HomeMy WebLinkAboutContract 35809CITY SECRETi�I�y
C�NTRACT Np ,
PERFORNIING PARTP AGR�E��IENT NUNIBER
CITY OF FORT WORTH 2O0%-O 1 1
AGR�ED4ENT CONCERNING
SLIPPLE��IGNTAL ENVIRONA�IENTAL PROJECT FUNDS
This Agreeinent Concei•ning Suppleinental Enviromnental Project Funds (hereinafter "Agreeinent") is
entered iirto by and between the Te�as Coirullission on Environmental Quality (hereinafter "TCEQ"), an
agency of the State of Teaas, and City of Fort Wortlt, Texrrs (hereinafter "Performing Party"), a
inunicipal ho�ne-i•ule corporation situated in the State of Texas, acting herein by and ttu•ough Libby
Watson, its duly authorized Assistant City Managei•.
General Conditions
1. Contact Information
Each Party hereby designates the following person as its representative for i�npleinenting this Agreement
and for receipt of notice or other information pursuant to the Agreement:
Contact Name: Haily Suminerford, Environmental Manageinent Departinent
Information for Telephone: 817392.8570
Pei•forming Facsimile: 817.392.6359
Pa�'h'� Email: Hail .suinmerford fortwortl� ov.or
Address: 1000 Tln�oclanorton Street
Foi•t Worth, Te�as 76102
Contact Naine: Sharon Blue
Information for Tele hone: 512/239-2223
TCEQ: Facsimile: 512/239-3434
EmaiL• sblue � tce .state.tx.us
Address: Mail: Ovei•night oi• Courier:
Litigation Division Litigation Division
Attn: SEP Cooi•dinator Attn: SEP Cooi•dinator
Mail Code 175 Mail Code 175
Te�as Commission on Tetas Commission on
Environmental Quality Environmental Quality
P.O. Boa 13087 12100 Parl< 35 Circle, Bldg. A
Austin, Te;cas 787ll-3087 Austin, Te�as 78753
2. Definitions & Clai•iiications
2.1. '`Effective Date" i•efei•s to the date this Agreeinent begins and is tl�e date of the last
signatory below.
2.2. "lncludes" and "including" are terms of enlargement and not of limitation or eYclusive
enumeration, and the use of the terins does not create a presumption that components not
eYpressed are excluded.
23. "Party" oi• "Parties" refei•s to one or all of the signatories to this Agreeinent, respectively.
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2.4. '`SEP Pi•oject" means Supplemental Environmental Project and refers to the project or
projects that are approved by the TCEQ and described in the exhibit(s) to tl�is Agreement.
2.5. "SEP Funds" means funds that, with tl�e TCEQ approval, are conti•ibuted to Pei•forining
Party Uy respondents in enforcement actions brought by t11e TCEQ. The term includes interest
earned on the original contribution.
2.7. Co�nputation of Tiines. When any period is refei•red to in this Agreement by days, it
will be computed to exclude the first and last day of such period. If t11e last day of any such
pei•iod falls on a Saturday or Sunday or on a state or federal holiday, such day will be omitted
fi�om the computation. A cale�ldar day of twenty-foui• houis measured fi•om inidnight to the ne�t
midnight constitutes a day.
Exhibits
The following exhiUit is attached to this Agreement and incorporated herein by reference:
E�hibit 1, entitled "Mow Down Air Pollution Mower E�change Event"
4. Approvable SEP
The Parties agi•ee tllat t11e SEP Project meets tl�e definition of a SEP pursuant to Texas Watei• Code, §
7.067 and the TCEQ guidance on SEPs.
SEP Funds
5.1. Maintenance of SEP Funds: Performing Party shall inaintain SEP Funds in an interest-
bearing account used exclusively for such funds at a financial institution that is insured by tlle
Federal Deposit Insurance Coiporation (FDIC) and provides i•egular accounting stateinents. All
earned interest on SEP Funds must be accounted for and Uecomes part of the SEP Funds under
this Agreement.
