ESBD_File_348251_582-24-85003-AF-ContractShell-Final (acc)1-23.pdf

Este es el contrato de subvención entre usted y la Comisión de Calidad Ambiental de Texas (TCEQ por sus siglas en inglés). Al firmar este documento, usted está aceptando los términos y condiciones legalmente vinculantes. Comuníquese al 800-919-TERP (8377) para obtener ayuda con la interpretación de este contrato.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

ALTERNATIVE FUELING FACILITIES PROGRAM (AFFP) CONTRACT

CONTRACT SIGNATURE PAGE

Contract Name Alternative Fueling Facilities Program

Contract Number

PERFORMING PARTY Name

PERFORMING PARTY I.D. Number

Total Contract Amount Not to Exceed

Contract Effective Date Request for Reimbursement Deadline

Contract Expiration Date

The Effective Date of this Contract is the date of last signature April 30, 2026 August 31, 2029

The Texas Commission on Environmental Quality (TCEQ), an agency of the State of Texas and the named PERFORMING PARTY enter this Contract for the purpose of providing grants for eligible alternative fueling facility projects in the Clean Transportation Zone as authorized by Texas Health and Safety Code Chapter 393.

The Parties agree: (a) to be effective, the Contract must be signed by an Authorized Official of TCEQ and the PERFORMING PARTY; (b) the PERFORMING PARTY will conduct the Grant Activities and Administrative Requirements required by the Contract; and (c) TCEQ will reimburse authorized allowable costs in accordance with the Texas Grant Management Standards and this Contract.

Authorized Official Texas Commission on Environmental Quality (TCEQ)

Legal Name

(PERFORMING PARTY)

Printed Name:

Title:

By (Authorized Signature):

Date of Signature:

Contract Number 2

GENERAL CONDITIONS

FOR

ALTERNATIVE FUELING FACILITIES PROGRAM (AFFP)

ARTICLE 1. DEFINITIONS

Unless defined herein, terms in this Contract and Contract Documents have the meanings provided in the Texas Grant Management Standards (TxGMS). TxGMS is available at:

https://comptroller.texas.gov/purchasing/grant-management/.

The following terms have the meanings indicated.

1.1 Administrative Requirements – activities which track contract progress and management, including financial management, reporting, and retention of records. These are distinguished from Grant Activity requirements, which pertain to the specific Grant Activities approved by TCEQ.

1.2 Alternative Fuels – a fuel other than gasoline or diesel fuel, including electricity, compressed natural gas, liquefied natural gas, biodiesel, biodiesel blends, hydrogen, propane, or a mixture of fuels containing at least 85 percent methanol by volume. See Texas Health and Safety Code Section 393.001(1).

1.3 Application – the application for an AFFP grant originally submitted by the PERFORMING PARTY including all sections, supplemental forms, and attachments as well as any additional documentation submitted by the PERFORMING PARTY in support of the Application or grant award.

The Application is used to develop the Scope of Work of this Contract. In case of conflict between the Application and Scope of Work, the Scope of Work will take precedence.

1.4 Approved Grant Budget - the section in this Contract that lists the authorized budgeted expenditures for the Grant Equipment approved under this grant. TCEQ may allow changes to this budget through a written amendment.

1.5 Authorized Official – the individual authorized to sign legal documents on behalf of TCEQ or the PERFORMING PARTY, as designated in the Contract.

1.6 Grant – means this Contract between TCEQ and the PERFORMING PARTY, consisting of the documents listed in Article 6, Contract Documents. The term “Grant” shall be used interchangeably with “Agreement,” “Contract,” or “grant.”

1.7 Grant Activity/Activities – activities the PERFORMING PARTY has agreed to perform under this Contract that are detailed in the Scope of Work.

1.8 Grant Equipment – the items described as eligible in the Approved Grant Budget for which part of the cost of purchase or utilization is reimbursed by TCEQ under the Contract. The term also includes insurance-funded replacements for Grant Equipment that is lost, stolen, or irreparably damaged. The term “Grant Equipment” shall be used interchangeably with “equipment.”

1.9 Implementation Period – the period during which Grant Equipment is purchased and placed into service. The Implementation Period will end upon TCEQ issuing the final payment of grant funds.

1.10 Notice to Proceed – a written notice given by TCEQ to the PERFORMING PARTY that the PERFORMING PARTY may commence with the Grant Activities.

1.11 Operation Period – the period following the completion of the Implementation Period. The Operation Period is the three-year period during which the grantee must ensure the operation of the grant-funded facility and maintenance of the Grant Equipment. Grantees will report on the amount of natural gas and/or other alternative fuels dispensed.

1.12 Optimum Performance – the level of performance at which the Grant Equipment functions in order to achieve the anticipated emissions reductions.

1.13 PERFORMING PARTY – the grant recipient indicated on the Contract Signature Page of this Contract. The term PERFORMING PARTY may be used interchangeably with “grantee” in the Contract Documents.

https://comptroller.texas.gov/purchasing/grant-management/

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1.14 Project Representative –the individual authorized to give and receive communications and directions on behalf of the PERFORMING PARTY. All communications to the PERFORMING PARTY will be addressed to the PERFORMING PARTY’s Project Representative or his or her designee.

