plans,drawings, specifications, computer programs, computer files,documentation,technical reports, operating manuals,or other copyrightable materials,and 3)any otherwork fixed in any tangible medium of expression which can be perceived, reproduced, or otherwise communicated for which copyright, trade secret, patent or other proprietary rights may be acquired. 1.28. Intellectual Property Rights-patent,trademarks,trade secret rights,confidential information rights or any other proprietary rights to which a person may be entitled or may actually possess. Intellectual Property Rights include all rights of ownership and original authorship throughout the world. 1.29. Laws and Regulations; Laws or Regulations- any and all applicable laws, rules, regulations,ordinances, codes and orders of any and all governmental bodies, agencies,authorities and courts having jurisdiction. 1.30. Liens- liens,charges, security interests or encumbrances upon real property or personal property. 1.31. Local government- means a county,municipality,city,town,township, local public authority(including public and Indian housing agencies under the United States Housing Act of 1937,42 U.S.C. §1437 et seq.),school district, special district, intrastate district, council of governments (whether or not incorporated as a nonprofit corporation under state taw),any other regional or interstate government entity,or any agency of instrumentality of a local government. Contract No. 582-1-88029 31 1.32. Milestone- a principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Final Completion. 1.33. Minor Change-a written document which provides for minor changes in the work in accordance with these General Conditions,but which does not involve a change in the Contract Price on the Contract Times. 1.34. This paragraph has been deliberately omitted. 1.35. Obligations- means the amount of Work performed by the PERFORMING PARTY during a given period that may result in reimbursement by the TNRCC during the same or a future period. 1.36. Outlay- (expenditures)mean charges made to the project or program. They may be reported on a cash or accrual basis. For reports prepared on a cash basis, outlays are the sum of actual cash disbursement for direct charges for goods and services,the amount of indirect expense incurred,the value of in-kind contributions applied, and the amount of cash advances and payments made to PERFORMING PARTY and subgrantees. For reports prepared on an accrued expenditure basis,outlays are the sums of actual cash disbursements,the amount of indirect expense incurred,the value of in-kind contributions applied,and the new increase(or decrease) in the amounts owed by the PERFORMING PARTY for goods and other property received,for services performed by employees, contractors,subgrantees,subcontractors,and other payees,and other amounts becoming owed under programs for which no current services or performance are required, such as annuities, insurance claims, and other benefit payments. 1.37. Percentage of completion method-refers to a system under which payments are made for Work according to the percentage of the completed Work,rather than to the PERFORMING PARTY's cost incurred. 1.38. PERFORMING PARTY Representative-The individual authorized to receive direction from TNRCC,to act on behalf of PERFORMING PARTY,to manage the work being performed,and to perform all other duties and responsibilities as specified in the Statement of Services (Section 01000). The PERFORMING PARTY Representative is the individual so named in paragraph 8.7 of this Agreement(relating to Notice). 1.39. Prior approval- means documentation evidencing consent prior to incurring specific cost. 1.40. Produced- participle or passive verb which when used in connection with the term Intellectual Property means conceived, developed, implemented, discovered, invented, first actually reduced to practice or otherwise produced. 1.41. Project - the total body of services rendered of which the Work to be provided under the Contract Documents may be the whole,or a part as indicated elsewhere in the Contract Documents. 1.42. Project Field Representative-The individual authorized to give direction to PERFORMING PARTY with respect to technical work(e.g.,a Work Plan,direct data entry,and training matters). A Project Field Representative is not authorized to bind TNRCC in contract or contract amendment unless the TNRCC Executive Director has delegated such authority to the individual named. The Project Field Representative of the TNRCC is the individual so named in paragraph 8.7 of this Agreement(relating to Notice). Contract No. 582-1-88029 32 1.43. Real property- means land,including land improvements,structures and appurtenances thereto, excluding movable machinery and equipment. 1.44. Share - wben referring to the TNRCC's portion of real property, equipment or supplies, means the same percentage as the TNRCC's portion of the acquiring party's total costs under the grant to which the acquisition cost of the property was charged. Only costs are to be counted,not the value of third-party in-kind contributions. 1.45. Standards- refers to the Uniform Grant and Contract Management Standards. 1.46. State- means the State of Texas. 1.47. Subcontractor-an individual, firm,or corporation having a direct contract with PERFORMING PARTY or with any other Subcontractor for the performance of a part of the Work. 1.48. Subgrant- means an award of financial assistance in the form of money,or property in lieu of money,made under a grant by the PERFORMING PARTY to an eligible subgrantee. The term includes financial assistance when provided by contractual legal Agreement, but does not include procurement purchases, nor does it include any form of assistance which is excluded from the definition of"grant." 1.49. Subgrantee - means the government or other legal entity to which a subgrant is awarded and which is accountable to the PERFORMING PARTY for the use of the funds provided. "Subgrantee" is synonymous with "subrecipient"and refers to any entity receiving grant or contract funds from or through a state agency. 1.50. This paragraph has been deliberately omitted. 1.51. Supplies - means all tangible personal property other than "equipment" as defined in these General Conditions. 1.52. Suspension- means,depending on the context,either(1)temporary withdrawal of the authority to obligate grant funds pending corrective action by the PERFORMING PARTY,or subgrantee or a decision to terminate the grant,or(2)an action taken by a TNRCC official in accordance with the Contract Documents,State or Federal law, or Regulations to immediately exclude a person from participating in grant transactions for a period, pending completion of an investigation and such legal or debarment proceedings as may ensue. 1.53. Termination - means permanent withdrawal of the authority to obligate previously-awarded grant funds before that authority would otherwise expire. It also means the voluntary relinquishment of that authority by the PERFORMING PARTY or subgrantee. "Termination"does not include:(1)withdrawal of funds awarded on the basis of the PERFORMING PARTY's underestimate of the unobligated balance in a prior period;(2)withdrawal of the unobligated balance as of the expiration of a grant;(3)refusal to extend a grant or award additional funds to make a competing or noncompeting continuation,renewal,extension or supplemental award; or(4)voiding of a grant upon determination that the award was obtained fraudulently or was otherwise illegal or invalid from inception. 1.54. Terms of a grant or subgrant- mean all requirements of the grant or subgrant,whether contained in statutes, regulations,or the Contract Documents. Contract No. 582-1-88029 33 a 1.55. Third party in-kind contributions - mean property or services which benefit a state assisted project or program and which are contributed by third parties without charge to the PERFORMING PARTY,or a cost-type PERFORMING PARTY under the grant Agreement. 1.56. TNRCC-the Texas Natural Resource Conservation Commission. 1.57. TNRCC Contract Manager - The individual authorized to give general contract direction to the PERFORMING PARTY on behalf of the TNRCC.This individual is named in paragraph 8.7 of this Agreement (relating to Notice). The TNRCC Contract Manager is not authorized to bind the TNRCC in contract or contract amendment unless the TNRCC Executive Director has delegated such authority to the individual named. 1.58. Unliquidated obligations-for reports prepared on a cash basis mean the amount of obligations incurred by the PERFORMING PARTY that has not been paid. Reports prepared on an accrued expenditure basis represent the amount of obligations incurred by the PERFORMING PARTY for which an outlay has not been recorded. 1.59. Unobligated balance-means the portion of the funds authorized by the TNRCC that has not been obligated by the PERFORMING PARTY,and is determined by deducting the cumulative obligations from the cumulative funds authorized. 1.60. Work -the entire completed services or the various separately identifiable parts thereof required to be fur- nished under the Contract Documents.Work includes and is the result of performing or furnishing labor,services, materials or equipment as required by the Contract Documents. 1.61. Work Plan-A Work Plan submitted to or by the PERFORMING PARTY in accordance with the Statement of Services(Section 01000). The Work Plan consists of written technical descriptions of,equipment, schedules, standards&workmanship as applied to the Work and certain administrative details applicable thereto. A Work Plan may be from time to time amended by exchange of correspondence between the PERFORMING PARTY and the TNRCC Project Field Representative and TNRCC Contract Manager. 1.62. Written Amendment - a document signed by PERFORMING PARTY and TNRCC which authorizes an addition,deletion or revision in the Work,or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement. ARTICLE 2. PRELIMINARY MATTERS Commencement of Contract Times 2.1. The Contract Times will commence to run on the Effective Date of the Agreement. ARTICLE 3. CONTRACT DOCUMENTS: INTENT,AMENDING,REUSE Intent 3.1. The Contract Documents comprise the entire Contract between TNRCC and PERFORMING PARTY concerning the Work.The Contract Documents are complementary;what is called for by one is as binding as if called for by all.The Contract Documents will be construed in accordance with the laws of the State of Texas. Contract No. 582-1-88029 34 3.2. It is the intent of the Contract Documents to describe a functionally complete project(or part thereof)to be constructed in accordance with the total Contract. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for. When words or phrases which have a well-known technical or pollution cleanup industry or trade meaning are used to describe Work, materials or equipment, such words or phrases shall be interpreted in accordance with that meaning. 3.3. Reference to Standards and Specifications of Technical Societies; Reporting and Resolving Discrepancies: 3.3.1. Reference to standards, specifications, guidance manuals or codes of any governmental authority or technical society, organization or association, or to the Laws or Regulations of any governmental authority,whether such reference be specific or by implication,shall mean the latest standard,specification, guidance manual,code or Laws or Regulations in effect at the time of(the Effective Date of the Agreement), except as may be otherwise specifically stated in the Contract Documents. 3.3.2. If, during the performance of the Work, PERFORMING PARTY discovers any conflict, error, ambiguity or discrepancy within the Contract Documents or between the Contract Documents and any provision of any such Law or Regulation applicable to the performance of the Work or any such standard, specification, guidance manual or code, PERFORMING PARTY shall report it to TNRCC in writing at once. PERFORMING PARTY shall not proceed with the Work affected thereby(except in an emergency as authorized by these Contract Documents)until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in these Contract Documents; provided, however, that PERFORMING PARTY shall not be liable to TNRCC for failure to report any such conflict,error,ambigu- ity or discrepancy unless PERFORMING PARTY knew or reasonably should have known thereof. 3.3.3. Except as otherwise specifically stated in the Contract Documents or as may be provided by amendment or supplement thereto issued by one of the methods indicated in paragraph 3.5,provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity or discrepancy between the provisions of the Contract Documents and: 3.3.3.1. the provisions of any such standard, specification, guidance manual, code or instruction (whether or not specifically incorporated by reference in the Contract Documents); or 3.3.3.2. the provisions of any such Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). No provision of any such standard, specification, guidance manual, code or instruction shall be effective to change the duties and responsibilities of TNRCC or PERFORMING PARTY, or any of their subcontractors,consultants,agents,or employees from those set forth in the Contract Documents,nor shall it be effective to assign to TNRCC, any duty or authority to supervise or direct the furnishing or performance of the Work or any other provision of the Contract Documents. 3.4. Whenever in the Contract Documents the terms"as ordered,""as directed,""as required,""as allowed,""as approved" or terms of like effect or import are used, or the adjectives "reasonable," "suitable," "acceptable," "proper"or"satisfactory"or adjectives of like effect or import are used to describe a requirement,direction,review or judgment of TNRCC as to the Work,it is intended that such requirement,direction,review or judgment will be solely to evaluate, in general,the completed Work for compliance with the requirements of and information in the Contract Documents and conformance with the design concept of the completed Project as a functioning whole as shown or indicated in the Contract Documents(unless there is a specific statement indicating otherwise).The use Contract No. 582-1-88029 35 4 of any such term or adjective shall not be effective to assign to TNRCC any duty or authority to supervise or direct the furnishing or performance of the Work or any other provision of the Contract Documents. Amending and Supplementing Contract Documents: 3.5. The Contract Documents may be amended to provide for additions,deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: 3.5.1. a formal Written Amendment, 3.5.2. a Minor Change. ARTICLE 4. PERFORMING PARTY'S RESPONSIBILITIES 4.1. The PERFORMING PARTY shall be responsible for the professional quality,technical accuracy,timely completion and the coordination of all services and other work furnished by the PERFORMING PARTY under this Agreement. Supervision and Superintendence: 4.2. PERFORMING PARTY shall supervise,inspect and direct the Work competently and efficiently,devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. PERFORMING PARTY shall be solely responsible for the means, methods,techniques,sequences and procedures of the Work. PERFORMING PARTY shall be responsible to see that the completed Work complies accurately with the Contract Documents. PERFORMING PARTY's Representative 4.3. This paragraph has been deliberately omitted. 4.4. The PERFORMING PARTY agrees to make arrangements necessary to ensure that the PERFORMING PARTY Representative, or someone to whom that person has delegated his or her authority, is available at all reasonable times for consultation with the TNRCC. Written notice of any such delegation shall be provided to the TNRCC. Personnel 4.5. PERFORMING PARTY shall provide competent, suitably qualified personnel to perform the Work as required by the Contract Documents. PERFORMING PARTY shall at all times maintain good discipline and order on the project. Employment Practices 4.6. The PERFORMING PARTY agrees that in the performance ofthis Contract,it will not discriminate against any employee or applicant because of race, religion, color, sex, age, or national origin and it will comply with Executive Order 11246,entitled"Equal Employment Opportunity,"as amended by Executive Order 11375,and as supplemented in Department of Labor Regulations(41 CFR Part 60). The PERFORMING PARTY assures that no person will,on the grounds of race,creed,color,disability,national origin,sex,political affiliation or beliefs, Contract No. 582-1-88029 36 be excluded from, be denied the benefit of,or be subject to discrimination under any program or activity funded in whole or part under this Contract. Americans with Disabilities Act 4.7. The PERFORMING PARTY shall comply with all applicable requirements of the Americans with Disabilities Act of 1990,42 U.S.C.§12131 et seq.,as well as state and federal statutes relating to nondiscrimination which include, but are not limited to,those listed in the Uniform Grant Management Standards. Materials&Equipment 4.8. Unless otherwise specified in the Contract Documents,PERFORMING PARTY shall furnish and assume full responsibility for all materials, equipment, labor, transportation, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance,testing, start-up and completion of the Work. 4.9. All materials and equipment shall be of good quality and new,except as otherwise provided in the Contract Documents. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with instructions ofthe applicable Supplier,except as otherwise provided in the Contract Documents. Title to and Management of Equipment 4.10. Subject to the obligations and conditions set forth in this Contract,title to all equipment acquired under this Contract shall vest, upon acquisition or construction, in the PERFORMING PARTY. 4.11. The PERFORMING PARTY agrees to conduct physical property inventories,to maintain property records and necessary control procedures, and to provide adequate maintenance with respect to all equipment acquired under this Contract. 4.12 The PERFORMING PARTY may develop and use its own property management system which must conform with all applicable State and local laws, rules and regulations. If an adequate system for accounting for personal property owned by the PERFORMING PARTY or its subcontractor is not in place or currently in use,the Property Accounting System Manual issued by the State of Texas General Services Commission shall be used as a guide for establishing such a system. 4.13 Property records must be maintained that include a description of the property, a serial number or other identification number,the source of property, who holds title,the acquisition date, and the cost of the property, percentage of federal participation in the cost of the property,the location,use and condition of the property,and any ultimate disposition data including the date of disposal and sale price of the property. 4.14. A physical inventory of all equipment acquired or replaced under this Contract having an initial purchase price of One Thousand Dollars($1,000)or more,shall be conducted no less frequently than once every two years and the results of such inventories reconciled with the appropriate property records. Property control procedures utilized by the PERFORMING PARTY shall include adequate safeguards to prevent loss,damage,or theft of the acquired property.Any loss,damage or theft shall be investigated.The PERFORMING PARTY agrees to develop and carry out a program of property maintenance as necessary to keep both originally acquired and any replaced property in good condition,and to utilize proper sales procedures to ensure the highest possible return, in the event such equipment is sold. Contract No. 582-1-88029 37 4.15 All equipment acquired or replaced under this Contract shall be used for the duration of its normally expected useful life to support the purposes of this Contract whether or not the original projects or programs continue to be supported by federal or state funds. 4.16. Subject to the provisions of this Article, if no longer needed for the support of the authorized projects or programs referred to in paragraph 4.15 of this Article,equipment acquired under this Contract, whether original or replacement,may be used in support of other activities currently or previously supported by the State or TNRCC, or alternatively,may be made available for use on other projects or programs,providing such other use will not interfere with the work on those projects or programs for which such equipment was originally acquired. 4.17. The PERFORMING PARTY may for the purpose of replacing various equipment utilized under this Contract,either trade in or sell the equipment or property referred to in paragraph 4.10 and use the proceeds of such trade-in or sale to offset the cost of acquiring needed replacement property. 