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1993-154E WPDOCS\RES\USED OIL NO 23-1 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE, ON BEHALF OF THE CITY OF DENTON, AN INTERLOCAL AGREEMENT WITH THE TEXAS WATER COMMISSION FOR THE ACCEPTANCE OF GRANT FUNDS TO BE UTILIZED TO IMPLEMENT A USED-OIL RECYCLING PROGRAM, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City of Denton submitted a proposal to the Texas Water Commission to receive grant funds in order to establish a used-oiil recycling program= and WHEREAS, the City of Denton has been selected by the Texas Water Commission to receive said grant funds, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS mSEfTION I That the City Manager is hereby authorized to execute on behalf of the City of Denton, Texas, an interlocal agreement with the Texas Water Commission to receive grant funds for the implementation of a used-oil recycling program, a copy of which is attached hereto SEQTION II That the City Council authorizes the expenditure of funds in accordance with the terms of the Agreement -SECT - IQN III That this ordinance shall take effect immediately from and after its passage PASSED AND APPROVED this the ~~day of 1993 61 ATTEST BY WALTERS, CITY APOOVF D AS' TO LEGAL FORM D RA A DRAYOVITCH, CITY ATTORNEY BY Contract Number 3100000136 THE STATE OF TEXAS COUNTY OF TRAVIS INTERLOCAL CONTRACT THIS INTERLOCAL (INTERGOVERNMENTAL) CONTRACT ("Contract") is entered into by and between the Governmental Entities shown below as "Contracting Parties", pursuant to the authority granted by, and in compliance with, the provisions of the "Interlocal Cooperation Act," TEXAS GOVERNMENT CODE, Chapter 791. I. CONTRACTING PARTIES: The Funding Agency: Texas Water Commission (TWC) The Performing Party: City of Denton II. SERVICES TO BE PERFORMED: See "Attachment A - Scope of Services" III. SCHEDULE FOR ACTIVITIES OR SERVICES: See "Attachment B - Schedule of Deliverables" IV. BASIS FOR CALCULATING REIMBURSABLE COSTS: See "Attachment C - Eligible Reimbursable Costs and Payment Procedures" V. CONTRACT AMOUNT: The total cost of services to be performed in connection with this Contract is: Twenty thousand and seventy dollars $20,070.00. VI. ADDITIONAL CONTRACT PROVISIONS: See "Attachment D - Additional Contract Provisions" VII. ATTACHMENTS: Attachments "A - D" are attached hereby incorporated herein and Contract for all purposes. VIII. TERM OF CONTRACT: This Contract begins August 1, October 31, 1993. to this Contract and are made a part of this 1993, and terminates The TEXAS WATER COMMISSION (FUNDING AGENCY) certifies that it has the authority to contract for the above services by authority granted in the Current Appropriations Act; TEXAS WATER CODE, §5.229 and HEALTH and SAFETY CODE §§371.061, as added by Senate Bill 1340 of the 72nd Texas Legislature. The PERFORMING PARTY certifies that it has authority to perform the services contracted for by authority granted in the "Interlocal Cooperation Act," TEXAS GOVERNMENT CODE, Chapter 791. Also included is a copy of the City of Denton Resolution dated June 1, 1993. FUNDING AGENCY Texas Water Commission (Name of Agency) By: (Authorized Signature) (Printed Name) (Title) Date: PERFORMING PARTY City of Denton ( e of Pa t -yA B (Authorized Signature) Up,id v. /4, re,fl ,(Printed Name) (Titles ? 3 Date: 3 ~ THIS CONTRACT DOES NOT REQUIRE APPROVAL BY THE GENERAL SERVICES COMMISSION ATTEST: JENNIFER WALTERS, CITY SECRETARY , BY: l APP ED TO LEGAL FORM: DE A. P.AYOVITCH, CITY ATTORNEY BY: ATTACHMENT A SCOPE OF SERVICES ARTICLE I. USED-OIL RECYCLING PROGRAM IMPLEMENTATION (a) The PERFORMING PARTY agrees to conduct activities to promote and implement programs for the collection and recycling of used-oil in areas currently either not served or under served by other used-oil collection and recycling programs or facilities. The purpose of this program is to reduce the amount of used motor oil that is disposed of indiscriminately by do-it-yourselfers (DIY) who change there own oil. This shall be accomplished by increasing citizens, awareness of the environmental hazards that used motor oil presents, and by stressing the importance of the recovery and reuse of used motor oil. (b) The PERFORMING PARTY proposes to prevent the harmful and incorrect disposal of used motor oil through a used motor oil collection program that will be available to all residents of the City of Denton. Through this program, the PERFORMING PARTY agrees to: (1) collect used motor oil generated in the City of Denton, thus diverting it from the solid waste streams; (2) provide five (5) convenient collection locations that shall be easily accessable to all residents of the City of Denton to deposit their used-oil; and (3) provide an educational and outreach campaign for citizens by informing them through newspaper advertizements, radio and television announcements (PSA's) and publications about the hazards of used-oil. (c) Under this Contract the PERFORMING PARTY agrees to provide five (5) new collection locations for the residents to drop off used-oil in the City of Denton. Three (3) of these locations shall include a minimum of one (1) four hundred sixty-five (465) gallon collection tank and the remaining two (2) locations will each contain a two hundred seventy-five (275) gallon collection tank. (All collection and storage tanks shall be designed to control and prevent spillage. These tanks shall include double containment capabilities and/or a lined and bermed containment pit. Also, each collection site shall include a bermed, spill prevention pad in the loading/unloading area where the oil will be poured into the storage tanks). (d) The PERFORMING PARTY shall enter into a contract with a TWC Contract Number 3100000136 Attachment A, Page No. 1 registered used-oil hauler/recycler to collect the used-oil from the collection center. (e) The PERFORMING PARTY shall accomplish all items or activities listed as deliverables in Attachment B of this Contract. (f) This Attachment, which sets forth under the Contract a required scope of services for the proposed