1.15 Request for Reimbursement Deadline – the date specified in the Contract when all Grant Equipment must be received, all costs for Grant Equipment must be paid in full with either cash-on-hand or financing, and all requests for reimbursement must be received by TCEQ from the PERFORMING

PARTY.

1.16 Scope of Work – the Contract document describing the requirements of the Grant Activities.

1.17 State – the State of Texas.

1.18 Termination – a permanent end and cessation of the Contract because (1) all requirements of this Contract are completed within the sole discretion of TCEQ; (2) the PERFORMING PARTY has requested termination and repaid funds as allowed by the Contract; (3) the Contract is ended by action of TCEQ for cause or for convenience; or (4) the Request for Reimbursement Deadline has passed without completion and submission of purchases eligible for reimbursement and TCEQ, in its sole discretion, has terminated the Contract.

1.19 When any period of time is referred to in the Contract by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a State of Texas or federal holiday, such day will be omitted from the computation.

1.20 A calendar day of twenty-four (24) hours measured from midnight to the next midnight will constitute a day.

ARTICLE 2. GOVERNING STANDARDS AND AUTHORITY

2.1 This Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of law provisions.

2.2 This Contract is entered into by TCEQ through its authority under Texas Water Code Section 5.124 (Authority to Award Grants).

2.3 This Contract is subject to: (1) Texas Health and Safety Code Chapter 393; (2) the Uniform Grant and Contract Management Act, Texas Government Code Section 783.001 et seq., and the Texas Grant Management Standards (TxGMS); (3) TCEQ rules and policies; and (4) other applicable Federal and State rules and statutes.

ARTICLE 3. PURPOSE

The purpose of this Contract is to provide a grant to financially assist the PERFORMING PARTY in implementing the Grant Activities described in the Scope of Work.

ARTICLE 4. NOTICE TO PROCEED

4.1 TCEQ will issue a Notice to Proceed upon its review and approval of all required documentation as specified in the Scope of Work. The PERFORMING PARTY may begin the Grant Activities, at its own risk, prior to receiving a Notice to Proceed. In addition to the required documentation, TCEQ may conduct a site visit prior to issuing the Notice to Proceed.

4.2 After TCEQ issues a Notice to Proceed, eligible costs may be submitted for reimbursement. Any costs paid prior to the date of issuance of the Request for Grant Applications (RFGA) will not be considered as eligible for reimbursement.

4.3 Regardless of the issuance of the Notice to Proceed, the reimbursement of the costs of the Grant Activities is subject to all other requirements of this Contract. This Contract does not create an entitlement to receive state funds and all payments are solely within the discretion of TCEQ.

ARTICLE 5. CONTRACT PERIOD

5.1 This Contract will commence on the Contract Effective Date as identified on the Contract Signature Page.

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5.2 The Contract Period shall be the period of time from the Effective Date through the Expiration Date listed on the Contract Signature Page of this Contract unless the Contract is otherwise terminated or extended in accordance with its terms.

ARTICLE 6. CONTRACT DOCUMENTS

6.1 The entire Contract between TCEQ and the PERFORMING PARTY consists of the documents listed below. The Contract Documents are intended to be interpreted in harmony with each other. Any inconsistency between the Contract Documents as amended shall be resolved by giving precedence in the following descending order:

6.1.1 Contract Signature Page

6.1.2 Scope of Work

6.1.3 Special Conditions

6.1.4 Approved Grant Budget

6.1.5 Insurance Section

6.1.6 General Conditions

6.1.7 Request for Grant Applications (RFGA), and any addenda, incorporated herein by reference.

6.1.8 The PERFORMING PARTY’s Application incorporated herein by reference.

6.1.9 The following which may be delivered or issued after the Contract Effective Date and are not attached: Notices to Proceed, Written Amendments, Minor Changes, and other documents amending, modifying, or supplementing the Contract Documents pursuant to the General Conditions.

6.2 There are no Contract Documents other than those listed above in this Article. The Contract Documents may be amended, modified, or supplemented only as provided in the General Conditions.

ARTICLE 7. ELIGIBLE ACTIVITIES

7.1 The activities eligible for reimbursement are those contained in the Scope of Work and Approved Grant Budget.

7.2 The information and data the PERFORMING PARTY submitted in the Application may have been revised after submittal to TCEQ, to ensure that the information in the Application is accurate. By signing this Contract, the PERFORMING PARTY acknowledges that it has reviewed the Scope of Work and agrees to all representations contained within the Scope of Work. The PERFORMING PARTY agrees to complete all Grant Activities as described in the Scope of Work and in accordance with the Contract.

7.3 Any costs associated with the grant equipment may not have been paid prior to the issuance of the

RFGA.

7.4 The PERFORMING PARTY understands that TCEQ’s approval of the Application does not constitute final verification of the Grant Equipment for cost reimbursement purposes.

7.5 The PERFORMING PARTY agrees to continuously own and operate the Grant Equipment for the Contract Period.

ARTICLE 8. FUNDS

8.1 This Contract shall not be construed as creating a debt on behalf of TCEQ in violation of Article III, Section 49a of the Texas Constitution. All claims, suits, or obligations arising under or related to this Contract are subject to the availability of grant funds which are actually received and deposited into the Texas Emissions Reduction Plan Fund for the purposes of this Contract.

