Loading...
R-09-11-12-10G5 - 11/12/2009RESOLUTION NO. R -09-11-12-10G5 WHEREAS, the City of Round Rock, Texas (the "City") is a participating and founding member of the Brushy Creek Regional Utility Authority, Inc., (the "BCRUA"), and WHEREAS, the BCRUA desires to enter into an agreement with Dial Development Services Ltd. for construction phase inspection/observation services for Phase 1, Contract 1 of the Regional Water System, Raw Water Pipeline Project, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the City Council hereby authorizes the Brushy Creek Regional Utility Authority to enter into an Agreement with Dial Development Services Ltd. for Construction Phase Inspection/Observation Services for BCRUA Phase 1, Contract 1, Regional Water System, Raw Water Pipeline Project. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 12th day of November, 2009. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: PitiA, SARA L. WHITE, City Secretary 0:\wdox\SCC1nts\0112\0905\MUNICIPAL\R91112G5.DOC/rmc Brushy Creek Regional Utility Authority (BCRUA) Agreement for Construction Phase Inspection /Observation Services for BCRUA Phase 1, Contract 1, Regional Water System, Raw Water Pipeline with Dial Development Services, Ltd. AGREEMENT made as of the ( ) day of the month of in the year Two Thousand Nine (2009). (In words, indicate day, month and year.) BETWEEN the Brushy Creek Regional Utility Authority, a Texas local government corporation, identified herein as the "Authority" or the "BCRUA": (Name, address and other information) Brushy Creek Regional Utility Authority 221 East Main Street Round Rock, Texas 78664-5299 and Dial, identified herein as the "inspector" or "Dial": (Name, address and other information) Dial Development Services, Ltd. Post Office Box 608 Del Valle, Texas 78617 For the following Project: (Include detailed description of Project) The BCRUA advertised and solicited proposals for the procurement of services of inspectors and other construction -related observers for the BCRUA Phase 1, Contract 1, Raw Water Pipeline Project (the "Project"), which Project is owned by the BCRUA. A properly -constituted selection committee composed of representatives from the City of Round Rock, the City of Cedar Park, the City of Leander, and the BCRUA selected Dial as the proposer offering the best value for the entity. Consulting services to be performed by Dial include provision of indushy standard third -party quality assurance construction phase inspection/observation services, certain related administrative services, performance observation support, and field site representation related to the construction of the Project (the "Services"), such Services being delineated in Exhibit "B" entitled "Delineation of Inspector/Observer's Responsibilities," said Exhibit "B" being attached hereto and incorporated herein by reference for all appropriate purposes. All such Services shall be on the site of said Project or at other locations as necessary. All such Services shall be non -engineering services. For and in consideration of the mutual promises and agreements of the parties contained herein, and for other good and valuable consideration, the BCRUA and Dial agree as follows: ARTICLE 1 INITIAL INFORMATION 1.1 This Agreement is based on the following information and assumptions. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable," "unknown at time of execution" or "to be determined later by mutual agreentennt. ') 1.2 Project Parameters 1.2.1 The objective or use is: (lden * or describe, (appropriate, proposed use or goals) Objectives include, but are not limited to, obtaining consulting services from Dial including Dial's provision of industry standard construction phase inspection/observation services, certain related administrative services, performance observation support, and field site representation (the "Services") on the site of the BCRUA Phase 1, Contract 1, Raw Water Pipeline Project. 1.2.2 The physical parameters are: (Identify or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports abort the site) 00173919Ijkg EXHIBIT ',An 1.2.3 BCRUA's Program is: (Men* documentation or state the manner in which the program will be developed) 1.2.4 The legal parameters are: (!dent!, pertinent legal information including, if appropriate, land surveys and legal descriptions and restrictions of the site.) 1.2.5 The financial parameters are as follows: The total fee for Dial's services shall be in a not -to -exceed amount of Six Hundred Fifty-six Thousand and No/100 Dollars ($656,000.00). Such not -to -exceed amount shall be frill compensation for all Services performed and to be performed by Dial under this Agreement, and such not -to -exceed amount may not be revised in any fashion other than by written Supplemental Agreement as provided for herein. The BCRUA shall pay Dial on a "time and materials" basis, Dial agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Dial will be paid for by the BCRUA. 1.2.6 The Scope of Services parameters are as follows: The above -recited fee for Dial's Services is generally comprised of the following: (a) Construction Inspection/Observation Visits to the site shall be provided by Dial daily, on a full-time basis, to observe the construction in progress. The daily site visit shall provide a visual observation of materials, equipment and construction work for ascertaining that the work is in substantial conformance with the contract documents and the design intent. Items that shall be closely monitored for conformance include but are not limited to: site preparation and security, excavations and tunneling, traffic control, bedding materials, pipeline installation, compaction, utility relocations, pavement conditions, and temporary and final restoration. (b) Daily Reports Each day's construction activities shall be summarized by Dial in a daily report. The daily reports are intended to assist Dial's staff as well as engineers on the Project in troubleshooting problems, and shall serve as a comprehensive report of all issues encountered on the Project and how they were corrected. A copy of the daily report shall be forwarded to the appropriate representative of the BCRUA, either electronically or as a hard copy (as directed by the BCRUA). Photo documentation shall also be kept and made available as part of the Project documentation. (c) Review of Contractor Pay Applications A review of the monthly pay applications submitted by the Contractor shall be performed by Dial. The pay application review shall express Dial's opinion as to the accuracy of the application based on the review of materials on-site and the construction progress to date. At the completion of Dial's review, the Contractor will be required to con-ect any erroneous pay items before the final pay application is submitted for payment. (d) Submittals, Change Orders and Requests for Information (RFIs) Dial shall provide a review of all submittals, change orders and RFIs prior to submission to the BCRUA to insure that the documents being submitted are complete, correct and in accordance with the Project standard requirements. Any conflicts shall be noted and the Contractor will be required to correct and re -submit for review prior to any submissions to the BCRUA. Copies of these documents shall also be kept as part of the Project documentation. (e) Construction Testing Dial shall assist in the scheduling of construction materials testing with the approved independent testing laboratory either on behalf of the BCRUA or through the Contractor, as required in the contract documents. Dial shall also review the results of the tests and notify both the BCRUA and the Contractor irninediately of test results that do not meet the minimum requirements of the contract specifications. A copy of the test results shall be kept as part of the Project documentation. 2 (0 Project Meetings Dial shall attend and maintain active involvement in all meetings related to the Project, as required and directed by the BCRUA. Types of meetings anticipated include, but are not limited to, pre -construction meetings, weekly progress meetings, on-site troubleshooting meetings, punch list and final walkthrough meetings, and any other Project -related meetings that may arise. Any meeting notes or documents shall be kept as Project documentation. (g) Project Documentation As herein described, copies of all relevant Project documentation shall be compiled and kept by Dial. Types of documentation anticipated include, but are not limited to, daily reports, photographs, submittals, RFIs, and change orders. Dial shall also assist the BCRUA with any items necessary to complete the as -built drawings and Project close-out documentation. Any and all of Dial's records regarding the Project shall be made available to the Project owners upon request. (h) Construction Deficiencies in the event that construction deficiencies are noted during daily observations, Dial shall immediately notify the Contractor and the BCRUA, and shall advise the BCRUA of Dial's opinion regarding the deficiency and the appropriate actions. Any stop -work orders or other penalties related to the noted deficiency will be initialed by the appropriate representative of the BCRUA. The noted deficiency and action taken shall be summarized by Dial in the daily reports. (i) Design Conflicts The recognition of any design conflicts determined by the Contractor or Dial which require a change to the constriction contract shall be summarized by Dial and presented to the BCRUA for review and appropriate action. Dial shall assist the BCRUA by also providing an opinion of the appropriate action, and shall further assist in the preparation of the necessary documents to initiate action and record the changes. (j) Coordination of Stakeholders Dial shall make every attempt to include all of the Project stakeholders in any given aspect of the Project, as necessary and as directed by the BCRUA. By so doing, Dial shall attempt to keep all stakeholders current and firlly informed of Project progress and help identify potential issues before they arise. (k) Personnel and Equipment Dial expressly asserts that its staff is highly experienced in construction observation and management, and that its staff is seasoned in dealing with any issues that may be encountered during a Project of this type. Dial further expressly asserts that its staff is provided with all of the necessary safety and communication equipment to perforin all job tasks in a safe, efficient and timely manner. 1.2.6.1 Both parties expressly acknowledge that Section 1.2.6 herein and Exhibit "B" represent a mutually -acceptable Scope of Services, and that such documents contain a complete scope and schedule so that Dial's Services under this Agreement may be accomplished within the specified time and at the specified cost. Dial shall conduct all Services in a manner to avoid delaying the progress of the construction work. 1.2.6.2 in the event that inspection and related services are required for a period longer than the twenty-four (24) months specified herein, through no fault of Dial, then additional time and materials shall be appropriately authorized by the BCRUA through a written Supplemental Agreement as provided herein, but only if such is timely requested in writing by Dial. Notwithstanding the foregoing, Dial shall observe and timely inspect all construction work and progress as the same may occur: 1.2.6.3 Miscellaneous Provisions Relating to Fee Schedule: (a) "Normal working hours" will be Monday through Friday for an eight (8) hour work day. (b) Any necessary and requested Services provided on nights, Saturdays, Sundays, and legal holidays will be charged at an overtime rate of 1.5 tines the appropriate hourly rate delineated in this subsection. Dial shall submit a separate pay application to the BCRUA for Services performed that exceed eight (8) hours 3 (g) per day, or on Saturdays, Sundays, or legal holidays. The BCRUA will be responsible for any and all reimbursement fees due from the General Contract for overtime work performed. Travel time from the BCRUA's designated site to Project sites during normal working hours will be charged at the appropriate hourly rate delineated in this subsection. The BCRUA will be responsible for paying Dial's customary reimbursable expenses (such as copying and printing services) at actual cost only if approved in writing in advance of Dial incurring same, and if supported by appropriate documentation. The BCRUA will be responsible for paying Dial's travel time and mileage outside the Local area of the Project only if same is documented to be Project -related and is approved in writing in advance of Dial incurring same. All Services shall be perfonned exclusively by representatives of Dial Development Services, Ltd., namely David L. Dial, John W. Pressley, Talley Muery, and Robert M. Dial. In the event that Dial proposes alternate representatives to perform Services, the BCRUA shall review the qualifications of any such proposed alternate representative and may, in its sole discretion, approve or reject such proposed alternate representative. Dial shall provide a Lead Observer/Manager for the duration of the Project. The time commitment for the Lead Observer/Manager shall be approximately 2,080 hours (for Construction Observation and Administration) per year over the total estimated duration of the contract, that being twenty-four (24) months. The Lead Observer/Manager shall be either David L. Dial or John W. Pressley, and their respective hourly rates are as follows: Lead Observer/Manager David L. Dial at a rate of $90.00 per hour Lead Observer/Manager John W. Pressley at a rate of $80.00 per hour At any time that David L. Dial and John W. Pressley are absent from the job at the same time (i.e. for vacations, time off, illness, other business matters, or similar events), Dial shall provide a Substitute Lead Observer/Manager. Authorized substitutes allowed to serve in this capacity are Talley Muery or Robert M. Dial (h) Dial shall provide an Additional Observer as required. The time commitment for an Additional Observer shall be approximately 2,080 hours (for Construction Observation and Administration) per year over an estimated contract duration of twenty (20) months. The Additional Observer shall be either Talley Muery or Robert M. Dial, and their respective hourly rates are as follows: Additional Observer Talley Muery at a rate of $80.00 per hour Additional Observer Robert M. Dial at a rale of $70.00 per hour Time Commitment and Estimated Rate Projections: Lead Observer/Manager: 4,160 hours over duration of 24 -month contract term = $374,400.00 Additional Observer/Support Staff: 3,520 hours over duration of 20 -month contract term = $281,600.00 TOTAL NOT -TO -EXCEED AMOUNT $656,000.00 (i) Also see Exhibit "B" entitled "Delineation of Inspector/Observer's Responsibilities." 