ORDER NO. 31155 GRANT AGREEMENT WITH TEXAS WATER DEVELOPMENT BOARD Came to be heard this the 12th day of January, 2009, with a motion made by Commissioner Williams, seconded by Commissioner Letz, the Court unanimously approved by a vote of 4-0-0 to: Approve Grant Agreement between Texas Water Development Board and Kerr County for Center Point/Eastern Kerr County Wastewater Project, and authorize County Judge to sign same. 311~s 1 ~, ~ COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Commissioner Williams OFFICE: Precinct Two MEETING DATE: January 12, 2009 TIlVIE PREFERRED: SUBJECT: Cgnsider, discuss and take appropriate action to approve Grant Agreement between Texas Water Development Board and Kerr County for Center Point/Eastern Kerr County Wastewater Project. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON(S) ADDRESSING COURT: Commissioner Williams ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: 5:00 P.M. previous Tuesday. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. December 12, 2008 The Honorable Bill Williams Kerr County Commissioner, Precinct 2 700 Main St. Kerrville, Texas 78028 RE: Economically Distressed Areas Program (EDAP) Contract between the Texas Water Development Board (TWDB) and Kerr County (COUNTY); TWDB Project No. 10366, TWDB Contract No. G090003 Dear Commissioner Williams: Enclosed are two originals of the above-referenced contract for the preparation of a facility plan to provide first time wastewater service in the project area in the amount of $178,500. After executing both originals, please return both original copies to the attention of Contract Administration, at the address shown below. The TWDB will execute and sign the contracts upon their return and deliver one copy to you for your records. If you have any questions concerning this contract, please contact Nicolas Palacios, the TWDB's designated Contract Manager for this project, at (512) 936- 2345. S' cerely, J. Kevin Ward Executive Administrator Enclosures c: Nicolas Palacios, P.E., TWDB ®ur 1Ylission To provide leadership, planning, financial assistance, information, and education for the conservation and responsible development of water for Texas P.U. Bo:c 13231 • 1700 N. Congress Avenue • Austin, Texas 78711-3231 Telephone (~ 12) 4fi3-7847 • Fax (512) 475-2053 • 1-800-RELAYTX (for the hearing impaired] www.twdb.state.tx.us • info~twdb.state.tx.us TNRIS -Texas Natural Resources Information System • www.h2ris.state.tx.us A Member of the Texas Geographic Information Council (TGIC) James E. Herring, Chairman Jack I-lur~t, /rce Chai~•~ran Lewis H. McMahan, Member J. Kevin Ward Thomas Weir Labatt iII, Member Edward G. Vaughan, Member Executive Administrator Joe \J_ t=Hitcher, _Metnbe~• Backup Statement' for Agenda Item Presented for approval is Grant Agreement between Texas Water Development Board (TWDB) and Kerr County for Facilities Planning for Center Point/Eastern Kerr County Wastewater Project. TWDB Project No. 10366 TWDB Contract No. G090003 #31155 TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 TEXAS WATER DEVELOPMENT BOARD AND KERR COUNTY, TEXAS TWDB BOARD COMMITMENT N0.08-115 ECONOMICALLY DISTRESSED AREAS ACCOUNT GRANT AGREEMENT .... 7 ~ ~' j ... i 5.-~ TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 STATE OF TEXAS § COUNTY OF TRAVIS § TEXAS WATER DEVELOPMENT BOARD AND KERR COUNTY WHEREAS, Kerr County (County) submitted an application to the Texas Water Development Board (TWDB) for financial assistance for planning costs to provide first time wastewater service to part of the County. WHEREAS, on October 28, 2008 the TWDB adopted Resolution No. 08-115 and therein determined that the County was qualified for financial assistance under the Economically Distressed Areas Program (EDAP) and committed Grant funds not to exceed $178,500.00 for the development of a facility engineering plan related to providing first-time wastewater service to certain existing residential areas (Project). WHEREAS, the TWDB has determined that the County has met or will meet, upon execution of this Grant Agreement, all of the conditions in the Resolution No. 08-115. WHEREAS, the TWDB and the County (Parties) agree to administer this Grant Agreement in conformance with all applicable laws and conditions set forth herein and in Resolution No. 08-115. NOW THEREFORE, the Parties agree as follows. ARTICLE I. AUTHORITY 1. The TWDB enters into this Agreement pursuant to the authority granted under TEX. WATER CODE, CH. 17, SUBCHAPTER K. 2. The County enters into this Agreement pursuant to the authority granted under TEx. CONST. art. IX, § 1 and TEx. Loc. Gov'T CODE §§ 412.016 and 422.012. ARTICLE II. DEFINITIONS These definitions apply to this Agreement. TWDB