8.2 Amount Limits on Funds. The Total Contract Amount Not to Exceed on the Contract Signature Page is the maximum amount TCEQ will reimburse the PERFORMING PARTY for the costs of the eligible Grant Activities. Eligibility for reimbursement is subject to issuance by TCEQ of a Notice to Proceed. Eligible costs are determined by TCEQ. There is no guaranteed minimum amount of reimbursement.

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8.3 Request for Reimbursement Deadline. Costs to be reimbursed under this Contract must be incurred by the Request for Reimbursement Deadline as identified on the Contract Signature Page. If no reimbursement has been requested or paid as of this date, this Contract may be terminated by TCEQ without any further obligations to either party.

ARTICLE 9. ELIGIBILITY FOR COST REIMBURSEMENT

9.1 TCEQ will reimburse the PERFORMING PARTY for those costs which are eligible for reimbursement in accordance with all contractual requirements. Costs are considered eligible for reimbursement when TCEQ, in its sole discretion, determines that the costs are reasonable, necessary, actual, and allowable for implementing the Grant Activities listed in the Scope of Work. Costs must be included in the Approved Grant Budget to be eligible for reimbursement.

9.2 Amounts of costs stated in the Approved Grant Budget are maximum amounts of reimbursement.

By stating the amounts, TCEQ does not: A) guarantee payment of those amounts, or B) waive the requirements for reimbursement, which must subsequently and continually be satisfied by the

PERFORMING PARTY.

9.3 The amount of costs for which reimbursement may be requested is the lesser of: A) the costs stated in the Approved Grant Budget, or B) the actual eligible costs.

9.4 The PERFORMING PARTY has a continuing obligation to satisfy the requirements for reimbursement. A request for reimbursement, TCEQ’s payment of reimbursement, or any other action will not establish an entitlement to the PERFORMING PARTY to payment from TCEQ. The PERFORMING PARTY shall return grant funding reimbursed for expenses that are later determined to be ineligible or unallowable under the terms of this Contract.

Procurement

9.5 The PERFORMING PARTY must ensure that its procurement processes for acquiring the Grant Equipment are based on sound business decisions and arm’s length bargaining. Purchases must be made without any actual or apparent personal or organizational conflicts of interest as described in TxGMS. The PERFORMING PARTY agrees that TCEQ has sole discretion to determine whether a conflict of interest exists, and that a conflict of interest may be considered a material breach of this Contract.

9.6 The PERFORMING PARTY’s procurement practices must allow for and encourage fair and open competition for vendors and subcontractors providing goods and services under this Contract.

9.6.1 If the PERFORMING PARTY is a local government, it must comply with Chapter 176 of the Texas Local Government Code.

9.6.2 If the PERFORMING PARTY is a state agency, it must comply with Chapter 572 of the Texas Government Code.

9.6.3 The PERFORMING PARTY is encouraged to provide opportunities for Historically Underutilized Businesses (HUBs) to participate in any procurement and subcontracting under this Contract.

9.7 For any expenses (goods or services) that are not procured using price competition, and which exceed the Texas Acquisition Threshold or federal Simplified Acquisition Threshold (currently $250,000), the PERFORMING PARTY must perform a price or cost analysis (for example, independent estimates) to determine the reasonableness of the price and maintain documentation of such analysis. All documentation regarding procurement and price or cost analysis must be provided to TCEQ upon request.

9.8 The PERFORMING PARTY must document and maintain evidence of expenses. TCEQ may at any time before or after reimbursement, in its sole discretion, request additional documentation concerning costs, the procurement process used, and any price or cost analysis performed. TCEQ may audit the records of the PERFORMING PARTY and may also audit the PERFORMING PARTY’s performance as to the Grant Activities and the Administrative Requirements.

Reasonable Costs

9.9 Reasonableness of costs depends upon a variety of considerations and circumstances, including:

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9.9.1 whether it is the type of cost generally recognized as ordinary and necessary for the conduct of the PERFORMING PARTY’s business or the contract performance;

9.9.2 generally accepted sound business practices, arm's length bargaining, and federal and state laws and regulations;

9.9.3 the PERFORMING PARTY’s responsibilities to TCEQ, other customers, the owners of the business, employees, and the public at large; and

9.9.4 any significant deviations from accepted industry-established practices.

Necessary Costs

9.10 Necessary costs include costs which are directly attributable to the implementation of the Grant Activities, and which are included in the Approved Grant Budget.

9.11 Unless expressly authorized by TCEQ, necessary costs do not include the cost of money, in particular, the interest charges or fees on a purchase money loan or on a deferred payment purchase agreement.

Actual Costs

9.12 The criteria for actual costs include:

9.12.1 the direct costs paid for implementing the Grant Activities; or

9.12.2 the invoice cost charged by a vendor/contractor to the PERFORMING PARTY for implementing the Grant Activities including taxes and government fees, delivery and shipping fees, factory and/or extended warranties, mechanic and safety inspections, cooperative fees, and dealer processing fees not related to financing.

9.13 Unless expressly authorized by TCEQ, actual costs do not include:

9.13.1 amounts deducted from the cost of the purchase of Grant Equipment whether as discounts, rebates, refunds, or otherwise;

9.13.2 amounts which the PERFORMING PARTY owes or agrees to pay the vendor or contractor for any purpose other than the implementation of Grant Activities;

9.13.3 amounts in the charges which the vendor/contractor intends to return to the PERFORMING PARTY in the form of cash, goods, services, gifts, intangibles, discounts, or any other items of value; or

9.13.4 amounts which are reimbursed by other public sources or for which tax credits or other public financial incentives are or will be received by the PERFORMING PARTY.