4.18. If any equipment acquired or replaced under this Contract is sold or transferred within six years of the initiation date of the Contract, the PERFORMING PARTY agrees that the TNRCC is entitled to a share of the proceeds from such sale,provided the fair market,per-unit value of the property at the time of the sale is in excess of one thousand dollars($1,000). The TNRCC's share of the sale proceeds shall be the same percentage as was the funding provided under this Contract that enabled the original purchase in question. Equipment that is no longer needed and that has a fair market,per-unit value of five thousand dollars($1,000)or less may be retained, sold,transferred,or otherwise disposed of with no further obligation to the TNRCC,provided the requirements set forth in this paragraph 4.18 and paragraph 4.19 are followed. If the equipment has a fair market,per-unit value of one thousand dollars($1,000)or more and less than six years has elapsed from the initiation of the Contract,the PERFORMING PARTY or the subcontractor must contact the TNRCC for final disposition instructions. 4.19. If prior to the termination date of this Contract, the PERFORMING PARTY or its subcontractors or subgrantees determine that any equipment acquired with funds provided as a result of this Contract is no longer needed for support of the programs or projects referred to in paragraph 4.15, the TNRCC may require the PERFORMING PARTY to transfer title and possession to such equipment to the TNRCC or a third party named by the TNRCC. 4.20. The PERFORMING PARTY agrees that if a determination is made within six years of the initiation date of this contract that any equipment acquired with funds provided as a result of this Contract is no longer needed for support of the programs or projects referred to in paragraph 4.15,the TNRCC has a right to require the transfer of any equipment having a fair market,per unit value of more than one thousand dollars($1,000)to the TNRCC or a third party named by the TNRCC. 4.21. The PERFORMING PARTY shall not grantor allow to a third party a security interest in any original or replacement equipment purchased or constructed with funds made available to PERFORMING PARTY under this Contract. 4.22. The PERFORMING PARTY agrees that, in the event any funds provided under this Contract are in turn awarded to any subcontractor for the purchase or acquisition of any equipment by such other party, the PERFORMING PARTY's contract with that subcontractor shall include the requirements set forth in these General Conditions. Substitutes and"or-Equal"Items: 4.23. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier,the specification or description is intended to establish the type,function and quality required.Unless the specification or description contains or is followed by words reading that no like,equivalent,or"or-equal"item or no substitution is permitted,other items of material or equipment of other Suppliers may be accepted by TNRCC. Contract No. 582-1-88029 38 4.24. Substitute Methods or Procedures:If a specific means,method,technique,sequence or procedure is shown or indicated in and expressly required by the Contract Documents,PERFORMING PARTY may furnish or utilize a substitute means,method,technique,sequence or procedure acceptable to TNRCC.PERFORMING PARTY shall submit sufficient information to allow TNRCC, in TNRCC's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. Concerning Subcontractors,Suppliers and Others 4.25. All contractual expenditures using funds provided under this Agreement shall meet all procurement laws and regulations applicable to the PERFORMING PARTY and any subcontractor or subrecipient and the Uniform Grant and Contract Management Act,the Uniform Grant Management Standards,and,as applicable,48 CFR Part 31,and the Professional Services Procurement Act. Note that competitive bidding will generally be required for contracts other than interlocal and interagency contracts, which are under TEx.Gov.CODE,Chapter 791 et seq. Note also that the Common Rule of OMB Circular A-102,as adopted in the Uniform Grant Management Standards, precludes the use of the cost plus a percentage of cost method of contracting. 4.26. All subgrant agreements must be in writing and must be approved by the TNRCC. The standards and requirements for reimbursements and standards for performance will be incorporated into the subgrant agreements as well as other provisions required by this Agreement. The PERFORMING PARTY shall forward any proposed subagreement providing services under this Agreement to the TNRCC prior to execution of the subagreement. The TNRCC may, within twenty-one(21) days of receipt of the proposed subagreement, provide written notice (fax acceptable) to the PERFORMING PARTY questioning whether the subagreement is for a legitimate purpose relating to the satisfaction of this Agreement or has been procured in accordance with the minimum standards of the UGCMA and UGMS. The PERFORMING PARTY shall not enter into a questioned subagreement until the TNRCC has withdrawn all questions raised in the notice. Neither the TNRCC's failure to question a subagreement nor its subsequent withdrawal of any questions raised regarding a subagreement shall in any way imply the TNRCC's approval of the subagreement's purpose or method of procurement of the subagreement. Further,the terms of this provision do not in any way restrict the TNRCC's rights under this Agreement to subsequently refuse reimbursement for expenses incurred pursuant to the subagreement. The PERFORMING PARTY may require a bid bond to protect the local and state interests by assuring that a bidder will,upon acceptance,execute all required contractual documents within the time period specified. 4.27. No employee,officer or agent of the PERFORMING PARTY shall participate in selection,or in the award or administration of a contract supported by State funds if a conflict of interest,real or apparent,would be involved. Such a conflict arises when: 4.27.1. The employee, officer or agent, 4.27.2. Any member of his immediate family, 4.27.3. His or her partner,or 4.27.4. An organization which employs, or is about to employ any of the above, has financial or other interest in the subcontractor selected. The officers,employees or agents will neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to Subcontracts. To the extent permitted by State or local law or regulations,such standards of conduct will provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the PERFORMING PARTY officers, employees, or agents, or by contractors or their agents. See Uniform Grant Management Standards, Part III, Subpart C, Sec.`.36(3). Contract No. 382-1-88029 39 4.28. The PERFORMING PARTY shall be responsible for the management and fiscal monitoring of all subcontractors and subgrantees. The PERFORMING PARTY shall monitor its subcontractors and subgrantees to ensure that the subcontractors and subgrantees are operating consistently with applicable laws and regulations, applicable contracting policies,and these Contract Documents. The PERFORMING PARTY shall ensure that all subcontractors and subgrantees comply with all recording keeping and access requirements set forth in these Contract Documents. The TNRCC reserves the right to perform an independent audit of all subcontractors and subgrantees. PERFORMING PARTY,subcontractors and subgrantees shall maintain detailed records. 4.29. Funds provided by the TNRCC pursuant to this Agreement that are paid to the subcontractor shall be used by the subcontractor solely to satisfy the purposes of the Agreement. 4.30. Procurements and Subgrants 4.30.1 All contractual expenditures involving agreements with entities defined as subrecipients under UGMS shall be subject to the cost principles listed in§_.22 of the Common Rule of OMB Circular A-102 for the applicable subrecipient type. Any such agreement with a for-profit entity requires a cost analysis and shall follow the cost principles in 48 CFR,Part 31. 4.30.2 All contractual expenditures involving purchases from entities defined as vendors under UGMS shall be made according to the requirements relating to procurement in Sec._.36 of the Common Rule of OMB Circular A-102,as adopted in the Uniform Grant Management Standards. 4.31. PERFORMING PARTY shall perform a cost or price analysis in connection with all subagreements in excess of$2,000 which are not competitively procured. A cost analysis will also be required when adequate price competition is lacking and for sole source procurements,unless the reasonableness of the price can be established on the basis of a catalog or market price. Failure to follow these requirements for providing the greatest possible competition in a procurement are grounds for disallowance of costs for reimbursement. 4.3 1.1 All subagreements with subrecipients or vendors which are paid on the basis of the subrecipient's or vendor's costs require a cost analysis. In addition,all subagreements which have not been procured by a method requiring price competition,and all subagreement modifications(or Change Orders),require a cost analysis unless price reasonableness can be established on the basis of a catalog or market price of a commercial product sold in substantial quantities to the general public or based on prices set by law or regulation. Cost(or prices based on estimated costs)are allowable only to the extent that they are consistent with the cost principles listed in §_.22 of the Common Rule of OMB Circular A-102 for the applicable subrecipient or vendor type. Specifically,the cost principles of 48 CFR Part 31 are applicable for for-profit entities. 4.31.2 PERFORMING PARTY shall negotiate profit as a separate element of the price in all subagreements with subrecipients in which profit is allowed, and all subagreements with vendors which require a cost analysis to be performed. PERFORMING PARTY may negotiate profit as a separate element of a lump sum contract price, or as a fixed fee to be paid in addition to reimbursement of actual costs incurred. All lump sum subagreements negotiated on the basis of a cost analysis shall contain a clause providing for a reduction in the amount to be paid in the event that cost data used in negotiating the price is defective or not current. PERFORMING PARTY shall not enter into a subagreement with a subrecipient or a vendor which is to be paid on the basis of cost plus a percentage of costs. 