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BCRUA_R-09-11-18-6D RESOLUTION NO. R-09- I f y j J�b 0 WHEREAS, the Brushy Creek Regional Utility Authority, Inc . ( "BCRUA" ) desires to enter into an agreement with Water Resources Management, L. P. for construction phase inspection/observation services on the Regional Water Treatment Plant, 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 Water Resources Management, L. P. , 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 this 18th day of November, 2009 . MITCH F LER, Aresident Brushy C gional Utility Authority TEST: B/Ja 6' rd Secretary CRUA\Packets\Packet Documents\Resolutions-WORD\Res BCRUA-Agmt w-Water Resources Mgmt(00175207)111809.DOC i Brushy Creek Regional Utility Authority (BCRUA) Agreement for Construction Phase Observation Services for BCRUA Water Treatment Plant i with Water Resources Management, L.P. AGREEMENT made as of the _ L_, day of the month of in the year Two Thousand Nine(2009)_ (In words,indicate da),,month and}+ear.) !I BETWEEN the Brushy Creek Regional Utility Authority, a Texas local government corporation, identified herein as the "Authority"or the"BCRUA": (None,address and other igliw aiiar.) Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664-5299 and Water Resources Management, L.P.,identified herein as the"Observer"or"WRM": (Name,address and cher hiformailon.) Water Resources Management,L.P. 1617 West Koenig Lane Austin,Texas 78756 For the following Project: (lnchrde 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 Water Treatment Plant 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 WRM as the proposer offering the best value for the entity. Consulting services to be performed by WRM 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 pronnises and agreements of the parties contained herein, and for other good and valuable considemlion,the BCRUA and WRM agree as follows: ARTICLE] INITIAL INFORMATION 1.1 This Agreement is based on the following information and assumptions. (Nose the dispailtion for fire following items by inserting die requested information or a statement such as "trot applicable,""unknown at Nine of execMlon"or'ho be determined later by uuuual agreenKnL") Section LI is intentionally deleted. 1.2 Prolect Parameters 1.2.1 The objective or use is: (Idents or describe,tfappropriate,proposed use or goals.) Objectives include, but are not limited to, obtaining consulting services from WRM including WRM'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 Water Treatment Plant Project. 00175542/jkg EXHIBIT "Au i i 1.2.2 The physical parameters are: (Identify or describe,tf appropriare,sire,location,dimensions,or other pertinent inform otion,zuch as geotedmikui reporls aboat the site.) Section 1.2.2 is intentionally deleted. r 1.2.3 BCRUA's Program is: (lduth-doc+aaem ation or state the mamer In which the grog mn uriii be delrioped.) Section 1.2.3 is intentionally deleted. 1.2.4 The legal parameters are: (Identify pertinent legal infornsa ion,iuciudin&if appropriate,laud surreys and legal description-r and restriNPau of the site.) Section 1.2.4 is intentionally deleted. 1.2.5 The financial parameters are as follows: The total fee for WRM's services shall be in a not-to-exceed amount of Seven Hundred Fitly-two Thousand and No/100 Dollars ($752,000.00). Such not-to-exceed amount shall be full compensation for all Services performed and to be performed by WRM under this Agreement,and such not-to-exceed amount inay not be revised in any fashion other than by written Supplemental Agreement as provided for herein. The BCRUA shall pay WRM on a "time and materials" basis, WRM agrees to accept payment from the BCRUA on such basis,and the parties expressly agree that only work actually performed by WRM will be paid for by the BCRUA. 1.2.6 The Scope of Services parameters are as follows: The above-recited fee for WRM's Services is generally comprised of the following: (a) Construction Observation Visits to the site shall be provided by WRM 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 Nvork 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 WRM in a daily report. The daily reports are intended to assist WRM'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 Pax Applications A review of the monthly pay applications submitted by the Contractor shall be performed by WRM. The pay application review shall express WRM's oph►ion 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 WRM's review,the Contractor will be I required to correct any erroneous pay items before the final pay application is submitted for payment. (d) Submittals.Change Orden.and Rgquests for Information(RFIs) WRM 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 i (e) Consiruction Testing 1 I WRM shall assist in Ilse 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. WRM 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 contact specifications. A copy of the test results shall be kept as pail of the Project documentation. (f) Project Meetines WRM 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 walklhrough meetings, and any other Project-related meetings that may arise. Any meeting notes or documents shall be kept as Project documentation. (g) Project Doci inentation As lierein described,copies of all relevant Project documentation shall be compiled and kept by WRM. Types of documentation anticipated include but are not limited to daily reports, photographs,submittals, RSIs, and change orders. WRM shall also assist the BCRUA with any items necessary to complete the as-built drawings and Project close-out documentation. Airy and all of WRM'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. 1 (h) Construction Deficiencies In the event that construction deficiencies are noted during daily observations, WRM shall immediately notify the General Contractor and the BCRUA, and shall advise the BCRUA of WRM'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 WRM in the daily reports. (i) Design Conflicts The recognition of any design conflicts determined by the General Contractor or WRM which require a change to the construction contract shall be summarized by WRM and presented to the BCRUA for review and appropriate action. WRM shall assist the BCRUA by also providing an opinion of the appropriate aclion,and shall further assist in the preparation of the necessary documents to initiate action and record the changes. Q) Coordination of Stakeholders WRM 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, WRM shall attempt to keep all stakeholders current and fully informed of Project progress and help identify potential issues before they arise. (k) Personnel and Eaui went WRM 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. WRM 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 WRM's Services under this Agreement may be accomplished within the specified time and at the specified cost. WRM shall conduct all Services in a nnanner to avoid delaying the progress of the construction work- 1.2.6.2 ork1.2.6.2 in the event that observation and related services are required for longer than the thirty-one (31) months specified herein,through no fault of WRM,then additional time and materials shall be appropriately authorized by the 3 } BCRUA through a written Supplemental Agreement as provided herein, but only if such is timely requested in writing by WRM. Notwithstanding the foregoing, WRM shall observe all construction work and progress as the sante may occur. 1.2.6.3 Miscellaneous Provisions Relating to Fee Schedule: (a) "Normal working hours"will be Monday through Friday for an eight(8)hour work day. (b) Any necessary and requested Services provided on nights, Saturdays,Sundays, and legal holidays will be charged at an overtime rate of 1.5 times the appropriate hourly rate delineated in this subsection. WRM 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(WRM's"Overtime"). The General Contractor shall be responsible for reimbursing the BCRUA for any and all of WRM's Overtime that is paid by the BCRUA to WRM;however,the parties expressly acknowledge that the BCRUA is the entity which shall be responsible for making such Overtime payments to WRM,and that WRM 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 WRM 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 WRM's customary reimbursable expenses (such as copying and printing services)at actual cost only if approved in writing in advance of WRM incurring sante,and if supported by appropriate documentation. (e) The BCRUA will be responsible for paying WRM'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 WRM incurring same. (f) All Services shall be perfonned exclusively by representatives of WRM Development Services, Ltd., namely Jo Zunker,Mark Law,James Henson,Robert Gadbois,and Dean Sharp. In the event that WRM proposes alternate representatives to perfonn 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) WRM shall provide a Lead Observer/Manager for