Allowable Costs

9.14 In order to be allowable, costs must be included in the Approved Grant Budget, and must satisfy the requirements of this Contract, TxGMS, state agency rules, and all applicable state and federal laws.

Unallowable Costs

9.15 Consulting (Application Assistance) Fees. Any fees charged by a consultant for preparation of the Application, either directly or as an addition to the cost basis of the grant-funded equipment, are the sole responsibility of the PERFORMING PARTY or the vendor and are not an allowable cost under this Contract. It is generally considered acceptable for an applicant to accept assistance from a vendor or an agent of a vendor in preparing the Application, as long as any decision by the applicant to purchase the grant-funded equipment from that vendor is made independently and meets the other reasonableness provisions in the Contract.

9.16 Administrative Costs. Internal costs of the grant recipient, such as personnel expenses, salaries, indirect costs, and travel are not eligible for reimbursement. This provision does not limit the ability of an equipment vendor or installer to include ordinary, reasonable, and necessary operational costs in the price of the equipment or installation services.

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9.17 The PERFORMING PARTY will indicate any financial incentives received on the Request for Reimbursement form. This includes tax credits or deductions, other grants, or any other public financial assistance. The combination of this grant and other financial incentives may not exceed the cost to the applicant of the Grant Equipment. During the reimbursement process, TCEQ may reduce the amount of costs eligible for reimbursement by the value of any additional financial incentive received by the PERFORMING PARTY without a Written Amendment or Minor Change to this Contract.

Preapproval of Costs

9.18 TCEQ may request additional details regarding costs of Grant Equipment listed in the Approved Grant Budget and may require that the PERFORMING PARTY obtain preapproval of specific costs from TCEQ prior to incurring those costs.

9.19 If requested by TCEQ, the PERFORMING PARTY must provide TCEQ with copies of purchase agreements or subcontracts for expenses to be reimbursed under this Contract for approval, prior to the PERFORMING PARTY entering into a final purchase agreement and/or subcontract.

Additional Criteria for Reimbursement

9.20 TCEQ may at any time, in its sole discretion, establish additional criteria and requirements for reimbursement of costs as serves the best interests of the State.

Debts Owed to the State

9.21 If the PERFORMING PARTY owes any amount(s) to the State of Texas, any payments, or other amounts the PERFORMING PARTY is otherwise owed under the contract or grant may be applied toward any debt the PERFORMING PARTY owes the State of Texas until the debt is paid in full.

These provisions are effective at any time the PERFORMING PARTY owes any such debt or delinquency.

Outstanding Invoice to TCEQ

9.22 If the PERFORMING PARTY has an outstanding invoice from TCEQ, TCEQ may not authorize reimbursement until the invoice is resolved.

ARTICLE 10. REQUEST FOR REIMBURSEMENT

10.1 Except as provided for under Article 10.4 below, to receive grant funds, all Grant Equipment costs must have been paid in full by the PERFORMING PARTY with either cash-on-hand or financing, and all Grant Equipment must have been received by the PERFORMING PARTY prior to the Request for Reimbursement Deadline.

10.2 All Request for Reimbursement forms must contain sufficient identification of and information concerning the total costs paid or obligated under a financing agreement. TCEQ must be able to determine the eligibility of a particular cost during the initial review and any later audits. Supporting documentation materials must be attached to the Request for Reimbursement forms where indicated to clearly show that the cost was paid.

10.3 The PERFORMING PARTY shall submit a completed TCEQ Request for Reimbursement form. The forms shall be emailed to TERP-Fiscal@tceq.texas.gov or mailed to:

Texas Commission on Environmental Quality Air Grants Division MC-204, ATTN: Reimbursement P.O. Box 13087 Austin, TX 78711-3087

10.4 If the PERFORMING PARTY has paid eligible expenses that are equal to or greater than the grant amount with cash-on-hand, the reimbursement may be paid directly to the PERFORMING PARTY. In the event the PERFORMING PARTY finances the Grant Equipment, TCEQ will not pay the PERFORMING PARTY directly unless the PERFORMING PARTY has paid an amount equal to or greater than the grant amount. TCEQ will assign payment directly to the financing company.

Supporting documentation must be submitted to establish that the goods or services were mailto:TERP-Fiscal@tceq.texas.gov

Contract Number 8 received, and that the payment amount is owed to the financing company indicated by the

PERFORMING PARTY.

10.4.1 If an assignment is requested, the PERFORMING PARTY must complete the Assignment Request and Acceptance section on the Request for Reimbursement.

10.5 The final Request for Reimbursement form, indicated by selecting the final request box on the form, must be submitted to TCEQ by the Request for Reimbursement Deadline. Unless otherwise approved in writing by TCEQ, all work on the Grant Equipment must be completed, with the Grant Equipment fully operational, before final reimbursement will be made.

10.5.1 If project delays are experienced, the PERFORMING PARTY may submit a written extension request to TCEQ via email to TERP_Revise@tceq.texas.gov. Unless otherwise approved by TCEQ, an extension request must be submitted no later than 60 days prior to the Request for Reimbursement Deadline. TCEQ’s decision to grant or deny an extension request will be provided in writing to the PERFORMING PARTY and may depend on the availability of grant funds.

