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BCRUA_R-10-04-21-8E RESOLUTION NO. R-10-04-21-8E WHEREAS, the Brushy Creek Regional Utility Authority, Inc. ("BCRUA" ) desires to enter into an agreement with Lockwood, Andrews & Newnam, Inc. for construction phase engineering services, Now Therefore BE IT RESOLVED BY THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY, That the Board President is hereby authorized and directed to execute on behalf of the BCRUA an Agreement for Construction Phase Engineering Services with Lockwood, Andrews & Newnam, Inc . , 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 21st day of April, 2010 . MITCH PLLER, President Brushy Cre egional Utility Authority TE T: hn Cowman, Secretary Ae9 HCRDA -Agmt w-WN - construction engineering services (00189695) (2).DOC ■ BRUSHY CREEK REGIONAL UTILITY AUTHORITY A ►arts•..kl► •1 C.d.. ►..k, 1...4... ..d R...d R..k Contract No. BRUSHY CREEK REGIONAL UTILITY AUTHORITY AGREEMENT FOR CONSTRUCTION PHASE ENGINEERING SERVICES WITH LOCKWOOD,ANDREWS & NEWNAM,INC. THE STATE OF TEXAS § COUNTY OF WILLIAMSON § THIS AGREEMENT FOR ENGINEERING SERVICES ("Agreement") is made and entered into on this the day of the month of , 2010, by and between the BRUSHY CREEK REGIONAL UTILITY AUTHORITY, a Texas Utility Authority, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as the "Authority"), and LOCKWOOD, ANDREWS & NEWNAM, INC., whose principal place of business is located at 10801 N. Mopac Expy, Building 1, Suite 120, Austin, Texas 78759, (hereinafter called the "Engineer"), and such Agreement is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, the Authority wishes to procure the of services of professional engineers; and WHEREAS, the Authority and the Engineer desire to contract for such professional engineering services; and WHEREAS, the Authority and the Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW,THEREFORE,WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: EXHIBIT i�fil 1 CONTRACT DOCUMENTS The Contract Documents consist of this Agreement and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Agreement) and all Supplemental Agreements (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Agreement as if attached to this Agreement or repeated herein. ARTICLE 1 SCOPE OF SERVICES TO BE PERFORMED BY THE AUTHORITY The Authority shall perform or provide services as identified in Exhibit A entitled "Services to be Performed by the Authority." ARTICLE 2 SCOPE OF SERVICES TO BE PERFORMED BY THE ENGINEER The Engineer shall perform engineering services as identified in Exhibit B entitled "Services to be Performed by the Engineer." The Engineer shall apply industry standard construction phase services support to the Authority for the completion of the project. Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by the Authority and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the Program Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not perform the Engineering Services in accordance with the Work Schedule, then the Authority shall have the right to terminate this Contract as set forth below in Article 20. So long as the Authority elects not to terminate this Contract,it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify the Authority in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. The Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, the Engineer shall proceed with sufficient qualified personnel and consultants necessary to 2 fully and timely accomplish all services required under this Agreement in the highest professional manner. (3) Notice to Proceed. After execution of this Agreement, the Engineer shall not proceed with work delineated in Article 2 entitled "Scope of Services to be Performed by the Engineer" and in Exhibit B entitled "Services to be Performed by the Engineer" until authorized in writing by the Authority to proceed as provided in Article 7 entitled "Notice to Proceed." ARTICLE 4 COMPENSATION The Authority shall pay and the Engineer agrees to accept payment on a time and materials basis not to exceed the amount shown below as full compensation for all engineering services performed and to be performed under this Agreement. The amount payable under this Agreement, without modification of the Agreement as provided herein, shall not exceed the sum of Three Hundred Nine Thousand, Two Hundred Seventeen Dollars ($309,217) as shown in Exhibit D entitled "Fee Schedule." The not to exceed amount payable may be revised only by written Supplemental Agreement, as authorized in writing by the Authority. The Engineer shall prepare and submit to the Authority monthly progress reports in sufficient detail to support the progress of the work and to support invoices requesting monthly payment. Any preferred format of the Authority for such monthly progress reports shall be identified at the initial coordination meeting. Satisfactory performance of work shall be maintained as an absolute condition of payment. The fee herein referenced may be adjusted for additional work requested and performed only if approved by the Authority by a written Supplemental Agreement. ARTICLE 5 METHOD OF PAYMENT Payments to the Engineer for services rendered shall be made while work is in progress. The Engineer shall prepare and submit to the Authority, not less frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the time and materials utilized in the completion of work accomplished during that billing period and to date. Simultaneous with submission of such progress report, the Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to the Authority. This submittal shall also include a progress assessment report in a form acceptable to the Authority. Progress payments shall be made in proportion to the percentage of completion of work tasks identified in Exhibit D entitled"Fee Schedule."Progress payments shall be made by the Authority based upon work actually provided and performed. Upon timely receipt of a correct statement as to form and content, and the approval of each statement, the Authority shall make a good faith effort to pay the amount which, notwithstanding anything herein to the contrary, is due and payable within thirty (30) days. The Authority reserves the right to withhold payment pending verification of satisfactory work 3 performed. The Engineer has the responsibility to submit proof to the Authority, adequate and sufficient in its determination, that tasks were completed. 