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HomeMy WebLinkAboutPR 14981: SUPPLEMENTAL ENVIRONMENTAL PROJECT PROGRAMS (SEP)interoffice MEMORANDUM To: Mayor, City Council, and City Manager From: Mark Sokolow, City Attorney `i-yy,,,~~ ~-Z~ {--~~--- Date: November 14, 2008 Subject: P. R. No. 14981; Council Meeting November 18, 2008 Attached is P. R. No. 14981 as it pertains to available SEP programs. MTS:ts Attachment cc: Carl R. Griffith & Associate: z.pr14981 memo P. R. No. 14981 11/18/08 is RESOLUTION NO. A RESOLUTION AS IT PERTAINS TO AVAILABLE SUPPLEMENTAL ENVIRONMENTAL PROJECT (SEP) PROGRAMS WHEREAS, the City entered into a Consulting Agreement with Carl R. Griffith & Associates as'. to assist the City as to the following: • Assisting the City in nominat=ing proposed city environmental projects to the TCEQ so that they can be pre-approved as available projects that indu:~tries can use as Supplemental Environmental Projects • Contacting local industries too ask them to participate in the pre-approved Supplemental Environmental Projects which will be mutually beneficial too the industries and to the City • Monitoring the projects to make certain that the project is being completed to the satisj.action of the City, participating Industries and the Texas Commission on Environmental Quality • Assisting the City in its reporting requirements for Supplemental Environmental Projects program and WHEREAS, Carl R. Griffith & Associates provided the pY~oposed Agreement Concerning Supplemental Environmental Project Funds, as attached hereto as Exhibit "A"; and WHEREAS, the City Council deESms it in the public interest to pre-approve this Agreement so that local industries can participate z.pr14981 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TH:E CITY OF PORT ARTHUR: Section 1. That the fact: and opinions in the preamble are true and correct. Section 2. That the City Council pre-approves the Agreement Concerning Supplemental Environmental Project Funds, in substantially the same form as attached hereto as Exhibit "A". Section 3. That a copy of: the caption of this Resolution be spread upon the Minutes of the Council. READ, ADOPTED AND APPROVED on this day of A.D., 2008, at a Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: Mayor NOES: MAYOR ATTEST: TERRI HANKS, ACTING CITY SECRETAR`.t z.pr14981 APPROVED AS TO FORM: ~ i~~9 CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY ANAGER z.pr14981 EXH I B I'T "A" PERFORMING PARTY AGREEMENT NUMBER CITY OF PORT ARTHUR 2008-0 I I AGREEMENT CONCERNING SUPPLEMENTAL ENVIRONMENTAL PROJECT FUNDS This Agreement Concerning Supplemental Environmental Project Funds (hereinafter "Agreement") is entered into by and between the Texas Commission on Environmental Quality (hereinafter "TCEQ"), an agency of the State of Texas, and City of Port Arthur (hereinafter "Performing Party"), a~ political subdivision of the state of Texas. General Conditions 1. Contact Information Each Party hereby designates the following person as its representative for implementing this A€;reement and for receipt of notice or other information pursuant Ito the Agreement: Contact Name: John Johnson Information for Tele hone: 409-722-5100 Performing Facsimile: 409-722-5101 Party: Email: jjohnson carlrgriffith.com Address: Carl Griffith & As>ociates, Inc. 2901 Turtle Creek Dr. Port Arthur, TX 77642 Contact Name: Sharon Blue Information for Tele hone: 512/239-2223 TCEQ: Facsimile: 512/239-3434 Email: sblue tce .state.ta;.us Address: Mail: Overnight or Courier: Litigation Division Litigation Division Attn: SEP Coordinator Attn: SEP Coordinator Mail Code 175 Mail Code 175 Texas Commissions on Texas Commission on Environmental Quality Environmental Quality P.O. Box 13087 12100 Park 35 Circle, Bldg. A Austin, Texas 7871.1-3087 Austin, Texas 78753 2. Definitions & Clarifications 2.1. "Effective Date" refers to the date this Agreement begins and is the date of the last signatory below. 2.2. ``Includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and the use of the terms does not create a presumption that components not expressed are excluded. 2.3. "Party" or "Parties" refers to one or all of the signatories to this Agreement, respectively. 2.4. "SEP" refers to Supplemental Environmental Project. Z.S. "SEP Funds" means funds that, with the TCEQ approval, are contributed. to Performing Party by respondents in enforcement actions brought by the TCEQ. The term include-s interest earned on the original contribution. 2.6. "Project" refers to the project or projects that are approved by the TCEQ as SEPs and described in the exhibit(s) to this Agreement. 2.7. Computation of Times. When any period is referred to in this Agreement b:y days, it will be computed to exclude the first and last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a state or federal holiday, such day will be omitted from the computation. A calendar day of twenty-four hours measured from midnight to the next midnight constitutes a day. 3. Exhibits The following exhibits are attached to this Agreement and incorporated herein by reference: Exhibit 1, entitled "Port Arthur Alternative Fuel Vehicle and Equipment Program" Exhibit 2, entitled "Port Arthur Building and Infrastructure Energy Efficiency Upgrades Program" 4. Approvable SEP The Parties agree that the Project meets the definition of a SEP pursuant to Texas Water Code;, § 7.067 and the TCEQ guidance on SEPs. 5. SEP Funds 5.1. Maintenance of SEP Funds: Performing Party shall maintain SEP Funds in an interest- bearing account used exclusively for such funds at a financial institution that is insured by the Federal Deposit Insurance Corporation (FDIC) and provides regular accounting statements. All earned interest on SEP Funds must be accounted for and becomes part of the SEP Funds under this Agreement. 