1.2.7 The time parameters are: (Identifj', if appropriate. milestone dates, durations arias( track scheduling.) 1.2.7.1 Term. Aller execution by each party hereto, this Agreement shall be effective on the date Dial receives the BCRUA's written Notice to Proceed, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. There is no prohibition against renewal of this Agreement by mutual agreement. 4 1.2.7.1.1 The term of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than twenty-four (24) months following Dial's receipt of the BCRUA's written Notice to Proceed, unless this Agreement is extended by written Supplemental Agreement executed by Dial and the BCRUA prior to the date of term expiration. Any work performed or costs incurred by Dial after the date of term expiration or termination shall not be eligible for reimbursement. 1.2.7.1.2 Dial shall notify the BCRUA in writing as soon as possible if Dial determines, or reasonably anticipates, that the work under this Agreement will not be completed before the date of teen expiration. In that event the BCRUA may, in its sole discretion, extend the term by timely written Supplemental Agreement. Dial shall allow adequate time for the BCRUA to review and approve Dial's request for extension. 1.2.7.2 Work Schedule. Dial acknowledges that the work schedule on the construction phase of the Project is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Dial's Services required herein so that construction of the Project will be completed as scheduled. In this regard, Dial shall proceed with sufficient qualified personnel necessary to fully and timely accomplish all Services required under this Agreement to the highest professional standard. 1.2.7.3 Notice to Proceed. After execution of this Agreement, Dial shall not proceed with work delineated in Section 1.2.6 herein and in Exhibit "B" attached hereto until authorized in writing by the BCRUA to proceed as provided herein. 1.2.8 The proposed procurement or delivery method for the Project is: (idem fy method such as competitive bid, negotiated contract, or construction management.) Consulting services herein are engaged by this negotiated Agreement. 1.2.9 Other parameters are: (Identifr special characteristics or needs of the Project such as energy, environmental or historic preservation requirements) 1.3 Project Team 1.3.1 The BCRUA's Designated Representative is: (List name, address and other information) Michael F. Thuss, P.E. Program and Construction Manager, BCRUA 221 East Main Street Round Rock, Texas 78664 Telephone: 512-401-5594 Email Address: mthuss n,berua.org 1.3.2 The BCRUA's Designated Representative shall be authorized to act on the BCRUA's behalf with respect to this Agreement. The BCRUA or its Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Dial in order to avoid unreasonable delay in the orderly and sequential progress of Dial's Services. 1.3.3 The persons or entity, in addition to the BCRUA's Designated Representative, who is required to review Dial's submittals to the BCRUA are: (List name, address and other information) 1.3.4 The BCRUA's other inspectors and contractors are: (Liss discipline and, !I -known, idents' them byname and address.) 5 1.3.5 Dial's Designated Representative is: (hist name, address and other information) David L. Dial President, Dial Development Services, Ltd. Post Office Box 608 Del Valle, Texas 78617 Telephone: 512-784-4546 Facsimile: 512-247-4199 Email Address: dldial@netzero.net 1.3.6 The consultants retained at Dial's expense are: (List discipline and, rfknown, idenrh' thein by name and address) Unknown at this time. 1.4 Miscellaneous initial information 1.4.1 Additional Work. If Dial forms a reasonable opinion that any work Dial has been directed to perforin is beyond the scope of this Agreement and as such constitutes extra work, Dial shall promptly notify the BCRUA in writing. In the event the BCRUA finds that such work does constitute extra work or exceeds the maximum amount payable, the BCRUA shall so advise Dial and a written Supplemental Agreement will be executed between the parties as provided herein. Dial shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Agreement. The BCRUA shall not be responsible for actions by Dial nor for any costs incurred by Dial relating to additional work not directly associated with the performance of the work authorized in this Agreement or any amendments thereto. 1.4.2 Changes in Work. If the BCRUA deems it necessary to request changes to previously satisfactorily -completed work or parts thereof which involve changes to the original Services or character of work under this Agreement, then Dial shall make such revisions as requested and as directed by the BCRUA. Such revisions shall be considered as additional work and paid for as specified herein. Dial shall make revisions to work authorized hereunder as are necessary to correct errors appearing therein, when required to do so by the BCRUA. No additional compensation shall be due for such work. 1.4.3 Supplemental Agreements. The terms of this Agreement may be modified by written Supplemental Agreement if the BCRUA determines that there has been a significant change in (1) the scope, complexity or character of the work to be performed, or (2) the duration of the work, or (3) the duration of the actual construction of the Project, which period of time exceeds the twenty-four (24) month period recited herein. Any such Supplemental Agreement must be duly authorized by the BCRUA by a Resolution of its Board of Directors. Where such Board authorization is required, Dial shall not proceed until the appropriate Resolution has been adopted and the Supplemental Agreement has been executed. Additional compensation, if appropriate, shall be identified as provided herein. 1.4.3.1 Both parties must execute any written Supplemental Agreement within the contract tern specified herein. 1.4.3.2 It is understood and agreed by and between both parties that Dial shall make no claim for extra work done or materials furnished until the BCRUA executes the written Supplemental Agreement and grants authorization to proceed. The BCRUA reserves the right to withhold payment pending verification of satisfactory work performed. ARTICLE 2 RESPONSIBILITIES OF THE PARTIES 2.1 The BCRUA and Dial shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships. 2.2 BCRUA's General Responsibilities 2.2.1 Unless otherwise provided under this Agreement, the BCRUA shall provide full information in a timely manner regarding requirements for and limitations on the Project. The BCRUA shall furnish to Dial, within fifteen (15) days after receipt of a written request, information necessary and relevant for Dial to evaluate, give notice of, or enforce rights. 6 2.2.3 The BCRUA's Designated Representative identified herein shalt be authorized to act on the BCRUA's behalf with respect to the Project. The BCRUA or the BCRUA's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Dial in order to avoid unreasonable delay in the orderly and sequential progress of Dial's services. 2.2.4 Unless otherwise provided in this Agreement, and if requested in writing, the BCRUA shall furnish or pay for tests, inspections and reports required by law. 2.2.5 The BCRUA shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the BCRUA's needs and interests. 2.2.6 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies. 2.2.7 The BCRUA shall provide Dial with an approved set of plans and specifications for the Project. Also see Exhibit "A" entitled "Delineation of Authority's Responsibilities," said Exhibit "A" being attached hereto and incorporated herein by reference for all appropriate purposes. 2.3 Dial's General Responsibilities 2.3.1 Dial's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Dial shall submit for the BCRUA's approval a schedule for performance of services which initially shall be consistent with the time periods established for the Project and which may be adjusted, if necessary and approved the BCRUA, as the Project proceeds. This schedule shall include allowances for periods of time required for the BCRUA's review, and for approval of submissions by authorities having jurisdiction over the Project. Time litnits established by this schedule approved by the BCRUA shall not, except for reasonable cause, be exceeded by Dial or the BCRUA. 2.3.2 Dial, through its Designated Representative identified herein, shall be the person authorized to act with respect to the Project. 2.3.3 Dial shall maintain the confidentiality of information specifically designated as confidential by the BCRUA, unless withholding such information would violate the law, create the risk of significant harm to the public or prevent Dial from establishing a claim or defense in an adjudicatory proceeding. 2.3.4 Except with the BCRUA's knowledge and consent, Dial shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise Dial's professional judgment with respect to this Project. 2.3.5 Dial shall review laws, codes, and regulations applicable to his services. Dial shall respond in the Project to requirements imposed by governmental authorities having jurisdiction over the Project. 2.3.6 Dial shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by the BCRUA. Each party shall provide prompt written notice to the other if either becomes aware of any errors, omissions or inconsistencies in such services or information. 2.3.7 Dial shall keep all records pertaining to the Project, and records of accounts between the BCRUA and Dial, on a generally recognized accounting basis, and shall make same available to the BCRUA or its authorized representatives at mutually convenient tunes during normal business hours. The BCRUA reserves the right to review all records it deems relevant that are related to this Agreement; provided, however, that any such review, audit and/or examination shall be at the BCRUA's sole cost and expense. ARTICLE 3 COMPENSATION 3.1 Total Fee. The total fee for Dial's services shall be in a not -to -exceed amount of Six Hundred Fifty-six Thousand and No/100 Dollars ($656,000.00). Such not -to -exceed amount shall be full compensation for all Services perfonned and to be performed by Dial under this Agreement, and such not -to -exceed amount may not be revised in any fashion 7 other than by written Supplemental Agreement as provided for herein. The BCRUA shall pay Dial on a "time and materials" basis, Dial agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Dial will be paid for by the BCRUA. 3.2 Scope of Services. Work tasks, identified as Services, are delineated in Section 1.2.6 herein and in Exhibit "B" attached hereto. 3.3 Monthly Progress Payments. Progress payments shall be made by the BCRUA to Dial based upon Services actually provided and performed, and shall be paid based upon BCRUA's receipt of proper invoices from Dial. Dial shall prepare and submit to the BCRUA, not less frequently than once per month, one (1) original and one (1) copy of a certified invoice in a form acceptable to the BCRUA. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Upon timely receipt of a certified invoice which is correct as to form and content, and upon the approval of each invoice, the BCRUA shall pay the amount which, notwithstanding anything herein to the contrary, is due and payable within thirty (30) days. The BCRUA reserves the right to withhold payment pending verification of satisfactory Services performed. Dial has the responsibility to submit proof to the BCRUA, adequate and sufficient in its determination, that tasks were completed. No deductions shall be made from Dial's compensation on account of penalty, liquidated damages or other sums withheld from payments, or on account of the cost of changes in the work other than those for which Dial has been adjudged to be liable. 3.4 Monthly Progress Reports. Simultaneous with Dial's submission of its monthly invoice, Dial shall also submit to the BCRUA reports on the progress of the inspection work and the construction work, in sufficient detail to support the progress of the constniction work and to support invoices from Dial and the construction contractor requesting monthly payment. Such progress reports shall state the time and materials associated with the Services performed during that billing period and to date. This submittal shall also include a progress assessment report in a form acceptable to the BCRUA. Any preferred format of the BCRUA for such monthly progress reports shall be identified at the preconstruction conference. Observation and inspection of the construction work as such progresses shall be required as an absolute condition of payment. 