project, includes the Narrative Proposal (Exhibit 1 and Exhibit 2) that was submitted by the PERFORMING PARTY, in June, 1993, when applying for funding from the Texas Water Commission (TWC) . In the event any of the provisions of the narrative proposal, incorporated as Exhibit 1 and Exhibit 2 to this Attachment, conflict with that "Scope of Services" or with Attachment B of this Contract (relating to Schedule of Deliverables), the provisions of Articles 1 - 3, of this Attachment or Attachment B shall prevail. ARTICLE 2. REPORTING Using the format provided by the FUNDING AGENCY, the PERFORMING PARTY shall provide to the FUNDING AGENCY written progress reports concerning the overall performance of this Contract. The progress reports shall document accomplishments and units of work performed, including all activities performed by any subcontractors. The first progress report shall be due on August 31, 1993 and the final progress report shall be due on October 31, 1993. Completed report forms should be mailed or delivered to the attention of the "Municipal Solid Waste Grants Coordinator," at the following address: Texas Water Commission Municipal Solid Waste Division P.O. Box 13087 Austin, Texas 78711-3087 ARTICLE 3. REGISTRATION OF COLLECTION CENTERS Using the forms provided by the FUNDING AGENCY, the PERFORMING PARTY shall provide the required information, for each of the collection centers established during this contract, to become registered by the Texas Water Commission as a collection center for used oil. The registration information shall be provided by the PERFORMING PARTY prior to the termination date of this contract and and prior to collection/acceptance of any used oil at such centers. The PERFORMING PARTY also shall continue to maintain current facility registration requirements and submit required annual reports to the Texas Water Commission after completion of this Contract. Contract Number 3100000136 Attachment A, Page No. 2 Registration as a used-oil transporter shall be required of any entity who transports amounts of used-oil that exceeds the guidelines allowed by the Federal Register 40 CFR 279, Subpart E "Standards for Used-Oil Transporter and Transfer Facilities." Contract Number 3100000136 Attachment A, Page No. 3 NUMBER 13 WORK PROGRAM THE CITY OF DENTON IS CURRENTLY WORKING ON THE CONSTRUCTION OF A PERMANENT USED OIL COLLECTION FACILITY TO BE LOCATED AT THE SOUTH END OF THE CITY'S SERVICE CENTER GARAGE ALONG CRAWFORD STREET. THIS FACILITY IS THE RESULT OF A USED OIL GRANT BY THE NORTH TEXAS COUNCIL OF GOVERNMENTS. THE CITY OF DENTON IS AWARE THAT THIS TYPE OF FACILITY IS NEEDED TO MITIGATE THE PROBLEMS THAT RESULT WHEN HOUSEHOLD GENERATED USED OIL IS SIMPLY MIXED WITH HOUSEHOLD SOLID WASTES AND LANDFILLED OR IT IS POURED ON THE GROUND OR INTO THE STREET. THE POTENTIAL FOR GROUNDWATER CONTAMINATION AND THE ENDANGERMENT TO HUMAN HEALTH OR THE ENVIRONMENT THAT RESULTS ARE BECOMING INCREASINGLY SERIOUS PROBLEMS. DENTON'S PERSONAL VEHICLE POPULATION IS ESTIMATED TO GENERATE OVER 45,000 GALLONS OF USED OIL FROM DO-IT-YOURSELFERS ALONE. IN ORDER TO PROMOTE THE SAFE DISPOSAL AND RECYCLING OF USED OIL TO THIS TARGET GROUP WE WOULD LIKE TO MAKE ACCESS TO USED OIL COLLECTION CONTAINERS AS EASY AS POSSIBLE. THAT IS WHY WE INTEND TO PROVIDE REGIONALLY LOCATED USED OIL COLLECTION CONTAINERS THROUGHOUT THE CITY. THE CONTAINERS WOULD BE LOCATED AT THE FIVE OUTLYING FIRE STATIONS. THE LOCATIONS OF THESE STATIONS IN THE VARIOUS PARTS OF THE CITY WILL MAKE THEM IDEAL SITES. THE FACT THAT THREE OF THE FIVE SITES ARE CURRENTLY BEING USED AS NEWSPAPER RECYCLING LOCATIONS AND ONE OF THE REMAINING TWO SITES IS IN CLOSE PROXIMITY TO ONE OF THE CITY'S DROP OFF RECYCLING SITES SIMPLY REINFORCES OUR DECISION. ANOTHER REASON FOR LOCATING THE CONTAINERS AT THESE STATIONS IS BECAUSE THEY ARE MANNED 24 HOURS A DAY, SEVEN DAYS A WEEK. THIS WILL REDUCE THE POTENTIAL FOR VANDALISM AND/OR CONTAMINATION OF THE CONTAINER'S CONTENTS. TO PUBLICIZE THE USED OIL COLLECTION SITES, THE CITY WILL UTILIZE THE LOCAL PRINT MEDIA THROUGH A SERIES OF NEWSPAPER ARTICLES AND ADVERTISEMENTS. IN ADDITION, THE LOCATIONS OF THESE SITES WILL BE ADDED TO THE PROMOTION AND EDUCATIONAL MATERIALS THAT ARE ALREADY BEING DEVELOPED FOR THE ORIGINAL PERMANENT USED OIL COLLECTION SITE AT THE MUNICIPAL SERVICE GARAGE. 010 A TOTAL OF $20,5?9.31- IS REQUESTED TO FUND THIS PROJECT TO BE EXPENDED AS FOLLOWS: AN INTERN ON A PART TIME BASIS TO COORDINATE THE PROJECT AND PREPARE ADS AND OTHER PROMOTIONAL MATERIALS (240 HOURS)- $1476.00 FIVE USED OIL COLLECTION CONTAINERS- $9995.00 CONCRETE PADS AT EACH OF THE FIVE SITES TO PLACE THE CONTAINERS ON- $6142.00 ON SITE INSTRUCTIONAL AND INFORMATION SIGNS AND MISC. SUPPLIES- $850.00 PRINTING, ADS, AND OTHER PUBLICATIONS- $2000.00 DUE TO THE FACT THAT THE CITY IS ALREADY WORKING ON A USED OIL COLLECTION PROGRAM, THIS PROJECT SHOULD BE SIMPLE TO IMPLEMENT. THE DELIVERY TIME ON THE CONTAINERS IS 30 TO 45 DAYS. WHILE WE ARE WAITING FOR THEM TO ARRIVE, WE WILL HAVE PLENTY OF TIME TO CONSTRUCT THE CONCRETE PADS. THESE SITES COULD BE OPERATIONAL WITHIN TWO MONTHS OF THE CONTRACT BEING SIGNED BY THE CITY OF DENTON AND THE TEXAS WATER COMMISSION. JULY 1, 1993- ORDER THE TANKS AND CONTACT THE CONCRETE WORK CONTRACTOR JULY 15, 1993- BEGIN CONSTRUCTION OF THE PADS AUGUST 1, 1993- COMPLETE CONSTRUCTION OF THE PADS AUGUST 15, 1993- TAKE DELIVERY OF THE USED OIL CONTAINERS AUGUST 30, 1993- OPEN THE SITES TO THE PUBLIC WE WILL BE USING THE SERVICES OF DALLAS OIL SERVICE COMPANY AS OUR USED OIL COLLECTION VENDOR. THIS IS THE SAME COMPANY THAT WILL BE SERVICING OUR PERMANENT COLLECTION FACILITY. DALLAS OIL SERVICE CO. REPRESENTATIVE, MR. ERNIE SLAUGHTER, SAID THAT THE USED OIL THEY COLLECT IS USED AS INDUSTRIAL HEATING OIL. MONTHLY REPORTS WILL BE KEPT ON THE QUANTITIES OF USED OIL COL- LECTED AT EACH SITE. THESE REPORTS WILL BE ANALYZED TO COMPARE USAGE BETWEEN SITES. BECAUSE THE CONTAINERS ARE MOVEABLE, IT WILL BE POSSIBLE TO CHANGE LOCATIONS OF A SITE IF IT PROVES TO BE APPROPRIATE. THESE REPORTS WILL ALSO BE CALCULATED ON A YEARLY