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. Final payment does not relieve the Engineer of the responsibility of correcting any errors and/or omissions resulting from the Engineer's negligence or failure to perform to industry standards. ARTICLE 6 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to the Engineer will be made within thirty (30) days of the day on which the Authority receives the supplies, materials, equipment, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which the Authority receives a correct invoice for the supplies, materials, equipment, or services, whichever is later. The Engineer may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy; however, this policy does not apply to payments made by the Authority in the event: A. There is a bona fide dispute between the Authority and the Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal or state contract, grant, regulation, or statute prevent the Authority from making a timely payment with federal or state funds;or C. There is a bona fide dispute between the Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or D. The invoice is not mailed to the Authority in strict accordance with instructions, if any, on the purchase order,or this Agreement or other such contractual agreement. The Authority shall document to the Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non-disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A.,Texas Government Code. ARTICLE 7 NOTICE TO PROCEED The Authority shall issue a written authorization to proceed with work identified in the Scope of Services. The Authority shall not be responsible for actions by the Engineer or any costs incurred by the Engineer relating to additional work not included in Exhibit B entitled "Services to be Performed by the Engineer." 4 ARTICLE 8 PROJECT TEAM The Authority's Designated Representative for purposes of this Agreement is as follows: Michael F. Thuss, P.E. Program Manager 221 E. Main Street Round Rock,Texas, 78664 Telephone Number(512)401-5594 Email Address mthuss@bcrua.org The Authority's Designated Representative shall be authorized to act on the Authority's behalf with respect to this project. The Authority or the Authority's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by the Engineer in order to avoid unreasonable delay in the orderly and sequential progress of the Engineer's services. The Engineer's Designated Representative for purposes of this Agreement is as follows: Brian D. Rice, P.E. Vice-President-Central Texas Region 10801 N. Mopac Expy.,Building 1, Suite 120 Austin,TX 78759 Telephone Number(512) 338-4212 Email Address bdrice@lan-inc.com ARTICLE 9 PROGRESS EVALUATION The Engineer shall, from time to time during the progress of the work, confer with the Authority at the Authority's election. The Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by the Authority, in order for the Authority to evaluate features of the work. At the request of the Authority or the Engineer, conferences shall be provided at the Engineer's office, the offices of the Authority, or at other locations designated by the Authority. When requested by the Authority, such conferences shall also include evaluation of the Engineer's services and work. Should the Authority determine that the progress in production of work does not satisfy the Work Schedule, then the Authority shall review the Work Schedule with the Engineer to determine corrective action required. The Engineer shall promptly advise the Authority in writing of events which have or may have a significant impact upon the progress of the work,including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to attain program objectives, prevent the meeting of time schedules and goals, or preclude the 5 attainment of project work units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and the Authority assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the work schedule goals sooner than anticipated. ARTICLE 10 SUSPENSION Should the Authority desire to suspend the work, but not to terminate this Agreement, then such suspension may be effected by the Authority giving the Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty-day notice may be waived in writing by agreement and signature of both parties. The work may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from the Authority to resume the work. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If the Authority suspends the work, the contract period as determined in Article 3 is not affected and this Agreement will terminate on the date specified unless this Agreement is amended indicating otherwise. The Authority assumes no liability for work performed or costs incurred prior to the date authorized by the Authority for the Engineer to begin work, and/or during periods when work is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL WORK If the Engineer forms a reasonable opinion that any work the Engineer has been directed to perform is beyond the scope of this Agreement and as such constitutes extra work, the Engineer shall promptly notify the Authority in writing. In the event the Authority finds that such work does constitute extra work and exceeds the maximum amount payable, the Authority shall so advise the Engineer and a written Supplemental Agreement will be executed between the