5.2. Use of SEP Funds: For any SEP Funds received, Performing Party shall onlly expend such funds directly on the Project for expenses that are reasonable, necessary, actual, and authorized by this Agreement. Performing Party shall ensure that the expenditure of SEP Funds results in adequate and timely work performed or purchases made in accordance with this Agreement. Performing Party shall not use any SEP Funds, nor interest from such funds, for administrative, advertising, or travel expenses associated with the implementation of the Project without express written approval from the TCEQ. 5.2.1. In addition to the requirements that expenses be reasonable, necessary, actual, and authorized, TCEQ may also require that expenses for work or a specific ]portion of the work to be performed under this Agreement be allowable under the appropriate cost principles specified in the Texas uniform Grant Management Standards (UGMS) established by the Office of the Governor of Texas under 1 Texas Administrative Code §§ 5.141-5.167. 5.2.2. Performing Party shall expend SEP Funds for work being performed by or for Performing Party by Performing ]Party's employees, independent contractors, or volunteers. Performing Party shall not act as a third-party administrator granting funds or funding projects for the benefit of other parties without specific written authorization from TCEQ, in which case Performing; Party shall enter into written agreements with all such other parties that shall include provisions similar in effect to the provisions in this Agreement. 5.3. Accounting: Performing Party shall specifically account for the receipt and expenditure of SEP Funds, including all interest earned on such funds, on the approved TCEQ reporting form.. 5.4. Timely Expenditure: Performing Party shall expend SEP Funds within one year of receiving the contribution. In the TCEQ's sole; discretion, this time period may be extended upon request from Performing Party. Any request for extension must be on the approved TCEQ form, include reasonable justification for the extension, 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 voluntary SEP contributions through the TCEQ enforcement process. Performing Party understands that there is no guarantee that it will receive any SEP Funds under this Agreement. 5.6. Refund of SEP Funds: If at any time the TCEQ determines that SEP Funds have been spent in a manner that is not in accordance with this Agreement, Performing Party shall, on request from the TCEQ, reimburse such funds to the TCEQ. Additionally, Performing Party, on request from the TCEQ, shall turn over all remaining SEP Funds to the TCEQ. Return of SEP Funds will be accompanied by a detailed written accounting connecting the funds to specific docket numbers in a manner acceptable to the 'TCEQ. These remaining SEP Funds must be in the form of a check or money order made out to "'Texas Commission on Environmental Quality" and sent to the designated TCEQ contact address. This obligation survives termination of the Agreement. 5.7. TCEQ may require that Performing Party submit a proposed budget to TCEQ for review and approval prior to beginning work or a portion of the work under this Agreement. In the event that TCEQ requires a budget to be submitted, then Performing Party shall not incur expenses performing the work or portion of work that is subject to the budget until the budget has been approved, unless authorized to do so in writing by TCEQ. All subsequent expenditures for the work or portion of work subject to the budget shall be within 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 from charitable contributors or other sources to the extent permitted by law. However, Performing Party agrees that it will not request additional contributions from any TCEQ contributor within six months of• receiving funding from that same contributor through the SEP program. 7. TCEQ Enforcement Actions This Agreement does not create any rights on behalf Hof Performing Party or contributing respondents in TCEQ enforcement actions. Performing Party shall have no role in the TCEQ enforcement process other than to receive approved, voluntary SEP contributions from respondents and perform the Project according to the terms of this Agreement. 8. Project Performance Performing Party shall perform the Project in accordance with this Agreement as well as applicable state and federal laws, rules, and regulations. In so doing, Performing Party shall obtain all necessary permits and licenses. 9. Term of Agreement The Agreement begins on the Effective Date and auitomatically renews in one year increments unless terminated by either Party in accordance with this Agreement. 