BCRUA_R-09-11-18-6B RESOLUTION NO. R-09-M-1 P � 2�
WHEREAS, the Brushy Creek Regional Utility Authority, Inc .
("BCRUA") desires to enter into an agreement with Dial Development
Services, Ltd. for construction phase inspection/observation services
for Contract 1 of Phase 1 of the Regional Water Supply Project, Raw
Water Pipeline, Now Therefore
BE IT RESOLVED BY THE BRUSHY CREEK REGIONAL UTILITY
AUTHORITY,
That, subject to the approval of the Participating Cities, the
Board President is hereby authorized and directed to execute on
behalf of the BCRUA an agreement with Dial Development Services,
Ltd. , a copy of same being attached hereto as Exhibit "A" and
incorporated herein for all purposes .
The Board 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 thi s 18th day of November, 2009 .
MITC FULLER, esident
Brus Cree gional Utility Authority
A SWU
B and Secretary
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 in the year Two
Thousand Nine(2009).
(In words.indicate dar.month and rear.)
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 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 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. 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 agreement.')
Section I_] is intentionally deleted.
1.2 Project Parameters
1.2.1 The objective or use is:
(Identify or describe,if 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 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.
EEX00175096/jkg HIBIT
All
1.2.2 The physical parameters are:
(Identi or describe.iJappropriate,sire,location.dimensions,or other pertinent information,such as geotechnical reports about the site.)
Section 1.2.2 is intentionally deleted.
1.2.3 BCRUA's Program is:
(Identi,documentation or state the manner in which the program will be developed.)
Section 1.2.3 is intentionally deleted.
1.2.4 The legal parameters are:
(Identify pertinent legal information,including,tfappropriate,land surveys and legal descriptions and restrictions of rhe 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"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 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
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.
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(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) Proiect Meetines
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) Proiect 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, RFls, 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.
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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 same is documented to be Project-related and is approved in writing in advance of Dial
incurring same.
(f) 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 Obscrver/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
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(i) 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."
In order for the BCRUA to maintain adequate control over the not-to-exceed amount established in this
Agreement, the parties expressly acknowledge and agree that the BCRUA's Designated Representative
shall have authority to direct Dial's observers via the daily meetings required herein. Dial evidences its
understanding that observers will not be required by the BCRUA Designated Representative to observe all
activities of the General Contractor (including by way of illustration but not limitation, daily first-hour
mobilization and daily close-out activities).
1.2.7 The time parameters are:
(Idents.ifappropriaie,milestone dates,durations orfost 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 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 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. Atter 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:
(Identify 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:
(Ident fv special characteristics or needs of 1he Project such as energy,environmental or historic preservation requirements.)
Section 1.2.9 is intentionally deleted.
1.3 Proiect Team
1.3.1 The BCRUA's Designated Representative is:
(List name,address and other information.)
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Michael F.Thuss, P.E.
Program and Construction Manager, BCRUA
221 East Main Street
Round Rock,Texas 78664
Telephone: 512-401-5594
Email Address: mthussUbcrua.or�
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.
13.3 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:
(List discipline and,tf known,idents 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: 512-7844546
Facsimile: 512-247-4199
Email Address: dldial@neizero.net
13.6 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 forms 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 Cbanges 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.
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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 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 (IS)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
7
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.
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.
23.4 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.
33 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 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
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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, all 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 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
9
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 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.
10
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
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) 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
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.
4.123 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 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 governmental immunity available to BCRUA under Texas law and without waiving any defenses of the parties
under Texas law.
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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 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.
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,shalt 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 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 subconsuitant'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
12
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.
(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.
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83 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.
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 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 reasonable consents required to facilitate such assignment.
8.7 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.
8.8 Dial shall comply 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.
8.9 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.
8.10 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 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 if such are adjudged by a
court of competent jurisdiction to have been caused by Dial. 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.
8.12 Neither the BCRUA nor Dial shall be deemed in violation of this Agreement 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 faithful 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 Name 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 Observer's Responsibilities
Exhibit "C" Certificates of Insurance
16
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 EJJh t`.I_ day of the month of I Vb�en'l�j�i)� 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":
(Mane,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":
(Nate,address and other iulforunailon.)
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. 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 l INITIAL INFORMATION
1.1 This Agreement is based on the following information and assumptions.
(Note lire disposition for the following items by inserting the requested information or a statement such as "not applicable," "unknown at thne of
execution"or"to be determined later by,mutual agreement.
Section 1.1 is intentionally deleted.