means the Texas Water Development Board. County means Kerr County Agreement means this Grant Agreement and all attachments, Exhibits and amendments hereto. Economically Distressed Areas Program means the financial assistance program established under TEx. WATER CODE, CH. 17, SUBCHAPTER K. Economically Distressed Area means an area in which the water supply or sewer services are inadequate to meet minimal needs of residential users, for which the County's financial resources are inadequate to provide water supply services that will satisfy those needs, and that has established residential subdivisions, all as defined in 31 TAC Ch. 363, Subch. E, § 363.501-363.512 and, more specifically for purposes of this Agreement, means the area depicted in EXHIBIT A-2 hereto. EA means the Executive Administrator of the Texas Water Development Board. Eligible Expense means an expense attributable to the work on the Project for which funds are provided under this Agreement. Eligible expenses are those expenses approved by the EA and incurred for work listed on EXHIBIT B. Exhibit means an attachment to this Agreement, which is for all purposes incorporated into and made a part of this Agreement. Parties means the TWDB and the County. Project means the development of a facility engineering plan for the provision of first- time wastewater service to certain existing residences in the unincorporated area of the County. TAC means the Texas Administrative Code, and more specifically for purposes of this Agreement, Chapters 355 and 363 of Title 31, relating to the Texas Water Development Board. ARTICLE III. GRANT FUNDS: Release, Reports, and Accounting 3.01 PRE-RELEASE CONDITIONS. The TWDB shall not release any funds hereunder until the County has fulfilled the pre-release conditions of this Agreement. The Parties mutually understand and agree that other conditions for the release of funds may be determined during the course of this Project, and therefore the Parties agree to negotiate in good faith the terms of any future conditions for the release of funds. Therefore, the EA shall not release any funds for the Project until the following conditions have been met: A. Procurement Process. The County shall provide the EA with documentation establishing that the procurement procedure used in selecting the engineer and other professional services and in preparing agreements for professional work on the Project 3 comply with statutory requirements applicable to the County and that those procurement procedures are consistent with TEx. Gov. CODE Army. §§ 2254.001-2254.006. B. Engineering_Contract. The County shall submit an executed consulting engineer contract to the TWDB the form and substance of which is satisfactory to the EA. 3.02. OTHER SOURCES OF FUNDS. If applicable, the County shall provide evidence satisfactory to the EA that the County is closing on Project loans or grants funded from other sources in a manner and on a schedule that will assure that the non-EDAP components of the Project, if any, are designed concurrently with the EDAP components in accordance with the schedule approved by the Parties. ARTICLE IV. EXPENDITURES, ACCOUNTING AND DOCUMENTATION 4.01 REIMBURSEMENTS. A. Reimbursable Eli ibg le Expenses. The EA shall reimburse the County for the eligible expenses incurred for the Project Categories as identified in Exhibit B. The amount shall not exceed the budgeted amount associated with each such category. The County shall complete the tasks in each category and receive approval of the EA for the work in that category before proceeding to the tasks in the next category. The EA shall not reimburse any expenses that result from changes in the scope of work or the budget unless that EA has approved such changes in writing prior to the expenditure. B. Monthly Progress Reports. The County shall submit to the EA a monthly progress report on Project activities each month until the completion of the Project. The report shall identify the work completed, the compliance with the work schedule including a corrective action plan if the work is not on schedule, and any other factors that may delay the completion of the Project. 