3.5 Prompt Payment Policy. In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the BCRIA to Dial will be made within thirty (30) days of the date the BCRUA receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date the BCRUA receives a correct invoice for the goods or services, whichever is later. Dial may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 225I.025(b). This Prompt Payment Policy does not apply to payments made by the BCRUA in the event: (a) (b) (c) There is a bona fide dispute between the BCRUA and Dial, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or There is a bona fide dispute between Dial and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or The terms of a federal contract, grant, regulation, or statute prevent the BCRUA from making a timely payment with federal funds; or (d) The invoice is not mailed to the BCRUA in strict accordance with any instruction on the purchase order relating to the payment. The BCRUA shall document to Dial the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terns of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 4 TERMS AND CONDITIONS 4.1 Ownership of Documents. All data, basic sketches, charts, calculations, plans, drawings, reports, specifications and other documents, including those in electronic form, created or collected or prepared by Dial under the terms of this Agreement are for use solely with respect to this Project. All such materials and all of Dial's designs and work product under the terms of this Agreement, completed or partially completed, shall be the property of BCRUA to be used as BCRUA desires, without restriction on future use, and such materials shall be delivered to the BCRUA upon completion 8 of the Services or termination of this Agreement. By execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement, Dial hereby conveys, transfers and assigns to the BCRUA all rights under the Federal Copyright Act of 1976 (or any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by Iaw in the Project designs and work product developed under this Agreement. Dial ,at its own expense, may retain copies of such documents or any other data which Dial has furnished to the BCRUA under this Agreement. The parties expressly acknowledge that any release of information shall be in conformance with requirements of the Texas Public Information Act. 4.2 Personnel, Equipment and Materials. Dial shall furnish and maintain, at Dial's own expense, adequate and sufficient personnel and equipment to perform the Services as required. All employees of Dial shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Dial who, in the opinion of the BCRUA, is incompetent or whose conduct becomes detrimental to Dial's work under this Agreement or the construction work to be performed by others shall immediately be removed from association with the Project when so instructed by the BCRUA Board. Dial certifies that Dial presently has adequate qualified personnel in Dial's employment for performance of the Services required under this Agreement, or will obtain such personnel from sources other than the BCRUA. Dial may not change the Lead Inspector(s) or other key personnel assigned to the Project without prior written consent of the BCRUA, and no employee of Dial, or person contracting with Dial, may perform any services under this Agreement until such time as the BCRUA has approved the qualifications of such person in writing. 4.3 Subcontracting. Dial shall not assign, subcontract or transfer any portion of the Services under this Agreement without prior written approval from the BCRUA. All subcontracts shall include the provisions required in this Agreement and shall be approved as to form, in writing, by the BCRUA prior to services being performed under the subcontract. No subcontract shall relieve Dial of any responsibilities under this Agreement. 4.4 Evaluation of Work. The BCRUA, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Services performed by Dial hereunder and the premises on which such Services are being performed. If any review or evaluation is made on the premises of Dial or a subcontractor, then Dial shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the BCRUA or other representatives in the performance of their duties. 4.5 Submission of Reports. All applicable inspection and study reports shall be submitted in final form for review and approval by the BCRUA. The BCRUA may comment on Dial's reports, and may request such comments be addressed in writing. 4.6 Inspector's Signature. The responsible Inspector shall sign and date all appropriate inspections, observations, reports, transmittal documents and other submissions to the BCRUA with certification that the contents of the document are "complete, true, and correct to the best knowledge" of the signer. Pay Applications from construction contractors and vendors shall be certified by the Inspector. 4.7 Non -Collusion; Financial Interest Prohibited. 4.7.1 Non -collusion. Dial warrants that Dial has not employed or retained any company or persons, other than a bona fide employee working solely for Dial, to solicit or secure this Agreement, and that Dial has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the BCRUA reserves and shall have the right to annul this Agreement without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4.7.2 Financial Interest Prohibited. Dial covenants and represents that Dial, Dial's officers, employees, agents, consultants and subcontractors wilt have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the Project. 4.8 Mediation. 4.8.1 Any claire, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation. If such matter relates to or is the subject of a lien arising out of Dial's services, Dial may proceed in 9 accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation. 4.8.2 The BCRUA and Dial shall endeavor to resolve claims, disputes and other matters in question between them by mediation. Request for mediation shall be filed in writing with the other party to this Agreement, and mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 4.83 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 4.9 Arbitration. The BCRUA and Dial hereby expressly agree that no claims or disputes between the BCRUA and Dial arising out of or relating to this Agreement or a breach hereof shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-I4) or any applicable state arbitration statute, except that in the event that the BCRUA is subject to an arbitration proceeding related to the Project, Dial consents to be joined in the arbitration proceeding if Dial's presence is required or requested by the BCRUA for complete relief to be accorded in the arbitration proceeding. 4.10 Claims for Consequential Damages. Dial and the BCRUA waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance herewith. 4.11 Suspension. 4.11.1 if the BCRUA fails to make payments to Dial in substantial compliance with this Agreement, such failure may be considered substantial nonperformance and cause for suspension of performance of services under this Agreement. If Dial elects to suspend services, prior to suspension of services, Dial shall give thirty (30) days' written notice to the BCRUA. In the event of a suspension of services, Dial shall have no Iiability to the BCRUA for delay or damage caused to the BCRUA because of such suspension of services. Before resuming services, Dial shall be paid all non -disputed sums due prior to suspension. Dial's fees for the remaining services and the time schedules shall be equitably adjusted. 4.11.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Dial that the BCRUA may cancel or indefinitely suspend further work hereunder either for cause or for the convenience of the BCRUA, upon thirty (30) days' written notice to Dial, with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Dial shall invoice the BCRUA for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. Such thirty (30) day notice may be waived in writing by agreement and signature of both parties. 4.11.3 If the BCRUA suspends the work, the contract period as recited herein is not affected, and this Agreement will expire as to tern on the date specified unless this Agreement is amended indicating otherwise. 4.11.4 The BCRUA assumes no liability for Services performed or costs incurred prior to the date authorized by the BCRUA for Dial to begin work, and/or during periods when work is suspended, and/or subsequent to the completion date of the Project or the termination/expiration date of this Agreement. 4.11.5 in the event of a suspension by the BCRUA in excess of one hundred twenty (120) days, Dial has the right to elect to terminate this Agreement. Dial may exercise such right to terminate by issuing written notice to the BCRUA at least thirty (30) days in advance of such termination, and such termination shall become effective upon receipt of said written notice by the BCRUA. 4.11.6 Nothing contained herein shall require the BCRUA to pay for any work which is unsatisfactory or which is not submitted in compliance with the teens of this Agreement. The BCRUA shall not be required to make any payments to Dial when Dial is in default under this Agreement, nor shall this section constitute a waiver of any right, at law or at equity, which the BCRUA may have if Dial is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. 10 4.12 Termination. 4.12.1 This Agreement may be terminated before the stated expiration date by any of the following conditions: (a) By mutual agreement and consent, in writing, of both parties. (b) By the BCRUA Board, by notice in writing to Dial, as a consequence of a material breach by Dial in the perfonnance of the Services set forth herein. (c) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (d) By the BCRUA Board, for reasons of its own and not subject to the mutual consent of Dial, upon not less than thirty (30) days' written notice to Dial. (e) By satisfactory completion of all Services and obligations described herein. 4.12.2 Should the BCRUA terminate this Agreement as herein provided, no fees other than fees due and payable at the time of tennination shall thereafter be paid to Dial. In determining the value of the work performed by Dial prior to tennination, the BCRUA shall be the sole judge. Compensation for work at termination will be based on a percentage of the Services completed at that time. 4.12.3 If Dial defaults in the performance of this Agreement or if the BCRUA terminates this Agreement for fault on the part of Dial, then the BCRUA shall give consideration to the actual costs incurred by Dial in performing the work to the date of default, and the amount of work required which was satisfactorily completed to date of default. 4.12.4 The termination of this Agreement and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of the BCRUA and Dial under this Agreement. If the termination of this Agreement is due to the failure of Dial to fulfill Dial's contractual obligations, then the BCRUA may take over the Project and prosecute the work to completion. In such case, Dial shall be liable to the BCRUA for any additional and reasonable costs incurred by the BCRUA. ARTICLE 5 INDEMNIFICATION 5.1 Dial agrees to save and hold harmless the BCRUA, its officers, agents and employees, from all claims, liabilities, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harp for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Dial's breach of any of the terms or provisions of this Agreement, or by any negligent act, error or omission of Dial or of any person under Dial's direction or control while in the exercise of perfonnance of the Services required hereunder or in the performance of rights and duties under this Agreement; except that the indemnity provided for in this section shall not apply to any Liability resulting from the sole negligence of BCRUA, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Dial and BCRUA, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any govemmnental immunity available to BCRUA under Texas law and without waiving any defenses of the parties under Texas law. 5.2 Dial shall also save and hold harmless the BCRUA, its officers, agents and employees, from any and all expenses, including but not limited to attorneys fees which may be incurred by the BCRUA in litigation or otherwise defending claims or liabilities which may be unposed on the BCRUA as a result of any negligent act, error or omission of Dial or of any per son employed by Dial or under Dial's direction or control while in the exercise of performance of the Services provided for hereunder or in the performance of rights and duties under this Agreement. 5.3 The BCRUA agrees to include the following clauses in all contracts with construction contractors, and equipment and materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the Project, or their sureties, shall maintain no direct action against the inspector and its officers, employees, and subcontractors arising out of, in connection with, or resulting from the Services performed by the Inspector on the Project. The BCRUA is and shall be the only beneficiary of any undertaking or Services provided by the Inspector." 11 "No approval of any phase of the construction of the Project by the Inspector shall relieve the Contractor from full compliance with the Contract Documents regarding the ultimate work product. Any additional costs, damages or delays occasioned by patent or latent defects in the work, and/or failure to meet the requirements of the Contract Documents, shall be borne by the Contractor." 5.4 To the extent allowed by law, the BCRUA agrees to save and hold harmless Dial, its officers, agents and employees, from all claims, liabilities, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by the BCRUA's breach of any of the terns or provisions of this Agreement, or by any negligent act, error or omission of the BCRUA or of any person under the BCRUA's direction or control while in the exercise of performance of the Services required hereunder or in the performance of rights and duties under this Agreement; 5.5 The provisions of this section are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. ARTICLE 6 INSURANCE 6.1 Insurance. Dial, at Dial's sole cost, shall purchase and maintain during the entire term while this Agreement is in effect general liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to the BCRUA. 