4.32. All subgrants awarded by the PERFORMING PARTY under this Agreement shall be in accordance with Chapter 2259 Texas Government Code and Part III Subpart C,Sec._37, Subsection(b)of UGMS. 4.32.1. All subgrants awarded by the PERFORMING PARTY under this Agreement will be awarded on the basis of competitive applications and proposals when feasible. The applications and proposals will be Contract No. 582-1-88029 40 evaluated utilizing criteria including cost comparison, probable quality of goods or services and past performance. Upon request,PERFORMING PARTY must provide evidence to support the selection and award. 4.32.2 Payments by PERFORMING PARTY to subgrantees will be solely for reimbursement of actual allowable costs utilizing the same standards and requirements as the reimbursement payments from TNRCC to PERFORMING PARTY set out in this Agreement. No subgrant will be made on a fixed-amount of cost reimbursement unless this method is specifically approved by the TNRCC based on supporting evidence of proposed subgrantee's actual costs. Historically Underutilized Businesses(HUBS): 4.33. PERFORMING PARTY agrees that qualified HUBS shall have the maximum practicable opportunity to participate in the performance of the Work. 4.34. PERFORMING PARTY will submit a completed HUB/MWBE PROGRESS ASSESSMENT REPORT, contained in Form B-1, with each quarterly invoice and voucher submitted under the provisions of Article 7, Payments to PERFORMING PARTY and Completion (General Conditions of the TNRCC State Funded Grant Agreement). 4.35 PERFORMING PARTY's failure to comply with this Article shall be grounds for termination for cause in accordance with the Article entitled, "Termination." Intellectual Property Requirements 4.36. Intellectual Property 4.36.1. Royalties and Patent Fees. PERFORMING PARTY shall pay all license fees and royalties and assume all costs incident to the use or possession in the performance of the Work or the incorporation in the Work of any Intellectual Property. 4.36.2. Disclosure of Intellectual Property Produced during the Work. PERFORMING PARTY shall promptly notify TNRCC of all Intellectual Property which PERFORMING PARTY or PERFORMING PARTY's employees, subcontractors,or subcontractor's employees may produce, either solely or jointly with others, during the course of the Work. In addition, PERFORMING PARTY shall promptly notify TNRCC of all Intellectual Property to which PERFORMING PARTY may acquire rights in connection with the performance of the Work. Any notification under this paragraph shall contain sufficient technical detail to convey a clear understanding of the Intellectual Property,and shall identify any publication,sale,public use,or impending publication. Promptly upon request,PERFORMING PARTY shall supply such additional information as TNRCC may request. 4.36.3. If PERFORMING PARTY fails to protect any Intellectual Property Rights in the Intellectual Property Rights in the Intellectual Property Produced in the course of performing the Work,TNRCC shall have full authority to protect, assume and retain all Intellectual Property Rights in any and all such Intellectual Property. 4.36.4. PERFORMING PARTY agrees that PERFORMING PARTY, its agents, and its employees shall not in any manner use, sell, distribute, disclose or otherwise communicate any portion of Intellectual property owned by or licensed to TNRCC, except in the course of performing the Work, unless PERFORMING PARTY has independent Intellectual Property Rights to such Intellectual Property. Contract No. 582-1-88029 41 4.36.5. Grant of License. With respect to such Intellectual Property as is(i)incorporated in the Work(other than Intellectual Property for which TNRCC already possesses equal or greater Intellectual Property Rights by virtue of this Agreement or otherwise), (ii)produced by PERFORMING PARTY or PERFORMING PARTY's employees, subcontractors, or subcontractor's employees during the course of performing the Work, or(iii) specifically identified in the Supplemental Conditions as Intellectual Property to which Intellectual Property Rights are granted pursuant to this paragraph,PERFORMING PARTY hereby grants to TNRCC (i) a nonexclusive, perpetual, irrevocable, enterprise-wide license to reproduce, publish, or otherwise use such Intellectual Property and associated use documentation, and (ii) a nonexclusive, perpetual, irrevocable,enterprise-wide license to authorize others to reproduce,publish,or otherwise use such Intellectual Property for TNRCC's purposes. 4.36.6. Modification; Derivative Works. TNRCC shall have the right, in its own discretion, to independently modify any Intellectual Property to which license is granted herein for TNRCC's own purposes and use,through the services of its own employees or independent contractors.TNRCC shall own all Intellectual Property Rights to such modifications. PERFORMING PARTY shall not incorporate any such modifications into its Intellectual Property for distribution to third parties unless it first obtains a license from TNRCC. 4.36.7 PERFORMING PARTY shall comply with all Laws and Regulations relating to Intellectual Property. PERFORMING PARTY represents and warrants to TNRCC that PERFORMING PARTY will not infringe any Intellectual Property Right of any third party. PERFORMING PARTY further represents and warrants to TNRCC that in the course of performing the Work it will not use or possess any Intellectual Property owned by a third party without paying any required royalty or patent fees. PERFORMING PARTY warrants that it has full title in and ownership of the Intellectual Property and any enhancements, updates or other modifications,or that it has full power and authority to grant all licenses granted herein, and that such license use by the TNRCC will in no way constitute an infringement or other violation of any Intellectual Property right of any third party. The PERFORMING PARTY warrants that it shall have, throughout any applicable license term hereunder, free and clear title to,or the right to possess, use sell, transfer,assign, license,or sublicense,products that are licensed or provided hereunder to the TNRCC by PERFORMING PARTY. Except as permitted in the Contract Documents,PERFORMING PARTY shall not create or permit the creation of any lien, encumbrance, or security interest in the Work or any part thereof, or any product licensed or provided hereunder to TNRCC for which title has not yet passed to TNRCC,without the prior written consent of TNRCC. PERFORMING PARTY represents and warrants to TNRCC that neither it nor any other company or individual performing the Work is under any obligation to assign or give to any third party any Intellectual Property rights granted or assigned to TNRCC, or reserved by TNRCC,pursuant to the Contract Documents. 4.36.8. To the fullest extent permitted by Laws and Regulations,PERFORMING PARTY shall indemnify and hold harmless TNRCC,and its officers,directors,employees and agents,as more fully specified in these General Conditions, from and against all fines, penalties, claims, damages, losses, demands,judgments, settlements,punitive damages,costs of suit,attorneys' fees and delays to the contractors,whether arising in tort or otherwise,and whether the parties are individually or jointly responsible from any damages,that arise out of, result from or relate to any infringement of property, contractual, or employment rights or Intellectual Property Rights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any Intellectual Property. PERFORMING PARTY agrees that it will make no settlement which prevents TNRCC from continuing use of the Intellectual Property without TNRCC's prior written approval. In all events,TNRCC shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing. Technology Access Clause 4.37. PERFORMING PARTY expressly acknowledges that state funds may not be expended in connection with the purchase of an automated information system unless the system meets certain statutory requirements under section 2157.005 of the Government Code, relating to accessibility by persons with visual impairments. Accordingly, the PERFORMING PARTY represents and warrants to TNRCC that the technology provided to Contract No. 582-1-88029 42 1 TW-RCC for purchase is capable,either by virtue of features included within the technology or because it is readily adaptable by use with other technology, of(1) providing equivalent access for effective use by both visual and nonvisual means; (2)presenting information, including prompts used for interactive communications, in formats intended for nonvisual use; and (3) being integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired. For purposes of this paragraph,the phrase "equivalent access"means a substantially similar ability to communicate with or make use of the technology,either directly by features incorporated within the technology or by other reasonable means such as assistive devices or services which would constitute reasonable accommodations under the Americans with Disabilities Act or similar state or federal laws. Examples of methods by which equivalent access may be provided include, but are not limited to, keyboard alternatives to mouse commands and other means of navigating graphical displays, and customizable display appearance. 4.38. PERFORMING PARTY will include in all subcontracts a provision similar in effect to the following Year 2000 Warranty. Contractor also warrants that,with respect to work performed under this Contract,that all Work is Year 2000 Compliant when used in accordance with the applicable documentation,provided that all products used in combination with it (but not themselves included in or with or incorporated into the Work) properly exchange date data with the Work. Contractor warrants that the Work meets all applicable standards of the Texas Department of Information Resources relating to the Year 2000 Compliance.In the event any work performed under this Contract is not Year 2000 Compliant and the Contractor is provided written notice thereof, Contractor shall, at its sole expense, immediately cause such work to become Year 2000 Compliant in a manner that will minimize interruption to ongoing business processes,time being of the essence. 4.39. The PERFORMING PARTY shall include provisions adequate to effectuate the purposes of this paragraph in all subcontracts under this Contract in the course of which Intellectual Property may be produced or acquired. 4.40. This paragraph has been deliberately omitted. 