4.02. INVOICES AND ACCOUNTING. A. Timing of and Content of Invoices. The County shall submit invoices, or other appropriate documentation of eligible expenses, for expenses incurred during the preceding month. Invoices and documentation shall include detail sufficient to demonstrate that the expenses incurred are eligible for reimbursement. The County may provide evidence of the payment to third parties as proof of eligible expenses only when the payment documents detail the work for which payment was made. B. EA Review of Eli ible Expenses and Approval of Advance of Funds. The EA shall promptly review the County's submission of the invoices and other documentation submitted for the preceding month. Upon a determination by the EA that the expenditures were in accordance with this Agreement and applicable laws, the EA shall authorize payment of the amounts requested by the County for reimbursement. C. Ineligible Expenditures. When either the County or the EA determines that an ineligible expense was paid with TWDB funds, the County shall promptly notify the EA of the nature of the ineligible expenditure and the EA shall adjust the next reimbursement by an amount equal to the ineligible expense. 4.03. FINAL ACCOUNTING REVIEW. Upon termination of this Agreement, the TWDB shall perform a final accounting review of the expenditures made by the County and of the payments made to the County under this Agreement. The Final Review is conducted to determine whether payments made to the County exceeded the Project's eligible expenses. If the Final Review shows that the Project's eligible expenses were less than the payments made by the TWDB to the County, including related investment earnings, then the County shall reimburse the TWDB for the excess payments in a manner determined by the EA. 4.05. EARLY RELEASE OF GRANT FUNDS. When applicable, the EA may release all or part of the funds under this Agreement prior to the closing of the applicable loan financing for the Project. ARTICLE V. PROJECT IMPLEMENTATION 5.01. SCHEDULES. The County shall perform the obligations undertaken pursuant to this Agreement within the times specified in the Project Schedule, attached hereto and identified as Exhibit C. Failure to adhere to the Project Schedule may result in a loss of funding. Extensions of time may be requested pursuant to Section 6.07 of this Agreement. 5.02. PLANS AND SPECIFICATIONS. (A). Preparation. The County shall have qualified and competent engineers, licensed in the State of Texas, and selected in accordance with applicable law. Only qualified and properly procured professionals shall prepare the final design, engineering plans and specifications and such professionals may prepare all necessary contract documents for the Project. The County is solely responsible and liable for all payments to its engineering contractors and any other contractors or subcontractors engaged for work on the Project. (B). Procurement of Professional Services. The County shall select engineers and other necessary professionals for the Project, or its components, in compliance with the Professional Services Procurement Act, TEx. Gov'T CODE Artt~t., §§ 2254.001-2254.006 and any other such similar laws and rules applicable to the County. (C) Approval of Final Design, Advertising for Construction Bids. The County shall obtain approval of the EA for the final design and the engineering plans and specifications for the Project before advertising for bids for contractors for construction of the Project. 5.03. ARCHEOLOGICAL SURVEY. If, during the Project, indications are found in the sites selected by the engineer of the possible presence of intact or significant cultural resources, the County shall contact the EA and arrange for an archeological survey to be performed in consultation with the EA and the Texas Historical Commission. 5.04. ENVIRONMENTAL REVIEW. If, during the Project, there appear to be potential impacts to waters of the United States, to endangered or threatened species, to designated critical habitats, or any other natural resources protected by state of federal law or the presence of any asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances or other constituents of concern located at or near the Project site, the County shall contact the EA for a determination relating to the County's responsibility to engage in actions to avoid, minimize or mitigate such potential impacts. 5.05. PRIOR APPROVAL OF EQUIPMENT PURCHASES. Notwithstanding any other provisions of this Agreement, the County shall obtain prior TWDB approval for the purchase of equipment and supplies where any one item has an acquisition cost of $5,000.00 or more per unit and a useful life of one year or more. Equipment and supplies acquired with TWDB funds for the Project under this Agreement shall be managed, used, and disposed of, in accordance with applicable state laws and procedures. 