6.2 Subconsultanf Insurance. Without Iimiting any of the other obligations or liabilities of Dial, Dial shall require each subconsultant performing inspection work under this Agreement to maintain during the tern of this Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required herein, including the required provisions and additional policy conditions as shown below. A subconsultant shall not perform any inspection work or services to be performed by Dial pursuant to this Agreement until such time as the subconsultant and the qualifications of the subconsultant's personnel have been approved in writing by the BCRUA, and proof of insurance has been provided to the BCRUA. 6.3 Dial shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Dial must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. The BCRUA shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. 6.4 Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to any material change in coverage, a notice thereof shall be given to the BCRUA by certified mail to: Program Manager Brushy Creek Regional Utility Authority 221 East Main Street Round Rock, Texas 78664 Dial shall also notify the BCRUA, within 24 hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (b) Companies issuing the insurance policies shall have no recourse against the BCRUA for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Dial. (c) The term "the Authority" or "the BCRUA" or "the Brushy Creek Regional Utility Authority" shall include all authorities, boards, commissions, departments, and officers of the BCRUA and the individual members, employees and agents therefor in their official capacities, and/or while acting on behalf of the BCRUA. 12 (d) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by the BCRUA, to any such future coverage, or to the BCRUA's Self -Insured Retentions of whatever nature. (e) Dial and the BCRUA mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. 6.5 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Dial shall be borne solely by Dial, with certificates of insurance evidencing such minimum coverage in force to be filed with the BCRUA. Such Certificates of Insurance are evidenced as Exhibit "C" herein entitled "Certificates of Insurance,"said Exhibit "C" being attached hereto and incorporated herein by reference for all appropriate purposes. ARTICLE 7 NOTICES 7.1 All notices which this Agreement mandates be given by one party to the other shall be personally delivered or mailed to such party at the following respective addresses: Authority Brushy Creek Regional Utility Authority Attention: Program Manager 221 East Main Street Round Rock, TX 78664 and to: Inspector David L. Dial President, Dial Development Services, Ltd. Post Office Box 608 Del Valle, Texas 78617 and to: Calley D. Callahan Knolle, Holcomb, Kothmann & Callahan 7600 N. Capital of Texas Hwy Building B , Suite 110 Austin, TX 78731 ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 This Agreement represents the entire and integrated agreement between BCRUA and Dial and supersedes all prior negotiations, representations or agreements, either written or oral. 8.2 This Agreement shall be governed by and in accordance with the laws and court decisions of the state of Texas, and exclusive venue shall lie in Williamson County, Texas. 8.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deetned to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations continence to run any later than the date when Dial's services are substantially completed. 13 8.4 To the extent damages are covered by property insurance during construction, the BCRUA and Dial waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of insurance as delineated between the BCRUA and Contractor. 8.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the BCRUA or Dial. 8.6 If the BCRUA requests Dial to execute certificates, the proposed language of such certificates shall be submitted to Dial for review at least fifteen (15) days prior to the requested dates of execution. Dial shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. 8.7 The BCRUA and Dial, respectively, bind themselves, their successors, assigns and legal representatives to the other party to this Agreement and to the successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither the BCRUA nor Dial shall assign or transfer any interest in this Agreement without the written consent of the other, except that the BCRUA may assign this Agreement to an institutional lender providing financing for the Project. In such event, the lender shall assume the BCRUA's rights and obligations under this Agreement. Dial shall execute all consents reasonably required to facilitate such assignment. 8.8 In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 8.9 Dial shall coinply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations, and the orders and decrees of any court or administrative bodies or tribunals in any manner affecting the performance of this Agreement, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Dial shall furnish the BCRUA with satisfactory proof of its compliance. Dial shall further obtain all permits and licenses required in the performance of the Services contracted for herein. 8.10 Dial will pay all taxes, if any, required by law arising by virtue of the Services performed hereunder. The BCRUA is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. 8.11 Dial covenants and represents that it will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the Project_ 8.12 Dial agrees that time is of the essence and that any failure of Dial to complete the Services for this Agreement within the agreed schedule will constitute a material breach of this Agreement. Dial shall be fully responsible for Dial's delays or for failures to use Dial's best efforts in accordance with the terms of this Agreement. Where damage is caused to the BCRUA due to Dial's failure to perform in these circumstances, the BCRUA may withhold, to the extent of such damage, Dial's payments hereunder without waiver of any of the BCRUA's additional legal rights or remedies. 8.13 Neither the BCRUA nor Dial shall be deemed in violation of this Agreetnent if prevented from performing any obligations hereunder by reasons for which they are not responsible or circumstances beyond their control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. ARTICLE 9 SIGNATORY WARRANTY 9.1 The undersigned signatory for Dial hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Agreement and that he/she has full and complete authority to enter into this Agreement on behalf of the firm. The above -stated representations and warranties are made for the purpose of inducing the BCRUA to enter into this Agreement. 14 IN WITNESS WHEREOF, the Brushy Creek Regional Utility Authority has caused this Agreement to be signed in its corporate name by its General Manager, duly authorized to execute the same on its behalf by Resolution No. , approved by the BCRUA's Board of Directors on the day of the month of, 20 , and by the duly authorized representative of Dial Development Services, Ltd., with both parties binding themselves, their successors and assigns and legal representatives for the faithfiil and full performance of the terms and provisions of this Agreement. BRUSHY CREEK REGIONAL UTILITY AUTHORITY By: Printed Name: Title: Date Signed: ATTEST: By: BCRUA Administrative Secretary DIAL DEVELOPMENT SERVICES, LTD., by D.L. DIAL & ASSOCIATES, LC, GENERAL PARTNER By: Printed Nanie of Principal: Title: Date Signed: ATTEST: By: Corporate Secretary 15 LIST OF EXHIBITS ATTACHED Exhibit "A" Delineation of Authority's Responsibilities Exhibit "B" Delineation of Inspector/Observer's Responsibilities Exhibit "C" Certificates of Insurance DATE: November 5, 2009 SUBJECT: City Council Meeting — November 12, 2009 ITEM: 10G5. Consider a resolution authorizing the Brushy Creek Regional Utility Authority to execute an Agreement with Dial Development Services, Ltd. for Construction Inspection/Observation Services Contract 1, Phase 1 for the Raw Water Pipeline Project. Department: Staff Person: Justification: Water and Wastewater Utilities Michael Thane, P.E., Director of Utilities This contract will provide construction inspection services to the Brushy Creek Regional Utility Authority (BCRUA) for Contract 1 of the Regional Raw Water Pipeline Project. Contract 1 of the raw water pipeline, extends up Trails End Road to the future regional water treatment plant, has been awarded to S.J. Louis Construction and is one of three contracts that will be awarded for the Raw Water Delivery System project. The other two raw water delivery system projects will have separate construction and inspection contracts. The estimated completion date for all three projects is 24 months. The total construction inspection cost for Contract 1 is $656,000 and will be allocated to the Cities based on their capacity in the pipeline. Round Rock's allocated percentage is 38.56%, which totals $252,953.50 of the inspection cost. Strategic Plan Relevance: Public Health and Safety Strategic Initiative Goal No. 27.0 "Ensure there is an adequate, affordable and safe water supply." Funding: Cost: $252,953.50 Source of funds: Regional Water Fund Outside Resources (if applicable): S.J. Louis Construction (Contractor) Jacobs Engineering (Design Engineer) Public Comment (if applicable): EXECUTED DOCUMENT FOLLOWS Brushy Creek Regional Utility Authority (BCRUA) Agreement for Construction Phase Observation Services for BCRUA Phase 1, Contract 1, Regional Water System, Raw Water Pipeline with Dial Development Services, Ltd. AGREEMENT made as of the ((& day of the month of �1 �il%e t`'L` 4- in the year Two Thousand Nine (2009). (In words, indicate day, month and yew.) BETWEEN the Brushy Creek Regional Utility Authority, a Texas local government corporation, identified herein as the "Authority" or the "BCRUA": (Name. address and other information) Brushy Creek Regional Utility Authority 221 East Main Street Round Rock, Texas 78664-5299 and Dial Development Services, Ltd., a Texas limited partnership, identified herein as "Dial": (Name, address and other hformation.) Dial Development Services, Ltd. Post Office Box 608 Del Valle, Texas 78617 For the following Project: (Include detailed description of Project) The BCRUA advertised and solicited proposals for the procurement of services of inspectors and other construction -related observers for the BCRUA Phase 1, Contract 1, Raw Water Pipeline Project (the "Project"), which Project is owned by the BCRUA. A properly -constituted selection committee composed of representatives from the City of Round Rock, the City of Cedar Park, the City of Leander, and the BCRUA selected Dial as the proposer offering the best value for the entity. Consulting services to be performed by Dial include provision of industry standard third -party quality assurance construction phase observation services, certain related administrative services, performance observation support, and field site representation related to the construction of the Project (the "Services"), such Services being delineated in Exhibit "B" entitled "Delineation of Observer's Responsibilities," said Exhibit "B" being attached hereto and incorporated herein by reference for all appropriate purposes. AIL such Services shall be on the site of said Project or at other locations as necessary. All such Services shall be non -engineering services. For and in consideration of the mutual promises and agreements of the parties contained herein, and for other good and valuable consideration, the BCRUA and Dial agree as follows: ARTICLE 1 INITIAL INFORMATION 1.1 This Agreement is based on the following information and assumptions. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable," "unknown at time of execution" or "to be determined later by mutual agreement. ') Section 1.1 is intentionally deleted. 1.2 Proiect Parameters 1.2.1 The objective or use is: (Identh or describe, Ilappropriate, proposed use or goals.) Objectives include, but are not limited to, obtaining consulting services from Dial including Dial's provision of industry standard construction phase observation services, certain related administrative services, performance observation support, and field site representation (the "Services") on the site of the BCRUA Phase 1, Contract 1, Raw Water Pipeline Project. 00175096/jkg r.N.If- b'Lr3 1.2.2 The physical parameters are: (Identhr or describe, if appropriate, size, location, dimensions, or outer pertinent information, such as geotechnical reports about the site) Section 1.2.2 is intentionally deleted. 1.2.3 BCRUA's Program is: (lden1 fy documentation or stare the manner in which the program will be developed.) Section 1.2.3 is intentionally deleted. 1.2.4 The legal parameters are: (Identifr pertinent legal Information, including, if appropriate, land surveys and legal descriptions and restrictions of the site) Section 1.2.4 is intentionally deleted. 1.2.5 The financial parameters are as follows: The total fee for Dial's services shall be in a not -to -exceed amount of Six Hundred Fifty-six Thousand and No/100 Dollars ($656,000.00). Such not -to -exceed amount shall be full compensation for all Services performed and to be performed by Dial under this Agreement, and such not -to -exceed amount may not be revised in any fashion other than by written Supplemental Agreement as provided for herein. The BCRUA shall pay Dial on a "tine and materials" basis, Dial agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Dial will be paid for by the BCRUA. 