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BCRUA_R-23-08-23-6E - 8/23/2023 RESOLUTION NO. R-23-08-23-6E WHEREAS, the Board of Directors of the Brushy Creek Regional Utility Authority ("BCRUA") and Thalle:'SAK Joint Venture entered into that one certain Construction Contract for the construction of BCRUA Phase 2 Raw Water Delivery System dated June 18, 2022 (the "Contract"); and WHEREAS, Article 17 of the General Conditions of the Contract provides for alternative dispute resolution methods and procedures; and WHEREAS, one of the methods for resolving disputes is utilizing a Dispute Resolution Board; and WHEREAS, the BCRUA, Thalle/SAK Joint Venture and the Dispute Resolution Board Members desire to enter into a Dispute Resolution Board Agreement, Now Therefore BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY: That the Board President is hereby authorized and directed to execute on behalf of the BCRUA a Dispute Resolution Board Agreement, a copy of Same being attached hereto as Exhibit "A"and incorporated herein for all purposes. The Board of Directors 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 23rd day of August, 2023. 0330 4634-A 4883-1707.568 MATTHEW BAKER, Pres Brushy Creek Regional Utility Authority TT S ANNE DU -FY, Secretary EXHIBIT "Am Dispute Review Board Agreement Dispute Resolution Board Agreement This Dispute Resolution Board Agreement (the "Agreement") is entered into this day of , 2023, by and between the Brushy Creek Regional Utility Authority, Inc., Thalle/SAK Joint Venture and the Dispute Resolution Board Members identified in paragraph 1.3 below. The foregoing are herein referred to individually as a"Party" and collectively as the"Parties." RECITALS WHEREAS, the Brushy Creek Regional Utility Authority, Inc. and Thalle/SAK Joint Venture entered into that one certain Construction Contract for the construction of BCRUA Phase 2 Raw Water Delivery System dated June 18, 2022, (the "Contract"); and WHEREAS, Article 17 of the General Conditions of the Contract provides for alternative dispute resolution methods and procedures; and WHEREAS,one of the methods for resolving disputes is utilizing a Dispute Resolution Board. The Parties agree as follows: 1. PARTIES 1.1. Brushy Creek Regional Utility Authority ("Owner"or"BCRUA"). 1.2. Thalle/ SAK Joint Venture ("Contractor" or"TSJV"). 1.3. Dispute Resolution Board ("DRB") consisting of three members, one of whom shall serve as Chair of the DRB as designated by the Parties: 1. Edward R. Ballard (Chair), Board Member Selectee 2. Joseph P. Gildner, Owner Selectee 3. Dan Martz, Contractor Selectee 2. CONTRACT 2.1. The Contract pertains to the construction of the Phase 2 Raw Water Delivery System ("Project"). 2.2. Section 00700, Article 17 Alternate Dispute Resolution of the Contract(hereinafter referred to as "DRB Specification") is incorporated by reference into this Agreement, and, except for modifications of those provisions set forth in this Agreement, the Owner, the Contractor, and the DRB shall be bound by the provisions thereof and to the duties and responsibilities set forth therein. 2.3 To the extent that the provisions of this Agreement conflict with the provisions of the Contract pertaining to dispute resolution including, but not limited to the requirement that the submission Dispute Resolution Board Agreement;Clean Final;07.28.23 4860-3808-1395 v.l.docx of a dispute to the DRB shall require the written mutual agreement by both Owner and Contractor to submit a dispute to the DRB, the provisions of this Agreement shall govern such conflict. 2,4 Further, the Parties agree that either Owner or Contractor, without requesting a hearing before the DRB, may request that the DRB provide an advisory opinion regarding any issue or issues that may be in dispute. 3. PURPOSE OF DRB 3.1 Engage in dispute avoidance activities, which include fostering and conducting proactive discussion on project issues by attending DRB regular meetings, participating in site visits, and giving advisory opinions (if requested by either the Owner or the Contractor). Provided Owner and Contractor both agree to submit a dispute to the DRB for consideration and recommendation, the DRB will engage in dispute resolution activities, which include issuing timely and impartial recommendations for resolution of disputes by a DRB hearing process. 