10. Termination Upon thirty (30) days prior written notice to the other Party, either Party may terminate this Agreement with or without cause. Within thirty (30) days of the effective date of the termination, Performing Party shall make a written accounting to the TCEQ of all SE?P Funds received, expended, and remaining under this Agreement. This accounting must tie SEP Funds to specific docket numbers and be in a form acceptable to the TCEQ. With this written accounting, Performing Party shall also return all remaining SEP Funds to the TCEQ that have not been expended. The return of remaining SEP Funds must: be in the form of a check or money order made out to "Texas Commission on Environmental Quality" and sent to the designated TCEQ contact address. These obligations survive termination of the Agreement. 11. Amendments With the exception of contact information, changes to this Agreement may only be made by written amendment, signed, and agreed to by all Parties. Changes to Section 1, Contact Information, may be made by written notice from one Party to all other Parties. 12. Notices and Other Information 12.1. Effective Delivery: All notices and other information will be deemed to be delivered on the date they are received if they are: 1) hand-delivered, as evidenced by a signed acknowledgement 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 registered mail, return 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 by the other Party. 12.2. Bankruptcy: In the event that Performing Pariy files a petition for bankruptcy protection, Performing Party shall provide written notice to the TCEQ within twenty-four (24) hours of such filing. Notice must be sent to the designated 'TCEQ contact under this Agreement as well as the TCEQ Bankruptcy Program. Notice to the 'TCEQ Bankruptcy Program must include contact information and must be sent to: Denise Hubert, TCEQ Bankruptcy Program, P.O. Box 13087, Mail Code 132, Austin, Texas 78711. 12.3. 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 incorporated into this Agreement. Performing; Party agrees to give prompt 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 records concerning the SEP Funds for a minimum of three (3) years from the date of receipt of each contribution. This obligation survives termination of the Agreement. 13.2. Quarterly Reports: Performing Party shall submit quarterly reports to the TCEQ on the approved TCEQ form. The reports shall contain the following information: 13.2.1. The amount of SEP Funds received during the previous quarter with each contribution amount, contributor name, and corresponding docket number; 13.2.2. A list of actual expenditures paid with SEP Funds, grouped by th.e Project the funds were expended on and any necessary accompanying explanation; 13.2.3. The total balance of the SEP Funds with interest separately noted; 13.2.4. Projected expenditures of remaining SEP Funds; 13.2.5. A description of each Project to which SEP Funds were allocated and progress made to date; 13.2.6. Any additional information Performing Party believes would demonstrate compliance with this Agreement; and 13.2.7. Any additional information requested by the TCEQ or the approved TCEQ reporting form. 13.3. Final Reports: Within thirty (30) days after the conclusion of each Project, Performing Party shall submit a final report on the approved TCEQ reporting form. The report shall contain the following information: 13.3.1 Detailed information concerning the completed Project; 13.3.2. The amount of SEP Funds applied to the Project with each contribution amount, contributor name, and corresponding docket number; 13.3.3. A list of actual expenditures on the Project that were paid for with SE1P Funds; 13.3.4. Any remaining SEP Funds dedicated to the subject Project withh interest separately noted; 13.3.5. Any additional information Performing Party believes would demonstrate compliance with this Agreement; and 13.3.6. Any additional information requested by the TCEQ or the approved TCEQ reporting form. 13.4. Additional Reporting: Performing Party agrees to provide additional information requested by the TCEQ under this Agreement. 14. Access 14.1. Inspection and Audit: Performing Party agrees to allow access by the TCEQ and other state agencies to all records pertinent to this Agreement, including records concerning receipt and expenditure of SEP Funds, for the purposes of inspection and audit. 14.2. Access to Project: Performing Party agrees to allow access by the TCEI~ and its representatives to the site of any work financed in whole or in part by SEP Funds. Perfarming 5 Party agrees to require its contractors to provide the same access. 14.3. Survival: These access obligations survive termination of this Agreement 15. Insurance Unless prohibited by law, Performing Party shall require its contractors and suppliers to obtain and maintain adequate insurance coverages sufficient to protect the TCEQ and Performing Party from all claims and liability for injury to persons and for damage to property arising under the Agreement. If Performing Party is performing work under this Agreement using its own employees and resources, then (unless Performing Party is a governmental entity or this requirement is waived by TCEQ) Performing Party shall itself obtain and maintain adequate insurance coverages sufficient to protect the TCEQ and Performing Party from all claims and liability for injury to persons and for damage to property arising out of Performing Party's performance of the work. 16. Independent Entity Performing Party is an independent entity and conducts the work under this Agreement as part of its own authorized functions. Performing Party agrees that it undertakes performance in accordance with this Agreement as its own work and does not act in any capacity on behalf of the TCEQ or as a TCEQ-hired contractor 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 Agreement 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 with funding from contributions in settlement of an enforcement action brought by the Texas Commission on Environmental Quality. 