1.2.6 The Scope of Services parameters are as follows: The above -recited fee for Dial's Services is generally comprised of the following: (a) Construction Observation Visits to the site shall be provided by Dial daily, on a full-time basis, to observe the construction in progress. The daily site visit shall provide a visual observation of materials, equipment and construction work for ascertaining that the work is in substantial conformance with the contract documents and the design intent. Items that shall be closely monitored for conformance include but are not Iimited to: site preparation and security, excavations and tunneling, traffic control, bedding materials, pipeline installation, compaction, utility relocations, pavement conditions, and temporary and final restoration. (b) Daily Reports Each day's construction activities shall be summarized by Dial in a daily report. The daily reports are intended to assist Dial's staff as well as engineers on the Project in troubleshooting problems, and shall serve as a comprehensive report of all issues encountered on the Project and how they were corrected. A copy of the daily report shall be forwarded to the appropriate representative of the BCRUA, either electronically or as a hard copy (as directed by the BCRUA). Photo documentation shall also be kept and made available as part of the Project documentation. (c) Review of Contractor Pay Applications A review of the monthly pay applications submitted by the Contractor shall be performed by Dial. The pay application review shall express Dial's opinion as to the accuracy of the application based on the review of materials on-site and the construction progress to date. At the completion of Dial's review, the Contractor will be required to correct any erroneous pay items before the final pay application is submitted for payment. (d) Submittals, Change Orders and Requests for Information (RFIs) Dial shall provide a review of all submittals, change orders and RFIs prior to submission to the BCRUA to insure that the documents being submitted are complete, correct and in accordance with the Project standard requirements. Any conflicts shall be noted and the Contractor will be required to correct and re -submit for review prior to any submissions to the BCRUA. Copies of these documents shall also be kept as part of the Project documentation. 2 (e) Construction Testing Dial shall assist in the scheduling of construction materials testing with the approved independent testing laboratory either on behalf of the BCRUA or through the General Contractor, as required in the contract documents. Dial shall also review the results of the tests and notify both the BCRUA and the General Contractor immediately of test results that do not meet the minimum requirements of the contract specifications. A copy of the test results shall be kept as part of the Project documentation. (f) Project Meetings Dial shall attend and maintain active involvement in all meetings related to the Project, as required and directed by the BCRUA. Types of meetings anticipated include, but are not limited to, pre -construction meetings, weekly progress meetings, on-site troubleshooting meetings, punch list and final walkthrough meetings, and any other Project -related meetings that may arise. Any meeting notes or documents shall be kept as Project documentation. (g) Project Documentation As herein described, copies of all relevant Project documentation shall be compiled and kept by Dial. Types of documentation anticipated include, but are not limited to, daily reports, photographs, submittals, RFIs, and change orders. Dial shall also assist the BCRUA with any items necessary to complete the as -built drawings and Project close-out documentation. Any and all of Dial's records regarding the Project shall be made available to the BCRUA upon request; provided, however, that any such review, audit and/or examination of such Project documentation by the BCRUA shall be at the BCRUA's cost and expense. (h) Construction Deficiencies In the event that construction deficiencies are noted during daily observations, Dial shall immediately notify the Contractor and the BCRUA, and shall advise the BCRUA of Dial's opinion regarding the deficiency and the appropriate actions. Any stop -work orders or other penalties related to the noted deficiency will be initialed by the appropriate representative of the BCRUA. The noted deficiency and action taken shall be summarized by Dial in the daily reports. (i) Design Conflicts The recognition of any design conflicts determined by the General Contractor or Dial which require a change to the construction contract shall be summarized by Dial and presented to the BCRUA for review and appropriate action. Dial shall assist the BCRUA by also providing an opinion of the appropriate action, and shall further assist in the preparation of the necessary documents to initiate action and record the changes. (j) Coordination of Stakeholders Dial shall make every attempt to include all of the Project stakeholders in any given aspect of the Project, as necessary and as directed by the BCRUA. By so doing, Dial shall attempt to keep all stakeholders current and fully informed of Project progress and help identify potential issues before they arise. (k) Personnel and Equipment Dial expressly asserts that its staff is highly experienced in construction observation and management, and that its staff is seasoned in dealing with any issues that may be encountered during a Project of this type. Dial further expressly asserts that its staff is provided with all of the necessary safety and communication equipment to perform all job tasks in a safe, efficient and timely manner. 1.2.6.1 Both parties expressly acknowledge that Section 1.2.6 herein and Exhibit "B" represent a mutually -acceptable Scope of Services, and that such documents contain a complete scope and schedule so that Dial's Services under this Agreement may be accomplished within the specified time and at the specified cost. Dial shall conduct all Services in a manner to avoid delaying the progress of the construction work. 1.2.6.2 In the event that observation and related services are required for longer than the twenty-four (24) months specified herein, through no fault of Dial, then additional time and materials shall be appropriately authorized by the BCRUA through a written Supplemental Agreement as provided herein, but only if such is timely requested in writing by Dial. Notwithstanding the foregoing, Dial shall observe all construction work and progress as the same may occur. 3 1.2.6.3 Miscellaneous Provisions Relating to Fee Schedule: (a) "Normal working hours" will be Monday through Friday for an eight (8) hour work day. (b) Any necessary and requested Services provided on nights, Saturdays, Sundays, and legal holidays will be charged at an overtime rate of 1.5 times the appropriate hourly rate delineated in this subsection. Dial shall submit a separate pay application to the BCRUA for Services performed that exceed eight (8) Hours per day, or on Saturdays, Sundays, or legal holidays (Dial's "Overtime"). The General Contractor shall be responsible for reimbursing the BCRUA for any and all of Dial's Overtime that is paid by the BCRUA to Dial; however, the parties expressly acknowledge that the BCRUA is the entity which shall be responsible for making such Overtime payments to Dial, and that Dial shall not be required to seek Overtime payment directly from the General Contractor. Further, the parties expressly acknowledge and agree that the not - to -exceed amount provided for in this Agreement in Article 3 does not include such Overtime payments paid by the General Contractor and delivered to Dial via the BCRUA. (c) Travel time from the BCRUA's designated site to Project sites during normal working hours will be charged at the appropriate hourly rate delineated in this subsection. (d) The BCRUA will be responsible for paying Dial's customary reimbursable expenses (such as copying and printing services) at actual cost only if approved in writing in advance of Dial incurring same, and if supported by appropriate documentation. (e) The BCRUA will be responsible for paying Dial's travel time and mileage outside the local area of the Project only if sante is documented to be Project -related and is approved in writing in advance of Dial incurring same. (t All Services shall be performed exclusively by representatives of Dial Development Services, Ltd., namely David L. Dial, John W. Pressley, Talley Muery, and Robert M. Dial. In the event that Dial proposes alternate representatives to perform Services, the BCRUA shall review the qualifications of any such proposed alternate representative and may, in its sole discretion, approve or reject such proposed alternate representative. (g) Dial shall provide a Lead Observer/Manager for the duration of the Project. The time commitment for the Lead Observer/Manager shall be approximately 2,080 hours (for Construction Observation and Administration) per year over the total estimated duration of the contract, that being twenty-four (24) months. The Lead Observer/Manager shall be either David L. Dial or John W. Pressley, and their respective hourly rates are as follows: Lead Observer/Manager David L. Dial at a rate of $90.00 per hour Lead Observer/Manager John W. Pressley at a rate of $80.00 per hour At any time that David L. Dial and John W. Pressley are absent from the job at the same time (i.e. for vacations, time off, illness, other business matters, or similar events), Dial shall provide a Substitute Lead Observer/Manager. Authorized substitutes allowed to serve in this capacity are Talley Muery or Robert M. Dial. (h) Dial shall provide an Additional Observer as required. The time commitment for an Additional Observer shall be approximately 2,080 hours (for Construction Observation and Administration) per year over an estimated contract duration of twenty (20) months. The Additional Observer shall be either Talley Muery or Robert M. Dial, and their respective hourly rates are as follows: Additional Observer Talley Muery at a rate of $80.00 per hour Additional Observer Robert M. Dial at a rate of $70.00 per hour 4 (1) Time Commitment and Estimated Rate Projections: Lead Observer/Manager: 4,160 hours over duration of 24 -month contract term — $374,400.00 Additional Observer/Support Staff: 3,520 hours over duration of 20 -month contract term = $281,600.00 TOTAL NOT -TO -EXCEED AMOUNT $656,000.00 Also see Exhibit "B" entitled "Delineation of Observer's Responsibilities." The parties expressly acknowledge and agree that the BCRUA's Designated Representative and Dial shall consult with each other, on a regular and on an as -needed basis, to review and assess appropriate work allocations for the necessary Observer Services. 1.2.7 The tune parameters are: (Menlh, if appropriate, milestone dates, durations or fast track scheduling.) 1.2.7.1 Term. After execution by each party hereto, this Agreement shall be effective on the date Dial receives the BCRUA's written Notice to Proceed, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. There is no prohibition against renewal of this Agreement by mutual agreement. 1.2.7.1.1 The tern of this Agreement shall be until full and satisfactory completion of the work specified herein is achieved, but in no event later than twenty-four (24) months following Dial's receipt of the BCRUA's written Notice to Proceed, unless this Agreement is extended by written Supplemental Agreement executed by Dial and the BCRUA prior to the date of term expiration. Any work performed or costs incurred by Dial after the date of term expiration or termination shall not be eligible for reimbursement unless such referenced Supplemental Agreement is executed by Dial and the BCRUA prior to the date of term expiration or termination. 1.2.7.1.2 Dial shall notify the BCRUA in writing as soon as possible if Dial determines, or reasonably anticipates, that the work under this Agreement will not be completed before the date of term expiration, or if it appears that the Project is being delayed through no fault of Dial. In that event the BCRUA may, in its sole discretion, extend the term and increase the amount payable to Dial by timely written Supplemental Agreement. Dial shall allow adequate time for the BCRUA to review and approve Dial's request for extension and request for additional compensation. 1.2.7.2 Work Schedule. Dial acknowledges that the work schedule on the construction phase of the Project is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of Dial's Services required herein. In this regard, Dial shall proceed with sufficient qualified personnel necessary to fully and timely accomplish all Services required under this Agreement to the highest professional standard. 1.2.7.3 Notice to Proceed. After execution of this Agreement, Dial shall not proceed with work delineated in Section 1.2.6 herein and in Exhibit "B" attached hereto until authorized in writing by the BCRUA to proceed as provided herein. 1.2.8 The proposed procurement or delivery method for the Project is: (/deni6 method such as competitive bid, negotiated contract, or construction management.) Consulting services herein are engaged by this negotiated Agreement. 1.2.9 Other parameters are: (Iden,' special characteristics or needs of the Project such as energy, environmental or historic preservalion requirements.) Section 1.2.9 is intentionally deleted. 1.3 Pr'oiect Team 1.3.1 The BCRUA's Designated Representative is: (List name, address and other it jonnation.) Michael F. Thuss, P.E., Program and Construction Manager 221 East Main Street Round Rock, Texas 78664 Telephone: 512-401-5594 Email Address: mthuss@bcrua.org 5 1.3.2 The BCRUA's Designated Representative shall be authorized to act on the BCRUA's behalf with respect to this Agreement. The BCRUA or its Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Dial in order to avoid unreasonable delay in the orderly and sequential progress of Dial's Services. 