5.2. Use of SEP Funds: For any SEP Funds received, Pei•forining Party shall only e�pend
such funds dii•ectly on the SEP Pi•oject for e�penses tliat are i•easonable, necessary, actual, and
authorized by this Agi•eement Pei•foi•ming Pai-ty shall ensure tliat the e�penditure of SEP Funds
results iu adequate and tiuiely work perforined or purchases made in accoi•dauce with this
Agreement. Pei•foi•ming Party shall not use any SEP Funds, nor interest fi•om such fiinds, for
adminish�ative, advertising, or h•avel eapenses associated with the impleinentation of the SEP
Project witliout expi•ess written appi•oval fi•om the TCEQ.
5.2.1. In addition to the requirements that eapenses be reasonable, necessary, actual,
and authorized, TCEQ may also require that eapenses for worl< or a specific portion of
the ���ork to Ue performed under this Agreement be allowable under the appropriate cost
principles specified in the Te�as Unifoi•m Grant Management Standards (UGMS)
established by the Office of tl�e Governoi• of Texas under 1 Te�as Adininistrative Code
5§ 5.141-5.167.
5.2.2. Perfoi•ming Party shall e�pend SEP Funds for work being perforined by or for
Performing Party by Pei•foi•ming Party's einployees, independent conh�actoi•s, oi•
volunteers. Performing Party shall not act as a third-party administrator granting funds or
funding projects foi• t11e benefit of other parties ��ithout specific written authorization
fi•om TCEQ, in which case Perfoi•ming Pai-ty shall enter into wi•ittei� agreements with all
such other parties that shall include provisions sin�ilar in effecY to the provisions in this
Agreement.
5.3. Accounting: Pei•foi•ming Party shall specifically accotiint for the receipt and etpenditure
of SEP Funds, including all intei•est earned on such funds, on the approved TCEQ reporting form.
5.4. Timely Expenditure: Performing Party shall e�pend SEP Funds withul one year of
receiving tlie conti•ibution. In tl�e TCEQ's sole disci•etion, this ti�ne pei•iod inay be extended upon
i•equest fi•om Perforining Party. Any i•equest for extension must be on the approved TCEQ form,
iuclude reasonable justification for the eatension, and be received thirty (30) days prior to the end
of the required performance period.
5.5. No Guarantee of Funding: Funding under this Agreement is limited to voluntaiy SEP
conti•ibutions through the TCEQ enforcement process. Performing Party understands that there is
no guarantee tllat it will receive any SEP Funds under this Agreeinent.
5.6. Refund of SEP Funds: If at any time the TCEQ determines that SEP Funds have been
spent in a mamier that is not in accordance with tl�is Agi•eement, Perforining Party shall, on
request from the TCEQ, reimbtu•se s��ch fuuds to the TCEQ. Additionally, Performing Party, on
rec�uest from the TCEQ, shall turn over all remaining SEP Funds to the TCEQ. Return of SEP
Funds will be accoinpanied by a detailed wi•itten accounting connecting the funds to specific
docket nuil7bers in a manner acceptable to the TCEQ. These remaining SEP Ftmds must be in the
form of a checic or inoney oi•der made out to "Te�as Commission on Environmental Quality" and
sent to the designated TCEQ coiltact addi•ess. This obligation survives ter�nination of the
Agreement.
5.7. TCEQ may 1•equn�e that Perforining Pai•ty submit a proposed budget to TCEQ for review
and approval prior to beginning worlc or a poi•tion of the worlc under this Agreeinent. In the event
that TCEQ i•equires a budget to be subinitted, then Performing Party shall not incur expenses
performing the ���ork or portion of work that is subject to t11e budget until the budget has been
approved, unless authorized to do so in ���riting by TCEQ. All subsequent eYpenditures for the
work or portion of worl< subject to the budget shall be withii� the approved budget or shall be paid
for with non-SEP funds.
6. Other Contributions
Nothing in this Agreement is to be construed to prevent Performing Party from accepting funds fi•om
charitaUle conti•iUutoi•s or other sources to the extent perinitted by law. However, Perforining Party agrees
that it will not rec�uest additional contributions fi•om any TCEQ contributor within sia months of receiving
funding fi•om that same contributor tlu•ough the SEP program.
TCEQ Enforceinent Actions
Tl�is Agi-eement does uot create any i•ights on bellalf of Performing Party or contriUuting respondents in
TCEQ enfoi•ceinent actions. Perforiniiig Party shall have no role in the TCEQ enforcement process other
tlian to receive approved, voluntaiy SEP conh•ibutions from respondents and perform the SEP Project
according to the terins of this Agreeinent.