10.6 If the Request for Reimbursement does not satisfactorily demonstrate the accomplishment of the required tasks, or that costs are allowable, eligible, actual, and paid in full, TCEQ may reject the request, until the deficiencies have been corrected. Satisfactory accomplishment of a task and sufficient documentation to verify costs are within the judgment of TCEQ; however, such judgment must be reasonable.

10.7 The reimbursement of funds is contingent upon the PERFORMING PARTY’s satisfactory adherence to the terms of this Contract.

10.8 The final request for payment of grant funds must include a signed and executed Release of Claims, releasing all claims for payment of any funds due and payable by TCEQ, upon TCEQ’s payment of the of the requested funds.

Retained Funds

10.9 TCEQ may retain up to 10% of the amount of any reimbursement requests pending the successful completion of the Implementation Period of the Grant Activities. The total of retained funds withheld will be released based upon the submission of the Request for Retained Funds form that will be provided to the Grantee for their signature once the final implementation report has been submitted and approved.

Refueling Infrastructure Project Costs

10.10 For refueling infrastructure projects where the dispensed fuel is compressed or liquified natural gas, TCEQ will reimburse the PERFORMING PARTY for no more than the lesser of one hundred percent (100%) of the eligible costs of the refueling infrastructure project or $400,000.

10.11 For refueling infrastructure projects where the fuel types dispensed include compressed and liquified natural gas, TCEQ will reimburse the PERFORMING PARTY for no more than the lesser of one hundred percent (100%) of the eligible costs of the refueling infrastructure project or $600,000.

10.12 For refueling infrastructure projects where the fuel dispensed is a fuel other than natural gas, TCEQ will reimburse the PERFORMING PARTY for no more than the lesser of fifty percent (50%) of the eligible costs of the refueling infrastructure project or $600,000.

Required Forms

10.13 In order to seek reimbursement, the PERFORMING PARTY, must submit fully completed and legible:

10.13.1 Request for Reimbursement form;

10.13.2 Supplemental Request for Reimbursement form(s) for budget categories with expenses; and

10.13.3 Release of Claims (only at final request for payment).

mailto:TERP_Revise@tceq.texas.gov

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Required Documentation

10.14 Documentation for a reimbursable cost shall:

10.14.1 be legible;

10.14.2 identify the specific piece of equipment received or the services provided;

10.14.3 clearly identify the vendor or subcontractor who provided the equipment or services;

10.14.4 confirm the reimbursable amount listed on the form; and

10.14.5 provide proof of payment for all costs for which reimbursement is requested.

10.15 The documentation shall consist of an itemized and dated invoice that shows the amount billed to the PERFORMING PARTY, any “past due” amount from previous invoices, and explanation of services provided. The PERFORMING PARTY must provide any other documentation requested by

TCEQ.

10.16 Canceled checks and bank confirmation of electronic funds transfers represent the preferred types of documentation for purposes of this section; however, at TCEQ’s discretion, the PERFORMING PARTY may substitute/attach other records or documents that provide sufficient evidence of payment.

10.17 TCEQ may reject requests for reimbursement that fail to demonstrate that costs are eligible for reimbursement, or which fail to conform to the requirements of the Contract.

10.18 In determining the amount of the final payment, TCEQ may withhold from reimbursement the amount of any over payment and any reasonable amount until TCEQ is satisfied that all conditions and requirements are completed and accepted.

10.19 All requests for reimbursement must be signed by an Authorized Official of the PERFORMING

PARTY.

ARTICLE 11. PERFORMING PARTY’S RESPONSIBILITIES TO TCEQ

11.1 All Grant Activities for which reimbursement is requested must be completed as described in the Scope of Work and Approved Grant Budget.

11.2 The PERFORMING PARTY hereby ratifies and attests to all representations and certifications in the Application and agrees to give written notice to TCEQ within three (3) business days if there is any material change in these representations or certifications.

Professional Quality

11.3 The PERFORMING PARTY is solely responsible for the professional quality, technical accuracy, timely completion, and the coordination of all Grant Activities under this Contract.

Supervision and Superintendence

11.4 The PERFORMING PARTY is solely responsible for the supervision, inspection, and direction of the Grant Activities in a competent and efficient manner, utilizing such skills and expertise as may be necessary to perform the Grant Activities in accordance with the Contract. The PERFORMING PARTY shall be solely responsible for the means, methods, techniques, sequences, and procedures of the Grant Activities. The PERFORMING PARTY shall be responsible for ensuring that the implementation of the Grant Activities complies with the terms and conditions of this Contract, including requiring that applicable terms and conditions of this Contract be incorporated into subcontracts, and industry-standard practices for construction, such as requiring subcontractor bonds and insurance.

Materials and Equipment

11.5 Unless otherwise specified in the Contract, the PERFORMING PARTY assumes full responsibility for all materials, equipment, labor, transportation, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the implementation and completion of the Grant Activities.

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The PERFORMING PARTY’s Responsibility for Purchases

11.6 Any purchase made by the PERFORMING PARTY, especially any purchase not proposed/scheduled for reimbursement by TCEQ, is made at its own risk.

11.7 All Grant Equipment will be of good quality and as described in the Scope of Work. All materials and equipment shall be applied, installed, connected, erected, used, cleaned, conditioned, and maintained in accordance with instructions of the applicable manufacturer and supplier.