5.06. RECORDS. (A) Duty to Maintain and Retain Records. The County and its Contractors shall maintain all financial accounting documents and records, including copies of all invoices and receipts for expenditures, relating to the work under this Agreement. The County shall maintain financial accounting documentation pursuant to this Agreement and applicable laws and rules in a manner acceptable to the TWDB, consistent with generally accepted accounting principles. The County also shall require its contractors to maintain financial accounting records consistent with generally acceptable accounting principles and both the County and its contractors shall maintain and retain all accounting records related to the expenditure of funds received under this Agreement for a period of four (4) years after the termination of this Agreement. The County shall retain all records related to the expenditure of funds under this Agreement for at least four (4) years or in accordance with Title 6, TEx. Loc. Gov'T CODE § § 204.001-204.011 and 201.001- 201.009, and TEx. Gov'T CODE A~•~v. §§ 441.151-441.168, whichever requires the longest period of retention. (B) Public Records. The County understands and agrees that all documents relating to this Agreement may be subject to the Public Information Act, TEx. Gov'T CODE Cx. 551, and such documents may not be withheld from public disclosure except in accordance with law and with the consent of the Texas Attorney General. The County shall promptly respond to a request by the TWDB for copies of its records related to expenditures of funds under this Agreement. 5.08. INSPECTIONS AND AUDITS. (A) Inspections. The standards of administration, property management, audit procedures, procurement and financial management, and the records and facilities of the County and its contractors are subject to audit and inspection by the TWDB and, if applicable, by the Environmental Protection Agency and by any other authorized State or federal entity. All books, documents, papers, and records of the County, related to this Agreement, shall be made available. for audit, examination, excerption, and transcription by the staff of the TWDB within a reasonable time after a request from the TWDB. (B) Right To Audit. The County shall make such documents and records available for examination and audit by the EA or any other authorized entity of the State of Texas. By executing this Agreement, the County accepts the authority of the Texas State Auditor's Office to conduct audits and investigations in connection with all state funds received pursuant to this Agreement. The County shall comply with directives from the Texas State Auditor and shall cooperate in any such investigation or audit. The County agrees to provide the Texas State Auditor with access to any information the Texas State Auditor considers relevant to the investigation or audit. The County also agrees to include a provision in any Contract or Subcontract related to this Agreement that requires the contractor and subcontractor to submit to audits and investigation by the State Auditor's Office in connection with all state funds received pursuant to the Subcontract. ARTICLE VI. GENERAL PROVISIONS 6.01. COMPLIANCE WITH APPLICABLE LAWS. The County shall comply with all applicable provisions, statutes and rules of the TWDB and more particularly with TEx. WATER CODE, Cx. 17, SUBCH. K and applicable rules at 31 TAC chapters 355, 363, and 364. 6.02. NO AGENCY. The County is an independent entity and not an agent of the State of Texas. The County shall not represent itself to be an agent of the State nor shall the County misrepresent its status under this Agreement. This Agreement creates a contractual relationship only between the Parties. 6.03. NOTICES. All notices, notifications, or requests required or permitted to be given under this Agreement, unless otherwise specified, shall be in writing and addressed as set forth below, and shall be given by personal delivery or transmitted by United States certified mail return receipt requested, postage prepaid, to the addresses of the Parties shown below. Notice shall be effective when received by the party to whom notice is sent, as follows: Texas Water Development Board Kerr County Attn: Greg Kuchy, DEA Attn: William H. Williams 1700 N. Congress Ave. Commissioner, Precinct 2 P.O. Box 13231 700 Main Austin, Texas 78711-3231 Kerrville, Texas 78028 6.04. INSURANCE, LICENSE, AND PERMITS. The County is solely responsible for liability resulting from negligent acts or omissions of the County, its employees or agents. The County shall obtain such insurance in an amount sufficient to protect the interests of the TWDB in the Project. The County shall indemnify and hold the TWDB and the State of Texas harmless, to the extent that the County may do so in accordance with State law, from any and all losses, damages, liability or claims therefor, on account of personal injury, death, or property damage of any nature whatsoever caused by the County, its agents, employees, servants, or representative arising out of