parties as provided in Article 13 entitled "Supplemental Agreements." The Engineer 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 Authority shall not be responsible for actions by the Engineer nor for any costs incurred by the Engineer relating to additional work not directly associated with the performance of the work authorized in this Agreement or any amendments thereto. ARTICLE 12 CHANGES IN WORK If the Authority deems it necessary to request changes to previously satisfactorily completed work or parts thereof which involve changes to the original scope of services or character of work under this Agreement, then the Engineer shall make such revisions as requested and as directed by the 6 Authority. Such revisions shall be considered as additional work and paid for as specified under Article 11 entitled "Additional Work." The Engineer shall make revisions to work authorized hereunder as are necessary to correct errors appearing therein, when required to do so by the Authority. No additional compensation shall be due for such work. ARTICLE 13 SUPPLEMENTAL AGREEMENTS The terms of this Agreement may be modified by written Supplemental Agreement if the Authority determines that there has been a significant change in (1) the scope, complexity or character of the service to be performed, or (2) the duration of the work. Any such Supplemental Agreement must be duly authorized by the Authority Board of Directors Resolution. Where such Authority Board of Directors authorization is required, The Engineer shall not proceed until the appropriate Resolution has been adopted. Additional compensation, if appropriate, shall be identified as provided in Article 4 entitled "Compensation." Both parties must execute any written Supplemental Agreement within the contract period specified in Article 3 entitled "Contract Term." It is understood and agreed by and between both parties that the Engineer shall make no claim for extra work done or materials furnished until the Authority grants full execution of the written Supplemental Agreement and authorization to proceed. The Authority reserves the right to withhold payment pending verification of satisfactory work performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Agreement are the exclusive property of the Authority and shall be furnished to the Authority upon request. All documents prepared by the Engineer and all documents furnished to the Engineer by the Authority shall be delivered to the Authority upon completion or termination of this Agreement. The Engineer, at the Engineer's own expense, may retain copies of such documents or any other data which the Engineer has furnished the Authority under this Agreement. Any release of information shall be in conformance with requirements of the Texas Open Records Act. It is understood that the documents created by the Engineer under this Agreement are instruments of Engineer's service for the project. Any re-use by the Authority shall be at Authority's sole risk and expense and without liability to the Engineer. ARTICLE 15 PERSONNEL,EQUIPMENT AND MATERIAL The Engineer shall furnish and maintain, at the Engineer's own expense, quarters for the performance of all services, and adequate and sufficient personnel and equipment to perform the services as required. All employees of the Engineer shall have such knowledge and experience as will 7 enable them to perform the duties assigned to them. Any employee of the Engineer who, in the opinion of the Authority, is incompetent or whose conduct becomes detrimental to the work shall immediately be removed from association with the project when so instructed by the Authority. The Engineer certifies that the Engineer presently has adequate qualified personnel in the Engineer's employment for performance of the services required under this Agreement, or will obtain such personnel from sources other than the Authority. The Engineer may not change the Project Manager or other key personnel assigned to the project without prior written consent of the Authority. ARTICLE 16 SUBCONTRACTING The Engineer shall not assign, subcontract or transfer any portion of the work under this Agreement without prior written approval from the Authority. All subcontracts shall include the provisions required in this Agreement and shall be approved as to form, in writing, by the Authority prior to work being performed under the subcontract. No subcontract shall relieve the Engineer of any responsibilities under this Agreement. ARTICLE 17 EVALUATION OF WORK The Authority, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the work performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of the Engineer or a subcontractor, then the Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the Authority or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by the Authority before any final report is issued. The Authority's comments on the Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by the Engineer shall be grounds for termination of this Agreement, and any increased costs arising from the Engineer's default, breach of contract,or violation of contract terms shall be paid by the Engineer. ARTICLE 20 TERMINATION This Agreement may be terminated before the stated termination date by any of the following conditions. 