4. DRB SCOPE OF WORK 4.1 The DRB will do the following: 4.1.l Stay abreast of Project developments and potential or existing disputes by means of periodic meetings, site visits,job document reviews, and other means as agreed by the Parties. 4.1.2 Examine site conditions or specific construction features relating to potential or existing disputes, unless such examination is not practical or would result in a delay to the Project. 4.2 Establish DRB Operating Procedures that supplement and are consistent with the requirements and general guidelines set forth in the DRB Specification. 4.2.1 The DRB agrees to the following dispute avoidance activities: 4.1.2.1 Commit to be reasonably available and to avoid conflicts with other commitments on days scheduled for DRB regular meetings and site visits. 4.1.2.2 Prepare agendas for and summaries of DRB regular meetings. 4.1.2.3 Review project documents provided in between or in advance of meetings. 4.1.2.4 Provide advisory opinions as requested by either the Owner or the Contractor. 4.3 The DRB agrees to the following dispute resolution activities: 4.3.1 Upon receipt by the DRB of a dispute referral from both the Owner and the Contractor, plan, schedule and conduct a DRB hearing process in the manner, timing, and location set by the DRB, in consultation with the Owner and the Contractor. 4.3.2 Convene internal meetings as needed to review and discuss the dispute, and to formulate the report. 4.3.3 Following each hearing and DRB deliberation, issue timely written reports to the Owner and the Contractor, including the supporting analysis and rationale for all recommendations. 2 4.3.4 When requested and deemed appropriate by the DRB, provide timely written responses to requests for clarification made by either the Owner or the Contractor. 4.3.5 Perform any other reasonable DRB services needed to achieve the purpose of this Agreement. 5. RESPONSIBILITIES OF THE PARTIES 5.1. DRB Responsibilities: 5.1.1. Maintain impartiality and avoid conflicts of interest by continuing to meet the eligibility and disclosure requirements for DRB members, as set forth in the DRB Specification. Promptly advise all Parties upon becoming aware of any development that could be perceived as a conflict of interest and promptly resolve any such issues. 5.1.2. Advise the other DRB members and the Owner and the Contractor when unable to continue serving as a DRB member. 5.1.3. Neither the DRB Members individually, nor the DRB collectively shall: 5.1.3.1. Give advice regarding design or construction means or methods. 5.1.3.2. Discuss, individually or collectively, issues with the Owner or the Contractor, such as the conduct of the work and the resolution of construction problems, that could possibly be construed as compromising the DRB's ability to impartially assist in resolving future disputes. 5.1.3.3. Express an individual or collective opinion of merit, in whole or in part, for any potential or other dispute at any time prior to the issuance of a report, except in the case of an advisory opinion. 5.1.3.4. Meet or communicate with either the Owner or the Contractor in the absence of the other, except as required when performing the duties of the Chair or conducting a meeting or hearing which the Owner or Contractor refuses to attend. 5.1.4. Consider the facts and circumstances forming the basis of a referred dispute impartially and independently, and evaluate the merits based on careful consideration of the information submitted by the Parties, all Contract requirements, and applicable law/regulations. The DRB shall not: 5.1.4.1. Undermine the provisions of the Contract, disregard or alter any requirements of the Contract or this Agreement, or alter the allocation of risk specified therein. 5.1.4.2. Supplant or otherwise interfere with the respective rights, authority, duties, and obligations of either the Owner or Contractor as set forth in the Contract or Contract Documents, as defined in the Contract. 5.1.4.3. Participate in negotiations with the Owner and Contractor, nor perform conciliation or mediation services in connection with any issue or dispute. 5.1.5. Make every effort to reach unanimous recommendations. If this cannot be accomplished, include written minority recommendations and supporting rationale within the full DRB report. 