activities under this Agreement. The County shall be solely and entirely responsible for procuring all appropriate property rights, real or personal, easements, licenses and permits that may be lawfully required by any competent authority for the County to perform the subject work. 6.05. ENVIRONMENTAL INDEMNIFICATION. The County shall indemnify, hold harmless and protect the TWDB from any and all claims, causes of action or damages to the person or property of third parties arising from the sampling, analysis, transport, storage, treatment and disposition of any contaminated sewage sludge, contaminated sediments and/or contaminated media that may be generated by the County, its contractors, consultants, agents, officials and employees as a result of activities relating to the project to the extent permitted by law. 6.05. FORCE MAJEURE. Unless otherwise provided, neither County nor the TWDB nor any agency of the State of Texas, shall be liable to the other for any delay in, or failure of performance, of a requirement contained in this Agreement caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, strike, fires, explosions, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome. Each party must inform the other in writing with proof of receipt within two (2) business days of the existence of such force majeure or otherwise waive this right as a defense. 6.06. MODIFICATION AND WAIVER. This Agreement constitutes the entire agreement between the TWDB and the County and no prior or contemporaneous oral or written promises or representations shall be binding on either Party. No modification of any provision of this Agreement shall be effective unless such modification is in writing and signed by authorized representatives of each party and is expressly stated to be a modification of this Agreement. The failure of any party to insist upon the strict performance of any of the terms, provisions or conditions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such term, provision or condition or any other term, provision, or condition. 8 6.07. EXTENSION OF TIME. The Parties agree that upon sixty (60) days prior notice, the County may request an extension of any of the times set pursuant to the terms of this Agreement. The Parties further agree that the EA, in his sole discretion, can grant or deny such requested extensions. 6.08. TITLES. The titles of the Articles, Sections,. Subsections, Paragraphs, or Subparagraphs of this Agreement are intended strictly for the convenience of the Parties and shall have no effect and shall neither limit nor amplify the provisions of this Agreement itself. 6.09 TERMINATION. The TWDB may terminate this Agreement at any time for any reason and such termination shall be effective thirty (30) days after notice of the intent to terminate is received by the County. Upon receipt of such notice, the County shall immediately discontinue all work in connection with the performance of this Agreement. The County, upon notice of termination, shall promptly cancel all existing orders or other financial commitments chargeable to funding provided pursuant to this Agreement. The County, upon receiving a termination notice, shall submit a statement showing in detail the work performed, any payments received by the County, and any payments made by or due from the County to any contractor pursuant to the terms of this Agreement prior to the date of termination. Within thirty (30) days, the County shall re-pay to the TWDB any funds received from the TWDB that the County has not expended. 6.10 STOP WORK ORDER. The EA may issue a Stop Work Order, in writing, to the County at any time. The Stop Work Order (SWO) shall provide the County with notice of the facts underlying the determination to issue the SWO. The SWO may require an immediate cessation of work or the cessation of work at a definite future date. The SWO shall provide the County with a definite limited time to cure the conditions underlying the SWO. (A) Coun 's Response. The County shall respond to the SWO, in writing, and shall provide the EA with a detailed plan to address and cure the conditions underlying the SWO. The County shall provide the response within three (3) business days from receipt of the SWO. (B) EA's Renly. The EA may accept, reject or amend the County request for opportunity to cure and shall provide notice of such action to the County within three business days of receipt of the response. The EA may issue an amended SWO that allows resumption of work contingent upon the County execution of the plan to cure. The amended SWO may modify the County plan to cure only in a manner consistent with the terms and conditions of this Agreement. (C) Counts Option. The County shall notify the EA within three (3) business days whether it accepts the amended SWO. If the County does not accept the amended SWO, the EA shall terminate this Agreement. Upon successful completion of the plan to cure the conditions underlying the SWO, the County shall continue work to complete all obligations under this Agreement. 