1.3.3 The persons or entity, in addition to the BCRUA's Designated Representative, who is required to review Dial's submittals to the BCRUA are: (List name, address and other information.) P 7 t jekry,k(,„( nulaer a LH, -71-M 1.3.4 The BCRUA's other inspectors and contractors are: (List discipline and, if known, identf' them by name and address.) Section 1.3.4 is intentionally deleted. 1.3.5 Dial's Designated Representative is: (List name, address and other information) David L. Dial President, Dial Development Services, Ltd. Post Office Box 608 Del Valle, Texas 78617 Telephone: 512-784-4546 Facsimile: 512-247-4199 Email Address: dldial@netzero.net 1.3.6 The consultants retained at Dial's expense are: (List discipline and, if known, idents them by name and address) Unknown at this time. 1.4 Miscellaneous Initial Information 1.4.1 Additional Work. If Dial fortes a reasonable opinion that any work Dial has been directed to perform is beyond the scope of this Agreement and as such constitutes extra work, Dial shall promptly notify the BCRUA in writing. In the event the BCRUA finds that such work does constitute extra work or exceeds the maximum amount payable, the BCRUA shall so advise Dial and a written Supplemental Agreement will be executed between the parties as provided herein. Dial shall not perform any proposed additional work nor incur any additional costs prior to the execution, by both parties, of a written Supplemental Agreement. The BCRUA shall not be responsible for actions by Dial nor for any costs incurred by Dial relating to additional work not directly associated with the performance of the work authorized in this Agreement or any amendments thereto. 1.4.2 Changes in Work. If the BCRUA deems it necessary to request changes to previously satisfactorily -completed work or parts thereof which involve changes to the original Services or character of work under this Agreement, then Dial shall make such revisions as requested and as directed by the BCRUA. Such revisions shall be considered as additional work and paid for as specified herein. Dial shall make revisions to work authorized hereunder as are necessary to correct errors appearing therein, when required to do so by the BCRUA. No additional compensation shall be due for such work. 1.4.3 Supplemental Agreements. The terms of this Agreement may be modified by written Supplemental Agreement if the BCRUA determines that there has been a significant change in (1) the scope, complexity or character of the work to be perforated, or (2) the duration of the work, or (3) the duration of the actual construction of the Project, which period of time exceeds the twenty-four (24) month period recited herein. Any such Supplemental Agreement must be duly authorized by the BCRUA by a Resolution of its Board of Directors. Where such Board authorization is required, 6 Dial shall not proceed until the appropriate Resolution has been adopted and the Supplemental Agreement has been executed. Additional compensation, if appropriate, shall be identified as provided herein. 1.4.3.1 Both parties must execute any written Supplemental Agreement within the contract term specified herein. 1.4.3,2 it is understood and agreed by and between both parties that Dial shall make no claim for extra work done or materials furnished until the BCRUA executes the written Supplemental Agreement and grants authorization to proceed. The BCRUA reserves the right to withhold payment pending verification of satisfactory work performed. 1.4.4 Quality Assurance. It is understood and agreed by and between both parties that, under this Agreement, Dial's Services shall comprise quality assurance work as opposed to the quality control work which is the contractual obligation of the General Contractor. Dial is contracted by this Agreement as an observer of how the General Contractor prosecutes its construction phase work, but not as an inspector. Dial's Services shall comprise such observation, facilitation, and liaison activities. ARTICLE 2 RESPONSIBILITIES OF THE PARTIES 2.1 The BCRUA and Dial shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships. 2.2 BCRUA's General Responsibilities 2.2.1 Unless otherwise provided under this Agreement, the BCRUA shall provide full information in a timely manner regarding requirements for and limitations on the Project. The BCRUA shall furnish to Dial, within fifteen (15) days after receipt of a written request, information necessary and relevant for Dial to evaluate, give notice of, or enforce rights. 2.2.3 The BCRUA's Designated Representative identified herein shall be authorized to act on the BCRUA's behalf with respect to the Project. The BCRUA or the BCRUA's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by Dial in order to avoid unreasonable delay in the orderly and sequential progress of Dial's services. 2.2.4 Unless otherwise provided in this Agreement, and if requested in writing, the BCRUA shall furnish or pay for tests, inspections and reports required by law. 2.2.5 The BCRUA shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the BCRUA's needs and interests. 2.2.6 Each party shall provide prompt written notice to the other if either becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies. 2.2.7 The BCRUA shall provide Dial with an approved set of plans and specifications for the Project. Also see Exhibit "A" entitled "Delineation of Authority's Responsibilities," said Exhibit "A" being attached hereto and incorporated herein by reference for all appropriate purposes. 2.3 Dial's General Responsibilities 2.3.1 Dial's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Dial shall submit for the BCRUA's approval a schedule for performance of Services which initially shall be consistent with the time periods established for the Project and which may be adjusted, if necessary and approved the BCRUA, as the Project proceeds. This schedule shall include allowances for periods of time required for the BCRUA's review, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the BCRUA shall not, except for reasonable cause, be exceeded by Dial or the BCRUA. 2.3.2 Dial, through its Designated Representative identified herein, shall be the person authorized to act with respect to the Project. 7 2.3.3 Dial shall maintain the confidentiality of information specifically designated as confidential by the BCRUA, unless withholding such information would violate the law, create the risk of significant harm to the public or prevent Dial from establishing a claim or defense in an adjudicatory proceeding. 2.3.4 Except with the BCRUA's knowledge and consent, Dial shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise Dial's professional judgment with respect to this Project. 2.3.5 Dial shall review laws, codes, and regulations applicable to his Services, and shall appropriately respond to requirements imposed by governmental authorities having jurisdiction over the Project. 2.3.6 Dial shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by the BCRUA. Each party shall provide prompt written notice to the other if either becomes aware of any errors, omissions or inconsistencies in such services or information. 2.3.7 Dial shall keep all records pertaining to the Project, and records of accounts between the BCRUA and Dial, on a generally recognized accounting basis, and shall make same available to the BCRUA or its authorized representatives at mutually convenient times during normal business hours. The BCRUA reserves the right to review all records it deems relevant that are related to this Agreement; provided, however, that any such review, audit and/or examination shall be at the BCRUA's sole cost and expense. ARTICLE 3 COMPENSATION 3.1 Total Fee. The total fee for Dial's services shall be in a not -to -exceed amount of Six Hundred Fifty-six Thousand and No/100 Dollars ($656,000.00). Such not -to -exceed amount shall be full compensation for all Services performed and to be performed by Dial under this Agreement, and such not -to -exceed amount may not be revised in any fashion other than by written Supplemental Agreement as provided for herein. The BCRUA shall pay Dial on a "time and materials" basis, Dial agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Dial will be paid for by the BCRUA. 3.2 Scope of Services. Work tasks, identified as Services, are delineated in Section 1.2.6 herein and in Exhibit "B" attached hereto. 3.3 Monthly Progress Payments. Progress payments shall be made by the BCRUA to Dial based upon Services actually provided and performed, and shall be paid based upon BCRUA's receipt of proper invoices from Dial. Dial shall prepare and subunit to the BCRUA, not less frequently than once per month, one (1) original and one (1) copy of a certified invoice in a form acceptable to the BCRUA. The certified statements shall show the total amount earned to the date of submission and shall show the amount due and payable as of the date of the current statement. Upon timely receipt of a certified invoice which is correct as to form and content, and upon the approval of each invoice, the BCRUA shall pay the amount which, notwithstanding anything herein to the contrary, is due and payable within thirty (30) days. The BCRUA reserves the right to withhold payment pending verification of satisfactory Services performed. Dial has the responsibility to submit proof to the BCRUA, adequate and sufficient in its determination, that tasks were completed. No deductions shall be made from Dial's compensation on account of penalty, liquidated damages or other sums withheld from paytnents, or on account of the cost of changes in the work other than those for which Dial has been adjudged to be liable by a court of competent jurisdiction. 3.4 Monthly Progress Reports. Simultaneous with Dial's submission of its monthly invoice, Dial shall also submit to the BCRUA reports on the progress of the observation work and the construction work, in sufficient detail to support the progress of the construction work and to support invoices from Dial and the construction contractor requesting monthly payment. Such progress reports shall state the time and materials associated with the Services performed during that billing period and to date. This submittal shall also include a progress assessment report in a form acceptable to the BCRUA. Any preferred format of the BCRUA for such monthly progress reports shall be identified at the preconstruction conference. Observation of the construction work as such progresses shall be required as an absolute condition of payment. 3.5 Prompt Payment Policy. In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the BCRUA to Dial will be made in accordance with the Texas Prompt Payment Policy statutes contained therein. The BCRUA shall document to Dial the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non -disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A., Texas Government Code. ARTICLE 4 TERMS AND CONDITIONS 4.1 Ownership of Documents. All data, basic sketches, charts, calculations, plans, drawings, reports, specifications and other documents, including those in electronic form, created or collected or prepared by Dial under the terms of this Agreement are for use solely with respect to this Project. All such materials and all of Dial's designs and work product under the terms of this Agreement, completed or partially completed, shall be the property of the BCRUA to be used as the BCRUA desires, without restriction on future use, and such materials shall be delivered to the BCRUA upon completion of the Services or termination of this Agreement. By execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement, Dial hereby conveys, transfers and assigns to the BCRUA all rights under the Federal Copyright Act of 1976 (or any successor copyright statute), as amended, ail common law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. Dial, at its own expense, may retain copies of such documents or any other data which Dial has furnished to the BCRUA under this Agreement. The parties expressly acknowledge that any release of information shall be in conformance with requirements of the Texas Public Information Act. 4.2 Personnel, Equipment and Materials. Dial shall furnish and maintain, at Dial's own expense, adequate and sufficient personnel and equipment to perform the Services as required. All employees of Dial shall have such knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Dial who, in the opinion of the BCRUA, is incompetent or whose conduct becomes detrimental to Dial's work under this Agreement or the construction work to be performed by others shall immediately be removed from association with the Project when so instructed by the BCRUA Board. Dial certifies that Dial presently has adequate qualified personnel in Dial's employment for performance of the Services required under this Agreement, or will obtain such personnel from sources other than the BCRUA. Dial may not change the Lead Observer/Manager(s) or other key personnel assigned to the Project without prior written consent of the BCRUA, and no employee of Dial, or person contracting with Dial, may perform any services under this Agreement until such time as the BCRUA has approved the qualifications of such person in writing. 4.3 Subcontracting. Dial shall not assign, subcontract or transfer any portion of the Services under this Agreement without prior written approval from the BCRUA. All subcontracts shall include the provisions required in this Agreement and shall be approved as to form, in writing, by the BCRUA prior to services being performed under the subcontract. No subcontract shall relieve Dial of any responsibilities under this Agreement. 