18. Publicity Performing Party shall not publicize the name of contributors of SEP Funds without consent of the contributor and notice to the TCEQ. 19. Public Information The Texas Public Information Act (Texas Government Code, Chapter 552) applies to all information delivered to the TCEQ in the course of performance under this Agreement. The TCEQ assumes no obligation to make legal arguments in support of any claims pertaining to confidentiality, patents, trade secrets, or copyright. 20. Severability If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remainder of the Agreement shall be construed to conform to the intent of the Parties. 21. Conflict of Interest Performing Party shall notify the TCEQ in writing of any actual, apparent, or potential conflict of interest regarding Performing Party or any related entity or individual performing or having involvement with any portion of the Project. At the TCEQ's request, any entity with an organization conflict of interest or an 6 individual with a personal conflict of interest shall not take part in any way in the performance of the Project. Performing Party agrees that the TCEQ has sole discretion to determine whether a conflict exists. 22. Governing Law This Agreement shall be governed by, construed, and interpreted under the laws of the State of Texas, as well as any applicable federal law. 23. Venue Performing Party agrees that the Agreement is being performed in Travis County, Texas because this Agreement has been solicited and is being administered in Travis County, Texas. Performing Party agrees that any permissible cause of action involving this Agreement arises solely in Travis County. This provision does not waive the TCEQ's sovereign immunity. 24. Sovereign Immunity The Parties agree that this Agreement does not waive the State of Texas' sovereign immunity relating to suit, liability, and the payment of damages. 25. Assignment No delegation of duties, obligations, or rights under or interests in the Agreement will be binding on the TCEQ without its express written consent except as restricted by law. No assignment will release or discharge Performing Party from 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 ind.'icated in the Agreement, will survive beyond the termination or completion of the Agreement. 27. Full Integration This Agreement, including all attachments, merges any prior negotiations and understandings of the Parties and embodies the entire agreement of the Parties. No other agreements, assurances, conditions, covenants (express or implied), or other terms of any kind exist between the Parties regarding thf; Project. 28. Counterparts This Agreement may be signed in any number of counterparts, and as signed, shall constitute one Agreement binding on all Parties hereto, even though a.ll of the Parties do not sign the same counterpart. 29. Authorized 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 respective signature. Furthermore, the Parties agree that each is bound by the terms and conditions of this Agreement after it is signed by each Party. Exhibit 1 Port Arthur Vehicle and Equipment Program Project Description: Performing Party shall: 1) retire current diesel powered or gasoline-powered vehicles and equipment and replace those vehicles and equipment with alternative-fueled or low-emission vehicles or equipment; 2) convert current vehicles and equipment to alternative-fueled vehicles/equipment; or 3) retrofit current gasoline-powered and diesel-powered vehicles and equipment to decrease emissions from those sources. SEP Funds may only be used for: 1) the incremental costs of purchase of alternative-fueled or lower emission vehicles/equipment or retrofit of existing vehicles/equipment; 2) the incremental cost of purchase of alternative fuels versus regular gasoline or diesel fuels; or 3) other direct expenses authorized in advance and in writing by TCEQ. Retirement of Vehicles: Any purchases of new vehicles or equipment shall comply with EPA verified and certified technology guidelines. Performing Party shall ensure that equipment and vehicles being retired are operational and that vehicles have current registration stickers. The retired vehicles and equipment must not be resold for any use except scrap value. Performing Party shall submit proof of registration, decommissioning, and scrappage for all retired vehicles and equipment. Retrofits and Conversions: Performing Party shall submit proof that all conversions or retrofits meet current EPA low-emission standards. When purchasing alternative-fueled vehicles or equipment, Performing Party shall purchase only those types of equipment that use fuels that are available for purchase within 15 miles of its fleet operation area. Alternative-fueled technologies may include propane or electric-powered lawn mowers, propane-powered Bight duty vehicles and heavy equipment, propane- powered generators, and other technologies or alternative fuels as described