lite duration of the Project. The time commitment for the Lead ObserveriMantager shall be approximately 5,213 hours (for Construction Observation and Administration)per year over the total estimated duration of the contract,that being thirty-one(3 1)months. The Lead Observer/Manager shall be Jo Zunker,and Zunker's hourly rate is as follows: Lead Observer/Manager Jo Zunker at a rate of$86.54 per hour At any time that Jo Zunker is absent from the job (i.e. for vacations, time off, illness, other business matters, or similar events), WRM shall provide a Substitute Lead Observer/Manager. Authorized substitutes allowed to serve in this capacity are Manic Law, James Henson, Robert Gadbois, or Dean Sharp. (11) WRM shall provide Additional Observer(s)as required. The time commitment for Additional Observer(s) shall be approximately 4,691 hours(for Construction Observation and Administration)per year over an estimated contract duration of thirty-one (31) months. The Additional Observer(s) shall be Mark Law, James Henson,Robert Gadbois,or Dean Sharp,and their respective hourly rates are as follows: Additional Observer Mark Law at a rate of$64.14 per hour Additional Observer James Henson at a rote of$64.14 per hour Additional Observer Robert Gadbois at a rate of$64.14 per hour Additional Observer Dean Sharp at a rate of$64.14 per hour 4 i (i) Time Commitment and Estimated Rate Projections: Lead Observer/Manager: 5,213 hours over duration of 31-month contract term = $451,133.00 Additional Observer/Supporl Staff:4,691 hours over duration of 31-nhonth contract term = $300,967.00 TOTAL NOT-TO-EXCEED AMOUNT $752,000.00 Also see Exhibit"B"entitled"Delineation of Observer's Responsibilities." The parties expressly acknowledge and agree that the BCRUA's Designated Representative and WRM 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: (ldentt&,inappropriate,milestone dales,durations w fast Irak sc edrdhrg) 1.2.7,1 Term. After execution by each party hereto, this Agreement shall be effective on the date WRM 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 nwtual 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 shirty-one(3l)months following WRM's receipt of the BCRUA's written Notice to Proceed, unless this Agreement is extended by written Supplemental Agreement executed by WRM and the BCRUA prior to the date of lenn expiration. Any work performed or costs incurred by WRM after the date of term expiration or termination shall not be eligible for reimbursement unless such referenced Supplemental Agreement is executed by WRM and the BCRUA prior to the date of term expiration or termination. 1.2,7.1.2 WRM shall notify the BCRUA in writing as soon as possible if WRM 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 WRM. In that event the BCRUA may,in its sole discretion,extend the term and increase the ainount payable to WRM by timely written Supplemental Agreement. WRM shall allow adequate time for the BCRUA to review and approve WRM's request for extension and request for additional compensation. 1.2,7.2 Work Schedule. WRM acknowledges that the work schedule om the construction phase of the Project is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of WRM's Services required herein. In this regard, WRM 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,WRM 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: (ident&5,method such as comapet8hr bid,iegotiated contract,or constnrcaon urnmrrgernent) Consulling services herein are engaged by this negotiated Agreement. 1.2.9 Other parameters are: (!dent&special characlerinks or needs ofthe Project much as energy,environmental or hislorlc presenvIlon requirements) Section 1.2.9 is intentionally deleted. 1.3 Proicel Team 1.3.1 The BCRUA's Designated Representative is: (l.Isl name,address and other it fornmlion) Michael F.Thuss,P.E.,Program and Construction Manager 221 East Main Street Round Rock,Texas 78664 Telephone: 512-401-5594 Email Address: hnthuss bertha ore 5 I f 1.3.2 The BCRUA's Designated Representative shall be authorized to act on the BCRUA's behalf with respect to this Agreement. 7'he BCRUA or its Designated Representative shall render decisions in a timely manner pertaining to doctmrents submitted by WRM in order to avoid unreasonable delay in the orderly and sequential progress of WRM's Services. 1.3.3 The persons or entity,in addition to the BCRUA's Designated Representative,who is required to review WRM's submittals to the BCRUA are: (List name,address awl other information.) I 1.3.4 The BCRUA's other inspectors and contractors are: (List diseiplirm and,if known,ldent(fy them by name and addresr.) Section 1.3.4 is intentionally deleted. 1.3.5 WRM's Designated Representative is: (List maitre,address aryl other 1gforaaailon) Jo Zunker Project Manager,Water Resources Management,L.P. 1617 West Koenig Lane Austin,Texas 78756 Telephone: 512-420-9841 Email Address: jzunker@wrniIp.com 1.3.6 The consultants retained at WRM's expense are: (Llsi discipline and.If krrorrn,idewify dram by name and address) Unknown at this time. 1.4 Miscellaneous Initial Inforttation 1.4.1 Additional Work. If WRM forms a reasonable opinion that any work WRM has been directed to perform is beyond the scope of this Agreement and as such constitutes extra work, WRM 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 WRM and a written Supplemental Agreement will be executed between the parties as provided herein. WRM 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 WRM nor for any costs incurred by WRM 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 WRM 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. WRM 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 ofthis 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 thirty-one(3 1) 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, f WRM 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. 6 i r 1 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 WRM 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 ofsatisfactory work perforated. 1.4.4 Quality Assurance. It is understood and agreed by and between both parties that, under this Agreement, WRM's Services shall comprise quality assurance work as opposed to the quality control work which is the contractual obligation of the General Contractor. WRM is contracted by this Agreement as an observer of how the General Contractor prosecutes its construction phase work, but not as an inspector. WRM's Services shall comprise such observation,facilitation,and liaison activities. ARTICLE 2 RESPONSIBILITIES OF THE PARTIES 2.1 The BCRUA and WRM shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintains good working relationships. 2.2 BCRUA's General Resnonslbllities 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 WRM, within fifteen(15)days after receipt of a written request, information necessary and relevant for WRM to evaluate, give notice of, or enforce rights. 2.2.3 The BCRUA's Designated Representative identified herein shall be authorized to act ort 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 WRM in order to avoid unreasonable delay in the orderly and sequential progress of WRM'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 ntay 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 WRM with an approved set of plaits 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 WRM's General Responsibilities 2.3.1 WRM's services shall be perforated as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. WRM shall submit for the BCRUA's approval a schedule for perforuance 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 WRM or the BCRUA. 2.3.2 WRM,through its Designated Representative identified herein,shall be the person authorized to act with respect to the Project. I 7 i 2.3.3 WRM 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 WRM from establishing a claim or defense in all adjudicatory proceeding. i 2.3.4 Except with the BCRUA's knowledge and consent, WRM shall not engage in any activity, or accept any i employment, interest or contribution that would reasonably appear to compromise WRM's professional judgment with respect to this Project. 2.3.5 WRM 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 WRM 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 WRM shall keep all records pertaining to the Project,and records of accounts between the BCRUA and WRM,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 COMPEN 3.1 Total Fee. The total fee for WRM's services shall be in a not-to-exceed amount of Seven Hundred Fifty-two Thousand and No/]00 Dollars ($752,000.00). Such not-to-exceed amount shall be full compensation for all Services performed and to be performed by WRM 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 WRM on a "time and materials" basis, WRM agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by WRM will be paid for by the BCRUA. 