BASIS AND MEASURED AGAINST THE ESTIMATED ANNUAL CITYWIDE HOUSE- HOLD USED OIL GENERATION TO OBTAIN A DIVERSION PERCENTAGE. ATTACHMENT B SCHEDULE OF DELIVERABLES PERFORMING PARTY FUNDING AGENCY Ongoing Conduct required Scope Ongoing Provide information and of Service activities support required under in accordance with this Contract Attachment A of this Contract Monthly Submit request for Monthly Review s u b m i t t e d payment using state voucher and financial purchase vouchers and status report; process TWC Financial Status payment request Reports (Form 269a) 08/15/93 IFB for DIY used-oil recycling containers* 08/15/93 Public education campaign 08/31/93 Submit first written progress report 09/06/93 Review first written progress report 09/30/93 Continue public education campaign 10/31/93 Submit final written progress report 11/06/93 Review final written progress report 10/31/93 Submit final Financial Status Report or by not later than 45 days after termination of the contract *IFB - Invitation for Bids 11/06/93 Review final Financial Status Report Contract Number 3100000136 Attachment B, Page No. 1 ATTACHMENT C ELIGIBLE REIMBURSABLE COSTS AND PAYMENT PROCEDURES ARTICLE 1. AUTHORIZED BUDGET FOR LOCAL USED-OIL RECYCLING RECYCLING IMPLEMENTATION/COLLECTION PROJECTS Total FUNDING AGENCY obligation, from the Used-Oil Recycling Fund, for expenses (costs) authorized under this Contract for used-oil recycling program implementation/collection projects, are as follows: Personnel/Salary. . . . . . . $ 1,476 Fringe Benefits . . . . . . . . 117 Travel . . . . . . . . . . . . . 00,000 Supplies . . . . . . . . . . . . 850 Equipment . . . . . . . . . . . 9,485 Construction. . . . . . . . . . 00,000 Contractual . . . . . . . . . . 6,142 * Other . . . . . . . . . . . . . 2,000 Total Direct Costs . . . $ 20,070 Authorized Indirect Costs . . $ -0- TOTAL PROJEC'T' COSTS. . . $ 20,070 PERFORMING PARTY Share. . . . $ 00,000 FUNDING AGENCY Share. . . . . $ 20,070 *Includes cost for advertizing campaign **Includes cost for constructing sites for tanks ARTICLE 2. AUTHORIZATIONS REQUIRED In addition to the category-specific budgeted amount set forth in Article 1 of this Attachment, the following requirements to expend funds available under this Contract are in effect: (a) Travel-Related Costs. All travel related expenses of the PERFORMING PARTY, whether for in-state or out-of-state travel, shall be claimed at the same rates and guidelines, or at lesser rates than those allowed by the State of Texas for its employees. Automobile mileage shall be reimbursed at no more than 27.5 cents per mile; per diem shall be for actual costs (lodging and meals) up to eighty ($80) dollars per day per individual (maximum of twenty-five ($25) dollars per day for meals and fifty-five ($55) dollars per day for lodging) . Unless specifically authorized in Attachment A of this Contract, no out-of-state travel expenses shall be eligible for reimbursement Contract Number 3100000136 Attachment C, Page No. 1 unless such travel has been approved ahead of time, in writing, by the FUNDING AGENCY. All travel for which expenses are claimed must be in connection with the scope of work or services required under Attachment A of this Contract and must be supported by funds budgeted for "Travel" under Article 1 of this Attachment. (b) Equipment Expenditures. Unless specifically authorized in Article 3 and budgeted under Article 1 of this Attachment, no purchases of equipment (items costing more than five hundred ($500) dollars) shall be eligible for reimbursement under this Contract unless the procurement for such equipment is approved ahead of time, in writing, by the FUNDING AGENCY. This requirement for prior approval extends to equipment acquired or purchased by subcontractors. Equipment items having a unit purchase cost of less than Five Hundred ($500) Dollars are not specifically listed in this Contract and are not subject to approval by the FUNDING AGENCY prior to being purchased. (c) Contractual Expenditures. No contractual expenses shall be eligible for reimbursement unless authorized ahead of time, in writing, by the FUNDING AGENCY. The procedures to be adhered to when requesting or granting such approvals are as follows: (1) PERFORMING PARTY shall describe, in writing, the purpose and objective of each proposed subcontract and fully explain how and why such subcontract, if approved, will further the objectives of the FUNDING AGENCY with respect to municipal solid waste management; (2) PERFORMING PARTY shall explain to the FUNDING AGENCY how the award amount of each proposed subcontract was arrived at and justify the cost of each such subcontract; and (3) PERFORMING PARTY shall explain to the FUNDING AGENCY how the work (or tasks) required under each proposed subcontract is fully achievable within the time frames contained in the respective proposed subcontract. (d) Subcontract Amendments. Any amendments to subcontracts that will result in or require changes in the total amount of the subcontract, changes in the "scope of services" or "work to be performed" under the subcontract or changes in the term of the subcontract document itself must be approved in writing by the FUNDING AGENCY. ARTICLE 3. EQUIPMENT (a) The FUNDING AGENCY shall evaluate all equipment purchases which utilize grant funds to determine that such items legitimately serve to fulfill the scope and purpose of this Contract. If equipment purchases do not legitimately serve to fulfill the scope and purpose of this Contract, then the FUNDING AGENCY shall not Contract Number 3100000136 Attachment C, Page No. 2 reimburse the PERFORMING PARTY for such equipment purchases. (b) Title to equipment and any constructed fixtures acquired from funds provided under this Contract shall, throughout the term of this Contract, be in the name of the PERFORMING PARTY. Both parties agree that upon full performance of this Contract, title shall remain with the PERFORMING PARTY, provided however, that if this Contract is terminated, due to substantial failure by the PERFORMING PARTY to fulfill its obligations under