8. Project Perform�tnce
Performing Party shall perfonn t1�e SEP Project in accordance with this Agreement as well as applicable
state and federal laws, rules, and regulations. Iu so doing, Performing Party shall obtain all necessary
permits and licenses.
9. Ter�n of Agreement
The Agreement begins on the Effective Date aud automatically renews in one year uicrements unless
tei•minated in wi•iting by either Party in accordance with this Agi•eeinent.
10. Termination
Upon thirty (30) days prioi• wi•itten notice to tlle other Party, eitl�er Party may terinuiate this Agreement
witl� or ��vithout cause. Within thirty (30) days of the effective date of the termination, Performing Party
shall make a written accounting to tl�e TCEQ of all SEP Funds received, expended, and remaining under
this Agreement. This accoui�ting must tie SEP Funds to specific docket numbers and be in a foi•m
acceptable to ttle TCEQ. With this written accounting, Performing Party shall also return all remaining
SEP Funds to the TCEQ that have not been expended. The retut•n of i•emaining SEP Funds must be in the
form of a check or money order made out to "Te�as Commission on Environmental Quality" and sent to
the designated TCEQ contact address. These obligations sui•vive tei•mination of the Agreeinent.
ll. Amendments
Witl� the exception of contact infor�nation, changes to this Agreeinent inay only be inade by wi•itten
ame�ldinei�t, signed, and agreed to by all Pai•ties. Changes to Section 1, Contact Inforiilatioii, may be
inade by ��vritten notice fi•om one Pari}� to all other Patiies.
12. Notices and Other Infoi•ination
12.1. Effective Delivery: All notices and other inforination will be deeined to be delivered on
the date they are received if they ai•e: 1) hand-delivei•ed, as evidenced by a signed
aclaiowledgement of receipt; 2) delivered by a nationally recognized courier service, as
evidenced by the confirmation of delivery rendered by the courier service; 3) or mailed through
the U.S. Postal Service by certified or i•egistered inail, i•eturn receipt requested, as evidenced by
the acknowledgement of receipt returned to the sender by the postal authorities. Electronic
transfer by facsimile or email is not effective for notice unless acknowledged Uy the other Party.
122. Banlu•uptcy: ln the event that Performing Party files a petition for banla•uptcy protection,
Pei•forming Party shall pi•ovide wi•itten notice to the TCEQ within twenty-foui• (24) houi•s of such
filing. Notice inust be sent to the designated TCEQ coutact under this Agi•eeinent as well as the
TCEQ Banla•uptcy Program. Notice to the TCEQ Banla•uptcy Program inust include contact
information and inust be sent to: Denise Espinosa, TCEQ Banki•uptcy Pi•ograin, P.O. BoY 13087,
Mail Code 132, Austin, Texas 78711.
123. Notice of Change: Performing Party agrees that all information it provided to the TCEQ
remains correct and that in entering into this Agreement, the TCEQ has materially relied on all
information provided by Performing Party, regardless of whether such information is
incoi•porated into this Agi•eeinent. Perforining Party agrees to give proinpt written notice to the
TCEQ if there is any material change in the information.
13. Records and Reporting
13.1. Records: Performing Party shall establish and maintain legible and organized
financial recoi•ds concerning the SEP Funds foi• a ininiinum of three (3) years fi•om the date of
receipt of each contr•ibution. This obligation survives termination of the Agreement.
13.2. Quarterly Reports: Performing Party shall submit quarterly repoi�ts to the TCEQ on
tl�e approved TCEQ form. The reports shall contain the following inforiiiation:
132.1. Tf�e amount of SEP Fi�nds received ducing the previous quarter with each
contribution ainouut, conti•ibutor name, and corresponding docket nuinbei•;
li.2.2. A list of actual eYpenditures paid ��vith SEP Funds, grouped by the SEP Pi•oject
the funds were expended on and any necessaiy accompanying e�planation;
13.2.3. The total balance of the SEP Funds with interest sepai•ately noted;
13.2.4. Projected eYpenditures of remaining SEP Funds;
13.2.5. A description of each SEP Project to which SEP Funds were allocated and
pi•ogress made to date;
] 3.2.6. Au}� additioual information Performing Party believes would demonstrate
compliance with this Agreeii�ent; and
13.2.7. Any additional information requested Uy the TCEQ or the approved TCEQ
reporting form.