11.8 The PERFORMING PARTY agrees to maintain the Grant Equipment as necessary to keep the Grant Equipment in good condition and functioning at Optimum Performance during the Operation Period.

11.9 Failure to maintain the Grant Equipment constitutes a material breach of this Contract.

Required Insurance

11.10 Unless otherwise expressly agreed by TCEQ, the PERFORMING PARTY must obtain and maintain a commercial policy of property insurance which is sufficient to replace Grant Equipment if it is lost, stolen, or irreparably damaged. This insurance policy must be maintained throughout the Contract Period.

11.10.1 Unless otherwise expressly agreed by TCEQ, the PERFORMING PARTY must obtain and maintain a commercial policy of property insurance which is sufficient to repair or replace equipment necessary for the completion or operation of the Grant Activities and which is listed as an expense in the Approved Grant Budget. This insurance policy must be maintained throughout the Contract Period.

11.11 The PERFORMING PARTY must obtain and maintain policies of workers compensation, employer's liability insurance, commercial automobile liability insurance, commercial general liability insurance, property insurance, and umbrella liability insurance at levels set out in the Insurance Section of this Contract. These insurance policies must be maintained throughout the Contract Period.

11.12 The PERFORMING PARTY must provide proof of the required insurance coverages prior to receiving the Notice to Proceed. If requested by TCEQ, the PERFORMING PARTY shall provide additional proof of insurance coverage, including declaration pages and copies of policies.

11.13 Failure to provide proof of required insurance or failure to maintain required insurance during the Contract Period shall constitute a material breach of this Contract.

11.14 Any insurance proceeds received by or on behalf of the PERFORMING PARTY under an insurance policy due to the damage or destruction of Grant Equipment must be utilized to acquire equivalent or better Grant Equipment or be paid to TCEQ. Failure to do so shall constitute a material breach of this Contract.

11.15 Upon the occurrence of a repairable malfunction of or damage to Grant Equipment during the Contract Period, the PERFORMING PARTY will repair and restore the Grant Equipment to the level of Optimum Performance.

11.16 Upon the occurrence of loss, theft, or irreparable damage of Grant Equipment during the Contract Period, the PERFORMING PARTY will replace the lost, stolen, or damaged Grant Equipment with similar equipment which achieves the same Optimum Performance or better. The PERFORMING PARTY must replace and install the Grant Equipment no later than 60 consecutive days from the occurrence of loss, theft, or damage, unless TCEQ expressly agrees to a longer period.

Replacement Grant Equipment is subject to all the requirements applicable to Grant Equipment contained in this Contract.

11.17 The PERFORMING PARTY shall fully comply with all requirements of any agreements with third parties that have a security interest or similar interest in the Grant Equipment. Repossession, seizure, or any other event where the PERFORMING PARTY loses possession of the Grant Equipment is considered a material breach of this Contract and requires the return of grant funds.

11.18 Governmental entities may use an established self-insurance program to satisfy any insurance requirements.

11.19 TCEQ reserves the right to require additional insurance coverage during the term of this Contract.

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Assignment

11.20 TCEQ must remain in contractual privity with the entity owning and operating the Grant Equipment in order to enforce the Contract’s Grant Activities and Administrative Requirements until the termination of this Contract. Any act by the PERFORMING PARTY that impairs TCEQ’s ability to enforce this Contract, including sale of the Grant Equipment, transfer of the Grant Equipment, loss of the Grant Equipment, sale of the PERFORMING PARTY’s business interests, or liquidation of the PERFORMING PARTY’s assets (including the Grant Equipment), constitutes a material breach of this Contract and requires the return of grant funds.

11.21 TCEQ may allow the assignment of this Contract. The PERFORMING PARTY and proposed assignee will be required to execute a TCEQ-drafted assignment agreement stating the assignee’s obligation to accept this Contract and to continue to use the Grant Equipment subject to the terms of this Contract.

11.22 If TCEQ does not allow assignment of the Contract, or if the proposed assignee refuses to enter into an assignment agreement, TCEQ will deem the PERFORMING PARTY in breach of the Contract and may utilize any remedy under Article 14, including the return of grant funding.

11.23 No delegation of the obligations, rights, or interests in the Contract, and no assignment of payments by the PERFORMING PARTY will be binding on TCEQ without its written consent, except as restricted by law.

Access to Records and Grant Equipment

11.24 State Auditor’s Office. The PERFORMING PARTY understands that the state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the Contract or indirectly through a subcontract under the Contract. The acceptance of funds directly under the Contract or indirectly through a subcontract under the Contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. The PERFORMING PARTY further agrees to cooperate fully with the State Auditor’s Office or its successor in the conduct of the audit or investigation, including providing all records requested.

The PERFORMING PARTY will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through the PERFORMING PARTY and the requirement to cooperate with the audit or investigation is included in any subcontract it awards under this Contract.

11.25 The PERFORMING PARTY shall cooperate with and allow access to all Grant Equipment as described in this Contract by TCEQ, the State of Texas, the State Auditor’s Office, and any of their authorized representatives for the purpose of review, on-site inspection, and/or audit. Failure to respond to or cooperate with any authorized review, inspection, or audit of the Grant Activities constitutes a material breach of this Contract.