1.2 Project Parameters
1.2.1 The objective or use is:
(Identify or describe,if 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 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/jk
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gced,(A
1.2.2 The physical parameters are:
(Identh,or describe,if appropriate,size,location,dimensions,or other pertinent Information,such as geotechnical reports about the site.)
Section 1.2.2 is intentionally deleted.
1.2.3 BCRUA's Program is:
(Identify documentation or state the maturer in which the program will be developed)
Section 1.2.3 is intentionally deleted.
1.2.4 The legal parameters are:
(Identf6,pertinent legal Information,Including,(f appropriate,land sumeps and legal descriptions and restrictions of tire 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 Nol100
Dollars (5656,000.00). 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 Observation
Visits to the site shall be provided by Dial daily, on a Hill-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
correct any erroneous pay items before the final pay application is submitted for payment.
(d) Submittals.Change Orders and Requests for Information JRFls)
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 Testine
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.
0) 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 maybe 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 hi 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 same is documented to be Project-related and is approved in writing in advance of Dial
incurring same.
(� 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 hi this capacity are Talley Muery or Robert
M.Dial.
pr) 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
(i) 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
I
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 time parameters are:
(Identf}s 7f oppropriate,milestone dales,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 term of this Agreement shalt 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:
(Identify 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:
(7denq&special characteristics or needs of the Project such as energy,environmental or historic preservation requirements.)
Section 1.2.9 is intentionally deleted.
1.3 Proiect Team
1.3.1 The BCRUA's Designated Representative is:
(1.1s/nante,address and other information)
Michael P.Thuss,P.E.,Program and Construction Manager
221 East Main Street
Round Rock,Texas 78664
Telephone: 512-401-5594
Email Address: mthuss@bcnia.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 otter information.)
ti
c t a
4'
1.3.4 The BCRUA's other inspectors and contractors are:
(List discipline mil,if known,idenl(j'then,by name and address.)
Section 1.3.4 is intentionally deleted.
1.15 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 anal,if known,identify therm k,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 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 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)ninth 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 lierein.
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
I
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 seine 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 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 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 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
(lie 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
preconstnrction 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
8
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 Govermnent 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
tinder 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 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
perfornn 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 perfonned. 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 perfornance 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 tine 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 Bled 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 frilly 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 ten-ns 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) 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
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 die 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 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 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 litigation 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.
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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 hann 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 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 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 insuinrce requirements among its subconsultants. Tile 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 tine 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 un 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 commeuce 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 behveen 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 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 reasonable consents required to facilitate such assignment.
8.7 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.
8.8 Dial shall comply 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, minimunr/maximu►n 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.
8.9 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.
8.10 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 Services for this Agreement
within the agreed schedule will constitute a material breach ofthis 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 if such are adjudged by a
court of competent jurisdiction to have been caused by Dial. 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.
8.12 Neither the BCRUA nor Dial shall be deemed in violation of this Agreement 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 Tire 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.
IN WITNESS WHEREOF,the Brushy Creek Regional Utility Authority has caused this Agreement to be signed in
is orporate name by its General Manager, duly authorized to exec t� the same on its bet 1 b Resolution No.
, approved by the BCRUA's Board of Directors on the�day of the month of � ,200q.
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 faithful and full performance of the terms and provisions of this
Agreement.
14
BRUSHY CREEK REGIONAL UTILITY AUTHORITY
By:
Printed Name: I
Title: ��SI CX1
Date Signed:
ATTE T:
By:
IRUA Administrative Secretary
DIAL DEVELOPMENT SERVICES,LTD.,by
D.L.DIAL & ASSOCIATES,LC,GENERAL PARTNER
Printed Name of Principal: r0Afy♦C> ,01.44
Title: f� S�•c�EtiT
Date Signed: //—o i —o y
ATTEST:
By:
Corporate Secretary
15
LIST OF EXHIBITS ATTACHED
Exhibit"A" Delineation of Authority's Responsibilities
Exhibit`B" Delineation of Observer's Responsibilities
Exhibit"C" Certificates of Insurance
16
BCRUA
Pipeline Observer Agreement
EXHIBIT A, consisting of_2_ pages, referred to in and made a pant 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 lof2
BCRUA
Pipeline Observer Agreement
but not limited to, cost estimating, project peer review, value engineering, and constructability
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 pin) 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. Cross level of detail conshuctability 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 normal 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 prograrns.
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 docurnentation.