8 (1) By mutual agreement and consent,in writing,of both parties. (2) By the Authority, by notice in writing to the Engineer, as a consequence of failure by the Engineer to perform the services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By the Authority, for reasons of its own and not subject to the mutual consent of the Engineer, upon not less than thirty(30) days' written notice to the Engineer. (5) By satisfactory completion of all services and obligations described herein. Should the Authority terminate this Agreement as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to the Engineer. In determining the value of the work performed by the Engineer prior to termination, the Authority shall be the sole judge. Compensation for work at termination will be based on the work completed at that time. Should the Authority terminate this Agreement under Subsection (4) immediately above, then the amount charged during the thirty (30) day notice period shall not exceed the amount charged during the preceding thirty (30) days. If the Engineer defaults in the performance of this Agreement or if the Authority terminates this Agreement for fault on the part of the Engineer, then the Authority shall give consideration to the actual costs incurred by the Engineer in performing the work to the date of default, the amount of work required which was satisfactorily completed to date of default, the value of the work which is usable to the Authority, the cost to the Authority of employing another firm to complete the work required and the time required to do so, and other factors which affect the value to the Authority of the work performed at the time of default. The termination of this Agreement and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of the Authority and the Engineer under this Agreement,except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Agreement is due to the failure of the Engineer to fulfill the Engineer's contractual obligations, then the Authority may take over the project and prosecute the work to completion. In such case, the Engineer shall be liable to the Authority for any additional costs incurred by the Authority. The Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by the Engineer in support of the scope of services under this Agreement. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. The Engineer 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 9 administrative bodies or tribunals in any manner affecting the performance of this Agreement, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. The Engineer shall furnish the Authority with satisfactory proof of the Engineer's compliance. The Engineer shall further obtain all permits and licenses required in the performance of the professional services contracted for herein. (2) Taxes. The Engineer will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. The Authority is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE 22 INDEMNIFICATION The Engineer shall save and hold harmless the Authority and its officers and employees from all claims and liabilities which are caused by or which result from error, omission, or negligent act of the Engineer or of any person employed by the Engineer or under the Engineer's direction or control. The Engineer shall also save and hold the Authority harmless from any and all expenses, including but not limited to attorneys fees which may be incurred by the Authority in litigation or otherwise defending claims or liabilities which may be imposed on the Authority as a result of such activities by the Engineer, its agents,or employees. ARTICLE 23 THE ENGINEER'S RESPONSIBILITIES The Engineer shall be responsible for the accuracy of the Engineer's work and shall promptly make necessary revisions or corrections resulting from errors, omissions, or negligent acts, and same shall be done without compensation. The Authority shall determine the Engineer's responsibilities for all questions arising from design errors and/or omissions. The Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions or for clarification of any ambiguities until after the construction phase of the project has been completed. Such determination shall not preclude the Engineer's rights under law. When the Engineer is called upon to observe the work of the Authority's construction contractor(s) for the detection of defects or deficiencies in such work, excluding Engineer's responsibilities regarding its scope of work regarding contractor's compliance in accordance with the project plans and specifications, the Engineer will not bear any responsibility or liability for such defects or deficiencies or for the failure to so detect. Engineer shall not make inspections or reviews of the safety programs or procedures of the construction contractor(s), and shall not review their work for the purpose of ensuring their compliance with safety standards. (b) If the Engineer is called upon to review submittals from construction contractors, the Engineer shall review and approve or take other appropriate action upon construction contractor(s)' submittals such as shop drawings, product data and samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the contract documents. The Engineer's action shall be taken with such 10 reasonable promptness as to cause no delay in the work while allowing sufficient time in the Engineers professional judgment to permit adequate review. Review of such submittals will not be conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities. (c) The Engineer shall not assume any responsibility or liability for performance of the construction services, or for the safety of persons and property during construction, or for compliance with federal, state and local statutes, rules, regulations and codes applicable to the conduct of the construction services. The Engineer shall have no influence over the construction means, methods, techniques, sequences or procedures. Construction safety shall remain the sole responsibility of the construction contractor(s). ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to the Authority in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON-COLLUSION.FINANCIAL INTEREST PROHIBITED (1) Non-collusion. The Engineer warrants that the Engineer has not employed or retained any company or persons, other than a bona fide employee working solely for the Engineer, to solicit or secure this Agreement, and that the Engineer has not paid or agreed to pay any company or engineer 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 Authority reserves and shall have the right to annul this Agreement without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee,commission,percentage,brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. The Engineer covenants and represents that the Engineer, the Engineer'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. ARTICLE 26 INSURANCE (1) Insurance.The Engineer, at the Engineer's sole cost, shall purchase and maintain during the entire term while this Agreement is in effect professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to The Authority. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of the Engineer, the Engineer shall require each subconsultant performing work under this Agreement to maintain during the term of this Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and 11 additional policy conditions as shown below in Article 26,Section (3). The Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. The Engineer 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 Authority shall be entitled, upon request and without expense,to receive copies of these certificates of insurance. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: 1. Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to the Authority by certified mail to: Program Manager Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664 The Engineer shall also notify the Authority, within 24 hours of receipt,of any notices of expiration, cancellation, non-renewal, or material change in coverage it receives from its insurer. 2. Companies issuing the insurance policies shall have no recourse against the Authority for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of the Engineer. 3. The Term "Authority" or"The Brushy Creek Regional Utility Authority" shall include all authorities, Boards, Commissions, Departments, and officers of the Authority and the individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the Authority. 4. The Engineer and the Authority 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. (4) Cost of Insurance.The cost of all insurance required herein to be secured and maintained by the Engineer shall be borne solely by the Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with the Authority. Such Certificates of Insurance are evidenced as Exhibit"E"herein entitled "Certificates". 12 ARTICLE 27 COPYRIGHTS The Authority shall have the royalty-free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by The Engineer for governmental purposes. ARTICLE 28 SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. The Engineer may not assign, sublet or transfer any interest in this Agreement, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of the Authority. ARTICLE 29 SEVERABILITY 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. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Agreement constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 THE ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between the Authority and the Engineer, shall be kept on a generally recognized accounting basis and shall be available to the Authority or its authorized representatives at mutually convenient times. The Authority reserves the right to review all records it deems relevant which are related to this Agreement. ARTICLE 32 NOTICES All notices to either party by the other required under this Agreement shall be personally delivered or mailed to such party at the following respective addresses: 13 Authority: Brushy Creek Regional Utility Authority Attention: Program Manager 221 East Main Street Round Rock, TX 78664 and to: Stephan L. Sheets BCRUA Attorney 309 East Main Street Round Rock, TX 78664 Engineer: Brian D. Rice 10801 N. Mopac Expy., Building 1, Suite 120 Austin,TX 78759 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence.The Engineer understands and agrees that time is of the essence and that any failure of the Engineer to complete the services for each phase of this Agreement within the agreed Work Schedule may constitute a material breach of this Agreement. The Engineer shall be fully responsible for the Engineer's delays or for failures to use the Engineer's best efforts in accordance with the terms of this Agreement. Where damage is caused to the Authority due to the Engineer's failure to perform in these circumstances,the Authority may withhold,to the extent of such damage,the Engineer's payments hereunder without waiver of any of the Authority's additional legal rights or remedies. (2) Force Majeure. Neither the Authority nor the Engineer shall be deemed in violation of this Agreement if prevented from performing any of their 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. (3) Enforcement and Venue.This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 14 ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for the Engineer 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 Authority to enter into this Agreement. IN WITNESS WHEREOF, the Brushy Creek Regional Utility Authority has caused this Agreement to be signed in its corporate name by its President, duly authorized to execute the same on its behalf by Resolution No. , approved by the Authority' Board of Directors on the day of the month of , 2010, and the Engineer, Lockwood, Andrews & Newnam, Inc., signing by and through his/her/its duly authorized representative(s), thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. Brushy Creek Regional Utility Authority, Round Rock,TEXAS: By: Mitch Fuller, President ATTEST: By: John Cowman, Secretary Lockwood,Andrews & Newnam,Inc., Austin,TEXAS: By: Roy L. Follmuth,Vice President ATTEST: 1````�U1tlullUgNj��i By, �1EW$ 'i Homer Hernani orpor� tK-t fi',& L i2 !) 