4.4 Evacuation of Work. The BCRUA, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the Services performed by Dial hereunder and the premises on which such Services are being performed. If any review or evaluation is made on the premises of Dial or a subcontractor, then Dial shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the BCRUA or other representatives in the performance of their duties. 4.5 Submission of Reports. All applicable inspection and study reports shall be submitted in final form for review and approval by the BCRUA. The BCRUA may comment on Dial's reports, and may request such comments be addressed in writing. 4.6 Inspector's Signature. The responsible Inspector shall sign and date all appropriate inspections, observations, reports, transmittal documents and other submissions to the BCRUA with certification that the contents of the document are "complete, true, and correct to the best knowledge" of the signer. Pay Applications from construction contractors and vendors shall be certified by the Inspector. 4.7 Non -Collusion; Financial Interest Prohibited. 4.7.1 Non -collusion. Dial warrants that Dial has not employed or retained any company or persons, other than a bona fide employee working solely for Dial, to solicit or secure this Agreement, and that Dial has not paid or agreed to pay any company or person any fee, conunission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the BCRUA reserves and shall have the right to annul this Agreement without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 9 4.7.2 Financial Interest Prohibited. Dial covenants and represents that Dial, Dial's officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the Project. 4.8 Mediation. 4.8.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation. If such matter relates to or is the subject of a lien arising out of Dial's services, Dial may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation. 4.8.2 The BCRUA and Dial shall endeavor to resolve claims, disputes and other matters in question between them by mediation. Request for mediation shall be filed in writing with the other party to this Agreement, and mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 4.8.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 4.9 No Arbitration. The BCRUA and Dial hereby expressly agree that no claims or disputes between the BCRUA and Dial arising out of or relating to this Agreement or a breach hereof shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable state arbitration statute, except that in the event that the BCRUA is subject to an arbitration proceeding related to the Project, Dial consents to be joined in the arbitration proceeding if Dial's presence is required or requested by the BCRUA for complete relief to be accorded in the arbitration proceeding. 4.10 Claims for Consequential Damages. Dial and the BCRUA waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance herewith. 4.11 Suspension. 4.11.1 If the BCRUA fails to make payments to Dial in substantial compliance with this Agreement, such failure may be considered substantial nonperformance and cause for suspension of performance of services under this Agreement. If Dial elects to suspend services, prior to suspension of services, Dial shall give thirty (30) days' written notice to the BCRUA. In the event of a suspension of services, Dial shall have no liability to the BCRUA for delay or damage caused to the BCRUA because of such suspension of services. Before resuming services, Dial shall be paid all non -disputed sums due prior to suspension. Dial's fees for the remaining services and the time schedules shall be equitably adjusted. 4.11.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Dial that the BCRUA may cancel or indefinitely suspend further work hereunder either for cause or for the convenience of the BCRUA, upon thirty (30) days' written notice to Dial, with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Dial shall invoice the BCRUA for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. Such thirty (30) day notice may be waived in writing by agreement and signature of both parties. 4.11.3 if the BCRUA suspends the work, the contract period as recited herein is not affected, and this Agreement will expire as to term on the date specified unless this Agreement is amended indicating otherwise. 4.11.4 The BCRUA assumes no liability for Services performed or costs incurred prior to the date authorized by the BCRUA for Dial to begin work, and/or during periods when work is suspended, and/or subsequent to the completion date of the Project or the termination/expiration date of this Agreement. 4.11.5 In the event of a suspension by the BCRUA in excess of ninety (90) days, Dial has the right to elect to terminate this Agreement. Dial may exercise such right to terminate by issuing written notice to the BCRUA at least 10 thirty (30) days in advance of such termination, and such termination shall become effective upon receipt of said written notice by the BCRUA. 4.11.6 Nothing contained herein shall require the BCRUA to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. The BCRUA shall not be required to make any payments to Dial when Dial is in default under this Agreement, nor shall this section constitute a waiver of any right, at law or at equity, which the BCRUA may have if Dial is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. 4.12 Termination. 4.12.1 This Agreement may be terminated before the stated expiration date by any of the following conditions: (a) (b) By mutual agreement and consent, in writing, of both parties. By the BCRUA Board, by notice in writing to Dial, as a consequence of a material breach by Dial in the performance of the Services set forth herein. (c) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (d) By the BCRUA Board, for reasons of its own and not subject to the mutual consent of Dial, upon not less than thirty (30) days' written notice to Dial. (e) By satisfactory completion of all Services and obligations described herein. 4.12.2 Should the BCRUA terminate this Agreement as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Dial. In determining the value of the work performed by Dial prior to termination, the BCRUA shall be the sole judge. Compensation for work at termination will be based on the actual Services completed at that time. 4.12.3 If Dial defaults in the performance of this Agreement or if the BCRUA terminates this Agreement for fault on the part of Dial, then the BCRUA shall give consideration to the actual costs incurred by Dial in performing the work to the date of default, and the amount of work required which was satisfactorily completed to date of default. 4.12.4 The termination of this Agreement and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of the BCRUA and Dial under this Agreement. ARTICLE 5 INDEMNIFICATION 5.1 Dial agrees to save and hold harmless the BCRUA, its officers, agents and employees, from all claims, liabilities, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Dial's breach of any of the terms or provisions of this Agreement, or by any negligent act, error or omission of Dial or of any person under Dial's direction or control while in the exercise of performance of the Services required hereunder or in the performance of rights and duties ander this Agreement; except that the indemnity provided for in this section shall not apply to any liability resulting from the sole negligence of BCRUA, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Dial and BCRUA, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to BCRUA under Texas law and without waiving any defenses of the parties under Texas law. 5.2 Dial shall also save and hold harmless the BCRUA, its officers, agents and employees, from any and all expenses, including but not limited to attorneys fees which may be incurred by the BCRUA in Iitigation or otherwise defending claims or liabilities which may be imposed on the BCRUA as a result of any negligent act, error or omission of Dial or of any person employed by Dial or under Dial's direction or control while in the exercise of performance of the Services provided for hereunder or in the performance of rights and duties under this Agreement. 11 5.3 The BCRUA agrees to include the following clauses in all contracts with construction contractors, and equipment and materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the Project, or their sureties, shall maintain no direct action against the Observer/Manager and its officers, employees, and subcontractors arising out of, in connection with, or resulting from the Services performed by the Observer/Manager on the Project. The BCRUA is and shall be the only beneficiary of any undertaking or Services provided by the Observer/Manager" "No approval of any phase of the construction of the Project by the Observer/Manager shall relieve the General Contractor from full compliance with the Contract Documents regarding the ultimate work product. Any additional costs, damages or delays occasioned by patent or latent defects in the work, and/or failure to meet the requirements of the Contract Documents, shall be borne by the General Contractor." 5.4 To the extent allowed by law, the BCRUA agrees to save and hold harmless Dial, its officers, agents and employees, from all claims, liabilities, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by the BCRUA's breach of any of the terms or provisions of this Agreement, or by any negligent act, error or omission of the BCRUA or of any person under the BCRUA's direction or control while in the exercise of performance of the Services required hereunder or in the performance of rights and duties under this Agreement. 5.5 The provisions of this section are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. ARTICLE 6 INSURANCE 6.1 Insurance. Dial, at Dial's sole cost, shall purchase and maintain during the entire tern while this Agreement is in effect general liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to the BCRUA. 6.2 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Dial, Dial shall require each subconsultant performing inspection work under this Agreement to maintain during the term of this Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required herein, including the required provisions and additional policy conditions as shown below. A subconsultant shall not perform any inspection work or services to be performed by Dial pursuant to this Agreement until such time as the subconsultant and the qualifications of the subconsultant's personnel have been approved in writing by the BCRUA, and proof of insurance has been provided to the BCRUA. 6.3 Dial shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Dial must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. The BCRUA shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. 6.4 Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: (a) Each policy shall require that thirty (30) days prior to any material change in coverage, a notice thereof shall be given to the BCRUA by certified mail to: Program Manager Brushy Creek Regional Utility Authority 221 East Main Street Round Rock, Texas 78664 Dial shall also notify the BCRUA, within 24 hours of receipt, of any notices of expiration, cancellation, non -renewal, or material change in coverage it receives from its insurer. (b) Companies issuing the insurance policies shall have no recourse against the BCRUA for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Dial. 12 (c) The term "the Authority" or "the BCRUA" or "the Brushy Creek Regional Utility Authority" shall include all authorities, boards, commissions, departments, and officers of the BCRUA and the individual members, employees and agents therefor in their official capacities, and/or while acting on behalf of the BCRUA. (d) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by the BCRUA, to any such future coverage, or to the BCRUA's Self=Insured Retentions of whatever nature. (e) Dial and the BCRUA mutually waive subrogation rights each may have against the other for loss or damage, to the extent same is covered by the proceeds of insurance. 6.5 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Dial shall be borne solely by Dial, with certificates of insurance evidencing such minimum coverage in force to be filed with the BCRUA. Such Certificates of Insurance are evidenced as Exhibit "C" herein entitled "Certificates of Insurance," said Exhibit "C" being attached hereto and incorporated herein by reference for all appropriate purposes. ARTICLE 7 NOTICES 7.1 All notices which this Agreement mandates be given by one party to the other shall be personally delivered or mailed to such party at the following respective addresses: Authority Brushy Creek Regional Utility Authority Attention: Program Manager 221 East Main Street Round Rock, TX 78664 and to: Observer David L. Dial President, Dial Development Services, Ltd. Post Office Box 608 Del Valle, Texas 78617 and to: Calley D. Callahan Knolle, Holcomb, Kothmann & Callahan 7600 N. Capital of Texas Hwy Building B , Suite 110 Austin, TX 78731 ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 This Agreement represents the entire and integrated agreement between BCRUA and Dial and supersedes all prior negotiations, representations or agreements, either written or oral. 8.2 This Agreement shall be governed by and in accordance with the laws and court decisions of the state of Texas, and exclusive venue shall lie in Williamson County, Texas. 8.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations commence to run any later than the date when Dial's services are substantially completed. 