5.1.6. DRB members individually, and the DRB collectively, agree to be bound by the DRB Foundation Code of Ethical Conduct as set forth in the current edition of the DRBF Dispute Board Manual: A Guide to Best Practices and Procedures, 3 5.1.7. Members of the DRB shall only spend the time necessary to perform the services described in this Agreement and shall provide invoices that specifically describe the services performed, the date the services are performed, and the time recorded in tenths of an hour necessarily incurred to perform the services. 5.2. Owner Responsibilities: 5.2.1. Except for participation in the DRB's activities as provided in the DRB Specification and this Agreement, do not solicit advice or consultation from the DRB or individual DRB members on matters dealing with the conduct of the work or resolution of problems. Nothing herein, however, shall prevent either Owner or Contractor from submitting to the DRB a written request for an advisory opinion regarding any particular issue. 5.2.2. Furnish to each DRB member one copy of the conformed Contract (including all Contract Documents), the baseline schedule and agreed updates, Contract amendments, and other documents pertinent to the performance of the Contract and necessary for the DRB to conduct its operations. 5.2.3. Coordinate DRB operations in cooperation with the Contractor. 5.2.4. Arrange for or provide facilities at or near the site for periodic meetings, and provide any necessary support services. 5.2.5. Cooperate with the Contractor and the DRB to encourage avoidance of disputes and facilitate timely resolution of disputes. 5.3. Contractor Responsibilities: 5.3.1. Except for participation in the DRB's activities as provided in the Contract and this Agreement, do not solicit advice or consultation from the DRB or individual DRB members on matters dealing with the conduct of the work or resolution of problems. 5.3.2. Furnish to each DRB member and to the Owner one copy of pertinent documents, other than those furnished by the Owner, as may be requested. 5.3.3. Cooperate with the Owner and the DRB to encourage avoidance of disputes and facilitate timely resolution of disputes. 5.3.4. Coordinate DRB operations in cooperation with the Owner. 6. TIME FOR BEGINNING AND COMPLETION OF DRB ACTIVITIES 6.1. DRB activities shall proceed on the Effective Date of this Agreement. 6.2. This Agreement shall survive the termination, resignation or death of any DRB member. 6.3. The DRB's jurisdiction under this Agreement shall terminate on the date of final payment under the Contract, unless terminated earlier by mutual agreement of the Owner and the Contractor. 6.4. Individual DRB members may be terminated by mutual agreement of the Owner and Contractor, or as provided in Section 17.01.D.3 of the DRB Specification. If during the course of the DRB's tenure the Owner and/or the Contractor has any issues or concerns with one or more members of the DRB, the requesting Party shall confer with the other Party and, as needed,with the DRB to address any such issues or concerns to endeavor to avoid termination. 4 6.5. In the event a DRB member is terminated, the member shall be compensated for services performed up to the effective date of the termination. 6.6. In the event a DRB member resigns, the member shall give the Owner and Contractor at least thirty (30) days written notice to both; shall be compensated for services up to the effective date of the resignation; and shall cooperate with the Owner and the Contractor in transitioning off the DRB. 6.7. 7. PAYMENT 7.1. Payments made to the DRB members shall constitute full compensation for work performed, travel time, services rendered, and for all materials, supplies and incidentals necessary to serve on the DRB. 7.2. Payment for services rendered by DRB members shall be at the individual rate and conditions described in Attachment A to this Agreement. The rates charged by the DRB members shall remain unchanged until the services of each DRB member is terminated. 7.3. DRB members shall be reimbursed for actual direct, non-fee expenses that are reasonably necessary for the performance of their services, including automobile milage, parking, travel expenses from the point of departure to the initial point of arrival, automobile rental, taxi or ridesharing company fares, food, (no alcohol), lodging, printing, postage and courier delivery, subject to limitations imposed by the Parties. 