15 LIST OF EXHIBITS ATTACHED (1)Exhibit A "Services to be Performed by the Authority" (2)Exhibit B "Services to be Performed by the Engineer" (3) Exhibit C "Work Schedule" (4)Exhibit D "Fee Schedule" (5)Exhibit E "Certificates of Insurance" 16 EXECUTED DOCUMENT FOLLOWS BRUSHY CREEK REGIONAL UTILITY AUTHORITY A Partnership of Cedar Park, Leander. and Round Rock Contract No. BRUSHY CREEK REGIONAL UTILITY AUTHORITY AGREEMENT FOR CONSTRUCTION PHASE ENGINEERING SERVICES WITH LOCKWOOD, ANDREWS & NEWNAM, INC. THE STATE OF TEXAS § COUNTY OF WILLIAMSON § THIS AGEMENT FOR ENGINEERIN SERVICES ("Agreement") is made and entered into on this the / ��� day of the month of C , 2010, by and between the BRUSHY CREEK REGIONAL UTILITY AUTHORITY, a exas Utility Authority, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as the "Authority"), and LOCKWOOD, ANDREWS & NEWNAM, INC., whose principal place of business is located at 10801 N. Mopac Expy, Building 1, Suite 120, Austin, Texas 78759, (hereinafter called the "Engineer"), and such Agreement is for the purpose of contracting for professional engineering services. RECITALS: WHEREAS, the Authority wishes to procure the of services of professional engineers; and WHEREAS, the Authority and the Engineer desire to contract for such professional engineering services; and WHEREAS, the Authority and the Engineer wish to document their agreement concerning the requirements and respective obligations of the parties; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable considerations, and the covenants and agreements hereinafter contained to be kept and performed by the respective parties hereto, it is agreed as follows: 1 CONTRACT DOCUMENTS The Contract Documents consist of this Agreement and any exhibits attached hereto (which exhibits are hereby incorporated into and made a part of this Agreement) and all Supplemental Agreements (as defined herein in Article 13) which are subsequently issued. These form the entire contract, and all are as fully a part of this Agreement as if attached to this Agreement or repeated herein. ARTICLE 1 SCOPE OF SERVICES TO BE PERFORMED BY THE AUTHORITY The Authority shall perform or provide services as identified in Exhibit A entitled "Services to be Performed by the Authority." ARTICLE 2 SCOPE OF SERVICES TO BE PERFORMED BY THE ENGINEER The Engineer shall perform engineering services as identified in Exhibit B entitled "Services to be Performed by the Engineer." The Engineer shall apply industry standard construction phase services support to the Authority for the completion of the project. Engineer shall perform the Engineering Services in accordance with the Work Schedule as identified in Exhibit C entitled "Work Schedule." Such Work Schedule shall contain a complete schedule so that the Engineering Services under this Contract may be accomplished within the specified time and at the specified cost. The Work Schedule shall provide specific work sequences and definite review times by the Authority and Engineer of all Engineering Services. Should the review times or Engineering Services take longer than shown on the Work Schedule, through no fault of Engineer, Engineer may submit a timely written request for additional time, which shall be subject to the approval of the Program Manager. ARTICLE 3 CONTRACT TERM (1) Term. The Engineer is expected to complete the Engineering Services described herein in accordance with the above described Work Schedule. If Engineer does not perform the Engineering Services in accordance with the Work Schedule, then the Authority shall have the right to terminate this Contract as set forth below in Article 20. So long as the Authority elects not to terminate this Contract, it shall continue from day to day until such time as the Engineering Services are completed. Any Engineering Services performed or costs incurred after the date of termination shall not be eligible for reimbursement. Engineer shall notify the Authority in writing as soon as possible if he/she/it determines, or reasonably anticipates, that the Engineering Services will not be completed in accordance with the Work Schedule. (2) Work Schedule. The Engineer acknowledges that the Work Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of services required herein so that construction of the project will be commenced and completed as scheduled. In this regard, the Engineer shall proceed with sufficient qualified personnel and consultants necessary to 2 fully and timely accomplish all services required under this Agreement in the highest professional manner. (3) Notice to Proceed. After execution of this Agreement, the Engineer shall not proceed with work delineated in Article 2 entitled"Scope of Services to be Performed by the Engineer" and in Exhibit B entitled "Services to be Performed by the Engineer" until authorized in writing by the Authority to proceed as provided in Article 7 entitled "Notice to Proceed." ARTICLE 4 COMPENSATION The Authority shall pay and the Engineer agrees to accept payment on a time and materials basis not to exceed the amount shown below as full compensation for all engineering services performed and to be performed under this Agreement. The amount payable under this Agreement, without modification of the Agreement as provided herein, shall not exceed the sum of Three Hundred Nine Thousand, Two Hundred Seventeen Dollars ($309,217) as shown in Exhibit D entitled "Fee Schedule." The not to exceed amount payable may be revised only by written Supplemental Agreement, as authorized in writing by the Authority. The Engineer shall prepare and submit to the Authority monthly progress reports in sufficient detail to support the progress of the work and to support invoices requesting monthly payment. Any preferred format of the Authority for such monthly progress reports shall be identified at the initial coordination meeting. Satisfactory performance of work shall be maintained as an absolute condition of payment. The fee herein referenced may be adjusted for additional work requested and performed only