4.41. This paragraph has been deliberately omitted. 4.42. This paragraph has been deliberately omitted. Permits 4.43. Unless otherwise provided in the Contract Documents, PERFORMING PARTY shall obtain and pay for all construction permits and licenses. PERFORMING PARTY shall pay all charges of utility owners for connections to the Work,and PERFORMING PARTY shall pay all charges of such utility owners for capital costs related thereto such as plant investment fees. Laws and Regulations 4.44. PERFORMING PARTY shall give all notices and comply with all Laws and Regulations applicable to furnishing and performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations,TNRCC shall not be responsible for monitoring PERFORMING PARTY's compliance with any Laws or Regulations. 4.45. If PERFORMING PARTY performs any Work knowing or having reason to know that it is contrary to Laws or Regulations,PERFORMING PARTY shall bear all claims,costs, losses and damages caused by,arising out of or resulting therefrom. Contract No. 582-1-88029 43 Uniform Grant and Contract Management Act 4.46. The provisions of Uniform Grant and Contract Management Act,TEx.Gov.CODE,Chapter 783 applies to this Agreement,all amendments thereto,and all subcontracts and subagreements. Compliance with the conditions and requirements contained therein is necessary for the satisfactory performance ofthe services and work required under this Agreement. Energy Efficiency Standards 4.47. The PERFORMING PARTY shall follow standards and policies on energy efficiency which are contained in the Texas State Energy Conservation Plan issued in compliance with federal requirements. Taxes 4.48. Where applicable PERFORMING PARTY shall pay all sales,consumer,use and other similar taxes required to be paid by PERFORMING PARTY in accordance with the Laws and Regulations in connection with the work required by this Agreement. Records,Documents,Data,Access, and Audit 4.49. The PERFORMING PARTY shall maintain books, records, documents, and other evidence reasonably pertinent to performance of the Work and requirements of the Contract Documents, including the Agreement or amendments thereto. All financial records shall be maintained in accordance with generally accepted accounting principles,the Uniform Grant Management Standards and these Contract Documents.The PERFORMING PARTY shall also maintain the financial information and data used in the preparation or support of any request for reimbursement(direct and indirect),price or profit analysis for this Agreement or any subagreement or subcontract and a copy of any cost information or analysis submitted to the TNRCC. The TNRCC, Texas State Auditor's Office,or any of their authorized representatives shall have access to all such books,records,documents and other evidence for the purpose of review, inspection, audit, excerpts, transcriptions and/or copying during normal business hours. The PERFORMING PARTY shall provide proper facilities for such access and inspection. 4.50. The PERFORMING PARTY agrees that all record keeping and access requirements shall be applicable to all subcontracts and subagreements. 4.51. The PERFORMING PARTY agrees to the disclosure of all information and reports resulting from access to records under this Agreement. 4.52. Records under paragraph 4.49 and 4.50 shall be maintained by the PERFORMING PARTY during performance of Work under this Agreement,and for three(3)years after final payments,final expenditure reports and all other pending matters are closed. If any litigation,claim,negotiation,audit,cost recovery,or other action (including actions concerning costs of items to which an audit exception has been taken)involving such records has been started before the expiration of the three-year period,such records must be retained until completion of the action or resolution of all issues which arise from it,or until the end ofthe regular three-year period,whichever is later. 4.53. Access to records is not limited to the required retention periods. The entities designated in paragraph 4.49 shall have access to records at any reasonable time for as long as the records are maintained. 4.54. This right-of-access article applies to financial records pertaining to this Agreement and all subagreements and amendments. In addition,this right of access article applies to all records pertaining to this Agreement and all subagreements and amendments; Contract No. 582-1-88029 44 4.54.1. to the extent the records pertain reasonably to Agreement or subcontract performance; 4.54.2. if there is any indication that fraud,gross abuse,or corrupt practices may be involved; or 4.54.3. if the Agreement or subcontract is terminated for default or for convenience. Data and Publicity 4.55. All data and other information developed under this Agreement shall be furnished to the TNRCC and shall be public data and information except to the extent that it is exempted from public access by the Texas Public Information Act, TEX. GOVT. CODE § 552 ("Act"). Upon termination of this Agreement, all copies of data and information shall be furnished, at no charge to the TNRCC, upon request,to include data bases prepared using funds provided under this Agreement,and become the property of the TNRCC. Except as otherwise provided by these Contract Documents or the Act,the PERFORMING PARTY shall not provide data generated or otherwise obtained in the performance of its responsibilities under this Contract to any party other than the State of Texas and its authorized agents. 4.56. The PERFORMING PARTY agrees to notify and obtain the verbal approval of TNRCC prior to releasing any information to the news media regarding the activities being conducted under this Agreement. Safety and Protection 4.57. Where applicable,PERFORMING PARTY shall be responsible for requiring subcontractors and subgrantees to maintain and supervise all necessary safety precautions and programs in connection with the Work. PERFORMING PARTY shall take all necessary safety precautions. Independent Contractor 4.58. In performing any services hereunder,the PERFORMING PARTY is,and undertakes performance as,an independent contractor. Lobbying Activities 4.59. As set forth in these Contract Documents, and in accordance with the Uniform Grant Management Standards,and State law,PERFORMING PARTY shall not use funds provided under this Agreement to support political activity either directly or indirectly. This preclusion includes funds paid in reimbursement of direct or indirect costs. Performance Reports 4.60. In accordance with the Uniform Grant Management Standards,the PERFORMING PARTY shall submit written progress reports documenting all activities during a quarter pursuant to the schedule of deliverables set forth in the Work Plan. In the absence of a schedule in Work Plan,the PERFORMING PARTY shall submit the reports not later than thirty(30)days after the close of each quarter. The reporting periods shall correspond to the State of Texas fiscal year(September-November; December-February,March-May; June-August). Accounting Systems 4.61. The PERFORMING PARTY shall have an accounting system which accounts for costs in accordance with generally accepted accounting standards or principles and complies with applicable State law, regulations, and policies relating to accounting standards or principles. The PERFORMING PARTY must account for costs in a manner consistent with such standards or principles. Contract No. 582-1-88029 45 Independent Financial Audit 4.62. The PERFORMING PARTY shall engage an independent financial auditor and conduct an annual audit of the PERFORMING PARTY'S financial statements in accordance with the Single Audit provisions of UGMS and 4.62.1 All terms used in connection with audits in this Agreement shall have the definitions and meanings assigned in the Single Audit Circular in UGMS. 4.62.2 Provisions of the Single Audit Circular in Part IV of UGMS shall apply to all non-state government entities expending the funds of this grant,whether they are recipients,receiving the funds directly from the TNRCC, or are subrecipients, receiving the funds from a pass-through entity (a recipient or another subrecipient). In addition,the PERFORMING PARTY shall require the independent auditor to supply all audit work papers substantiating the work performed,at the request of the TNRCC or its designee. Exceptions in Audit 4.62.3 TNRCC is required to take action on exceptions noted in an audit of PERFORMING PARTY's financial records. Therefore,PERFORMING PARTY agrees to submit to TNRCC a copy of the report of any audit conducted of the PERFORMING PARTY's financial records within 20 days of receipt of PERFORMING PARTY's receipt of an audit report. At the same time,PERFORMING PARTY will also provide a statement containing an explanation of the conditions giving rise to each exception in the audit report as well as a plan for correction of any significant deficiencies in PERFORMING PARTY's operations or contract performance. TNRCC may approve the statement or reject as insufficient. At the option of the TNRCC,the PERFORMING PARTY may revise and resubmit. If the statement is initially or subsequently rejected by the TNRCC with no further opportunity to revise,the TNRCC may suspend payments or may terminate the contract for cause and may undertake any other remedies or sanctions provided under this contract. Hazardous Substances, Waste Disposal and Manifests 4.63. PERFORMING PARTY, subcontractors and subgrantees must comply with all applicable Laws and Regulations. Conflict of Interest 4.64. PERFORMING PARTY shall notify TNRCC immediately upon discovery of any potential or actual conflict of interest.PERFORMING PARTY agrees that TNRCC has sole discretion to determine whether a conflict exists and that TNRCC may terminate the Agreement at any time,on the grounds of actual or apparent conflict of interest. See paragraph 4.17 of these General Conditions concerning conflicts of interest with subgrantees,subcontractors and others. 