this Contract, pursuant to Attachment D, Article 3 of this Contract (relating to Termination). Title and physical possession of all equipment and constructed fixtures shall, upon written notification from the Executive Director of the FUNDING AGENCY, be transferred in good condition and within five (5) days to the FUNDING AGENCY or any other party designated by the FUNDING AGENCY. (c) The following items of equipment are hereby authorized to be purchased or acquired under this Contract. Number Description Item Cost Total 3 four hundred sixty- $ 1995 $ 5985 five (465) gal. used-oil containers 2 two hundred seventy- 1750 3500 five (275) gal. used-oil TOTAL $ 9485 (Shipping and handling costs included) ARTICLE 4. PROHIBITED ACTIVITIES Unless authorization is specifically provided in accordance with the provisions of this Attachment or in accordance with Attachment A of this Contract, the PERFORMING PARTY shall ensure that funds provided under this Contract are not used for the following activities, programs, or projects: (a) Duplication of Effort. Activities, projects, programs, studies, etc.that provide duplicate funding for projects under other State funding programs are not authorized. (b) Facility-Related Costs. Funds may not be used for final design and engineering costs or construction costs for landfills, transfer stations, and other facilities predominantly associated with solid waste disposal only. (c) Land Acquisition Costs. Funds may not be used to acquire land or an interest in land. Contract Number 3100000136 Attachment C, Page No. 3 (d) Household Hazardous Waste Disposal. Funds may not be used for the costs of disposal of household hazardous waste. (e) Collection of recyclable materials. Funds may not be used for collection of recyclable materials other than used motor oil. ARTICLE 5. PAYMENT REQUEST PROCEDURES (a) The PERFORMING PARTY, in order to obtain reimbursement for those expenditures authorized under this Contract, shall submit, no more frequently than once per month, five (5) copies of a legible and properly completed State of Texas Purchase Voucher (Comptroller of Public Accounts Form 74-112). Each submitted voucher shall be accompanied by a legible, properly completed and signed TWC Financial Status Report (State Supplemental Form 269a) which clearly indicates, for each Contract-contained budget category, the PERFORMING PARTY'S expenditures or encumbrances for the period in question, the PERFORMING PARTY'S cumulative expenditures or encumbrances with respect to each budget category, and the balance remaining in each category following reimbursement of the amount being requested. Vouchers and State Supplemental 269a forms shall contain sufficient detail for audit thereof. Completed vouchers and their corresponding 269a forms, should be mailed or delivered, to the attention of the "Municipal Solid Waste Grants Coordinator," at the following address: Texas Water Commission Municipal Solid Waste Division P. O. Box 13087 Austin, Texas 78711-3087 (b) To be eligible for reimbursement under this Contract, a cost must have been incurred within the time period indicated on State Supplemental Form 269a and either paid by the PERFORMING PARTY prior to claiming reimbursement from the FUNDING AGENCY or incurred by the last day of the time period indicated and liquidated no later than forty-five (45) days after the end of the indicated time period. (c) Requests for reimbursement to cover subcontracts authorized under this Contract to be awarded by the PERFORMING PARTY shall be reported, as a single total amount, on State Supplemental Form 269a under the category titled "Contractual." The PERFORMING PARTY shall attach to each State Supplemental Form 269a clear and complete documentation indicating how the total "Contractual" amount to be reimbursed by the FUNDING AGENCY is divided among various subcontracts. (d) The FUNDING AGENCY reserves the right to suspend payment for any incomplete, incorrect, or inconsistent services or reports required Contract Number 3100000136 Attachment C, Page No. 4 by this Contract until the PERFORMING PARTY satisfactorily completes, revises, or corrects such services or reports. (e) Failure on the part of the PERFORMING PARTY to comply with the conditions set forth in this Contract constitutes grounds for termination of the Contract and revocation of any unexpended funds. ARTICLE 6. QUARTERLY FINANCIAL STATUS REPORTS (a) Separate State Supplemental Forms 269a, containing as their "report period" the latest fiscal year quarter, shall, within twenty (20) days following the end of each fiscal year quarter that is contained within the time period or "term" of this contract, be submitted for the budget set forth in Article 1 of this Attachment. Such reports are required even if no expenses or encumbrances were incurred during the report period. The first report shall be due on August 31, 1993 and the final report shall be due within forty-five (45) days following October 31, 1993. (b) If, however, the PERFORMING PARTY for purposes of receiving reimbursement under the approved budget set forth in Article 1 of this Attachment has already submitted, together with State of Texas Purchase Vouchers, one or more State Supplemental 269a Forms that cover the entire quarterly time period for the respective budgets, the reports required under Section (a) of this Article shall be considered as having been submitted. ARTICLE 7 ANNUAL/FINAL, FINANCIAL STATUS REPORT A Final Financial Status Report, utilizing TWC Form 270, shall be submitted by the PERFORMING PARTY, by not later than forty-five (45) days following the end of the Contract term, for the approved budget as set forth in Articles 1 of this Contract. Contract Number 3100000136 Attachment C, Page No. 5 ATTACHMENT D ADDITIONAL CONTRACT PROVISIONS ARTICLE 1. GENERAL RESPONSIBILITIES OF THE PERFORMING PARTY (a) 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 Contract. (b) The PERFORMING PARTY shall perform such professional services as may be necessary to accomplish the work required to be performed under this Contract, in accordance