if approved by the Authority by a written Supplemental Agreement. ARTICLE 5 METHOD OF PAYMENT Payments to the Engineer for services rendered shall be made while work is in progress. The Engineer shall prepare and submit to the Authority, not less frequently than once per month, a progress report as referenced in Article 4 above. Such progress report shall state the time and materials utilized in the completion of work accomplished during that billing period and to date. Simultaneous with submission of such progress report, the Engineer shall prepare and submit one (1) original and one (1) copy of a certified invoice in a form acceptable to the Authority. This submittal shall also include a progress assessment report in a form acceptable to the Authority. Progress payments shall be made in proportion to the percentage of completion of work tasks identified in Exhibit D entitled "Fee Schedule." Progress payments shall be made by the Authority based upon work actually provided and performed. Upon timely receipt of a correct statement as to form and content, and the approval of each statement, the Authority shall make a good faith effort to pay the amount which, notwithstanding anything herein to the contrary, is due and payable within thirty (30) days. The Authority reserves the right to withhold payment pending verification of satisfactory work 3 performed. The Engineer has the responsibility to submit proof to the Authority, adequate and sufficient in its determination, that tasks were completed. 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. Final payment does not relieve the Engineer of the responsibility of correcting any errors and/or omissions resulting from the Engineer's negligence or failure to perform to industry standards. ARTICLE 6 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to the Engineer will be made within thirty (30) days of the day on which the Authority receives the supplies, materials, equipment, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which the Authority receives a correct invoice for the supplies, materials, equipment, or services, whichever is later. The Engineer may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this prompt payment policy; however, this policy does not apply to payments made by the Authority in the event: A. There is a bona fide dispute between the Authority and the Engineer concerning the supplies, materials, or equipment delivered or the services performed that causes the payment to be late; or B. The terms of a federal or state contract, grant, regulation, or statute prevent the Authority from making a timely payment with federal or state funds; or C. There is a bona fide dispute between the Engineer and a subcontractor or between a subcontractor and its supplier concerning supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or D. The invoice is not mailed to the Authority in strict accordance with instructions, if any, on the purchase order, or this Agreement or other such contractual agreement. The Authority shall document to the Engineer the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non-disputed invoices shall be considered correct and payable per the terms of Chapter 2251, V.T.C.A.,Texas Government Code. ARTICLE 7 NOTICE TO PROCEED The Authority shall issue a written authorization to proceed with work identified in the Scope of Services. The Authority shall not be responsible for actions by the Engineer or any costs incurred by the Engineer relating to additional work not included in Exhibit B entitled "Services to be Performed by the Engineer." 4 ARTICLE 8 PROJECT TEAM The Authority's Designated Representative for purposes of this Agreement is as follows: Michael F. Thuss, P.E. Program Manager 221 E. Main Street Round Rock, Texas, 78664 Telephone Number(512) 401-5594 Email Address mthuss@bcrua.org The Authority's Designated Representative shall be authorized to act on the Authority's behalf with respect to this project. The Authority or the Authority's Designated Representative shall render decisions in a timely manner pertaining to documents submitted by the Engineer in order to avoid unreasonable delay in the orderly and sequential progress of the Engineer's services. The Engineer's Designated Representative for purposes of this Agreement is as follows: Brian D. Rice, P.E. Vice-President-Central Texas Region 10801 N. Mopac Expy., Building 1, Suite 120 Austin, TX 78759 Telephone Number(512) 338-4212 Email Address bdrice@lan-inc.com ARTICLE 9 PROGRESS EVALUATION The Engineer shall, from time to time during the progress of the work, confer with the Authority at the Authority's election. The Engineer shall prepare and present such information as may be pertinent and necessary, or as may be requested by the Authority, in order for the Authority to evaluate features of the work. At the request of the Authority or the Engineer, conferences shall be provided at the Engineer's office, the offices of the Authority, or at other locations designated by the Authority. When requested by the Authority, such conferences shall also include evaluation of the Engineer's services and work. Should the Authority determine that the progress in production of work does not satisfy the Work Schedule, then the Authority shall review the Work Schedule with the Engineer to determine corrective action required. The Engineer shall promptly advise the Authority in writing of events which have or may have a significant impact upon the progress of the work, including but not limited to the following: (1) Problems, delays, adverse conditions which may materially affect the ability to attain program objectives, prevent the meeting of time schedules and goals, or preclude the 5 attainment of project work units by established time periods; and such disclosure shall be accompanied by statement of actions taken or contemplated, and the Authority assistance