6.11. LAW. The validity, operation, and performance of this Agreement shall be governed and controlled by the laws of the State of Texas and any applicable federal regulations, and the terms and conditions of this Agreement shall be construed and interpreted in accordance with the law of this State. 6.12. NO DEBT CREATED. CONTINGENT PAYMENT. Each party agrees and understands that by this Agreement the State of Texas is not lending its respective credit to any County or in any other manner creating a debt on behalf of the State of Texas. Payments by the TWDB under this Agreement are subject to the availability of appropriated funds. ., 6.13. SEVERANCE. If one or more of the provisions of this Agreement be held to be null, void, voidable, or for any reasons whatsoever, of no force and effect, such provisions shall be construed as severable from the remainder of this Agreement and shall not affect the validity of any other provisions of this Agreement which shall remain of full force and effect. 6.14. NON-ASSIGNABILE. The terms and conditions of the financial assistance provided by this Agreement may not be assigned, transferred, or subcontracted in any manner without the express written consent of the TWDB. This Agreement is effective on the _lst day of January 2009. COUNTY OF KERR TEXAS WATER DEVELOPMENT BOARD ~. Pat Tinley ~ evin Ward Kerr County Judge ~ xecutive Administrator 10 EXHIBIT A-1 GENERAL AREA MAP TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 (TWDB BOARD COMMITMENT N0.08-115) KERR COUNTY, TEXAS Kerr County ii EXHIBIT A-2 ECONOMICALLY DISTRESSED AREAS MAP TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 (TWDB BOARD COMMITMENT NO. 08-115) KERR COUNTY, TEXAS Center Poioc Norch N11197 „_i ~.... \` ~. / ~ +~ttRNJq~t ; ar0a+ 'i ~ c' l l u ~. (~` .1(~.! ~ 1 ~' l2gbC Coy ~M~ • t'' ~.. noweu ~ J ~ ' i ~ 4 r ~ ~ ~ ~~ -~ . Nill Rlver Country Betacea CCN 811939 81ewWOd NNP N12908 liearwiwJ-Wiadan[e!d CCNq 12172 Nickarson Fariuu CCNgll157 12 ~encer eomc wleoencaia aycws Cencer Poine Taylor 811157 EXHIBIT B PROJECT BUDGET TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 (TWDB BOARD COMMITMENT NO. 08-115) KERR COUNTY, TEXAS Bud et Item Amount Facili Plannin Re ort: Cate o A $12,240 Cate o B $22,350 Cate ory C $10,890 Cate o D $25,200 Plannin Other $6,520 Environmental Studies $101,300 Total $178,500 13 EXHIBIT C PROJECT SCHEDULE TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 (TWDB BOARD COMMITMENT N0.08-115) KERR COUNTY, TEXAS Task Tar et Com letion Date Execute Grant A reement Janu 9, 2009 Facili Plannin Re ort: Cate o A Submit Draft to TWDB Febru 20, 2009 TWDB Review & Comment March 13, 2009 Com lete Final Cate o A March 25, 2009 Cate o B Submit Draft to TWDB A ri124, 2009 TWDB Review & Comment Ma 15, 2009 Com lete Final Cate o B Ma 27, 2009 Cate o C Submit Draft to TWDB Jul 17, 2009 TWDB Review & Comment Au ust 7, 2009 Com lete Final Cate o C Au ust 19, 2009 Cate o D Submit Draft to TWDB Se tember 4, 2009 TWDB Review & Comment September 25, 2009 Com lete Final Cate o D October 6, 2009 Prepare Final Planning Report and Submit to TWDB October 6, 2009 Pro'ect Close Out November 6, 2009 14 MEMORANDUM TO: The Honorable Pat Tinley FROM: Jeff Pollok DATE: November 24, 2009 SUBJECT: Economically Distressed Areas Program (EDAP) Contract between the Texas Water Development Board (TWDB) and Kerr County (County); TWDB Project No. 10366, TWDB Contract No. G090003, Amendment No. 1 Please find enclosed one (1) executed original of the amendment with the Texas Water Development Board (TWDB). Please retain this original for your records. Oll3' NIlS.SION To provide leadership, planning, financial assistcolce, infa'mation, and edaicatioaa for the con.rer•vatton and responsible developmer~! of tii~ater for Teras P.O. Qox 13231 • 1700 N. Congress Avenue • Austin, Texas 7 87 1 1-3 23 1 Telephone (512) 463-7847 • Fax (512) 475-2053 • 1-800-RELAYTX (for the hearing impaired) ~i~ww.twdb.state.tx.us • info~'twdb.state.tx.us ~~~]~ TNRIS -Texas Natural Resources Information System • w~ti°w.tnris.state.tx.us A Member gflhc Texas Geographic b~formatro~! Council (TGK') James E. Herring, Chairman Jack I~Llnt, Vice Chairman Lewis H. McMahan, Member J. Kevin Ward Thomas Weir Labatt [II, Member Edward G. Vaughan, Member Executive Admtirristrator Joe M. Crutches, Member TWDB Project No. 10366 TWDB Contract Nos. G090003 STATE OF TEXAS § COUNTY OF TRAVIS § Amendment No. 1 TEXAS WATER DEVELOPMENT BOARD AND KERR COUNTY Pursuant to the authority granted by and in compliance with the provisions of Texas Water Code, Section 6.190, as amended, the Texas Water Development Board (TWDB), duly acting by and through its Executive Administrator, and Kerr County (County) entered into TWDB Contract No. G090003 (the Agreement), made and entered on January 1, 2009. The Agreement is amended as follows: ARTICLE I. RECITALS The TWDB and the County (sometimes herein referred to as the Parties) agree that the following representations are true and correct and form the basis for this Amendment No. 1: 1.01. The Parties entered into the Agreement in order to provide financial assistance to the County for the development of a facility engineering plan for the provision of first time wastewater service to certain residences in the unincorporated area of the County (the Project), as is more specifically described in the Agreement and corresponding supporting documentation. 1.02. The Project was delayed due to time required to resolve issues related to mobile home inclusion criteria identified in the initial review by the TWDB and thus a delay in completing the work under Category A of the facility plan, and the Agreement expires on November 6, 2009. 1.03. The Parties agree that it is reasonable and necessary to amend the Project Schedule, as shown in the Amended Exhibit C, to allow for the completion of the Project and obtain the benefits of the Agreement. 1.04. The Parties mutually agree that it is in the best interests of the Parties and the public beneficiaries of the Project to amend the Agreement as provided herein. Page 1 ARTICLE II. AMENDMENTS In consideration of the performance of their mutual agreements, as set forth in the Agreement and this Amendment, the PARTIES have agreed to the following amendments to the Agreement: 2.01. Article V, Section 5.01 (SCHEDULE) and Exhibit C (Project Schedule) referenced therein are hereby amended to reflect the extension of the term of the Agreement, being the time within which the County is to complete and close out activities related to the Project. Anew Project Schedule reflecting agreed schedule modifications, denominated as 1St Amended Exhibit C, is attached hereto and incorporated herein by this reference. It is mutually agreed that any reference in the Agreement as amended to the Project Schedule or Exhibit C shall be deemed a reference to the 1St Amended Exhibit C. 2.02. Pursuant to Article VI, Section 6.06 (MODIFICATION AND WAIVER), except as modified by this Amendment No. 1, all terms and conditions of the Agreement remain in full force and effect. No further modification of any provision of the Agreement or any Amendment thereto shall be effective unless such modification is in writing and signed by duly authorized representatives of each party, expressly stating that such writing is intended to be a modification of the Agreement or the Amendments thereto. The failure of any party to insist upon strict performance of any of the terms, provisions, or conditions of the Agreement or its Amendments shall not be construed as a waiver or relinquishment for the future performance or enforcement of any such term, provision, or condition or any other term, provision, or condition. This Amendment is effective as of the date when both Parties have executed this document. TEXAS WATER DEVELOPMENT BOARD KERB COUNTY c teve Rodri ez The Ho at Tinley °V-~ Deputy Executive Administrator Kerr County Judge Construction Assistance Date:~~ ~2~/O9 Date: Page 2 ATTACHMENT I 1St AMENDED EXHIBIT C 1St AMENDED PROJECT SCHEDULE WASTEWATER PROJECT KERR COUNTY, TEXAS TWDB PROJECT NO. 10366 TWDB CONTRACT NO. G090003 (TWDB BOARD COMMITMENT N0.08-115) Task Target Completion Date Revised Com letion Date Execute Grant A reement January 9, 2009 - Facility Planning Report: Category A Submit Draft to TWDB February 20, 2009 Apri12, 2009 TWDB Review & Comment March 13, 2009 November 1, 2009 Complete Final Category A March 25, 2009 November 15, 2009 Cate or B Submit Draft to TWDB April 24, 2009 December 15, 2009 TWDB Review & Comment May 15, 2009 January 15, 2010 Complete Final Category B May 27, 2009 February 1, 2010 Cate or C Submit Draft to TWDB July 17, 2009 March 1, 2010 TWDB Review & Comment August 7, 2009 April 1, 2010 Complete Final Category C August 19, 2009 .April 15, 2010 Cate or D Submit Draft to TWDB September 4, 2009 May 1, 2010 TWDB Review & Comment September 25, 2009 June 1, 2010 Complete Final Category D October 6, 2009 June 15, 2010 Prepare Final Planning Report and Submit to TWDB October 6, 2009 July 1, 2010 Pro'ect Close Out November 6, 2009 Au st 31, 2010 ATTACHMENT I, Page I