11.26 If the PERFORMING PARTY expends more than $750,000 in state grant awards, including this Contract, during its fiscal year, the PERFORMING PARTY must have an annual independent financial audit conducted. All audits must be conducted in accordance with generally accepted government accounting standards (GAGAS). A federal single audit may be accepted if it addresses internal controls and other grant requirements applicable to this Contract’s Administrative Requirements and Grant Activities. TCEQ may allow a program-specific audit if the PERFORMING PARTY’s only state award expenditures are from the Texas Emissions Reduction Plan (TERP) and/or the Texas Volkswagen Environmental Mitigation Program (TxVEMP). The PERFORMING PARTY’s audit and reporting package must be provided to TCEQ as specified in TxGMS.

Maintenance of Records

11.27 The PERFORMING PARTY shall maintain books, records, documents, and other evidence reasonably pertinent to performance of the Grant Activities and requirements of the Contract, including any Contract Amendments. All financial records will be maintained in accordance with generally accepted accounting principles and this Contract. The PERFORMING PARTY’s record retention system shall provide for the identification, accumulation, and segregation of allowable and

Contract Number 12 unallowable costs among projects. The PERFORMING PARTY shall also maintain the financial information and data used in the preparation or support of any Request for Reimbursement, price or profit analysis, and a copy of any cost information or analysis submitted to TCEQ. The PERFORMING PARTY shall allow access to all the material including bank statements and records to TCEQ, the State of Texas, the State Auditor’s Office, and any of their authorized representatives for the purpose of review, inspection, audit, excerpts, transcriptions, and/or copying during normal business hours. The PERFORMING PARTY shall provide appropriate facilities and equipment for such access and inspection.

11.28 Records under this Article shall be maintained by the PERFORMING PARTY during performance of the Grant Activity under this Contract and for four (4) years after the termination of this Contract.

If any litigation, claim, negotiation, audit, cost recovery, or other action (including actions concerning costs of items to which an audit exception has been taken) involving such records has been started before the expiration of the four-year period, such records must be retained until completion of the action or resolution of all issues which arise from it, or until the end of the regular four-year period, whichever is later. The PERFORMING PARTY must maintain these records in a way that ensures business continuity if the primary records are destroyed such as establishing a back-up copy of such records.

PERFORMING PARTY’s Representative

11.29 The PERFORMING PARTY will identify in writing a Project Representative as the person authorized to receive and respond to inquiries and requests from TCEQ, to manage the Grant Activities being performed, and to act on behalf of the PERFORMING PARTY.

11.30 The PERFORMING PARTY agrees to make arrangements necessary to ensure that its authorized Project Representative, or someone to whom that person has delegated his or her authority, is available during regular business hours for consultation with TCEQ. Written notice of any such delegation, or change in delegation, will be provided to TCEQ.

11.31 Any notice issued pursuant to this Contract shall be addressed to the respective party’s authorized Project Representative or delegated authority. Such notices shall be written and emailed, hand-delivered, or sent by first-class mail. Any notice or other written communication shall be considered delivered upon date of receipt.

Personnel

11.32 The PERFORMING PARTY shall provide competent, suitably qualified personnel, whether employees or contractors, to implement the Grant Activities as required by the Contract.

Safety and Protection

11.33 Where applicable, the PERFORMING PARTY shall be responsible for requiring employees, contractors, and subcontractors to maintain and supervise all necessary safety precautions and programs in connection with the Grant Activities. The PERFORMING PARTY shall take all necessary precautions to protect the health and safety of the public during performance of the Grant Activities.

Permits

11.34 Unless otherwise provided in the Contract, the PERFORMING PARTY shall obtain and pay for all applicable permits and licenses required for this performance of this Contract. Failure to comply with a permit issued by TCEQ or other state agency may result in a determination, within the sole discretion of TCEQ, that the best interests of the state are served by withholding reimbursement or by the application of other remedies under this Contract.

Laws and Regulations

11.35 The PERFORMING PARTY shall give all notices and comply in all material respects with all laws and regulations applicable to furnishing and performance of the Grant Activities. Except where otherwise expressly required by applicable laws and regulations, TCEQ shall not be responsible for monitoring the PERFORMING PARTY’s compliance with any laws or regulations.

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Data and Publicity

11.36 All data and other information developed under this Contract may be subject to public disclosure pursuant to the Texas Public Information Act, Texas Government Code Chapter 552. Except to the extent that it is exempted from public access by the Texas Public Information Act, the PERFORMING PARTY agrees to disclose all information and reports resulting under this Contract in a format that is accessible by the public at no additional charge to the State.

11.36.1 If the PERFORMING PARTY is claiming that data and information submitted to TCEQ contains confidential or proprietary information, that information MUST be clearly marked “Confidential/Proprietary: inform applicant & seek AG opinion before releasing” on every page and must be submitted separately from all other material. If TCEQ receives a request for that information, the PERFORMING PARTY will be notified by TCEQ of the request. The PERFORMING PARTY may submit arguments to the Texas Office of the Attorney General if it believes the information should not be released. TCEQ will not submit arguments on behalf of the PERFORMING PARTY and will not release information unless ordered to do so by the Attorney General. Information contained in this Contract and vouchers, communications, and other information sent between TCEQ and the PERFORMING PARTY related to the performance of this Contract or work performed on behalf of TCEQ is considered public information under § 552.1101(b) of the Texas Government Code regardless of whether the PERFORMING PARTY identifies such information is as being confidential.