7.4. Payment made to DRB members in the form of bonus, commission, or consideration of any nature other than that specified hereinabove for performance and service provided under this Agreement, before, during or after the period that this Agreement is in effect, is prohibited. 7.5. DRB members shall individually submit invoices for work completed to the Contractor: 7.5.1. Not more often than once per month. 7.5.2. Based on the agreed billing rates and conditions and on the number of hours expended, together with direct, non-fee expenses as permitted by any applicable reimbursement limitations (including an itemized listing supported by copies of original bills, invoices, and expense accounts). 7.5.3. Accompanied by a description of activities performed daily during the invoice period. 7.6. The Contractor shall pay acceptable invoices within thirty(30) days of their receipt. 7.7. The Contractor shall be reimbursed for the Owner's portion of the DRB costs in accordance with payment provisions specified in the DRB Specification. 8. CONFIDENTIALITY AND RECORDKEEPING 8.1. No DRB member shall divulge information that has been acquired during DRB activities without obtaining prior written approval from the Owner and the Contractor. 8.2. DRB members shall maintain cost records pertaining to this Agreement for inspection by the Owner or the Contractor for a period of three (3) years following termination of this Agreement. 5 8.3. Any documents or communication exchanged or which occur during any meetings or hearings with or before the DRB shall be considered privileged and as if made during a mediation and the rules applicable to mediations shall apply to the admissibility of such documents or communications during any future lawsuit, hearing or other legal proceeding. The recommendation or advisory opinions of the DRB, whether made in any meeting, as a result of any hearing, at the request of either Owner or Contractor or otherwise shall not be considered evidence or be admissible in any subsequent lawsuit, hearing or other legal proceedings. 9. ASSIGNMENT 9.1 No Party to this Agreement shall assign any duty established under this Agreement. 10. TERMINATION 10.1.This Agreement may be terminated by mutual agreement of the Owner and Contractor at any time upon not less than thirty(30) days written notice to the DRB. 10.2.If a DRB member resigns, is unable to serve, or is terminated, the member shall be replaced within thirty (30) days as stipulated in the DRB Specifications. This Agreement shall be amended to indicate the member replacement. 11. LEGAL RELATIONS 11.1. The Parties to this Agreement expressly acknowledge that each DRB member, in the performance of their duties on the DRB, is acting in the capacity of an independent agent and not as an employee of the Owner or the Contractor. 11.2. The Owner and the Contractor acknowledge that each DRB member is acting in a capacity intended to assist the Parties in avoiding disputes or facilitating the timely resolution of disputes. Accordingly, it is agreed and acknowledged that, to the fullest extent permitted by law,each DRB member shall be held harmless from any claims by Owner or Contractor, for any actions or recommendations associated with DRB activities. 12. DISPUTES REGARDING THIS AGREEMENT 12.1. Disputes among the Parties arising out of this Agreement that cannot be resolved by negotiation, and actions to enforce any right or obligation under this Agreement, shall be initiated in the District Court of Williamson County, Texas. 12.2.All questions shall be resolved by application of Texas law, without reference to the jurisdiction's choice of law rules. 12.3.The DRB members hereby consent to the personal jurisdiction of the Court of Williamson County, Texas. 13. DRB AGREEMENT EFFECTIVE DATE The Effective Date of this Agreement shall be DRB MEMBERS 6 By: (Signature) (Name) By: — - - ----- (Signature) (Name) By: - ---- - -- (Signature) (Name) Contractor Owner By: By: (Signature) (Signature) By: -- By: (Name) (Name) Title: Title: 7 (Signature I (Name) ( anal red (%ame) (Signature) (Nam ( ounttaclol By: 13� (Signature) (Siinature) Eir: fiv (Name) (Narn�1 '1 ttie. TiCe (signature) (Name) (Ni J /f Ait"'ll'a 111, 1/f A (Nonw) (Nallic) (Nanie) THE FOLLOWING PAGES CONSIST OF THE FINAL ADOPTED DOCUMENT Dispute Review Board Agreement Dispute Resolution Board Agreement This Dispute Resolution Board Agreement (the "Agreement") is entered into this day „ ,, S '� _1 2023, by and between the Brushy Creek Regional Utility