3.2 Scope of Services. Work tasks, identified os 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 WRM based upon Services actually provided and performed,and shall be paid based upon BCRUA's receipt of proper invoices from WRM. WRM 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 statemeuts 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 BCRiJA 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. WRM has the responsibility to submit proof to the BCRUA,adequate and sullicient in its determination,that tasks were completed. No deductions shall be made from WRM'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 WRM has been adjudged to be liable by a court of competent jurisdiction. 3.4 Monthly Progress Reports. Simultaneous with WRM's submission of its monthly invoice, WRM 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 WRM 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 fomn acceptable to the BCRUA. Any preferred fonnat of the BCRUA for such monthly progress reports shall be identified at the prcconstruction conference. Observation of the constmction 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 WRM will be made in accordance with the Texas Prompt Payment Policy statutes contai►red therein. The BCRUA shall document to WRM the issues related to disputed invoices within ten(10) calendar days of 8 h 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 o[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 WRM under the terns of this Agreement are for use solely with respect to this Project. All such materials and ail of WRM's designs and work product under the tenrrs 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, WRM 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 conunon law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. WRM, at its o%vn expense, may retain copies of such documents or any other data which WRM 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. WRM shall furnish and maintain,at WRlvl's own expense,adequate and sufficient personnel and equipment to perform the Services as required. All employees of WRM shall have such knowledge and experience as will enable them to perforin the duties assigned to them.Any employee of WRM who,in the opinion of the BCRUA, is incompetent or whose conduct becomes detrimental to WRM'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 instnicted by the BCRUA Board.WRM certifies that WRM presently has adequate qualified personnel in WRM's employment for performance of the Services required under this Agreement, or will obtain such personnel from sources other than the BCRUA. WRM may not change the Lead Observer/Manager or other key personnel assigned to the Project without prior written consent of the BCRUA,and no employee of WRM,or person contracting with WRM, 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. WRM 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 WRM 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 perfornied by WRM hereunder and the premises on which such Services are being performed. If any review or evaluation is made on the premises of WRM or a subcontractor, then WRM 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 WRM's reports, and may request such comments be addressed in writing. 4.6 Observer's Signature. The responsible Observer 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 WRM. 4.7 Non-Collusion;Flntancial InterestProhlbiled. 4.7.1 Non-collision. WRM warrants that WRM has not employed or retained any company or persons,other than a bona fide employee working solely for WRM,to solicit or secure this Agreement,and that WRM has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement.For breach or violation of this warranty,the BCRUA reserves and shall have the right to annul this Agreement without liability or, in its discretion and at Its sole election, to deduct from the contract price or compensation, or to otherwise recover, the fill amount of such fee, commission,percentage,brokerage fee,gift or contingent fee. 9 I i f 1 4.7.2 Financial interest Prohibited. WRM covenants and represents that WRM, WRM'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 WRM's services, WRM 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 WRM 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 WRM hereby expressly agree that no claims or disputes between the BCRUA and WRM 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, WRM consents to be joined in the arbitration proceeding if WRM'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. WRM and file 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 f limitation,to all consequential datnages due to either party's termination in accordance herewith. 4.11 Suspension. 4.11.1 if the BCRUA fails to snake payments to WRM 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 WRM elects to suspend services,prior to suspension of services,WRM shall give thirty(30)days'written notice to[lie BCRUA. In the event of a suspension of services, WRM shall have no liability to the BCRUA for delay or damage caused to the BCRUA because of such suspension of services. Before resuming services, WRM shall be paid all non- disputed sums due prior to suspension. WRM'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 WRM 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 WRM, with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. WRM 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 maybe 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 tents 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 WRM to begin work,and/or during periods when work is suspended,and/or subsequent to the completion date of the Project or the tennination/expiration date of this Agreement. 4.11.5 in the event of a suspension by the BCRUA in excess of ninety(90) days, WRM has the right to elect to terminate this Agreement. WRM may exercise such right to terminate by issuing written notice to the BCRUA at least 10 t I i 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 WRM when WRM 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 WRM 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 followuig conditions: (a) By mutual agreement and consent,in writing,of both parties. (b) B the BCRUA Board,by notice in writing to WRM,as a consequence of a material breach b WRM in Y Y the perforniance of the Services set forth herein. i (c) By either pasty,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 WRM,upon not less than thirty(30)days'written notice to WRM. (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 WRM. In determinnug the value of the work performed by WRM 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 WRM defaults in the performance of this Agreement or if the BCRUA terminates this Agreement for fault on the part of WRM,licit the BCRUA shall give consideration to the actual costs incurred by WRM in performing the work to the date of default,and die amount of work required which was satisfactorily eompleted io 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 WRM tinder this Agreement. ARTICLE 5 INDEMNIFICATION 5.1 WRM agrees to save and hold harmless the BCRUA,its officers,agents and employees,from all claims,liabilities, lawsuits,judgments,costs and expenses for personal injury(including death),property damage or other harp for which recovery of damages is sought, suffered by any person or persons, that inay arise out of or be occasioned by WRM's breach of any of the terms or provisions of this Agreement,or by any negligent act,error or omission of WRM or of any person under WRM'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 the BCRUA,its officers,agents,employees or separate contractors, and in the event of joint and concurrent negligence of both WRM and the BCRUA, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiviiig any governmental immunity available to the BCRUA under Texas law and without waiving any defenses of ti►e parties under Texas law. 5.2 WRM shall also save and]told harmless the BCRUA,its officers,agents and employees,front any and all expenses, including but not limited to atiomeys 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 WRM or of any person employed by WRM or under WRM'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 Agreeme►ut. f 11 i i 5.3 The BCRUA agrees to include the following clauses in all contracts with construction contractors, and equipment and materials suppliers: 1 I "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 front 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." I1 5.4 To the extent allowed by law, the BCRUA agrees to save and hold harmless WRM, its officers, agents and ` employees, from all claims, liabilities, lawsuits,judgments, costs and expenses for personal hijuiy (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. WRM,at WRM's sole cost,shall purchase and maintain during the entire teen while this Agreement is in effect general liability insurance coverage in the minimum amount of One Million Dollars front a company authorized to do insurance business in Texas and otherwise acceptable to the BCRUA. 