133. Final Reports: Within thirty (30) days after the conclusion of each SEP Project,
Perforining Party shall subinit a final report on the approved TCEQ reporting form. The report
shall contain the following information:
13.3.1 Detailed inforil�ation concerning the coinpleted SEP Project;
13.3.2. Tl�e amount of SEP Funds applied to the project witl� each contribution
amount, conri•ibutor name, and corresponding docket uu�nber;
1333. A list of actual e�pendihii•es on the SEP Project that were paid foi• with SEP
Funds;
13.3.4. Any remaining SEP Funds dedicated to the subject SEP Project with interest
separately noted;
13.3.5. Any additional inforination Performing Party believes would deinonstrate
compliance with tl�is Agreemeiit; and
13.3.6. Any additional infoi•matioil i•ec�uested by the TCEQ oi• the appi•oved TCEQ
reporting form.
13.4. Additional Reporting: Performing Party agrees to provide additional information
requested by the TCEQ under this Agreeinent.
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14. Access
14.1. Inspection and Audit: Performing Party agi•ees to allow access by the TCEQ and othei•
state agencies to all recoi•ds perti�lent to this Agree�nent, including records concerning receipt and
expenditure of SEP Funds, for the puiposes of inspection and audit.
14.2. Access to SEP Pi•oject: Pei•foi•ining Party agi•ees to allo��� access by tlle TCEQ and its
representatives to the site of any worlc financed in whole or in part by SEP Funds. Perforiiiing Party
agrees to require its contractors to provide the saiile access.
14.3. Sui•vival: These access oUligations survive terinination of this Agreeinent.
15. Insurance
Unless prohibited by law, Performiug Party sl�all require its contractors and suppliers to obtaul and
❑�aintain adequate insurance coverages sufficient to protect the TCEQ and Perforining Party fi•om all
claims and liability for injui•y to pei•sons aud for damage to pi•opei-ty arising tulder the Agreement. If
Performing Party is perfoi•�ning work under tl�is Agreeinent using its own einployees and i•esoui•ces, fllen
(unless Performing Party is a governmental entity or tl�is requirement is waived by TCEQ) Pecforming
Party shall itself obtain and maintain adequate insurance covei•ages sufficiei7t to pi•otect the TCEQ aiid
Performing Pai•ty from all claiins ai2d liability for injuiy to persons and for dainage to property arising out
of Pei•forining Party's perfoi•inance of the work.
16. Independent Entity
Perforiuing Party is an independent entity and conducts the ��vorlc undei• tlus Agreement as pai�t of its own
authorized functions. Performing Party agrees that it uudertakes performance in accordance with this
Agreement as its own worl< and does not act in any capacity on behalf of the TCEQ or as a TCEQ-hired
contractoc or vendor of goods or services.
17. Acknowledgement of Financial Support
Performing Party shall acknowledge the financial support of the TCEQ SEP program in any publication
involving the use of SEP Funds or whenever work funded in whole or in part by this Agreeinent is
publicized or reported in news media. All publications or news releases shall contain the following
notation (or its equivalent if approved by the TCEQ):
Prepared witl� funding from contr•ibutions in settlement of an enforce�nent action
brought by the Texas Comtnission on Environmeirtal Quality.
18. Publicity
Perforining Party shall not publicize tlle name of contributors of SEP Funds without consent of the
contributor and notice to tl�e TCEQ.
19. Public Info►•mation
The Texas Public Information Act (Texas Government Code, Chapter 552) applies to all information
delivered to the TCEQ in the course of perfoi•mance under this Agi•eement. The TCEQ assumes no
obligation to make legal arguments in support of airy claiins pertaining to confidentiality, patents, trade
secrets, or copyright.
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20. Severability
If any pi•ovision of this Agi•eement is held to be invalid, illegal, oi• unenforceable, the remaindei• of the
Agreement shall Ue construed to conform to the intent of the Parties.