Authority, Inc., Thalle/SAK Joint Venture and the Dispute Resolution Board Members identified in paragraph 1.3 below. The foregoing are herein referred to individually as a"Party” and collectively as the "Parties." RECITALS WHEREAS, the Brushy Creek Regional Utility Authority, Inc. and Thalle/SAK Joint Venture entered into that one certain Construction Contract for the construction of BCRUA Phase 2 Raw Water Delivery System dated June 18, 2022, (the "Contract'); and WHEREAS, Article 17 of the General Conditions of the Contract provides for alternative dispute resolution methods and procedures; and WHEREAS,one of the methods for resolving disputes is utilizing a Dispute Resolution Board. The Parties agree as follows: 1. PARTIES 1.1. Brushy Creek Regional Utility Authority ("Owner"or"BCRUA"). 1.2. Thalle SAK Joint Venture ("Contractor"or"TSN"). 1.3. Dispute Resolution Board ("DRB") consisting of three members, one of whom shall serve as Chair of the DRB as designated by the Parties: 1. Edward R. Ballard (Chair), Board Member Selectee 2. Joseph P. Gildner, Owner Selectee 3. Dan Martz, Contractor Selectee 2. CONTRACT 2.1. The Contract pertains to the construction of the Phase 2 Raw Water Delivery System ("Project"). 2.2. Section 00700, Article 17 Alternate Dispute Resolution of the Contract (hereinafter referred to as "DRB Specification") is incorporated by reference into this Agreement, and, except for modifications of those provisions set forth in this Agreement, the Owner, the Contractor, and the DRB shall be bound by the provisions thereof and to the duties and responsibilities set forth therein. 2.3 To the extent that the provisions of this Agreement conflict with the provisions of the Contract pertaining to dispute resolution including, but not limited to the requirement that the submission Dispute Resolution Board Agreement,Clean Final,07.28.23 4860 3808 1395" I docx i�Gtet,t_+\-9-2 3-V g-- -2 3-�-il of a dispute to the DRB shall require the written mutual agreement by both Owner and Contractor to submit a dispute to the DRB, the provisions of this Agreement shall govern such conflict. 2.4 Further, the Parties agree that either Owner or Contractor, without requesting a hearing before the DRB, may request that the DRB provide an advisory opinion regarding any issue or issues that may be in dispute. 3. PURPOSE OF DRB 3.1 Engage in dispute avoidance activities, which include fostering and conducting proactive discussion on project issues by attending DRB regular meetings, participating in site visits, and giving advisory opinions (if requested by either the Owner or the Contractor). Provided Owner and Contractor both agree to submit a dispute to the DRB for consideration and recommendation, the DRB will engage in dispute resolution activities, which include issuing timely and impartial recommendations for resolution of disputes by a DRB hearing process. 4. DRB SCOPE OF WORK 4.1 The DRB will do the following: 4.1.1 Stay abreast of Project developments and potential or existing disputes by means of periodic meetings, site visits,job document reviews, and other means as agreed by the Parties. 4.1.2 Examine site conditions or specific construction features relating to potential or existing disputes, unless such examination is not practical or would result in a delay to the Project. 4.2 Establish DRB Operating Procedures that supplement and are consistent with the requirements and general guidelines set forth in the DRB Specification. 4.2.1 The DRB agrees to the following dispute avoidance activities: 4.1.2.1 Commit to be reasonably available and to avoid conflicts with other commitments on days scheduled for DRB regular meetings and site visits. 4.1.2.2 Prepare agendas for and summaries of DRB regular meetings. 4.1.2.3 Review project documents provided in between or in advance of meetings. 4.1.2,4 Provide advisory opinions as requested by either the Owner or the Contractor. 4.3 The DRB agrees to the following dispute resolution activities: 4.3.1 Upon receipt by the DRB of a dispute referral from both the Owner and the Contractor, plan, schedule and conduct a DRB hearing process in the manner, timing, and location set by the DRB, in consultation with the Owner and the Contractor. 4.3.2 Convene internal meetings as needed to review and discuss the dispute, and to formulate the report. 