with this Contract and applicable FUNDING AGENCY requirements and any and all applicable law. (c) Neither the FUNDING AGENCY'S review, approval or acceptance of, nor payment for any of the services shall be construed to operate as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract; and the PERFORMING PARTY shall be, and remain, liable in accordance with applicable law for all damages to the FUNDING AGENCY including reasonable attorneys' fees and court costs caused by the PERFORMING PARTY's negligent performance of any of the services furnished under this Contract. (d) In performing any services hereunder, the PERFORMING PARTY is, and undertakes performance as, an independent contractor. (e) The PERFORMING PARTY shall be, and shall remain, liable in accor- dance with applicable law for any and all bodily injury, disease, or death of third persons or loss of or damage to property of third persons arising out of or incident to the PERFORMING PARTY' work performance or use of equipment. (f) The PERFORMING PARTY agrees to indemnify and hold harmless the FUNDING AGENCY and all of its employees and officers against any and all liability, loss or damage arising out of or incident to the PERFORMING PARTY'S work performance or use of equipment. (g) The obligations of the PERFORMING PARTY under this Article are in addition to the PERFORMING PARTY'S other express or implied assurances under this Contract or applicable law. ARTICLE 2. PAYMENT (a) Upon satisfactory completion of the work performed hereunder and Contract Number 3100000136 Attachment D, Page No. 1 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 FUNDING AGENCY a release of all claims against the FUNDING AGENCY arising under or by virtue of this Contract. (b) Final Payment under this Contract or settlement upon termination shall not constitute a waiver of the FUNDING AGENCY'S claims against the PERFORMING PARTY. ARTICLE 3. TERMINATION (a) This Contract shall terminate upon full performance of all requirements contained herein, unless extended in writing. (b) This Contract may be terminated in whole or in part in writing by either contracting party in the event of substantial failure by the other party to fulfill its obligation under this Contract through no fault of the terminating party: provided that no such termination may be effected unless the other party is given (1) not less than ten (10) days written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination. (c) This Contract may be terminated in whole or in part in writing by the FUNDING AGENCY if the Texas Legislature withdraws the appropriation of funds for grants or reduces or restricts the appropriation to the FUNDING AGENCY. (d) This Contract may be terminated in whole or in part in writing by the FUNDING AGENCY for its convenience: provided that the PERFORMING PARTY is given not less than ten (10) days written notice (delivered by certified mail, return receipt requested) of intent to terminate. (e) If termination for default under Section (b) or termination for loss of State appropriation under Section (c) or termination for convenience under Section (d) is effected by the FUNDING AGENCY, an equitable adjustment in the price provided for in this Contract shall be made, but: (1) no amount shall be allowed for anticipated profit on unperformed services, tasks or other work; and (2) any payment due the PERFORMING PARTY at the time of termination may be adjusted to the extent of any additional costs occasioned to the FUNDING AGENCY by reason of the PERFORMING PARTY's default. However, the equitable adjustment for any termination shall provide for payment to the PERFORMING PARTY for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs Contract Number 3100000136 Attachment D, Page No. 2 reasonably incurred by the PERFORMING PARTY relating to commitments which had become firm prior to the termination. (f) Upon receipt of a termination notice pursuant to Sections (b), (c) or (d) above, the PERFORMING PARTY shall (1) promptly discontinue all services affected (unless the notice directs otherwise) and (2) deliver or otherwise make available to the FUNDING AGENCY all data, drawings, specifications, reports, estimates, summaries, and such other information and materials or equipment as may have been accumulated by the PERFORMING PARTY in performing this Contract, whether completed or in process. (g) Upon termination pursuant to Sections (b), (c) or (d) above, the FUNDING AGENCY may take over the work and prosecute it to completion by agreement with another party or otherwise. (h) 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 FUNDING AGENCY. In such event, adjustment of the price provided for in this Contract shall be made as provided in Section (e) of this Article. (i) If any delay or failure of performance is excused under Article 18 of this Contract, the FUNDING AGENCY may in its sole discretion terminate this Contract in whole or in part. The FUNDING AGENCY shall give the PERFORMING PARTY not less than ten (10) calendar days' written notice (delivered by certified mail, or overnight delivery service, return receipt requested) of intent to terminate and an opportunity for consultation prior to termination. If such termination is effected, an equitable adjustment shall be made in accordance with Section (e) of this Article. ARTICLE 4. CHANGES (a) The Executive Director of the FUNDING AGENCY, or a person identified in accordance with Article 13 of this Attachment (relating to Authorized Representatives), may, at any time, by written notification to the PERFORMING PARTY, make changes to the scope of this Contract or in the tasks or work to be performed. If such changes cause an increase or decrease in the PERFORMING PARTY's cost of, or time required for, performance of any tasks supported under this Contract, whether or not changed by any order, an equitable adjustment shall be made and this Contract shall be modified in writing accordingly. Any claim of the PERFORMING PARTY for adjustment under this clause must be asserted in writing within thirty (30) days from the date of receipt