4.64.1. Notice of Conflict ofinterest. The PERFORMING PARTY shall notify the TNRCC in writing of any actual,apparent,or potential conflict of interest regarding any individual performing or having access to information regarding the Work. As applicable, the notification shall include both organizational conflicts of interest and personal conflicts of interest. Any individual with a personal conflict of interest shall be disqualified from taking part in any way in the performance of any work that created the conflict of interest. Contract No. 582-1-88029 46 � • t Survival of Obligations: 4.65. All representations,indemnifications,warranties and guarantees made in,required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment,completion and acceptance of the Work and termination or completion of the Agreement. Interest and Unexpended Funds 4.66. Interest Earned on Grant Agreement Funds. If PERFORMING PARTY earns any interest from grant funds, then PERFORMING PARTY is required to handle interest earned from grant funds in the same manner and under the same conditions as the actual grant funds. This includes at a minimum, describing the expenditure of the interest funds in the plan and budget of PERFORMING PARTY submitted to the TNRCC,and reporting the actual use of that interest to the TNRCC on the financial reports required under the new grant agreement. Any interest earned under this Agreement must be expended within state fiscal year 2002. Any remaining interest earned under this Agreement which is not expended by August 31, 2002, shall be returned to the TNRCC within 120 days following the end of fiscal year 2002 unless TNRCC authorizes an alternative. 4.67. Unexpendedfunds andlnterest Remaining at Termination.The PERFORMING PARTY shall,not later than 120 days following termination of this Agreement, or 30 days following submittal of the final Financial Status Report,whichever is earlier,return to the TNRCC any unexpended disbursements and/or reimbursements remaining in any accounts containing such funds. By not later than the same date, the PERFORMING PARTY, unless authorized otherwise in writing by the TNRCC,shall return to the TNRCC any remaining interest earned,in excess of one hundred dollars($100). Amounts of earned interest less than one hundred dollars($100)may be retained by the PERFORMING PARTY for administration expenses. ARTICLE 5. TNRCC'S RESPONSIBILITIES 5.1. Except as otherwise provided in these General Conditions,TNRCC shall issue all communications regarding the Agreement to PERFORMING PARTY through the TNRCC Contract Manager. All technical instructions and data shall be issued through the Project Field Representative. 5.2. This paragraph has been deliberately omitted. 5.3. TNRCC shall furnish any data required of TNRCC under the Contract Documents promptly and shall make payments to PERFORMING PARTY pursuant to the Contract Documents. 5.4. The Contract Documents and the Uniform Grant Management Standards contain provisions that provide for withholding of payment as well as suspension and termination of the Agreement by the TNRCC. 5.5. The TNRCC shall not supervise, direct or have control or authority over, nor be responsible for, PERFORMING PARTY's means, methods,techniques, sequences or procedures of performing the Work or the Safety precautions and programs incident thereto, or for any failure of PERFORMING PARTY to comply with Laws and Regulations applicable to the furnishing or performance of the Work. TNRCC will not be responsible for PERFORMING PARTY's failure to perform or furnish the Work in accordance with the Contract Documents. ARTICLE 6. CHANGES IN THE WORK 6.1. This paragraph has been deliberately omitted. Contract No. 582-1-88029 47 6.2. A Major Change will include one or more of the following: 6.2.1. an increase or decrease in the amount of compensation to the PERFORMING PARTY; 6.2.2. an extension or shortening of the term of the Agreement; 6.2.3. a change in the scope of the Agreement or the services to be performed;or 6.2.4. any action that is beyond the authority of the Project Field Representative of the TNRCC. 6.3. Implementation of a Major Change must be preceded by a formal written amendment to the Agreement. The amendment must contain a description of the proposed change. The amendment must be signed by persons authorized to bind each party in contract. 6.4. Any proposed change that is not a Major Change may qualify as a Minor Change. In addition,a delay or change in the Work resulting from inclement weather will be treated as a Minor Change. A Minor Change does not require a formal amendment to the Agreement. At his or her discretion,the Project Field Representative of the TNRCC may require the PERFORMING PARTY to submit a written request for the change and a description of the activity or action proposed,or may give the PERFORMING PARTY verbal approval for the change. In either case,no authorization shall be effective unless it is followed by a letter from the Project Field Representative of the TNRCC ratifying the authorization. A copy of the letter must be retained in the appropriate file of both the PERFORMING PARTY and the TNRCC. 6.5. If the PERFORMING PARTY requests a Minor Change and the Project Field Representative of the TNRCC does not approve the request as a Minor Change, then the change shall be deemed a Major Change and the PERFORMING PARTY may only obtain authorization to proceed in accordance with Section 6.3 of this Article. Waiver 6.6. Unless authorized in accordance with these Contract Documents(relating to Changes),or in writing by the TNRCC,no waiver of any obligation of the PERFORMING PARTY under this Contract shall bind the TNRCC. Furthermore,unless specified in the written authorization,the authorized waiver by the TNRCC of such obligation shall not constitute a continuing waiver of the obligation. No waiver by the TNRCC Executive Director shall constitute a waiver of the TNRCC's subsequent right to demand and receive performance within a reasonable time to be specified by the TNRCC, in accordance with all provisions of this Contract. ARTICLE 7. PAYMENTS TO PERFORMING PARTY Payment based on Reimbursement of Actual Cost of Performance Allowable Costs 7.1 Payments from the TNRCC to the PERFORMING PARTY are for reimbursement of PERFORMING PARTY's actual allowable costs of PERFORMING PARTY's performance. Actual costs include reasonable and necessary direct and indirect costs. Allowable costs are those deemed allowable by the TNRCC in accordance with the requirements of this contract and the following which are hereby incorporated into this contract: 7.1.1. Uniform Grant Management Standards prepared and promulgated by the office of the Governor of Texas; 7.1.2. Rules and guidelines of the office of the Governor of Texas 7.1.3. Allowable Expenditure Guidelines of the TNRCC 7.1.4. Applicable rules and policies of the TNRCC 7.1.5. Applicable State law Contract No. 582-1-88029 49 7.1.6. For funds received from a federal government source,applicable federal regulations and law. Payments by TNRCC 7.2 PERFORMING PARTY must request payment by submitting one copy of an itemized invoice in a format provided by the TNRCC(Form B-3),a properly completed TNRCC PURCHASE VOUCHER(Form B-2),and such other forms as the TNRCC requires. PERFORMING PARTY will also submit any supporting documentation required by TNRCC. TNRCC will review the submittal and approve or reject the request for payment. PERFORMING PARTY must make any revisions required by the TNRCC in order to gain approval. TNRCC is not obligated to make payment until the request for payment is approved by TNRCC. Fixed-Amount Cost Reimbursement 7.3. In accordance with Chapter 2259 Texas Government Code, all payments by TNRCC to PERFORMING PARTY are based on reimbursement of PERFORMING PARTY's actual costs incurred in performing the Work. If this contract utilizes a pre-determined fixed-amount of reimbursement,this amount is determined on the basis of an estimate of PERFORMING PARTY's actual costs of performing one or more of the following: 1)specified service(s) (tasks); or 2) specified service(s) (tasks) during a specified time period; or 3) providing specified good(s), or product. PERFORMING PARTY has provided the estimate of costs in its Fiscal Analysis Package (Form B-5)for this grant. The TNRCC relies on the accuracy of that estimate to determine the fixed-amount of reimbursement. PERFORMING PARTY will provide supporting evidence to establish the accuracy of its estimate of actual costs. PERFORMING PARTY will monitor its actual costs of performance and provide TNRCC with a report annually to confirm that the original estimate of costs remains accurate. If in fact that estimate exceeds the actual costs of performance, TNRCC may recover the excess amount paid by 1) rejecting all or part of any reimbursement requests by PERFORMING PARTY and retaining amounts sufficient for repayment; or 2) by demanding and receiving repayment of the amount from PERFORMING PARTY. TNRCC may also use any other remedies and sanctions available under this contract. Contractual Costs 7.4. PERFORMING PARTY's contractual costs must comply with allowable costs requirements. PERFORMING PARTIES which are governmental entities must engage in contractor selection on a competitive basis in accordance with their established policies. If PERFORMING PARTY has no competitive procurement policy or is a private entity, PERFORMING PARTY must generally select contractors by evaluation and comparison of price,quality of goods or services and past performance. Comparison of Performing Party's Costs 7.5. In accordance with Section 2259.203 Texas Government Code, the TNRCC is required to perform a comparison of costs reimbursed under this Agreement. PERFORMING PARTY will provide a report to verify that its costs of performance are reasonably comparable to prices generally charged for similar goods or services. Indirect Cost Rate 7.6. If indirect costs are to be paid under this Contract,PERFORMING PARTY shall also submit an indirect cost proposal and a copy of an approval document reflecting that the proposed indirect cost rate has been approved by a federal agency or a federally certified State or local agency. Duplication of Effort Prohibited 7.7. In addition to the funds provided to PERFORMING PARTY under this Grant Agreement;the TNRCC may provide funds to PERFORMING PARTY under a separate Grant Agreement(so that funds of two or more TNRCC Contract No. 582-1-88029 49 grants are funding a single activity of PERFORMING PARTY). PERFORMING PARTY must monitor all activities to ensure that the grant funds complement one another and do not result in double payments for the same activity. Payment Request Procedures 7.8. On a quarterly basis,within 30 days after the end of a quarter, the PERFORMING PARTY shall submit one copy of an itemized invoice in a format provided by the TNRCC(Form B-3)and a properly completed TNRCC PURCHASE VOUCHER (Form B-2), in order to obtain payment for tasks completed under this Contract. Completed request for reimbursement packages should be mailed ordelivered to the TNRCC regional office Project Field Representative at the following address: Attn: Frank Espino,Regional Director Region 4,Arlington 1101 East Arkansas Lane Arlington,Texas 76010-6499 7.9. The TNRCC regional office Project Field Representative will review the invoices and purchase vouchers for requests for payment for services performed as identified in Section 7.8 of this Article and as required in Part B,Deliverables(Scope of Work,Section 01000),and will provide written documentation to the PERFORMING PARTY and the TNRCC Contract Manager that the requests are acceptable or will provide a written explanation of why the requests or the work identified in the requests is unacceptable. If the requests do not satisfactorily demonstrate the accomplishment of the required tasks, the TNRCC Project Field Representative and TNRCC Contract Manager will not authorize payment on the accompanying voucher until such time as deficiencies have been corrected. 