4.3.3 Following each hearing and DRB deliberation, issue timely written reports to the Owner and the Contractor, including the supporting analysis and rationale for all recommendations. 2 4.3.4 When requested and deemed appropriate by the DRB, provide timely written responses to requests for clarification made by either the Owner or the Contractor. 4.3.5 Perform any other reasonable DRB services needed to achieve the purpose of this Agreement. 5. RESPONSIBILITIES OF THE PARTIES 5.1. DRB Responsibilities: 5.l.1. Maintain impartiality and avoid conflicts of interest by continuing to meet the eligibility and disclosure requirements for DRB members, as set forth in the DRB Specification. Promptly advise all Parties upon becoming aware of any development that could be perceived as a conflict of interest and promptly resolve any such issues. 5.1.2. Advise the other DRB members and the Owner and the Contractor when unable to continue serving as a DRB member. 5.1.3. Neither the DRB Members individually, nor the DRB collectively shall: 5.1.3.1. Give advice regarding design or construction means or methods. 5.1.3.2. Discuss, individually or collectively, issues with the Owner or the Contractor, such as the conduct of the work and the resolution of construction problems, that could possibly be construed as compromising the DRB's ability to impartially assist in resolving future disputes. 5.1.3.3. Express an individual or collective opinion of merit, in whole or in part, for any potential or other dispute at any time prior to the issuance of a report, except in the case of an advisory opinion. 5.1.3.4. Meet or communicate with either the Owner or the Contractor in the absence of the other, except as required when performing the duties of the Chair or conducting a meeting or hearing which the Owner or Contractor refuses to attend. 5.1.4. Consider the facts and circumstances forming the basis of a referred dispute impartially and independently, and evaluate the merits based on careful consideration of the information submitted by the Parties, all Contract requirements, and applicable law/regulations. The DRB shall not: 5.1.4.1. Undermine the provisions of the Contract, disregard or alter any requirements of the Contract or this Agreement, or alter the allocation of risk specified therein. 5.1.4.2. Supplant or otherwise interfere with the respective rights, authority, duties, and obligations of either the Owner or Contractor as set forth in the Contract or Contract Documents, as defined in the Contract. 5.1.4.3. Participate in negotiations with the Owner and Contractor, nor perform conciliation or mediation services in connection with any issue or dispute. 5.1.5. Make every effort to reach unanimous recommendations. If this cannot be accomplished, include written minority recommendations and supporting rationale within the full DRB report. 5.1.6. DRB members individually, and the DRB collectively, agree to be bound by the DRB Foundation Code of Ethical Conduct as set forth in the current edition of the DRBF Dispute Board Manual: A Guide to Best Practices and Procedures. 3 5.1.7. Members of the DRB shall only spend the time necessary to perform the services described in this Agreement and shall provide invoices that specifically describe the services performed, the date the services are performed, and the time recorded in tenths of an hour necessarily incurred to perform the services. 5.2. Owner Responsibilities: 5.2.1. Except for participation in the DRB's activities as provided in the DRB Specification and this Agreement, do not solicit advice or consultation from the DRB or individual DRB members on matters dealing with the conduct of the work or resolution of problems. Nothing herein, however, shall prevent either Owner or Contractor from submitting to the DRB a written request for an advisory opinion regarding any particular issue. 5.2.2. Furnish to each DRB member one copy of the conformed Contract (including all Contract Documents), the baseline schedule and agreed updates, Contract amendments, and other documents pertinent to the performance of the Contract and necessary for the DRB to conduct its operations. 5.2.3. Coordinate DRB operations in cooperation with the Contractor. 5.2.4. Arrange for or provide facilities at or near the site for periodic meetings, and provide any necessary support services. 5.2.5. Cooperate with the Contractor and the DRB to encourage avoidance of disputes and facilitate timely resolution of disputes. 