21. Conflict of Interest
Pei•forming Party shall notify the TCEQ in writing of any actual, appai•ent, or potential conflict of interest
regai•ding Performing Party oi• any related entity or individual performing or having involvement with any
portioi� of the SEP Project. At the TCEQ's request, any entity with an organization conflict of interest or
an individual with a persoual conflict of interest shall not talce part in ai�y way in the perfoi•mance of the
SEP Pi•oject. Pei•forming Part}� agi•ees that tl�e TCEQ has sole discretiou to deten7line �vhetliei• a conflict
e�ists.
22. Govei•ning L��v
This Agreeinent shall Ue governed by, construed, and interpreted under the laws of the State of TeYas, as
well as any applicable federal law.
23. Venue
Performing Party agrees that the Agreement is being performed in Travis Cotmty, Teaas because this
Agreen�ent has been solicited and is being administered in Travis Co�mty, Texas. Performing Party
agrees tl�at any permissible cause of action involving this Agreeinent arises solel}� in Travis County. This
provisio�l does not waive the TCEQ's sovereigii iiniminity.
24. Sovereign Iinmunity
The Parties agree that this Agreeinent does not waive either pai•ty's sovereign immunity i•elating to suit,
liability, and the payment of damages.
25. Assignment
No delegatioi� of dlities, obligations, or rights under oi• interests in the Agreement will be binding on the
TCEQ �,vithout its eapi•ess written consent e�cept as restricted by law. No assignment will i•elease or
discharge Performing Party fi•om any duty or responsibility under the Agreement.
26. Survival of Obligations
All representations, warranties, and guarantees made in, required by, or given in accordance with this
Agreement, as well as all continuing obligations indicated in the Agreement, will survive beyond the
termination or completion of the Agreeinent.
27. Fu1lIntegration
Tl�is Agreement, including all attachinents, inerges any prior negotiations and Llnderstandings of the
Parties ai�d embodies tl�e entii•e agi•eenient of the Pai•ties. No othei• agreements, assurances, conditions,
covenants (express or implied), or otl�er terms of any I<ind exist between the Parties regarding the SEP
Project.
28. Counterpai•ts
This Agreement may be signed in any number of counterparts, and as signed, shall constitute one
Agreemeut binding on all Parties hereto, even though a11 of the Parties do not sign the same counterpart.
29. Autliorized Signatories
The Parties agree that the signatories to this Agreement are authorized to enter into this Agreement on
behalf of the entities indicated below each i•espective signatui•e. Furthermoi•e, the Parties agi•ee that each
is bound by the terms and conditions of this Agreeinent after it is signed by each Party.
Special Conditions
1. Advertising or Promotional Costs
SEP Funds inay be used foi• the dn•ect cost of advertising or proinotional iteins in an ainount not to ehceed
10% of SEP Funds. Use of SEP Funds for advertising costs is only allowed for the specific purpose
necessacy to meet the requirements of the SEP Project. A detailed account of any SEP Funds used for
advertising inust be included in reports to the TCEQ.
Si�natui•e Page for Performing Pai•ty
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Libb � atson Date
Assistant City M�nager
City of Fort Worth, Te�as
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Assistant ty Attorney
City of Foi�t Worth, Texas
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Marty Hendrix
City Secretaiy
City of Fort Worth
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Stephanie geron Perdue Date
Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
11
Eshibit 1
Project Description
P►•oject Name: "Mow Down Air Pollutio�i" Mower E�change Eve�lt
Description: The City of Fort Worth sl�all l�old a oue-time event to remove gasoline-powered lawn
mowers fi•om service and replace them with more filel-efficient and lower pollution-emitting elect��ic
mowers.
The City of Fort Worth, in conjiinction with the North TeYas Clean Air Coalition (NTCAC), sl�all host a
one-day eve�rt in Tarrant County wl�ere 167 operational gas-powered wall<-behind mo�vers may be traded
in for a disco�mt on a clean-rumiing electric mowei•. The City shall cooi-dinate with retaileis and/or
manufacturers to provide a 20% discount off the retail cost of electric mowers (appro�iinately $90). The
City will pay 40% of the retail cost with SEP Funds (appro�imately $150) to 1<eep out-of-pocl<et
consumer costs comparable to that of bu}�ing a gas-powei-ed uiower. The discouuted price for the
consumer will be appro�imately $209 for an elech-ic mower that usually costs $�49.