7.10. TNRCC is not obligated to make payment until the request for reimbursement is approved by TNRCC. Further,the TNRCC reserves the right to suspend payment for any incomplete, inconsistent or incorrect services or reports as required by this Contract until the PERFORMING PARTY satisfactorily completes, revises, or corrects such services or reports. Closeout 7.11. When it is determined that all applicable administrative activities and all required work of the grant have been completed,the TNRCC shall close out the award. Within 30 days after the expiration or termination of the grant,the Performing Party must submit all financial,performance,and other reports required as a condition of the grant. These reports may include, but are not limited to: 7.11.1. All performance or progress reports required by this Agreement. 7.11.2. Financial Status Report(Form B-4). 7.11.3. Final request for payment(including Forms B-1,B-2,B-3). 7.11.4. Invention disclosure(if applicable). 7.11.5. State-owned property report(if applicable). 7.12. In accordance with the Uniform Grant Management Standards,a PERFORMING PARTY must submit an inventory of all state-owned property (as distinct from property acquired with grant funds) for which it is accountable and request disposition instructions from the TNRCC of property no longer needed. 7.13. Within 90 days of receipt of the reports set forth above, the TNRCC will make upward or downward adjustments to the allowable costs. The TNRCC agency will make prompt payment to the PERFORMING PARTY for allowable reimbursable costs. Closeout of the grant does not affect: Contract No. 582-1-88029 50 7.13.1. The TNRCC's right to disallow costs and recover funds on the basis of a later auditor other review; 7.13.2. The PERFORMING PARTY'S obligation to return any funds due as a result of later refunds, corrections,or other transactions; 7.13.3. Records retention as required herein; 7.13.4. Property management requirements set forth herein; and 7.13.5. Audit requirements set forth herein. 7.14. The PERFORMING PARTY must immediately refund to the TNRCC any balance of unobligated (unencumbered)cash advanced that is not authorized to be retained for use on other grant. 7.15. Any funds paid to a Performing Party in excess of the amount to which the Performing Party is finally determined to be entitled under the terms of the award constitute a debt to the TNRCC. If not paid within a reasonable period after demand,the TNRCC may reduce the debt by: 7.15.1. Making an administrative offset against other requests for reimbursement; 7.15.2. Withholding advance payments otherwise due to the PERFORMING PARTY, or 7.15.3. other action permitted by law. 7.16. Except where otherwise provided by statutes or regulations,the TNRCC will charge interest on an overdue debt in accordance with the Uniform Grant Management Standards. The date from which interest is computed is not extended by litigation or the filing of any form of appeal. 7.17. Upon satisfactory completion of the work performed hereunder and prior to final payment under this Contract for such work, or prior to settlement upon termination of this Contract and as a condition thereto, the PERFORMING PARTY shall execute and deliver to the TNRCC a release of all claims for payment of any funds due and payable by the TNRCC pursuant to the terms of this Contract. Such release shall be conditioned upon payment of all fund amounts due and payable to PERFORMING PARTY under this Contract,and limited to only those claims which reasonably could have been foreseen at the time the release is executed. PERFORMING PARTY reserves the right to identify claims to be excluded thereby. 7.18. The PERFORMING PARTY shall provide to the TNRCC documentation showing all tasks that have been completed by the PERFORMING PARTY. 7.19 Final Payment under this Contract or settlement upon termination shall not constitute a waiver of the TNRCC's claims against the PERFORMING PARTY. Cost Provisions Applying Solely to Regional Planning Commissions and Councils of Government 7.20. The provisions of this Paragraph and Subparagraphs apply solely to Performing Parties, Subgrantees and other Recipients of the funds under this Grant Agreement defined as a"Regional Planning Commission"as defined in Chapter 391 of the Texas Local Government Code,which includes, among others, a Council of Government. In the event of conflict with other provisions of the Contract Documents,the provisions of this Article prevail. 7.20.1. PERFORMING PARTY will comply with all requirements and rules to be adopted by the Office of the Governor of Texas pursuant to Section 391.009 Texas Local Government Code relating to the operation and oversight of Regional Planning Commissions. These rules are due for adoption on or about January 1,2000. If those rules conflict with provisions of the Contract Documents,the rules will prevail. Contract No. 582-1-88029 51 a i 7.20.2. PERFORMING PARTY will comply with the requirement of Chapter 391 Texas Local Government Code by adopting competitive procurement methods equivalent to Chapter 252 Texas Local Government Code for the purchase of all goods and services. PERFORMING PARTY will notify the TNRCC upon adoption of these methods. 7.20.3. PERFORMING PARTY will comply with all other requirements of Chapter 391 Texas Local Government Code with special attention to the following restrictions on the use of funds provided under this contract: 7.20.3.1. Contracts with or employment of lobbyists 7.20.3.2. Lobbying activities by employees 7.20.3.3. Auto allowance of members of the governing body 7.20.3.4. Travel reimbursements at the state rate 7.20.3.5. Alcoholic beverages and entertainment 7.20.3.6. Indirect cost rate limited to 15%of total direct expenditures 7.20.3.7. Classification salary schedules and appropriate exempt positions. 7.20.4. If indirect costs are to be paid under this Contract,PERFORMING PARTY shall also submit an indirect cost proposal and a copy of an approval document reflecting that the proposed indirect cost rate and an analysis of the determination for the proposed indirect cost rate. ARTICLE 8. TERMINATION 8.1. This Agreement shall terminate upon full performance of all requirements contained herein,unless extended in writing. 8.2. This Agreement may be terminated in whole or in part by the TNRCC in the event of a material failure to comply with the contract terms, in accordance with the Uniform Grant Management Standards: Provided that no such termination may be effected unless the other party is given 8.2.1 not less than ten (10) days written notice (delivered according to the notice requirements of this Agreement),and 8.2.2 an opportunity for consultation with the terminating party prior to termination. 8.3. This Agreement may be terminated in whole or in part in writing by the TNRCC for its convenience,in accordance with the Uniform Grant Management Standards: Provided that the PERFORMING PARTY is given not less than ten (10)days written notice(delivered according to the notice requirements of this Agreement)of intent to terminate. Circumstances in which the TNRCC may terminate for convenience include,but are not limited to,the Texas Legislature's withdrawal of appropriations for this project. 8.4. If the TNRCC terminates the Contract for a material failure to comply with the Contract terms under Section 8.2 or the TNRCC terminates the Contract for convenience under Section 8.3,an adjustment in the contract amount shall be made in accordance with the Uniform Grant Management Standards. 8.5. Upon receipt of a termination action pursuant to Sections 8.2 or 8.3 above,the PERFORMING PARTY shall: 8.5.1 promptly discontinue all services affected(unless the notice directs otherwise),and Contract No. 582-1-88029 52 t 8.5.2 deliver or otherwise make available to the TNRCC all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by the PERFORMING PARTY in performing this Contract,whether completed or in the process. 8.6. If, after termination for failure of the PERFORMING PARTY to fulfill contractual obligations, it is determined that the PERFORMING PARTY had not so failed, the termination shall be deemed to have been effected for the convenience of the TNRCC. 8.7. If any delay or failure of performance is caused by a force majeure event as described in the force majeure Article of this Contract,the TNRCC may in its sole discretion terminate this Contract in whole or part pursuant to this Article. Force Majeure 8.8. Aforce majeure event shall be defined to include decrees of or restraints by a governmental instrumentality, acts of God(except that rain,wind,flood or other natural phenomena normally expected for the locality shall not be construed as an act of God),work stoppages due to labor disputes or strikes,fires,explosions,epidemics,riots, war,rebellion, and sabotage. 8.9. Provided this Contract has not been terminated,and subject to the conditions below, if a delay or failure of performance by either party results from the occurrence of a force majeure event,the delay shall be excused and the time fixed for completion of the work extended by a period equivalent to the time lost because of the event if, and to the extent that: 8.9.1. the delay or failure was beyond the control of the party affected and not due to its fault or negligence; and 8.9.2. the delay or failure was not extended because of the affected party's failure to use all diligence to overcome the obstacle or to resume performance immediately after the obstacle was overcome. 