5.3, Contractor Responsibilities: 5.3.1. Except for participation in the DRB's activities as provided in the Contract and this Agreement, do not solicit advice or consultation from the DRB or individual DRB members on matters dealing with the conduct of the work or resolution of problems. 5.3.2. Furnish to each DRB member and to the Owner one copy of pertinent documents, other than those furnished by the Owner, as may be requested. 5.3.3. Cooperate with the Owner and the DRB to encourage avoidance of disputes and facilitate timely resolution of disputes. 5.3.4. Coordinate DRB operations in cooperation with the Owner. 6. TIME FOR BEGINNING AND COMPLETION OF DRB ACTIVITIES 6.1. DRB activities shall proceed on the Effective Date of this Agreement. 6.2. This Agreement shall survive the termination, resignation or death of any DRB member. 6.3. The DRB's jurisdiction under this Agreement shall terminate on the date of final payment under the Contract, unless terminated earlier by mutual agreement of the Owner and the Contractor. 6.4. Individual DRB members may be terminated by mutual agreement of the Owner and Contractor, or as provided in Section 17.01.13.3 of the DRB Specification. If during the course of the DRB's tenure the Owner and/or the Contractor has any issues or concerns with one or more members of the DRB, the requesting Party shall confer with the other Party and, as needed,with the DRB to address any such issues or concerns to endeavor to avoid termination. 4 6.5. In the event a DRB member is terminated, the member shall be compensated for services performed up to the effective date of the termination. 6.6. In the event a DRB member resigns, the member shall give the Owner and Contractor at least thirty (30) days written notice to both; shall be compensated for services up to the effective date of the resignation; and shall cooperate with the Owner and the Contractor in transitioning off the DRB. 6.7. 7. PAYMENT 7.1. Payments made to the DRB members shall constitute full compensation for work performed, travel time, services rendered, and for all materials, supplies and incidentals necessary to serve on the DRB, 7.2. Payment for services rendered by DRB members shall be at the individual rate and conditions described in Attachment A to this Agreement. The rates charged by the DRB members shall remain unchanged until the services of each DRB member is terminated. 7.3. DRB members shall be reimbursed for actual direct, non-fee expenses that are reasonably necessary for the performance of their services, including automobile milage,parking, travel expenses from the point of departure to the initial point of arrival, automobile rental, taxi or ridesharing company fares, food, (no alcohol), lodging,printing, postage and courier delivery, subject to limitations imposed by the Parties. 7.4. Payment made to DRB members in the form of bonus,commission, or consideration of any nature other than that specified hereinabove for performance and service provided under this Agreement, before, during or after the period that this Agreement is in effect, is prohibited. 7.5. DRB members shall individually submit invoices for work completed to the Contractor: 7.5.1. Not more often than once per month. 7.5.2. Based on the agreed billing rates and conditions and on the number of hours expended, together with direct, non-fee expenses as permitted by any applicable reimbursement limitations (including an itemized listing supported by copies of original bills, invoices, and expense accounts). 7.5.3. Accompanied by a description of activities performed daily during the invoice period. 7.6. The Contractor shall pay acceptable invoices within thirty (30) days of their receipt. 7.7. The Contractor shall be reimbursed for the Owner's portion of the DRB costs in accordance with payment provisions specified in the DRB Specification. 8. CONFIDENTIALITY AND RECORDKEEPING 8.1. No DRB member shall divulge information that has been acquired during DRB activities without obtaining prior written approval from the Owner and the Contractor. 8.2. DRB members shall maintain cost records pertaining to this Agreement for inspection by the Owner or the Contractor for a period of three (3)years following termination of this Agreement. 