11.37 Upon termination of this Contract, if requested by TCEQ, all copies of data and information developed under this Contract, including databases for which the costs of preparation are reimbursed under this Contract, shall be furnished at no charge to TCEQ, and shall become the property of TCEQ.

11.38 The PERFORMING PARTY agrees to notify TCEQ prior to releasing any information to the news media regarding the Grant Activities. The PERFORMING PARTY will acknowledge the financial support of TCEQ whenever a Grant Activity reimbursed, in whole or part, is publicized or reported in news media or publications. Reports and other documents, including news releases or public announcements, prepared as a part of this Contract, or referencing the Grant Activities under this Contract, shall carry the following or similar notation on the front cover or title page:

This project is funded in part by the State of Texas through the Alternative Fueling Facilities Program from the Texas Commission on Environmental Quality.

Lobbying Activities

11.39 The PERFORMING PARTY shall not use funds provided under this Contract to support lobbying or political activity either directly or indirectly in accordance with Sections 403.1067 and 556.0055 of the Texas Government Code.

Accessibility

11.40 All electronic content and documents created as deliverables under this Contract must meet the accessibility standards prescribed in 1 Texas Administrative Code Sections 206.50 and 213, for state agency web pages, web content, software, and hardware, unless TCEQ agrees that exceptions or exemptions apply.

Conflict of Interest

11.41 The PERFORMING PARTY represents and warrants that performance under this Contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety. Further, the PERFORMING PARTY represents and warrants that in the administration of the grant, it will comply with all conflict-of-interest prohibitions and disclosure requirements required by applicable law, rules, and policies. If circumstances change during the course of this Contract, the PERFORMING PARTY shall promptly notify TCEQ.

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Open Meetings

11.42 If the PERFORMING PARTY is a governmental entity, the PERFORMING PARTY represents and warrants its compliance with Chapter 551 of the Texas Government Code which requires all regular, special, or called meetings of a governmental body to be open to the public, except as otherwise provided by law.

Identifying Mark

11.43 Upon request by TCEQ, the PERFORMING PARTY shall install, or allow TCEQ or its contractor to install, a prominently placed identifying mark on the Grant Equipment, identifying it as Texas Emissions Reduction Plan (TERP)-funded equipment, and containing such other information as TCEQ shall specify. The PERFORMING PARTY may remove the mark upon the expiration of the Contract.

ARTICLE 12. PROGRESS REPORT; LONG TERM MONITORING AND REPORTING

12.1 During the Implementation Period, the PERFORMING PARTY shall submit biannual progress reports describing the Grant Activities completed. Completed progress reports are due to TCEQ within ten

(10) days following June 30 and December 31.

12.2 A final Implementation Period report shall be submitted to TCEQ after implementation of all Grant Activities has been completed in accordance with the Scope of Work.

12.3 As a condition of receiving grant funds, the PERFORMING PARTY agrees to operate the Grant Equipment for the Operation Period, as detailed in the Scope of Work.

12.4 As a condition of receiving grant funds, the PERFORMING PARTY agrees to submit properly completed annual operation reports to TCEQ, on forms provided by TCEQ, for the Operation Period.

The PERFORMING PARTY will submit the required reports annually as specified by TCEQ.

12.5 The PERFORMING PARTY’s timely submission of complete and accurate progress and operation reports is material to performance under this Contract. Failure to submit the required reports or submission of reports containing false or inaccurate information shall constitute a material breach of this Contract and shall require the return of the grant funds.

ARTICLE 13. TERMINATION

13.1 Termination of this Contract under any circumstances shall not constitute a waiver of any rights or remedies that TCEQ may exercise under this Contract or otherwise as provided by law.

13.2 This Contract may be terminated in whole or in part by TCEQ for its convenience. Circumstances when this may occur include the depletion of the Texas Emissions Reduction Plan Fund, which results in the unavailability of funds to complete this project. To the extent feasible, at the sole discretion of TCEQ, TCEQ will provide a minimum of ten (10) days written notice of intent to terminate.

13.2.1 The PERFORMING PARTY may not incur new obligations after receiving notice of termination and must cancel as many outstanding obligations as possible. TCEQ evaluates each obligation to determine its eligibility for inclusion in project costs. TCEQ allows full credit to the PERFORMING PARTY for the state share of the non-cancelable obligations properly incurred by the grantee prior to termination, subject to the availability of funds.

13.3 This Contract may be terminated in whole or in part by TCEQ for cause, including a material failure to comply with the requirements of the Contract. Unless advance notice of intent to terminate will place funds of the state at increased risk, TCEQ will provide written notice to the PERFORMING PARTY’s Project Representative of its intent to terminate. The PERFORMING PARTY shall have twenty (20) calendar days from the date such notice is sent to cure performance deficiencies.

13.3.1 If the PERFORMING PARTY’s acts or omissions cause or create an increase of pollutants to an unacceptable level or an increase of health and safety risks, such acts or emissions shall constitute a material failure to comply with the requirements of the Contract.

13.3.2 In the event the PERFORMING PARTY sells, transfers, destroys or otherwise loses title, ownership, possession, or control of Grant Equipment during the Contract Period, without prior approval from

Contract Number 15

TCEQ, the Contract may be terminated, and TCEQ will be entitled to a return of the grant funds reimbursed to the PERFORMING PARTY for the purchase of the…