1 6.2 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of WRM, WRM 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 condltions as shown below. A subconsultant shall not perform any inspection work or services to be perfonned by WRM 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 WRM shall obtain and monitor the certificates of iusurance front each subconsultant in order to assure compliance with the insurance requirements.WRM 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 requh•e 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 WRM 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 WRM. 12 i I (c) The tenn"the Authority"or"the BCRUA"or"the Brushy Creek Regional Utility Authority"shall include all authorities,boards,coin inissions,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) WRM 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 insurtu►ce. 6.5 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by WRM shall be borne solely by WRM,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"Ce►lificates 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 Water Resources Management,L.P. Attention: Io Zunker,Project Manager 1617 West Koenig Lane Austin,TX 78756 and to: ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 This Agreement represents the entire and integrated agreement between BCRUA and WRM and supersedes all prior negodalions,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[lave accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial 13 { Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final I Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations continence to run any later than the date when WRM's services are substantially completed. 8.4 To the extent damages are covered by property insurance during construction, the BCRUA and WRM 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 patty against either the BCRUA or WRM. 8.6 The BCRUA and WRM, 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 WRM shall assign or transfer any interest irr 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. WRM shall execute all reasonable consents required to facilitate such assignment. 8.7 In the event ally 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 WRM 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, rninimunr/nraximum salary and wage statutes and regulations, and licensing laws and regulations. WRM shall furnish the BCRUA with satisfactory proof of its compliance. WRM shall further obtain all permits and licenses required in the performance of the Services contracted for herein. 8.9 WRM will pay all taxes, if any, required by law arising by virtue of the Services perfonned hereunder. The BCRUA is qualified for exemption purstiant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. 8.10 WRM 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 WRM agrees drat time is of the essence and that any failure of WRM to complete the Services for this Agreement within the agreed schedule will constitute a material breach of this Agreement. WRM shall be fully responsible for WRM's delays or for failures to rise WRM's best efforts in accordance with the terns of this Agreement if such are adjudged by a count of competent jririsdietion to have been caused by WRM. Where damage is caused to the BCRUA due to WRM's failure to perform in these circumstances, the BCRUA may withhold, to the extent of such damage, WRM's payments hereunder without waiver of any of the BCRUA's additional legal rights or remedies. 8.12 Neither the BCRUA nor WRM 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 WRM 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. i I 14 i 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 Water Resources Management,L.P.,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 I Agreement. BRUSHY CREEK REGIONAL UTILITY AUTHORITY By: Printed Name: Title: Date Signed: ATTEST: By: BCRUA Administrative Secretary WATER RESOURCES MANAGEMENT,L.P. By.- Printed y:Printed Name of Principal: Title: Date Signed: ATTEST: By: Corporate Secretary 15 i r LIST OF EXHIBITS ATTACHED Exhibit"A" Delineation of Authority's Responsibilities Exhibit"B" Delineation of Observer's Responsibilities Exhibit"C" Certificates of Insurance i 16 I BCRUA Water Treatment Plant Observer Agreement EXHIBIT A, consisting of 2_ pages, referred to in and made a pail of the Agreement between the Authority and the Observer Delineation of Authority's Responsibilities In addition to other responsibilities of Owner as set forth in this Agreement,with respect to each Task Order the Owner shall: 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. Stich additional information or data would generally include,but not be 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 S. 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 a%vare 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 BCRUA 1 of 2 BCRUA Water Treatment Plant Observer Agreement 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, but not limited to, cost estimating, project peer review, value engineering, and constructability review 1. 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 evahrate 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 teens 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 Water Treatment Plant Observer Agreement EXHIBIT B, consisting of_2_ pages, referred to in and made a pail 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 pnn)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 perfornied in accordance with accepted construction industry standards. They include but are not limited to: 1. Preparation of a Risk Management Plan in coordination with BCRUA construction management 2. Inspection,observation,reporting,and documentation 3. Gross level of detail constructability and value options reviews 4. Assessment and recommendations concerning construction contractor action plans such as for traffic control, site security, crane operations, turuneling; 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 G. 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 I of 2 i BCRUA Water Treatment Plant Observer Agreement 13. Attend construction meetings when requested I 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 hardwu•e 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(lie construction contractor's or subcontractors' safety programs. Also, the work does not include typical design engineer construction phase services. Design engineers will be providing periodic design verification inspections; review and approval of all matters of engineering design related to changes and requests for information, exceptions, and deviations; pay application review and certification;final as-built drawings;and project close-out documentation. BCRUA 2 of 2 11/13/2009 15:34 4541342 GROUPSOLUTIONSRJW PAGE 02/03 �M-ij,-20Q9 1:3!00 fT'DfA:hlppTe J 1 EZOF3'9`31" T o 944541?.4? AcORD. CERTIFICATE OF LIABILITY INSURANCEP/oos PROOUCCR (325)873.6414 THIS CERTIFICATE IS 18SUED AS A MATTER OF INFORMATION PERRY HUNTER HA> _INC ONLY AND CONFERS NO RIGHTS UPON TMX CERTIFICATE P.O.BOX 1400 HOLDER. THIS CERTIFICATE D= NOT AMEND, EATRND OR L THE RAGE FORDED RYTHE PO CIES BELOW. ARILENE,TX 751804 INSURERSAFFORDINCCOVERAGE MAIC* aslRFa A. INDIAN HARBOR INSURMICE COMPANY WATER RESOURCES MANAGEMENT LP INwJRCRU P.O. BOX 1400 nL�krpc _ ASILENE,TX 79604 n+iJRcav v�Rk E COVERAGES THE POLICIES OF INSURANCE LISTED 49LOW HAVE BCCN ISSUEDTO THE INSU1RF.DNAAIED ABOVE FOR THE P(xIOY PERIOD INDICATED.NOTMTTHSTANoNC ANY AROUIRCMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH R@SPECT TO WHICH THIS CERTIFICATE MAY 9E ISSUED 011 MAY PERTAIN.THC INSUR"CE AFFORDED BY THE FOUG193 DESCRIOEDH4REIN LS SUBJECT TO AL,THF TERMS,EXCWSIONSAND COMPITIONG OF SUCH POLICIEU.AGGREGATE L04IT3 SHOWN MAY HAVE MEN REDUCED BY PAID CLA1M9. u re PO CYEF frAe ANN! o n oRt�R►L LaBI1.OM OW A X X MMMMCIALQF.WPALLIAOII,IrY PKM0021919I)i 12127/20M 12/7 009 ,ye'y°„ i 10D,0'C M,AIMSMALE 1XIOL.CU14 USD F.