by the PERFORMING PARTY of the notification of change unless the Executive Director of the FUNDING AGENCY or a person identified in writing under Article 13 of this Attachment grants a further period of time before the date of final payment under this Contract. Contract Number 3100000136 Attachment D, Page No. 3 (b) A Major Change will include one or more of the following: (1) An increase or decrease in the amount of compensation to the PERFORMING PARTY; (2) An extension or shortening of the term of the Contract; (3) A change to the scope of the Contract or the services to be performed; or (4) Any action that is beyond the authority of the Executive Director or the Authorized Representative of the FUNDING AGENCY. (c) Implementation of a Major Change must be preceded by a formal written amendment to the Contract. The amendment must contain a description and justification of the proposed change and formal signature of both the Executive Director of the FUNDING AGENCY or his Authorized Representative and the Authorized Representative of the PERFORMING PARTY. Any amendment that will exceed the contractual authority of the Executive Director of the FUNDING AGENCY also requires the consent of a majority of Commissioners of the FUNDING AGENCY. (d) Any proposed change that is not a Major Change may qualify as a Minor Change. Such change does not require a formal amendment to the Contract. At his or her discretion, the Authorized Representative of the FUNDING AGENCY 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 Authorized Representative of the FUNDING AGENCY ratifying the authorization. A copy of the letter must be retained in the appropriate file of both the PERFORMING PARTY and the FUNDING AGENCY. (e) If the PERFORMING PARTY requests a Minor Change and Authorized Representative of the FUNDING AGENCY 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 (c) of this Article. ARTICLE S. ACCOUNTING SYSTEMS The PERFORMING PARTY shall have an accounting system which accounts for costs in accordance with generally accepted accounting standards or principles. The PERFORMING PARTY must propose and account for costs in a manner consistent with such standards or principles. Contract Number 3100000136 Attachment D, Page No. 4 ARTICLE 6. AUDIT, ACCESS TO RECORDS (a) The PERFORMING PARTY shall maintain and make available for inspection, audit, or review books, records, documents, and other evidence directly pertinent to performance on all work under this Contract, including negotiated changes or amendments thereto, in accordance with accepted professional practice, and appropriate accounting procedures and practices at the PERFORMING PARTY's Municipal Building located in Denton, Texas. The PERFORMING PARTY shall also make available at this office the financial information and data used by the PERFORMING PARTY in the preparation or support of the project budget submitted to the FUNDING AGENCY (refer to Attachment C) of this Contract. The FUNDING AGENCY or any of its duly authorized representatives, shall have access to such books, records, documents, and other evidence for the purpose of inspection, audit review and, upon conference with the PERFORMING PARTY, copying. All such information shall be handled by the auditing parties in accordance with good business ethics. (b) The PERFORMING PARTY agrees to include Sections (a) through (h) of this Article in all its contracts and to require their inclusion in all subcontracts directly related to project performance that are in excess of Twenty-Five Thousand Dollars ($25,000). (c) Audits conducted pursuant to this provision shall be in accordance with generally accepted auditing standards and established procedures and guidelines of the reviewing or audit agency(ies). (d) Where the audit concerns the PERFORMING PARTY, the FUNDING AGENCY will afford the PERFORMING PARTY an opportunity for an audit exit conference and an opportunity to comment on the pertinent portions of the draft audit report. The final audit report will include the written comments, if any, of the audited parties. (e) Records under Section (a) above shall be maintained and made available during performance on work under this Contract and until three years from date of final payment by the FUNDING AGENCY for the project. In addition, those records which relate to any dispute, litigation, or the settlement of claims arising out of such performance, or costs or items to which an audit exception has been taken shall be maintained and made available until three years after the date of resolution of such disputes, litigation, or claim or exception. (f) Access to records is not limited to the required retention periods. The FUNDING AGENCY and any of its authorized representatives shall have access to records at any reasonable time for as long as the records are maintained. (g) This right of access Article applies to financial records pertaining to all subcontracts and all subcontract change orders and subcontract amendments. Contract Number 3100000136 Attachment D, Page No. 5 (h) The FUNDING AGENCY reserves the right to require the reimbursement of any over-payments determined as a result of any audit or inspection of records kept by the PERFORMING PARTY on work performed under this contract. ARTICLE 7. REMEDIES Notwithstanding any other terms in this Contract, or any attachments or addenda hereto, or any documents comprising this Contract, all claims, counterclaims, disputes, and other matters in question between the FUNDING AGENCY and the PERFORMING PARTY arising out of or relating to this Contract or the breach thereof will be decided in a court of competent jurisdiction in the City of Austin, Travis County, Texas. The parties may agree to submit such claims, counterclaims, disputes, and other matters in question between the FUNDING AGENCY and the PERFORMING PARTY to arbitration or mediation, but only by written amendment to this Contract signed by both the FUNDING AGENCY and the PERFORMING PARTY. ARTICLE 8. EMPLOYMENT PRACTICES The PERFORMING PARTY agrees that in the performance of this 