13 8.4 To the extent damages are covered b against each other and against the ventdabtops, property consultants, YProperty insurance during construction, the BCRUA rights as they may have to the proceeds of insurance as delineated and employees U the other for damages, except such and Dial waive all rights 8.5 g between the BCRUA and Contractor. Nothing contained in this Agreement shall create a contractual third party against either the BCRUA or Dial. relationship with or a cause of action in favor of a 8.6 The BCRUA and Dial, respectively, Party to this Agreement and a thec Bucy, bind, assigns and legall representatives Y, bind themselves, their successors, assigns and legal representatives covenants of this Agreement. Neither the BCRUA without the writtthis consent t. the thnother, except that the BCRUA mayto the other P entatives of such other party with respect to all nor Dia! shall assign or transfer an providing financing for the Project ,het. In such evenlender shall assn this Agreement. ding financing Dial shall Pro ec al reasonable consents r assignh this BCRUA'sAgreetrights an institutional ioAns lender assume ate such assig rights need obligations under 8.7 In the event any one or more of the provisions contained in thisfacilitate assignment. e invalid, illegal or unenforceable bany respectv thenprovisions such ined illegality other provision unenf and this inrany s shall e construed as if such Agreement shall for any reason be held to y never been contained herein, invalidity, gality or unenforceability shall not affect any valid, illegal or unenforceable provision had 8.8 Dial shall comply with all applicable federal, state and local laws, statutes codes, and the orders and decrees of any court or administrative bodies or tribunals in any and Agreement, including deeany without r or administrative minimum/maximum o salary manner affecting i g the and performance o f thisicAgrng laws and udions. Dial shall limitation, the BCRUA with satisfactory affecting the perfoions, a and further obtain all permits and licenses required in the performance of the Services wage statutes and regulations, proof of its compliance. Dia! shall 8.9 Dial will pay all taxes, if any, required by law arising by virtue of the Services performed contracted for !herein. Tax qualified for exemption pursuant to the provisions of Section 151.309 of the Texas is Act. P met hereunder. The BCRUA Limited Sales, Excise, and Use 8.10 Dial covenants and represents that it will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the Project. 8.11 Dial agrees that time is of the essence and that any failure of Dial to complete the S within the agreed schedule will constitute a material breach of this Agreement. Dial shall be delays or for failures to use Dial's best efforts in accordance with the terms of this Agreement Services for this Agreement court of competent jurisdiction to have been caused by Dial. Where damage is caused to the BCRUA responsible for Dial's failure to Perform in these circumstances, the BCRUA may withhold, to the extent of such damage, Dial's payments t if such are adjudged by a hereunder without waiver of any of the BCRUA's additional legal rights or remedies. c � BCRUA due to Dial's 8.12 Neither the BCRUA nor Dial shall be deemed in violation of this Agreement ifrev obligations hereunder by reasons for which they are not responsible or circumstances beyond notice of such impediment or delay in performance must be timelyenter from performing any given, and all reasonableeeffo efforts ru undertaken to mitigate its effects. t P ARTICLE 9 SIGNATORY WARRANTY 9.1 The trade;signed signatory for Dial hereby represents and warrants that the signatory organization for which he/she has executed this Agreement and that he/she has MI and complete Agreement on behalf of the firm. The above-stated representations and warranties are made is an officer of the Agreement tont enter intoc this Agreement.P to authority to enterdinto this for the purpose of inducing the IN WITNESS WHEREOF, the Brushy Creek Regional Utility Authority has caused this or•porte n;• re by its General Manager, duly authorized to ex ' approved by the BCRUA's Board of Directors on theftBsame Agreement to be signed in and by the duly authorized representative s Dial Development Services, L day of the on its betel successorsndby and assigns autho and regapresentative repativetof Di for the faithful day th month of by Resolution their Agreement. th both parties binding themselves, their and full performance of the terms and provisions of this 14 BRUSHY CREEK REGIONAL UTILITY AUTHORITY By: Printed Name: Title: Date Signed: ATT . T: By: fc.[lC- f�e�S i UA Administrative Secretary DIAL DEVELOPMENT SERVICES, LTD., by D.L. DIAL & ASSOCIATES, LC, GENERAL PARTNER By: G� Printe Name of Principal: pAtt/jo Title: Rites ihw r Date Signed: /1.O L — Op ATTET• By: (.G�iC� CorporateSecretary 15 LIST OF EXHIBITS ATTACHED Exhibit "A" Delineation of Authority's Responsibilities Exhibit "B" Delineation of Observer's Responsibilities Exhibit "C" Certificates of Insurance BCRUA Pipeline Observer Agreement EXHIBIT A, consisting of _2_ pages, referred to in and made a part of the Agreement between the Authority and the Observer Delineation of Authority's Responsibilities A. Provide the Observer with an identification badge, office space, work station, file space, and chair. Provide a suitable electronic interface with BCRUA electronic software and hardware. B. Provide the Observer with all criteria and full information as to Owner's requirements for the Specific Project, including copies of all design and construction standards which Owner will require to be constructed and inspected including Owner's standard forms, conditions, and related documents, including a "Progress Report Form." C. Furnish to the Observer any other available information pertinent to the Specific Project including reports and data relative to designs, or investigation at or adjacent to the Site of the Specific Project. Such additional information or data would generally include but not limited to the following: 1. Property descriptions 2. Zoning, deed, and other land use restrictions 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site, or hydrographic surveys, with appropriate professional interpretation thereof 5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to a Specific Project, the Site and adjacent areas D. Give prompt written notice to Observer whenever Owner observes or otherwise becomes aware of the presence at the Site of any Constituent of Concern, or of any other development that affects the scope or time of performance of the Observer's services, or any defect or nonconformance in the Observer's services, the Work, or in the performance of any Contractor E. Authorize the Observer to provide Additional Services as set forth in a change order as required F. Arrange for safe access to and make all provisions for the Observer to enter upon public and private property as required to perform services G. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Specific Project H. Advise the Observer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Specific Project, including, BCRUA 1of2 BCRUA Pipeline Observer Agreement but not limited to, cost estimating, project peer review, value engineering, and constnictability review I. Define and set forth the duties, responsibilities, and limitations of authority of other parties and the relation thereof to the duties, responsibilities, and authority of the Observer J, Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of Owner, prior to their incorporation into the Work for the Specific Project with appropriate professional interpretation thereof K. Provide the Observer with the findings and reports generated by any independent testing laboratory, if Engineer is required to review such documents L. Notify the Observer of all meetings and conferences related to the project M. Pay the Observer in accordance with Texas State Law and the terms of the contract N. The Authority will invoice the General Contractor for compensation for any and all overtime work (weekends, holidays, and work over eight hours per day) BCRUA 2 of 2 BCRUA Pipeline Observer Agreement EXHIBIT B, consisting of 2 pages, referred to in and made a part of the Agreement between the Authority and the Observer Delineation of Observer's Responsibilities The Observer will be a member of the Authority's construction management team and will report to the designated BCRUA Construction Manager. Pay applications will be submitted to the BCRUA Construction Manager. The regular work day is eight (8) hours. This eight (8) hour day may be adjusted seasonably (for example, a work day may begin at 7 am and end at 4 pm) or for special events on a case-by-case basis, but in any event the regular work day will not exceed eight (8) hours. The duties and responsibilities to be performed as the Authority's Site Representative are observation and administrative, and are to be for quality assurance purposes on a daily basis. They will be performed in accordance with accepted construction industry standards. They include but are not limited to: 1. Preparation of a Risk Management Plan in coordination with BCRUA construction management 2. Inspection, observation, reporting, and documentation 3. Gross level of detail constructability and value options reviews 4. Assessment and recommendations concerning construction contractor action plans such as for traffic control, site security, crane operations, tunneling; review and processing of pay applications to include certification of work completed, materials stored, work value, schedule, and other pay application requirements 5. Scheduling, review, and recording of quality assurance testing 6. Attendance at project meetings including safety meetings (contractor, design engineer, and BCRUA), and the pre -construction meeting 7. Assistance with resolution of conflicts 8. Coordination with design engineers and management 9. Recording, reviewing, and processing submittals, requests for information, and change orders 10. Maintain and transmitting to the design engineer draft marked -up drawings of the project as it is actually built 11. Participating in start-up, commissioning, and project close-out 12. Field office files maintenance — electronic and hard copies BCRUA 1 of 2 BCRUA Pipeline Observer Agreement 13. Attend construction meetings when requested 14. Reporting of observed violations of standard safety regulations 15. Reporting of observed violations of standard security and employment regulations 16. Submitting a separate pay application for work categorized as "Overtime" The Observer will be housed with the BCRUA construction management staff and will be provided identification badge, office space, work station, file space, chair, and access to the BCRUA electronic systems. The Observer is expected to arrive at a designated BCRUA site daily, and with all the appropriate apparel to conduct construction observation business in any weather condition, and including appropriate safety gear, during nortnal business hours, with appropriate transportation and a Texas Class C driver's license and insurance. The Observer is expected to have a cell phone and portable electronic equipment capable of communicating either wireless or by hardwire with BCRUA electronic equipment. This is quality assurance work and not quality control work. The construction contractor will provide for quality control. The Observer is responsible for their own safety in accordance with BCRUA policies and regulations, but is not responsible for the construction contractor's or subcontractors' safety programs. Also, the work does not include typical design engineer construction phase services. Design engineers will be providing periodic design verification inspections; review and approval of all matters of engineering design related to changes and requests for information, exceptions, and deviations; pay application review and certification; final as -built drawings; and project close-out documentation. BCRUA 2 of 2 ACORD. CERTIFICATE OF LIABILITY INSURANCE PIDDIALBni DATE o9/03/09' PRODUCER Hertel Inaurors Group, LLP 8500 Bluffstone Cove, Ste.B204 Austin TX 78759 Phone: 512-835-7633 P'ax:512--835-0800 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW INSURERS AFFORDING COVERAGE NAIC 11 INSURED DIAL DEVELOPMENT SERVICE DAVID DIALINSURER PO BOX 608 DEL VALLE TX 78617 INSURER A: TRANSPORTATION INSURANCE CO, A INSURERS: GENERAL X c 4017706148 INSURER D: 09/04/10 INSURER E: S 1000000 THE ANY MAY PfttyGLICIES, LTR POL(CiES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.INS INSEE TYPE OF INSURANCE POLICY NUMBER � y )gMi E y}p/ �p DATE (M i IDYY) LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY 4017706148 09/04/09 09/04/10 EACH OCCURRENCE S 1000000 PREMi s E o' rence) s 300000 _ !CLAIMS MADE l " 1 OCCUR MED EXP (Arty Deepsrson) 5 10000 PERSONAL A ADV INJURY _ 51000000 GEM —1 GENERAL AGGREGATE 52000000 AGGREGATE LIMIT APPLIES PER: poucY f YR- f LOC PRODUCTS-COMPIOP AGO 5 2000000 AUYOMOIIILE — LIAOILRY ANY AUTO ALL OWNED AUTOS SCHEDULE() AUTOS MREDAUTOS NON -OWNED AUTOS COMBINED SBIGLE UMR (Ea accident) 5 BODILY INJURY (Per demon) 5 BODILY INAIRY FIX accident) 5 PROPERTY DAMAGE (Pat occident) 5 GARAGE LIABILITY ANY AUTO AUTO ONLY -EA ACCIDENT 5 OTHER THAN EA ACG S AUTO ONLY: AGO 5 EXCESSAIMBRELLA --1 LIABILITY OCCUR CLAIMS MADE DEDUCTIBLE RETENTION 5 EACH OCCURRENCE S AGGREGATE 5 5 5 5 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED? IT5e5 describe under SPECIAL PROVISIONS below S OEH- TW SLIMR EL EACH ACCIDENT 5 EL. DISEASE • EA EMPLOYEE 5 E.L. DISEASE- POLICY LIMIT 5 A OTHER PROPERTY 4017706148 09/04/09 09/04/10 BPP 20000 DESCRIPTION PMDT OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT l SPECIAL PROVISIONS ICU" .A TC Lin. ncrn CANCELLATION ACORD 25 (2001108) BLANK00 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO ODL.IOATION OR LIABILITY OF ARTHUR) UPON DIEINSURER, ITS AOENTS OR REPRESENTATIVES. AlI}Ty09fLP RESENT E� © ACORD CORPORATION