%A I AIA CAUM1�ul) S _ CJ,� _ _ PF_RSOHAL s ADV INJUm s 1 00ML -- 2LNP&LAOGREGATF s 000,000 GFN'LAl54QE0ATElUTAF90416PER PFV{JUC79�rOMPAPAV- S 2ODOQw OLIGY LN: AVT0M06{.E LIAOILTry t:OMlfNGD£INGLFI MII S _ Ar1Y AUTO (Cu u�rJ0i1R1 N I rnWNMAVTOS WVILYII�IIInT Al:NF.EAXCU AUTOS (Pn 0 4M, S MI RCD AU I C S (yUULY W.i tl'ry A10N.6YJNF,>)ALRUR tP►scVOeM) f PpOhERIYUAMAAP S IPp ERIOnnl) !MAGE UAPLITY AVT00MY.EAACUDENT 4 Am Aero r�1� NA AGC f %"POONLYN i OMEOIAW1111 LLALu1BILrrY EACHpCCURRtNCC f h(:OLR eJ AiMSMAL% AOOREGAtE f DCDUCIGLC f RGT N f 6h�'1t f EMI w"w1L1UA$IL.ITY ONANO 0T NWrrh 41 QWRA RTm kmffXCCU I rF E1.CAQ1ACCIINNT S nrmzi+orwiCRIgn llfl(uv - i y „ El..adEAIG.FA FMnl.ovkR ALP '-" Mxrw E.L.DI' .PCII I IMI f OTMNt A PROFESSIONAL LIABIIJTY PECM2191901 12272008 1ZlxW12009 AGGREGATE: bZ.000,000 EACH CUUM; n,0W,000 C83CMPTIONOFOPCRNTTOWILOCAT"S1Y00CI.001L VLUfIONOADM aYONDOROEMENTIBPGCMLPROYMONO BRUSHY CREEK REGIONAL UTILITY AUTHORITY IS NAM P ADDRIONAL INSURED AS REQUIRED,8Y WRrrTEN CONTRACT S-ERTIFICATCHOLDPR CANCELLATION ><NouLo AN+uP T}f AsOYrnEOCMOED POUpo>tE G NC9.L4cI poFOPs TFC Elfr�1A n a+ BRUSHY GREEK REGIONAL UTI I.ISY AUTHORITY °ATF T OF-TM MSLI--NSuRM*ILL 9JOBM'OR TO HAIL GAY!WWrmI 221 EAST MAIN ST. NOTICE YT)TI C CCRTI RrA70 MUM NAMED tD THC LR7Y,6Ur PAILURC TO OO an MULL ROUNO ROCK,TEXAS 78664 WPOAN M OOLIOATION on l'"Wry OF ANY KW UPON TILE*AV-Mgt TTB ACOA CA AIJSHOAv,W roa�saerarAITVt _ ACORD2512001148i 'ACORb CORPORA710rqinn POF created with wFactory trial version wmxpq&ctoj wm IMPORTANT If the certificate holder Is an ADDITIONAL INSURED, the pollay(les)must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the Issuing Insurer(s),authorized representative or producer, and the certificate holder,nor does It affirmatively or negatively amend,extend or alter the coverage afforded by the policies listed thereon. ACORD 25-S(2001108) Carl&-at*01862 EXECUTED DOCUMENT FOLLOWS Brushy Creek Regional Utility Authority (BCRUA) Agreement for Construction Phase Observation Services for BCRUA Water Treatment Plant with Water Resources Management, L.P. AGREEMENT made as of the A�day of the month of t4 ML/-4- in the year Two Thousand Nine(2009). (In words,indicate day,mach and dear.) BETWEEN the Brushy Creek Regional Utility Authority, a Texas local government corporation, identified herein as the "Authority"or the`BCRUA": (Name.address and other h foruuntian) Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664-5299 and Water Resources Management,L.P.,identified herein as the"Observer"or"WRM": (A'ame,address and other h fonnatlon) l { Water Resources Management,L.P. 1617 West Koenig Lane Austin,Texas 78756 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 Water Treatment Plant 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 WRM as the proposer offering the best value for the entity. Consulting services to be performed by WRM 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 WRM 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 iteurs by inserting the requested information or a s(oteuiew such as "not applicable," "unknown at rine of execution"or"to be determined later by mutual agreement.') Section I.l is intentionally deleted. 1.2 Project Parameters 1.2.1 The objective or use is: (Idents or describe,if appropriate,proposed use or goals.) Objectives hiclude, but are not limited to, obtaining consulting services from WRM including WRM'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 Water Treatment Plant Project. 00175542/jkg gC�� 1.2.2 The physical parameters are: (Idem j5,or describe,if appropriate,size,location,dimensions,or other perlinent information,such as geotechnical reports about the site.) Section 1.2.2 is intentionally deleted. 1,2.3 BCRUA's Program is: (Iden#5-documentation or state the nianner in which the program will be developed.) Section 1.2.3 is intentionally deleted. 1.2.4 The legal parameters are: (Idents,pertinent legal information,including.if appropriate,land surveys and legal descriptions and restrictions of the site.) Section 1.2.4 is intentionally deleted. 1.2.5 The financial parameters are as follows: The total fee for WRM's services shall be in a not-to-exceed amount of Seven Hundred Filly-two Thousand and No/100 Dollars ($752,000.00). Such not-to-exceed amount shall be fill compensation for all Set-vices performed and to be performed by WRM 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 WRM on a "time and materials" basis, WRM agrees to accept payment from the BCRUA ort such basis, and the parties expressly agree that only work actually performed by WRM will be paid for by the BCRUA. 1,2.6 The Scope of Services parameters are as follows: The above-recited fee for WRM's Services is generally comprised of the following: (a) Construction Observation Visits to the site shall be provided by WRM 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 WRM in a daily report. The daily reports are intended to assist WRM'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 WRM. The pay application review shall express WRM's opinion as to the accuracy of the application based ort the review of materials on-site and the construction progress to date. At the completion of WRM's review,the Contractor will be required to correct any erroneous pay items before the final pay application is submitted for payment. 1 (d) Submittals,Change Orders and Requests for Information(RFIs) WRM 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. I I 2 j (e) Construction Testing WRM 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. WRM 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 WRM 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 walk-through 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 WRM. Types of documentation anticipated include but are not limited to daily reports, photographs, submittals, RFIs, and change orders. WRM shall also assist the BCRUA with any items necessary to complete the as-built drawings and Project close-out documentation. Any and all of WRM'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 BCRU A's cost and expense. y (h) Construction Deficiencies In the event that construction deficiencies are noted during daily observations, WRM shall immediately notify the General Contractor and the BCRUA,and shall advise the BCRUA of WRM'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 WRM in the daily reports. (i) Design Conflicts The recognition of any design conflicts determined by the General Contractor or WRM which require a change to the construction contract shall be sunnnarized by WRM and presented to the BCRUA for review and appropriate action. WRM 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 WRM 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, WRM shall attempt to keep all stakeholders current and fully infonned of Project progress and help identify potential issues before they arise. (k) Personnel and Equipment WRM 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. WRM 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 WW's Services under this Agreement may be accomplished within the specified time and at the specified cost. WRM 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 thirty-one (3 1) months specified herein,through no fault of WRM,their additional time and materials shall be appropriately authorized by the 3 i i BCRUA through a written Supplemental Agreement as provided herein,but only if such is timely requested in writing by WRM. Notwithstanding the foregoing, WRM shall observe all construction work and progress as the same may occur. 1.2.6.3 Miscellaneous Provisions Relating to Fee Schedule: (a) "Normal working hours"will be Monday through Friday for an eight(8)hour work day. (b) Any necessary and requested Services provided on nights, Saturdays,Sundays, and legal holidays will be charged at an overtime rate of 1.5 times the appropriate hourly rate delineated in this subsection. WRM shalt 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(WRM's"Overtime"). The General Contractor shall be responsible for reimbursing the BCRUA for any and all of WRM's Overtime that is paid by the BCRUA to WRM;however,the parties expressly acknowledge that the BCRUA is the entity which shall be responsible for making such Overtime payments to WRM,and that WRM 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 WRM 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 WRM's customary reimbursable expenses (such as copying and printing services)at actual cost only if approved in writing in advance of WRM incurring same,and if supported by appropriate documentation. (e) The BCRUA will be responsible for paying WRM'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 WRM incurring same. (f) All Services shall be performed exclusively by representatives of Water Resources Management, L.P., namely Jo Zunker,Mark Law,James Henson,Robert Gadbois, and Dean Sharp. in the event that WRM 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) WRM shall provide a Lead Observer/Manager for the duration of the Project. The time commitment for the Lead Observer/Manager shall be approximately 5,213 hours (for Construction Observation and Administration)per year over the total estimated duration of the contract,that being thirty-one(3 1)months. The Lead Observer/Manager shall be Jo Zunker,and Zunker's hourly rate is as follows: Lead Observer/Manager Jo Zunker at a rate of$86.54 per hour At any time that Jo Zunker is absent from the job (i.e. for vacations, time off, illness, other business matters, or similar events), WRM shall provide a Substitute Lead Observer/Manager. Authorized substitutes allowed to serve in this capacity are Mark Law, James Henson, Robert Gadbois, or Dean Sharp. (h) WRM shall provide Additional Observer(s)as required. The time commitment for Additional Observer(s) shall