8.10. No time extension shall be granted under this Article unless the party seeking relief has notified the other in writing within a reasonable time after commencement of the event, of the anticipated length and cause of the delay, the measures taken or to be taken to minimize the delay, and the timetable by which the PERFORMING PARTY intends to implement these measures. The party seeking relief shall also give written notice of the ending of the event within a reasonable time after the event has ended. 8.11. The TNRCC shall be responsible for costs related to a force majeure event only if they are incurred by the PERFORMING PARTY after the prior written request by the TNRCC Project Field Representative,to incur such costs in connection with any force majeure event. Neither the TNRCC nor the PERFORMING PARTY shall have, and both hereby waive,any claim whatever for any damages resulting from delays caused by force majeure events. ARTICLE 9. NUSCELLANEOUS Computation of Times: 9.1. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period.If the last day of any such period falls on a Saturday or Sunday or on a federal holiday, such day will be omitted from the computation. 9.2. A calendar day of twenty-four(24)hours measured from midnight to the next midnight will constitute a day. Contract No. 582-1-88029 53 Notice of Claim: 9.3. Should TNRCC or PERFORMING PARTY suffer injury or damage to person or property because of any error,omission of act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable,claim will be made in writing to the other party within a reasonable time of the first observance of such injury or damage.The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose or sovereign immunity. Professional Fees and Court Costs Included: 9.4. Whenever reference is made to"claims,costs, losses,and damages," it shall include in each case, but not be limited to,all fees and charges of TNRCC,architects,attorneys and other professionals and all court or other dispute resolution costs. Acknowledgment of Financial Support 9.5. The PERFORMING PARTY shall acknowledge the financial support of the TNRCC and the State of Texas whenever work funded,in whole or part,by this Contract is publicized or reported in news media or publications. All reports and other documents completed as a part of this Contract,other than documents prepared exclusively for internal use within the TNRCC,shall carry the following notation on the front cover or title page PREPARED IN COOPERATION WITH THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION The preparation of this report was financed through grants from the State of Texas through the Texas Natural Resource Conservation Commission. ARTICLE 10. INSURANCE,LIABILITY AND INDEMNIFICATION 10.1 To the extent permitted by law,'the PERFORMING PARTY agrees to indemnify and hold harmless the TNRCC and all of its employees and officers against and from any and all liability,loss,or damage arising out of the performance of this Agreement. To the extent that any activity conducted by PERFORMING PARTY with funds provided under this Agreement entails significant risk of loss or injury to individuals and third parties or their property, the PERFORMING PARTY will secure and maintain insurance sufficient to protect PERFORMING PARTY and the TNRCC,and its employees and officers against claims arising from the conduct of such activities. 10.2 In all subcontracts and subgrants,PERFORMING PARTY shall require its subcontractors and subgrantees to obtain and maintain, at their own expense, insurance as will protect the subcontractor, the PERFORMING PARTY and the TNRCC,its employees,and its officers from all such claims arising from the performance by the PERFORMING PARTY's subcontractors or subcontractors'employees resulting from the functions and services required under this Contract, including workers compensation in accordance with Texas statutory requirements. Directors and Officers Insurance Coverage 10.3. PERFORMING PARTY will purchase and maintain Directors and Officers insurance or equivalent insurance coverage or other financial assurance sufficient to protect the interests of the state in the event of an actionable actor or omission by a director or officer of the PERFORMING PARTY. Within 10 days of the Effective Date of this Agreement, PERFORMING PARTY will submit evidence of insurance-on a certificate to be provided by the TNRCC. Contract No. 582-1-88029 54 ARTICLE 11. STANDARDS FOR PERFORMING PARTY'S PERFORMANCE 11.1 In accordance with. Chapter 2259 Texas Government Code, the TNRCC is required to monitor PERFORMING PARTY's performance under this contract. Therefore,PERFORMING PARTY agrees that the following are appropriate standards for PERFORMING PARTY's performance during the contract: 11.1.1. Timeliness of Work. Standard: Work is provided on schedule. 11.1.2. Quality and Accuracy of Work.Standard:PERFORMING PARTY's Work is technically accurate and conforms to all contract requirements, including the compliance and enforcement standard operating procedures, capabilities, and reporting(including direct data entry) in support of the contracted Scope of Work (Deliverables)activities according to the TNRCC Air and Stage II Exhibits in this Agreement. 11.1.3. Subcontract Activities. Standard:PERFORMING PARTY's subcontract and subgrant activities comply with all TNRCC contract requirements regarding subcontracts especially competitive procurement methods for goods and services, use of required subcontract provisions, and monitoring performance of subcontractors and subgrantees. 11.1.4. Administrative and Financial Operations. Standard: PERFORMING PARTY's administrative and financial operations comply with all obligations in law and in the contract especially reports,record- keeping,reimbursement requests,audits,allowable costs, and restricted expenditures. Performance Measures 11.2. TNRCC will monitor PERFORMING PARTY 's performance and evaluate the level of compliance with the standards utilizing the following performance measures: Satisfactory: PERFORMING PARTY generally complied with the standard consistently; occasional deficiencies may have occurred which were corrected on a timely basis. Unsatisfactory: Significant deficiencies have occurred, or PERFORMING PARTY frequently or substantially failed to comply with the standard. Contract Monitoring and Evaluation Report 11.3. In accordance with Chapter 2259 Texas Government Code, TNRCC will monitor and evaluate PERFORMING PARTY's performance utilizing the performance standards and performance measures set out in this contract. TNRCC will prepare a cumulative written report of the evaluation upon termination or expiration of the contract and also as frequently as determined appropriate by the TNRCC. 11.3.1. Within 30 days of receipt of the FY-2001 Annual Performance Evaluation, the PERFORMING PARTY shall provide information to the TNRCC concerning action(s) that will be taken to correct any deficiencies noted in the Annual Performance Evaluation report. This response will include a schedule to bring any deficiencies in the air program activities up to TNRCC standards and will identify resources to accomplish necessary corrections. 11.3.2. Within 90 days after receipt of TNRCC comments or as recommended by the TNRCC, the PERFORMING PARTY shall correct deficiencies and report to the TNRCC any deficiencies that cannot be corrected within the allocated time-frame. If the deficiencies are not corrected to the satisfaction of the TNRCC,in addition to other rights the TNRCC may have against the PERFORMING PARTY,it may result in the TNRCC withholding payment to the PERFORMING PARTY for future air program activities and/or in the PERFORMING PARTY becoming ineligible for future funding. Contract No. 582-1-88029 55 M 3 Schedule of Remedies available to the TNRCC 11.4. In accordance with Chapter 2259 Texas Government Code,the following Schedule of Remedies applies to this contract in the event of substandard performance or other failure to conform to the requirements of the contract or applicable law. 11.4.1. Reject substandard performance and request corrections without charge to the TNRCC. 11.4.2. Issue notice of substandard performance or other non-conforming act or omission. 11.4.3. Request and receive return of any over payments or inappropriate payments. 11.4.4. Reject reimbursement request and suspend payment pending accepted revision of substandard performance or non-conformity. 11.4.5. Suspend all or part of the Work and/or payments pending accepted revision of substandard performance or non-conformity. 11.4.6. Reject reimbursement request and withhold all or partial payments.Funds may be retained by the TNRCC for recovery of administrative costs or returned to funding source as authorized by agreements with the funding source and by state or federal law. 11.4.7. Terminate the contract,demand and receive: return of all equipment purchased of contract funds, return of all unexpended funds,and repayment of expended funds. Sanctions for Substandard Performance 11.5. If the TNRCC evaluation finds PERFORMING PARTY's performance to be substandard, TNRCC may provide its written evaluation report to other governmental entities at any time. TNRCC may also provide its written evaluation report to the public as authorized by law. Cumulative Remedies 11.6. TNRCC may avail itself of any remedy or sanction provided in this contractor in law to recover any losses rising from or caused by the PERFORMING PARTY's substandard performance or any non-conformity with the contract or the law. The remedies and sanctions available to TNRCC in this contract shall not limit the remedies available to the TNRCC under law. 11.7. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto, and, in particular but without limitation, the Schedule of Remedies, obligations imposed upon PERFORMING PARTY by these General Conditions,and all other rights and remedies available to TNRCC thereunder,are in addition to,and are not to be construed in any way as a limitation of,any rights and remedies available to any or all of them which are otherwise imposed or available, by Laws or Regulations,by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. END OF GENERAL CONDITIONS Contract No. 582-1-88029 56