SECTION 354.16. Memorandum of Understanding Between the Texas Division of Emergency Management (TDEM) and the TWDB related to the Federal Public Assistance Grant Program

(a) This Memorandum of Understanding ("Agreement") is between the Texas Division of Emergency Management ("TDEM") and the Texas Water Development Board ("TWDB"), each an agency of the State of Texas.

(b) Whereas, the 86th Legislature, R.S. passed Senate Bill 7 relevant portions of which were effective immediately;

(c) Whereas, the governor signed Senate Bill 7 on June 13, 2019;

(d) Whereas, Senate Bill 7 establishes the Hurricane Harvey Account ("Account") as a part of the Texas Infrastructure Resiliency Fund ("Fund") under Texas Water Code §16.454;

(e) Whereas, pursuant to Texas Water Code §16.454, the Texas Water Development Board (TWDB) may only use the Account to provide money to the Texas Division of Emergency Management (TDEM) to provide financing for projects related to Hurricane Harvey;

(f) Whereas, the TDEM manages the Federal Hazard Mitigation Grant Program and the Federal Public Assistance Grant Program;

(g) Whereas, the TWDB is a State agency with a mission to provide leadership, information, education, and support for planning, financial assistance, and outreach for the conservation and responsible development of water for Texas;

(h) Whereas, the TDEM is charged with carrying out a comprehensive all-hazard emergency management program for the state and for assisting cities, counties, and state agencies in planning and implementing their emergency management programs;

(i) Now, Therefore, in consideration of the benefits to the State of Texas, the parties hereby agree as follows:

(1) Services to be Performed:

(A) TDEM responsibilities:

(i) It shall be the sole responsibility of TDEM to administer funds received from the TWDB from the Account in accordance with Texas Water Code §16.454, and any federal program, including applicable federal regulations, as permitted by Texas Water Code §16.454(b), under which the funds will be spent.

(ii) In accordance with Texas Water Code §16.454(f), TDEM will periodically provide an Application to the Executive Administrator of the TWDB ("EA") for project funding requests that both TDEM and the EA find meet the requirements of Texas Water Code §§16.454(c), 16.454(f)(1) through (3), and 16.454(g). The TDEM Application will include supporting documentation that demonstrates how the project for each entity that will receive funding meets any applicable criteria in Texas Water Code §16.454.

(iii) TDEM will provide the TWDB regular quarterly reports that include all information necessary for the TWDB to meet the transparency requirements of Texas Water Code §16.459. The report must include, but not be limited to, the following for each project:

(I) the expected completion date;

(II) the current status of the project;

(III) proposed benefit of the project;

(IV) initial cost estimate and variances to the initial cost estimate, if the variances are over 5%;

(V) a list of the eligible political subdivisions receiving money from the Fund;

(VI) a list of each political subdivision served by each project; and

(VII) an estimate of matching funds for the project; and

(VIII) status of repayment, if there was a loan made for the project.

(iv) TDEM will provide any additional supporting information as may be requested by the TWDB.

(v) TDEM will maintain sufficient records and receipts as may be required by the Texas Comptroller of Public Accounts to ensure the funds are distributed in accordance with Texas Water Code §16.454 and to satisfy the State Auditor's Office review.

(vi) On or before August 1, 2031, TDEM will return any remaining funds to the TWDB.

(B) TWDB responsibilities:

(i) After receipt of each TDEM Application (and supporting documentation), TWDB will promptly transfer funds in an amount equal to the requested funding amount that meets the statutory criteria of Texas Water Code §§16.454(c), 16.454(f)(1) through (3), and 16.454(g).

(ii) The EA of the TWDB will have the right to request additional supporting information as necessary to comply with the requirements of Texas Water Code §16.459.

(2) Basis for Calculating Reimbursable Costs: Not applicable as services and resources under this Agreement are provided for disaster relief.

(3) Agreement Amount: The total amount of this Agreement may not exceed $0.00.

(4) Term: This Agreement is effective upon signature of both parties. This Agreement may be terminated at the request of either party. The Agreement will otherwise terminate at the earlier of either when the account is exhausted, or September 1, 2031. If the Account contains funding on September 1, 2031, the remaining balance shall be transferred to the TWDB Flood Plan Implementation Account.

(5) Certifications:

(A) Each party certifies that:

(i) the services specified above are necessary and authorized for activities that are properly within the statutory functions and programs of the parties; and

(ii) the services, materials, or equipment contracted for are not required by Section 21 of Article XVI of the Constitution of Texas to be supplied under contract given to the lowest responsible bidder.

(B) TWDB certifies that it has the authority to agree to the above services.

(C) TDEM certifies that it has the authority to agree to the above services.

Source Note: The provisions of this §354.16 adopted to be effective December 29, 2019, 44 TexReg 8018