BCRUA 2of2
ACORD CERTIFICATE OF LIABILITY INSURANCE DP 10 DA09 031Ys)
PRODUCER ERTIFICATE IS ISSUED AS A MATTER OF INF RMA IO
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Hertel uffstorfa Group, tLLPe. ALTER THTHIS
COVERAGE AFFORDED NOT
POLIEXTEND
IES NHE OW
8500 Bluffstone Cove, Ste.B204
Austin TX 78759
Phone:512-835--7633 Fax:512-835-0800 INSURERS AFFORDING COVERAGE NAIC#
INSURED IIISURERA TRAHSPOPWICIN n;SURM= CO. _
INSURER B:
DIAL DEVELOPMENT SERVICE INSURER 8:
DAVID D � _...
PO BOX INSURER D:
DEL VALLE TX 78617
INSURER E
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING
ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES,AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. �yjQ
ff-
LTR NSR DAMr DIYY TYPE OF INSURANCE POLICY NUMBER 7B M D LIMITS
GENERAL LIABILITY EACH OCCURRENCE $1000000
A X COMMERCIAL GENERAL UAMITY 4017706148 09/04/09 09/04/10 PREM -s°s�o=xence 6300000
CIAINSMAiIE OCCUR MED EXP(Amy one psrsoro $10000
PERSONAL 8 ADV INJURY 51000000
GENERALAODREGATE s2000000
GE1fLAGGREGATE L�IMaITAPPLIESPER: PRODUCTS-COMP)OPAGO $2000000
POLICY pJECi LOC
AUTOMOBILE LIAOILRY
CQVBITEDSIJOLELIMIT $
Atrf AUTO (Ea acddeN)
ALL OWNED AUTOS BDDILY IIIJURY
SCHEOULEDAUTOS (Parpelson) S
HIRED AUTOS BODILY INAIRY
NOII-OWNEDAUTOS (PereOd" $
PROPERTY DAMAGE $
(Per aa9deN)
GARAGE LIABILITY AUTO ONLY-EAAMDENT S
A14YAUTO OTHERTHAN EA ACC S
AUTO ONLY: AOG S
EXCESSIUMBRELLA LIABILITY EACH OCCURREHCE $_
OCCLIR CLAIMS MADE AGGREGATE _ $
S
DEDUCTIBLE S
RETENTION S S
%YORKERS COMP2NBATION AND TORY UMI7S E
EMPLOYERS'LIABILITY
ANY PROPRIETORIPARTNEREKECUTIVE E_L EACHACCXTBNT S
OFF)CERIMEMBER EXCLUDED? E L,DISEASE-EA EMPLOYEE 5
IT�8�,descnbe Lader "
SPECIAL PROVISIONS below E L.OISEASE-POLICY LIMIT $
OTHER
A PROPERTY 4017706148 09/04/09 09/04/10 BPP 20000
DESCRIPTION OF OPERATIONS!LOCATIONS I VEHICLES f EXCLUSIONS ADDED BY ENDORSEMENT f SPECIAL PROVISIONS
CERTIFICATE HOLDER CANCELLATION
BLANKOO SHOULDANY OF THEAROVIII DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF,THE ISSUING INSURER W LL ENDEAVOR TO MAIL 10 DAYS IYRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO 00 SO SRALL
IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR
REPRESENTATIVES.
AlijtjOQQ RESENT E
ACORD 26(2001108) !J/r�// 0 ACORD CORPORATION 9
DATE: November 13,2009
SUBJECT: BCRUA Board Meeting—November 18, 2009
ITEM: 6B. Consider a resolution authorizing the President to execute an Agreement for
Construction Phase Observation Services for BCRUA Phase 1,Contract 1,
Regional Water System, Raw Water Pipeline with Dial Development
Services, Ltd.
Presenter: Michael Thuss
Program Manager
Justification:
This contract is for inspection and observation construction phase services with respect to the
BCRUA Phase 1,Contract 1, Raw Water Pipeline project to be executed over a 24 month period.
Dial Development Services, Ltd. was selected through a competitive process. Six(6)firms
responded. A selection committee of representatives of Round Rock, Leander, Cedar Park,and
BCRUA met and selected Dial Development Services, Ltd.to perform this service for BCRUA.
Dial Development Services contract is for quality assurance inspection and project administrative
services related to the construction of the Raw Water Pipeline.
Funding:
The contract amount is$656,000 with a contingency amount of$9,000,for a total not to exceed
amount of$665,000. Texas Water Development Board will not release funds until this contract is
executed.
Outside Resources: Dial Development Services,Ltd.