be approximately 4,691 hours (for Construction Observation and Administration) per year over an estimated contract duration of thirty-one (31) months. The Additional Observer(s) shall be Mark Law, James Henson,Robert Gadbois,or Dean Sharp,and their respective hourly rates are as follows: Additional Observer Mark Law at a rate of$64.14 per hour Additional Observer James Henson at a rate of$64.14 per hour Additional Observer Robert Gadbois at a rate of$64.14 per hour Additional Observer Dean Sharp at a rate of$64.14 per hour 4 I (i) Time Commitment and Estimated Rate Projections: Lead Observer/Manager: 5,213 hours over duration of 3l-month contract term = $451,133.00 Additional Observer/Support Staff:4,691 hours over duration of 31-month contract tern = $300.867.00 TOTAL NOT-TO-EXCEED AMOUNT $752,000.00 Also see Exhibit"B"entitled"Delineation of Observer's Responsibilities." The parties expressly acknowledge and agree that the BCRUA's Designated Representative and WRM 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: (Identi if appropriate,milestone dates,durations or fast track schedtding) 1.2.7.1 Term. After execution by each party hereto, this Agreement shall be effective on the date WRM 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 thirty-ane(3 1)months following WRM's receipt of the BCRUA's written Notice to Proceed, unless this Agreement is extended by written Supplemental Agreement executed by WRM and the BCRUA prior to the date of tern expiration. Any work performed or costs incurred by WRM after the date of term expiration or termination shall not be eligible for reimbursement unless such referenced Supplemental Agreement is executed by WRM and the BCRUA prior to the date of tern expiration or termination. 1.2.7.1.2 WRM shall notify the BCRUA in writing as soon as possible if WRM 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 WRM. In that event the BCRUA may,in its sole discretion,extend the term and increase the amount payable to WRM by timely written Supplemental Agreement. WRM shall allow adequate time for the BCRUA to review and approve WRM's request for extension and request for additional compensation. 1.2.7.2 Work Schedule. WRM 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 WRM's Services required herein. In this regard, WRM 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,WRM 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: (IdentUy 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 j&special characteristics or Creeds of the Project such as energy;environmental or historic presentation 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 htforntatimt) Michael F.Thuss,P.E.,Progr-arn and Construction Manager 221 East Main Street Round Rock,Texas 78664 Telephone: 512-401-5594 Email Address: mthuss@bcrua.org j S i 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 WRM in order to avoid unreasonable delay in the orderly and sequential progress of WRM's Services, 1.3.3 The persons or entity,in addition to the BCRUA's Designated Representative,who is required to review WRM's submittals to the BCRUA are: (Lisi name,address and other brfonuanon.) 51 t 5 I -$1 q.-7 13.4 The BCRUA's other inspectors and contractors are: (List discipline and,if known,identify them by name and address.) Section 1.3.4 is intentionally deleted. 1.3.5 WRM's Designated Representative is: (List name,address and other h1tormation) Jo Zunker Project Manager,Water Resources Management,L.P. 1617 West Koenig Lane Austin,Texas 78756 Telephone: 512-420-9841 Email Address: jzunker@%vrinlp.com 1.3.6 The consultants retained at WRM's expense are: (List discipline and,if known,identify them by name and address) Unknown at this time. 1.4 Miscellaneous Initial information 1.4.1 Additional Work. If WRM forms a reasonable opinion that any work WRM has been directed to perform is beyond the scope of this Agreement and as such constitutes extra work, WRM 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 WRM and a written Supplemental Agreement will be executed between the parties as provided herein. WRM shall not perform any proposed additional work nor incur any additional costs prior to tine execution, by both parties,of a written Supplemental Agreement.The BCRUA shall not be responsible for actions by WRM nor for any costs incurred by WRM 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 j work or parts thereof which involve changes to the original Services or character of work under this Agreement, then WRM 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. WRM 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 thirty-one (3 1) 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, WRM 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. 6 i 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 WRM 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, WRM's Services shall comprise quality assurance work as opposed to the quality control work which is the contractual obligation of the General Contractor. WRM is contracted by this Agreement as an observer of how the General Contractor prosecutes its constriction phase work, but not as an inspector. WRM's Services shall comprise such observation,facilitation,and liaison activities. ARTICLE 2 RESPONSIBILITIES OF THE PARTIES 2.1 The BCRUA and WRM 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 WRM,within fifteen(15)days after receipt of a written request, information necessary and relevant for WRM 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 WRM in order to avoid unreasonable delay in the orderly and sequential progress of WRM'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 requires[by law. 2.2.5 The BCRUA shall Rimish 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 becornes aware of any fault or defect in the Project,including any errors,omissions or inconsistencies. 2.2.7 The BCRUA shall provide WRM 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 WRM's General Responsibilities 2.3.1 WRM's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. WRM 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 i 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 WRM or the BCRUA. 2.3.2 WRM,through its Designated Representative identified herein, shall be the person authorized to act with respect to the Project. 1 1, 7 I f 2.3.3 WRM 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 WRM from establishing a claim or defense in an adjudicatory proceeding. 2.3.4 Except with the BCRUA's knowledge and consent, WRM shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise WRM's professional judgment with respect to this Project. 2.3.5 WRM 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 WRM shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by the BCRUA. Each patty 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 WRM shall keep all records pertaining to the Project,and records of accounts between the BCRUA and WRM,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 WRM's services shall be in a not-to-exceed amount of Seven Hundred Fifty-two Thousand and No/100 Dollars ($752,000.00). Such not-to-exceed amount sliall be full compensation for all Services performed and to be performed by WRM 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 WRM on a "time and materials" basis, WRM agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by WRM 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 WRM based upon Services actually provided and performed,and shall be paid based upon BCRUA's receipt of proper invoices from WRM. WRM 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. WRM has the responsibility to submit proof to the BCRUA,adequate and sufficient in its determination,that tasks were completed. No deductions shall be made fi•om WRM'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 WRM has been adjudged to be liable by a court of competent jurisdiction. 3.4 Monthly Progress Reports. Simultaneous with WRM's submission of its monthly invoice, WRM 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 WRM and the construction contractor requesting monthly payment. Such progress reports shall state the time and materials associated with the Services performed during that billing period and to date.This submittal shall also include a progress assessment report in a form acceptable to the BCRUA. Any preferred format of the BCRUA for such monthly progress reports shall be identified at the preconstruction conference. Observation of the construction work as such progresses shall be required as an absolute condition of payment. 