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 (Title 41 CFR Part 60). The PERFORMING PARTY assures that no person will, on the grounds of race, creed, color, handicap, national origin, sex, political affiliation or beliefs, 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. ARTICLE 9. AMERICANS WITH DISABILITIES ACT The PERFORMING PARTY shall comply with all applicable requirements of the Americans with Disabilities Act of 1990, Public Law 101-336, 101st Congress, 2nd Session, 104 Stat. 327 (July 26, 1990). ARTICLE 10. UTILIZATION OF SMALL MINORITY WOMEN'S BUSINESS AND LABOR SURPLUS AREA ENTERPRISES (a) In accordance with FUNDING AGENCY policy, the PERFORMING PARTY agrees that qualified small, minority, and women's businesses and labor surplus area firms shall have the maximum practicable opportunity to participate in the performance of work under this Contract. (b) In accordance with FUNDING AGENCY policy, the PERFORMING PARTY agrees that it will attempt to achieve thirty percent (30%) Contract Number 3100000136 Attachment D, Page No. 6 participation by minority and women's enterprises and small business enterprises in work performed for this project. If the PERFORMING PARTY fails to achieve eight percent (S%~) participation over the duration of this project, it will demonstrate in writing that it took the following affirmative action steps: (1) Placed qualified small and minority businesses and women's business enterprises on solicitation lists; (2) Assured that such business enterprises were solicited whenever they were potential sources; (3) Divided total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by such business enterprises; (4) Established delivery schedules, where the requirement permitted, which encouraged participation by such business enterprises; (5) Used the services and assistance of the Small Business Administration and the Minority Business Development Agency of the U.S. Department of Commerce; and (6) Required its subcontractors to take the affirmative steps listed in Sections (1) through (5) above in all of its subcontracts that contemplate the letting of lower-tier subcontracts. (c) The PERFORMING PARTY's failure to comply with the provisions of this Article shall :onstitute a default under this Contract. ARTICLE 11. INTELLECTUAL PROPERTY (a) For the purpose of this Article, "intellectual property" refers to 1) any discovery or invention for which patent rights may be acquired, and 2) any photographs, graphic designs, specifications, computer programs, technical reports, operating manuals, or other copyrightable materials, and 3) any other materials in which intellectual property rights may be obtained. (b) If the PERFORMING PARTY first conceives of, actually puts into practice, discovers, invents, or produces any intellectual property during the course of its work under this Contract, it shall report that fact to the FUNDING AGENCY. (c) The PERFORMING PARTY may obtain governmental protection for rights in the intellectual property. However, the FUNDING AGENCY hereby reserves a nonexclusive, royalty-free and irrevocable license to use, publish, or reproduce the intellectual property for sale or otherwise, and to authorize others to do so. The FUNDING AGENCY also Contract Number 3100000136 Attachment D, Page No. 7 reserves a royalty-free nonexclusive, and irrevocable license to use, publish, or reproduce for sale or otherwise, and to authorize others to use, publish, or reproduce, for sale or otherwise (to the extent consistent with the rights of third parties) any intellectual property for which the PERFORMING PARTY obtains rights with funds received under this Contract. (d) In performing work under this agreement, the PERFORMING PARTY shall comply with all laws, rules, and regulations relating to intellectual property, and shall not infringe on any third-party's intellectual property rights. It shall hold the FUNDING AGENCY harmless for, and defend and indemnify the FUNDING AGENCY against, any claims for infringement related to its work under this Contract. (e) The PERFORMING PARTY shall include provisions adequate to effectuate the purposes of this article in all subcontracts under this Contract in the course of which intellectual property may be produced or acquired. ARTICLE 12. SUBCONTRACTS Any subcontractors and outside associates or consultants required by the PERFORMING PARTY in connection with the services covered by this Contract shall be limited to such individuals or firms as were specifically identified in Attachment B to this Contract and agreed to during negotiations or as are specifically approved by the Executive Director of the FUNDING AGENCY, or a person identified in writing under Article 13 during the performance of this Contract. Any substitution in such subcontractors, associates, or consultants shall be subject to the prior written approval of the Executive Director or a person identified in writing under Article 13. ARTICLE 13. AUTHORIZED REPRESENTATIVES (a) The Executive Director hereby identifies as the person authorized to give direction to the PERFORMING PARTY: Susan Kaderka, Manager Recycling and Waste Minimization Office of Pollution Prevention and Conservation Texas Water Commission P. 0. Box 13087 Austin, Texas 78711-3087 (b) The Executive Director hereby authorizes such identified person to further delegate his or her authority as necessary, including any delegation of authority to a FUNDING AGENCY employee who will act as the FUNDING AGENCY's authorized Field Representative. Written notice of any such delegation shall be provided to the PERFORMING PARTY. (c) The PERFORMING PARTY hereby identifies the person authorized to Contract Number 3100000136 Attachment D, Page No. 8 receive direction from the FUNDING AGENCY, to manage the work being performed, and to act on behalf of the PERFORMING PARTY: Mr. Bill Angelo, Director of Community Services City of Denton 901 Texas Street Denton, Texas 76201 (d) The PERFORMING PARTY agrees to make whatever arrangements are necessary to ensure that the above-identified person, or someone to whom that person has delegated