5 8.3. Any documents or communication exchanged or which occur during any meetings or hearings with or before the DRB shall be considered privileged and as if made during a mediation and the rules applicable to mediations shall apply to the admissibility of such documents or communications during any future lawsuit, hearing or other legal proceeding. The recommendation or advisory opinions of the DRB, whether made in any meeting, as a result of any hearing, at the request of either Owner or Contractor or otherwise shall not be considered evidence or be admissible in any subsequent lawsuit, hearing or other legal proceedings. 9. ASSIGNMENT 9.1 No Party to this Agreement shall assign any duty established under this Agreement. 10. TERMINATION 10.1.This Agreement may be terminated by mutual agreement of the Owner and Contractor at any time upon not less than thirty(30)days written notice to the DRB. 10.2. If a DRB member resigns, is unable to serve, or is terminated, the member shall be replaced within thirty (30) days as stipulated in the DRB Specifications. This Agreement shall be amended to indicate the member replacement. 11. LEGAL RELATIONS 11.1. The Parties to this Agreement expressly acknowledge that each DRB member, in the performance of their duties on the DRB, is acting in the capacity of an independent agent and not as an employee of the Owner or the Contractor. 11.2. The Owner and the Contractor acknowledge that each DRB member is acting in a capacity intended to assist the Parties in avoiding disputes or facilitating the timely resolution of disputes. Accordingly, it is agreed and acknowledged that, to the fullest extent permitted by law, each DRB member shall be held harmless from any claims by Owner or Contractor, for any actions or recommendations associated with DRB activities. 12. DISPUTES REGARDING THIS AGREEMENT 12.1.Disputes among the Parties arising out of this Agreement that cannot be resolved by negotiation, and actions to enforce any right or obligation under this Agreement, shall be initiated in the District Court of Williamson County, Texas. 12.2.All questions shall be resolved by application of Texas law, without reference to the jurisdiction's choice of law rules. 12.3.The DRB members hereby consent to the personal jurisdiction of the Court of Williamson County, Texas. 13. DRB AGREEMENT EFFECTIVE DATE The Effective Date of this Agreement shall be 3 IJ DRB MEMBERS 6 i (Signaturc 1 (N,11110 1 � BY 44 a (.' mat rd By (Signnature) (Name) Contractor 0%%nor E3y: _ 11� (Signature) (Signature) fly. - By (Name) (Namd Title: Title. (tii�;naiure) (Name) (.'t}stalurcj �/ (Namc) yy 1 Contractor lig lig �1i�uaUtte) I�i�nxUtrcl IN: __-- (Name) (Name) 1'iilc- 1 ille. By: (Signature) (Name) By: -- (Signature) (Name) By: (Signature) (Name) Contractor Owner By: By: (Signature) (Signature)/MA %) aker, plyQfj+ By: By: (Name) (Name) Title: Title: 7 DATE: August 18, 2023 SUBJECT: BCRUA Board Meeting August 23, 2023 ITEM: 6E. Consider a resolution authorizing the President to execute a Dispute Resolution Board Agreement between the Brushy Creek Regional Utility Authority,Inc.,Thalle/SAK Joint Venture, and the Dispute Resolution Board Members. PRESENTER: Karen Bondy,General Manager BACKGROUND: The Contract between BCRUA and Thalle/SAK Joint Venture (Contractor)for the construction of Phase 2 Raw Water Delivery System (Project) includes an Alternate Dispute Resolution process that establishes a Dispute Resolution Board (DRB)for the Project. The purpose of this process is to avoid disputes by fostering and conducting proactive discussion on project issues and engaging a DRB to assist in the resolution of any issues.The DRB will consist of three impartial members having substantial experience in the type of excavation, demolition, design or construction of tunnels and shafts required for the Project. Should any disputes arise,either BCRUA or the Contractor my initiate a dispute referral to the DRB, which will then issue recommendations for resolution by a DRB hearing process. DRB members maintain a continual low level of project involvement throughout the duration of the project to expedite the dispute resolution process. The use of a DRB is common practice for large underground construction projects, and DRB recommendations are non-binding. This item authorizes BCRUA to enter into a Dispute Resolution Board Agreement with the Contractor and the DRB members. BCRUA staff and the Operations Committee recommend approval of this resolution and will be available to answer any questions.