3.5 Prompt Payment Policy. in accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the BCRUA to WRM will be made in accordance with the Texas Prompt Payment Policy statutes contained therein. The BCRUA shall document to WRM 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 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 WRM under the terms of this Agreement are for use solely with respect to this Project. All such materials and all of WRM'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, WRM 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 co►runon law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. WRM, at its own expense, may retain copies of such documents or any other data which WRM 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. WRM shall furnish and maintain,at WRM's own expense,adequate and sufficient personnel and equipment to perform the Services as required. All employees of WRM shall have such knowledge and experience as will enable them to perform the duties assigned to them.Any employee of WRM who, in the opinion of the BCRUA, is incompetent or whose conduct becomes detrimental to WRM'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.WRM certifies that WRM presently has adequate qualified personnel in WRM's employment for performance of the Services required under this Agreement, or will obtain such personnel from sources other than the BCRUA. WRM may not change the Lead Observer/Manager or other key personnel assigned to the Project without prior written consent of the BCRUA, and no employee of WRM,or person contracting with WRM, 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. WRM 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 WRM 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 WRM hereunder and the premises on which such Services are being performed. If any review or evaluation is made on the premises of WRM or a subcontractor, then WRM 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 WRM's reports, and may request such comments be addressed in writing. 4.6 Observer's Signature. The responsible Observer 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 E are`complete,true,and correct to the best knowledge" of the signer. Pay Applications from construction contractors t and vendors shall be certified by WRM. 4.7 Non-Collusion; Fivaueial Interest Prohibited. 4.7.1 Non-collusion. WRM warrants that WRM has not employed or retained any company or persons, other than a bona fide employee working solely for WRM,to solicit or secure this Agreement,and that WRM has not paid or agreed ' to pay any company or person any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty,the BCRUA reserves and shall have the right to annul this Agreement without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the fill amount of such fee, commission,percentage,brokerage fee,gift or contingent fee. 9 1 4.7.2 Financial Interest Prohibited. WRM covenants and represents that WRM, WRM'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 WRM's services, WRM may proceed ill 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 WRM 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 WRM hereby expressly agree that no claims or disputes between the BCRUA and WRM 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, WRM consents to be joined in the arbitration proceeding if WRM'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. WRM 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 WRM insubstantial compliance with this Agreement,such failure may be considered substantial nonperformance and cause for suspension of performance of services under this Agreement. If WRM elects to suspend services,prior to suspension of services, WRM shall give thirty(30)days' written notice to the BCRUA. In the event of a suspension of services, WRM shall have no liability to the BCRUA for delay or damage caused to the BCRUA because of such suspension of services. Before resuming services, WRM shall be paid all non- disputed sums due prior to suspension. WRM'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 WRM 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 WRM, with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. WRM 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 j BCRUA for WRM to begin work,and/or during periods when work is suspended,and/or subsequent to the completion date of the Project or the tennination/expiration date of this Agreement. 4.11.5 In the event of a suspension by the BCRUA in excess of ninety (90) days, WRM has the right to elect to terminate this Agreement. WRM may exercise such right to terminate by issuing written notice to the BCRUA at least 10 i i 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 WRM when WRM 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 WRM 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 WRM,as a consequence of a material breach by WRM 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 WRM, upon not less than thirty(30)days'written notice to WRM. (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 WRM. In determining the value of the work performed by WRM 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 WRM defaults in the performance of this Agreement or if the BCRUA terminates this Agreement for fault on the part of WRM,then the BCRUA shall give consideration to the actual costs incurred by WRM 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 WRM under this Agreement. ARTICLE 5 INDEMNIFICATION 5.1 WRM 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 WRM's breach of any of the terms or provisions of this Agreement,or by any negligent act,error or omission of WRM or of any person under WRM's direction or control while in the exercise of performance of the Services required hereunder or in the performance of rights and duties tinder this Agreement; except that the indemnity provided for in this section shall not apply to any liability resulting frorn the sole negligence of the BCRUA, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both WRM and the 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 the BCRUA under Texas law and without waiving any defenses of the parties under Texas law. 5.2 WRM shall also save and hold harmless the BCRUA,its officers,agents and employees,from an and all expenses, gY p , f 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 WRM or of any person employed by WRM or under WRM's direction or control while in the exercise of performance of the Services provided for hereunder or in the performance of rights and duties under this Agreement. 11 5.3 The BCRUA agrees to include the following clauses in all contracts with construction contractors, and equipment and materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the Project, or their sureties, shall maintain no direct action against the Observer/Manager and its officers, employees, and subcontractors arising out of, in connection with,or resulting from the Services performed by(lie 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 WRM, 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. WRM,at WRM'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 fi•onn 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 WRM, WRM 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 WRM 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 WRM shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. WRM 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 WRM 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 tine 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 WRM. i 12 (c) The term"the Authority"or"the BCRUA"or"the Brushy Creek Regional Utility Authority"shall include all authorities,boards, commissions,departments,and officers of the BCRUA and the individual members, employees and agents therefor in their official capacities,and/or while acting on behalf of the BCRUA. (d) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by the BCRUA,to any such future coverage,or to the BCRUA's Self-Insured Retentions of whatever nature. (e) WRM 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 WRM shall be borne solely by WRM,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 Water Resources Management,L.P. Attention: 7o Zunker,Project Manager 1617 West Koenig Lane Austin,TX 78756 and to: ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 This Agreement represents the entire and integrated agreement between BCRUA and WRM 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 rum not later than either the date of Substantial 13 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 WRM's services are substantially completed. 8.4 To the extent damages are covered by property insurance during construction, the BCRUA and WRM 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 WRM. 8.6 The BCRUA and WRM, 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 WRM shall assign or transfer any interest hi 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. WRM 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 WRM 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, mininnum/maximu n salary and wage statutes and regulations, and licensing laws and regulations. WRM shall fin fish the BCRUA with satisfactory proof of its compliance. WRM shall further obtain all permits and licenses required in the performance of the Services contracted for herein. 