The City shall collect the gas-powei•ed mowei•s at the eveut, empty them of all liquids, and reinove them
fi-om the event location the san�e day. Additionally, the City shall deconmlission each gasoline-potivered
mower, recycle all recyclable materials, and properly dispose of all other materials. No gasoline-powered
mower may be re-used or sold for re-use.
Minimnm Contribution: $1,000.
Maaimum Annual Contribution: $50,000, unless coordinated by Administrator.
Benefits: The event will remove appro�imately 167 gasoline-powered mowers fi�om sei-vice and result in
an estiinated reduction of seven (7) tons of volatile organic compound (VOC) emissions aud removal of
fifteen (15) tons of carbon monoaide emissions per year. The event will assist in educatllig citizens on
ways they can reduce ozoue-foi-nling emissions.
Counties: Collin, Dallas, Ellis, Johuson, Kaufinan, Parker, Rocicwall, and Tarrant.
12
City of Fort Worth, Texas
Mayor and Council Communication
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COUNCIL ACTION: Approved on 9/18/2007 - Ord. No. 17778-09-2007
DATE: Tuesday, September 18, 2007
LOG NAME: 52TCEQ-SEP-MOW REFERENCE NO.: **C-22394
SUBJECT:
Authorize Entering into an Agreement with the Texas Commission on Environmental Quality for
Supplemental Environmental Project Funding and Adopt Appropriation Ordinance
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to enter into an agreement with the Texas Commission on Environmental
Quality (TCEQ) to receive voluntary Supplemental Environmental Project (SEP) contributions for a one-time
"Mow Down Air Pollution" Mower Exchange Event in the amount of $50,000; and
2. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the
Grants Fund in the amount of $50,000, upon receipt of SEP funds.
DISCUSSION:
Under Texas Commission on Environmental Quality (TCEQ) regulations, a party involved in an enforcement
action with the TCEQ may negotiate an agreement to perform or fund a Supplemental Environmental
Project (SEP) in return for a reduction in the assessed administrative penalty. The TCEQ defines a SEP as
a project that prevents pollution, reduces the amount of pollution reaching the environment, or enhances the
quality of the environment. Although the City of Fort Worth is not currently a party to a SEP, TCEQ
regulations allow the City to receive SEP monies to fund local environmental projects.
In an effort to spark voluntary action by citizens and reduce emissions, the City of Fort Worth and the North
Texas Clean Air Coalition (NTCAC) will host a one-day event in Tarrant County where operational gas-
powered walk-behind mowers may be traded in for a discount on a clean-running electric mower. The City
will coordinate with retailers and/or manufacturers so that the retailers and/or manufacturers will provide a
20 percent discount off the retail cost of electric mowers. The City shall then pay 40 percent of the retail
cost with SEP Funds to keep out-of-pocket consumer cost comparable to that of buying a gas-powered
mower. The discounted price for the consumer will be approximately $209 for an electric mower that usually
costs $449.
The City will collect the gas-powered mowers at the event, empty them of all liquids, and remove them from
the event location. Additionally, the City will decommission each gasoline-powered mower, recycle all
recyclable materials and properly dispose of all other materials. No gasoline-powered mower will be re-used
or sold for re-use.
The "Mow Down Air Pollution" Mower Exchange Event will remove approximately 150 to 200 gasoline-
powered mowers from service and result in an estimated reduction of seven tons of volatile organic
compound (VOC) emissions and removal of fifteen tons of carbon monoxide emissions per year. The event
will also assist in educating citizens on ways they can reduce ozone-forming emissions.
Logname: 52TCEQ-SEP-MOW Page 1 of 2
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that upon approval of the above recommendations, award of the SEP Funds
and adoption of the attached appropriation ordinance funds will be available in the current operating budget,
as appropriated, of the Grants Fund.
TO Fund/Account/Centers
GR76 451543 052412222000
GR76 5(VARIOUS) 052412222010
$50,000.00
�50,000.00
FROM Fund/Account/Centers
Submitted for Citv Manager's Office b� Libby Watson (6183)
Oriqinating Department Head: Brian Boerner (6647)
Additional Information Contact: Michael Gange (6569)
Logname: 52TCEQ-SEP-MOW Page 2 of 2