below. Performing Party may utilize any of the following fuel technologies if the fuel is available for purchase within 15 miles of its fleet operation area: Alternative Fuels: Use of alternatives fuels is limited to this list of fuels which are dlefined as alternative fuels by the Energy Policy Act of 1992 and are currently, or have been, commercially available for vehicles. • Biodiesel (if used in an area not designated as ozone non-attainment or near non-attainment) • Electricity • .Ethanol • Hydrogen • Methanol • Natural Gas • Propane Other fuels that are currently under development may be approved for use at the discretion of the TCEQ staff. Performing Party certifies that it has no prior budgetary commitment to do this project and that it is not receiving duplicative funding to perform this project. Performing Party agrees to disclose to TCEQ any additional sources of funding it receives to perform any portion of the projects described herein or for which it intends to utilize SEP Funds. Performing Party certifies that it shall not use SEP Funds to assist Exhibit 1 (Continued) Port Arthur Alternative Fuel Vehicle and Equipment Program in complying with any governmental rule or regulation and that it is not required to perform this project under any existing rule or law. Environmental Benefit: Replacement of gasoline and diesel powered lawllmowers, heavy equipment, and vehicles with lower-emission items will reduce air pollution emissions of particulate matter (PM), volatile organic carbon (VOC) compounds, nitrogen oxides (NOx), and other pollutants associated with the combustion of fuel that would have been generated by the older replaced item. Use of alternative fuels combined with energy efficiency modifications results in a direct reduction in the amount of emissions that contribute to air pollution in this state. Eligible Counties: Jefferson Minimum Contribution Amount: $500 Exhibit 2 Port Arthur Building and Infrastructure :Energy Efficiency Upgrades Program Project Description: Performing Party shall use SEP Funds to perform energy efficiency uplrades on public buildings and infrastructure. Specifically, SEP Funds may only be used for: 1) the cost of conducting energy efficiency audits; 2) the incremental cost for construction or implementation of energy-efficiency upgrades (versus the cost of non-energy efficiency upgrades); 3) the incremental cost of purchase of more energy-efficient equipment or appliances (versus the cost of purchasing non-energy efficient equipment or appliances); or 4) other direct costs authorized in advance by TCEQ. SEP Funds may only be used for the direct cost of performing this project and no portion will be; spent on administrative costs. For items 2, 3, and 4 above, Performing Party shall submit a budget and proposals for expenditure to TCEQ for written approval prior to t:he use of SEP Funds. Performing Party shall use SEP Funds to conduct energy efficiency audits on its buildings to prioritize implementation of energy efficiency projects. Performing Party shall submit the results of those audits along with any proposed modifications and associated budgets and proposal for expenditure t:o TCEQ. Modifications may include weatherization, energy-reduction modifications such as building envelope upgrades (cool roofs, exterior shading, optimized insulation and air sealing), installation of high- efficiency lighting fixtures and occupancy sensors for both lighting and HVAC, high-efficiency demand- controlled ventilation and energy-efficient boilers, more efficient exterior lighting and energy-efficient office equipment, replacing heating, ventilation, and cooling (HVAC) systems with more efficient boilers, motors, and variable-speed drives; reducing energy and maintenance costs by installing centralized energy management systems; lowering electric lighting and cooling loads and boosting productivity through increased use of daylighting, installation of LED traffic lights, and use of renewable energy sources.I Performing Party shall quantify the environmental benefit of each project and submit the results of those calculations to TCEQ within 90 days of completion of each project. Performing Party certifies that it has no prior budgetary commitment to do this project and that it is not receiving duplicative funding to perform this project. Performing Party agrees to disclose to TCEQ any additional sources of funding it receives to perform any portion of the projects described herein or for which it intends to utilize SEP Funds. Performing Party certifies that it shall not use SEP Funds to assist in complying with any governmental rule or regulation and that it is not required to perform this project under any existing rule or law. Performing Party agrees to use a competitive bid process or other mechanism to ensure that costs of the project are reasonable and customary. Benefits: Implementation of this project will reduce fuel and electricity usage for heating and cooling and other day-to-day operations. These reductions will reduce emissions of particulate matter (PM), volatile organic carbon (VOC) compounds, nitrogen oxides (NOx), and other pollutants associated with the combustion of fuel and generation of electricity. Eligible Counties: Jefferson Minimum Contribution: $500 Information Source: U.S. Department Of Energy at http://www.eere.energy.gov/buildings/info/governmentlindex.html l0