8.9 WRM 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 WRM 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 WRM agrees that time is of the essence and that any failure of WRM to complete the Services for this Agreement within the agreed schedule will constitute a material breach of this Agreement. WRM shall be filly responsible for WRM's delays or for failures to use WRM'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 WRM. Where damage is caused to the BCRUA due to WRM's failure to perform in these circumstances, the BCRUA may withhold, to the extent of such damage, WRM's payments hereunder without waiver of any of the BCRUA's additional legal rights or remedies. 8.12 Neither the BCRUA nor WRM 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 WRM 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. i 14 I IN WITNESS WHEREOF,the Brushy Creek Regional Utility Authority has caused this Agreement to be signed in its corp qq atg_name by its General Manager, duly authorized to exe t the same on its beh�+�f by R solution No. �-D - t/l �lXQ, approved by the BCRUA's Board of Directors on the 'day of the month of KUSeI-r+�—, 20� and by the duly authorized representative of Water Resources Management,L.P.,with both parties binding themselves,their successors and assigns and legal representatives for the faithfid and full performance of the terms and provisions of this Agreement. BRUSHY CREEK REGIONAL UTILITY AUTHORITY By: Printed Name: Title: Date Signed: ATTE By: BC A Administrative Secretary WATER RES RCES AGEMENT,L.P. By: ,GG/ Printer N e o�f rr cipal: moi/ Title: /<5/Clr.f/ Date Signed: ATTEST: By: Corporate Secretary i 15 i 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 Water Treatment Plant Observer Agreement EXHIBIT A, consisting of 2^ pages, referred to in and made a part of the Agreement between the Authority and the Observer Delineation of Authority's Responsibilities In addition to other responsibilities of Owner as set forth in this Agreement,with respect to each Task Order the Owner shall: 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 Fortin." 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 be 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 I BCRUA 1 of 2 BCRUA Water Treatment Plant Observer Agreement H. Advise the Observer of the identity and scope of services of any independent consultants employed by Owner to perform or fiimish services in regard to the Specific Project, including, 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) i I BCRUA 2of2 BCRUA Water Treatment Plant 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 air and end at 4 pm)or for special events on a case-by-case basis,but in any event the regular work day will not exceed eight(8)hours. The duties and responsibilities to be performed as the Authority's Site Representative are observation and administrative, and are to be for quality assurance purposes on a daily basis. They will be performed in accordance with accepted construction industry standards. They include but are not limited to: 1. Preparation of a Risk Management Plan in coordination with BCRUA construction management 2. Inspection, observation,reporting,and documentation 3. Gross level of detail constructability and value options reviews 4. Assessment and recommendations concerning construction contractor action plans such as for traffic control, site security, crane operations, tunneling; review and processing of pay applications to include certification of work completed, materials stored, work value, schedule, and other pay application requirements 5. Scheduling,review,and recording of quality assurance testing G. 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 I 14. 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 Water Treatment Plant Observer Agreement 13. Attend constriction 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 programs. Also, the work does not include typical design engineer construction phase services. Design engineers will be providing periodic design verification inspections; review and approval of all matters of engineering design related to changes and requests for information, exceptions, and deviations; pay application review and certification;final as-built drawings; and project close-out documentation. f BCRUA 2of2 U2/b311/10/2009 15:34 4541342 GROUPSOLUTIONSRJW PAGE U2/b3 NOU-�1-2809 ra ee:d/t: 13!00 1-roM-'RPP1 J�GJQ©9rJFJ�1 To SA4541 d� CO CERTIFICATE OF LIABILITY INSURANCE 409 PRo PARRY HUN SER HALL,INC (325)673,6414 THIS CERTIFICATE IS ISSUED A$ A MATTER OF INFORMATION ONLY AND COPPERS NO RIGHTS UPON THF CERTIFICATE P.O. BOX 1400 HOLDER. THIS CERTIFICATE I50ES NOT AMCND, EATeND OR L THE COV RAGE FORDED QY THE" ICIES UbOW. ARLENE,TX 7W104 INSURER3AFF0nDINGCOVERAGE NAIC0 INnLJRen INS!RFNA, INDIAN HAREOR INSURANCE_COMPANY_ WATER REAOURCES MANAGEMENT LP IN mLF1J _ P.O. BOX 1400 INzuRrRc ABILP-NE,TX 79604 INZIrtrRlr r >�Jak E COY GEQ THE POLICIES OF .MI INSURCE L18TED OrALOW HAVE BECK ISSUED TO TMG INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED_N01WTHSTANOING ANY REQUIREMENT,TFRM OR CQNDITIUN OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE TNSURANCE AFFORDED BY TH[POLICIES DESGRI5EO HEREIN L5 SUWr-CT TO All,THP TERMS,F=LU3IONSAN0 CONpITIONLI OF SUCH POLICIED.AGGREGATE LIMITS SHOWN MAY HAVE LLFBN REDuCEO BY PAID CLARAO, O OLICYNumR CYEFFr� CL1L r TI N prIJDrtALLIAMITY EACN0CCURRENCCE 1 1,owow A X X C'QMM[At;IALC�FJJraALLIAQh•Ily PEC002191901 1212712045 12J�7iztiEIB i8911-7m'=,a([,army — CJ,aIM;'rtkDE bl�'UH nAFDExP+AnyonuDnrsnn) f 51�� _ P11R60NAL&A0VIN,URY 4 1 a00,QOI� GENE Ro.kL AOGRE�GATT % 2,000,200 GFN't.AC4REOATEIIMITANLIhbPER PRULUc_..�S,r4MPOOPAao s 2000000 rl OLIC.Y 71% LOC AUTQMOS"LIAPILRY C0MCIINW$INGLFIIMII S _ ANY AUTO I�Ltll',CdOOMI All nWNIMAVI'OS IfyUILY041mY gr.HFCAJLCI)AUTOS (Pr..Deryunl f HIRCDAUIOS ((��VUiLY W.1!l2Y NON,OWNEVAUTUR IPALUy. n!} 4 •— PROPERIY UAMAOP IPP oamant) OARAG£UACILITY AVTOOWY.E'AACVIUL:NT 6 ANY AUTO uTHER I14ANEA AQ'C % A11TOON.r A i 2(U£9BIUMIIRGLLALIABILriY EACHOIXURR Wr ? (X:CL1R CIAIMGIAAU1- AO11RC1'A!E f MMUC10LC T RQ ON S = WORKOMCOMPMRATIONAtNDt1 LIMIn I r EMPLOYRRV LIALIIUTY ••^ ANY HnC+I`rNUI(JHWAl7TnewCM:CuIIvf EL.GAG,'I•IACOMT f nrnr.CumFIDA9I}LRaXnIlrrLn' E,L,I�IdrASE1FAFMPLOAt: C Y•+tyr],PCI IjO `brkW' £.L.QI• 5E t P'CII 1 IM; f -- OTHERAL P A PROf=ESS10NAL LIABILITY PECO02191VOl 1227/2008 1z,27r2OO9 AGGREGATE: $2,000,000 EACH CLAIM, $2,000,000 C£BCRIRi10N QF Opt�RAT10N$1 LOCATItoNRI VCMICL6DI[IXCLU91DN8 ADDED HY BI�ORBCMEMlSp6CIALPROYILNONp 2RUSITY CREEK REGIONAL LML$TY AUTHORITY IS NAMED ADDITIONAL INSUREfb AS REQUIRED BY wnITTEN CONTRACT CERTIFICATE HOLD@R CANCELLA SHOLLD AM On TIE AMVA 17ERCMI900 POIJO G4 BE CA KELL 110 60RORE"EYFRA 11 ON BRUSHY CREEK REGIONAL UTILITY AUTHORITY DATE TPIMCOF,TNM knSU aG INSURER WtU.OMrAVOR TO MAIL OAYS WFJTTM 221 EAST MAIN ST. NOTICEYVnrCERTIPICATA.NOLDORNAMED TOTHrLnCl,BUT RAI LURCTopaanmuALL ROUND ROCK,7 XAS 78e64 IMMAR NO OBUCATION OR 44AIMI Y OP ANY KM UPON THE INAURER IT@ AuRNTO QR MPRESCHTATIVINK AUMORI7,EDRFPR6aENTA?fVI! ACORD25120011001 ' 'AcORDCORPORATION 1a29 PDF created with pdfFeetory trial ver:�i0n vA.v— pdffiactory,,ggm IMPORTANT If the certificate holder Is an ADDITIONAL INSURED,the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the Issuing insurer(s),authorized representative or producer,and the certificate holder, nor does It affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. I I ACORD 26-S(2001!08) CartiRcate#1862 1 DATE: November 13,2009 SUBJECT: BCRUA Board Meeting—November 18, 2009 ITEM: 6D. Consider a resolution authorizing the President to execute an Agreement for Construction Phase Observation Services for BCRUA Water Treatment Plant with Water Resources Management, L.P. Presenter: Michael Thuss Program Manager Justification: This contract is for inspection and observation construction phase services with respect to the BCRUA Water Treatment Plant and will be executed over a 31 month period. Water Resources Management, LP(WRM)was selected through a competitive process. Eight(8) firms responded. An Engineering Selection Committee of representatives of Round Rock, Leander, Cedar Park,and BCRUA and selected WRM to perform this service for BCRUA. CDM has completed the design and the construction contract for the Water Treatment Plant was awarded to Pepper Lawson by the BCRUA Board. This contract is for quality assurance inspection and project administrative services related to the construction of the Water Treatment Plant. Exact duties of Water Resources Management are detailed in the attached Contract Documents and Exhibits. Fundinit• The contract amount is$752,000 with a contingency amount of$10,000,for a total not to exceed amount of$762,000. Texas Water Development Board will not release funds until this contract is executed. Outside Resources: Water Resources Management, L.P.