his or her authority, is available at all times for consultation with the FUNDING AGENCY. Written notice of any such delegation shall be provided to the FUNDING AGENCY. ARTICLE 14. DATA AND PUBLICITY (a) All data and other information developed under this Contract shall be furnished to the FUNDING AGENCY and shall be public data and information except that it is exempted from public access by the Texas Open Records Act, Vernon's Tex. Civ. Stat. Ann. Art. 6252-17a ("Act"). Upon termination of this Contract, all data and information shall become the property of the FUNDING AGENCY. (b) Except as otherwise provided by this Contract, or by 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. (c) The PERFORMING PARTY agrees to notify and obtain the verbal approval of the FUNDING AGENCY prior to releasing any information to the news media regarding the activities being conducted under this Contract. ARTICLE 15. LICENSES, PERMITS AND LAWS The PERFORMING PARTY shall, except as otherwise provided in this Contract, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable federal, state, and municipal laws, codes and regulations, in connection with the work required by this Contract. ARTICLE 16. ENERGY EFFICIENCY STANDARDS 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 the Energy Policy and Conservation Act (P.L. 94-163). ARTICLE 17. ACKNOWLEDGEMENT OF FINANCIAL SUPPORT The PERFORMING PARTY shall acknowledge the financial support of the FUNDING AGENCY whenever work funded, in whole or part, by this Contract Contract Number 3100000136 Attachment D, Page No. 9 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 agency use by the PERFORMING PARTY or within the FUNDING AGENCY, shall carry the following notations on the front cover or title page: "PREPARED IN COOPERATION WITH THE TEXAS WATER COMMISSION" ARTICLE 18. FORCE MAJEURE (a) A force 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. (b) Subject to the following conditions, and provided this Contract has not been terminated as provided by Article 3(i) of this Attachment, 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: (1) the delay or failure was beyond the control of the party affected and not due to its fault or negligence; and (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. (c) No time extension shall be granted under this Article unless the party seeking relief has notified the other in writing within ten (10) calendar days of the time of 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 ten (10) calendar days after the event has ended. (d) If the PERFORMING PARTY is the party seeking relief under this Article, the burden of proving a force majeure event has occurred remains with it, and no extension shall be granted unless the FUNDING AGENCY agrees the occurrence constitutes a force majeure event, which agreement may not be unreasonably withheld. (e) The FUNDING AGENCY shall be responsible only for costs incurred by the PERFORMING PARTY after the prior written request by the Executive Director, or his authorized representative, to incur such costs in connection with any force majeure event. Neither the FUNDING AGENCY nor the PERFORMING PARTY shall have, and both hereby waive, any claim whatever for any damages resulting from delays Contract Number 3100000136 Attachment D, Page No. 10 caused by force majeure events. (f) In no event shall this Article lessen or modify the FUNDING AGENCY's rights as set out elsewhere in this Contract. ARTICLE 19. UNIFORM GRANT AND CONTRACT MANAGEMENT ACT The provisions of the Uniform GOV'T CODE ANN. §783.001 et seq Compliance with the conditions necessary for the satisfactory required under this Contract. Grant and Contract Management Act, TEX (Vernon, 1992), apply to this Contract. and requirements contained therein is performance of the services and work ARTICLE 20. NOTICE Any notice or other written communication shall be considered delivered when postmarked provided such notice or written communication is sent by certified mail, return receipt requested, or delivered in person to the authorized representative of the party specified in Article 13 of this Attachment (relating to Authorized Representatives). ARTICLE 21. ENTIRE CONTRACT This Contract (Including the document entitled "Interlocal Contract," and "Attachments A - D" thereto) represents the entire Contract between the contracting parties and supersedes any and all prior contracts between the parties, whether written or oral. ARTICLE 22. AMENDMENTS Any amendments, modifications or supplements to this Contract shall be in writing and shall be signed by both parties. ARTICLE 23. HEADINGS The headings to sections contained in this Contract are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of the substantive provision to which the heading applies unless the context so requires. ARTICLE 24. ORDER OF PREFERENCE Unless otherwise stated, a listing of factors, criteria or subjects in this Contract does not constitute an order of preference. Contract Number 3100000136 Attachment D, Page No. 11 ARTICLE 25. WAIVER Unless authorized in accordance with Article 4 of this Contract (Changes), or in writing by the Executive Director, no waiver of any obligation of the PERFORMING PARTY under this Contract shall bind the FUNDING AGENCY. Furthermore, unless specified in the written authorization, the authorized waiver by the Executive Director or any waiver by his Authorized Representative, of any such obligation shall not constitute a continuing waiver of the obligation or a waiver of the FUNDING AGENCIES right subsequent to the written authorization to demand and receive performance in accordance with all provisions of this Contract. ARTICLE 26. SEVERABILITY If any provision of this Contract is held invalid, such invalidity shall not affect any other provision which can be given effect without the invalid provision, and to this end the provisions of this Contract are declared to be severable. ARTICLE 27. ASSIGNABILITY This Contract is not transferable PERFORMING PARTY. or otherwise assignable by the Contract Number 3100000136 Attachment D, Page No. 12