needed to resolve the situation, if any; and (2) Favorable developments or events which enable meeting the work schedule goals sooner than anticipated. ARTICLE 10 SUSPENSION Should the Authority desire to suspend the work, but not to terminate this Agreement, then such suspension may be effected by the Authority giving the Engineer thirty (30) calendar days' verbal notification followed by written confirmation to that effect. Such thirty-day notice may be waived in writing by agreement and signature of both parties. The work may be reinstated and resumed in full force and effect within sixty (60) days of receipt of written notice from the Authority to resume the work. Such sixty-day notice may be waived in writing by agreement and signature of both parties. If the Authority suspends the work, the contract period as determined in Article 3 is not affected and this Agreement will terminate on the date specified unless this Agreement is amended indicating otherwise. The Authority assumes no liability for work performed or costs incurred prior to the date authorized by the Authority for the Engineer to begin work, and/or during periods when work is suspended, and/or subsequent to the contract completion date. ARTICLE 11 ADDITIONAL WORK If the Engineer forms a reasonable opinion that any work the Engineer has been directed to perform is beyond the scope of this Agreement and as such constitutes extra work, the Engineer shall promptly notify the Authority in writing. In the event the Authority finds that such work does constitute extra work and exceeds the maximum amount payable, the Authority shall so advise the Engineer and a written Supplemental Agreement will be executed between the parties as provided in Article 13 entitled "Supplemental Agreements." The Engineer 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 Authority shall not be responsible for actions by the Engineer nor for any costs incurred by the Engineer relating to additional work not directly associated with the performance of the work authorized in this Agreement or any amendments thereto. ARTICLE 12 CHANGES IN WORK If the Authority deems it necessary to request changes to previously satisfactorily completed work or parts thereof which involve changes to the original scope of services or character of work under this Agreement, then the Engineer shall make such revisions as requested and as directed by the 6 Authority. Such revisions shall be considered as additional work and paid for as specified under Article 11 entitled "Additional Work." The Engineer shall make revisions to work authorized hereunder as are necessary to correct errors appearing therein, when required to do so by the Authority. No additional compensation shall be due for such work. ARTICLE 13 SUPPLEMENTAL AGREEMENTS The terms of this Agreement may be modified by written Supplemental Agreement if the Authority determines that there has been a significant change in (1) the scope, complexity or character of the service to be performed, or (2) the duration of the work. Any such Supplemental Agreement must be duly authorized by the Authority Board of Directors Resolution. Where such Authority Board of Directors authorization is required, The Engineer shall not proceed until the appropriate Resolution has been adopted. Additional compensation, if appropriate, shall be identified as provided in Article 4 entitled "Compensation." Both parties must execute any written Supplemental Agreement within the contract period specified in Article 3 entitled "Contract Term." It is understood and agreed by and between both parties that the Engineer shall make no claim for extra work done or materials furnished until the Authority grants full execution of the written Supplemental Agreement and authorization to proceed. The Authority reserves the right to withhold payment pending verification of satisfactory work performed. ARTICLE 14 OWNERSHIP OF DOCUMENTS All data, basic sketches, charts, calculations, plans, specifications, and other documents created or collected under the terms of this Agreement are the exclusive property of the Authority and shall be furnished to the Authority upon request. All documents prepared by the Engineer and all documents furnished to the Engineer by the Authority shall be delivered to the Authority upon completion or termination of this Agreement. The Engineer, at the Engineer's own expense, may retain copies of such documents or any other data which the Engineer has furnished the Authority under this Agreement. Any release of information shall be in conformance with requirements of the Texas Open Records Act. It is understood that the documents created by the Engineer under this Agreement are instruments of Engineer's service for the project. Any re-use by the Authority shall be at Authority's sole risk and expense and without liability to the Engineer. ARTICLE 15 PERSONNEL, EQUIPMENT AND MATERIAL The Engineer shall furnish and maintain, at the Engineer's own expense, quarters for the performance of all services, and adequate and sufficient personnel and equipment to perform the services as required. All employees of the Engineer shall have such knowledge and experience as will 7 enable them to perform the duties assigned to them. Any employee of the Engineer who, in the opinion of the Authority, is incompetent or whose conduct becomes detrimental to the work shall immediately be removed from association with the project when so instructed by the Authority. The Engineer certifies that the Engineer presently has adequate qualified personnel in the Engineer's employment for performance of the services required under this Agreement, or will obtain such personnel from sources other than the Authority. The Engineer may not change the Project Manager or other key personnel assigned to the project without prior written consent of the Authority. ARTICLE 16 SUBCONTRACTING The Engineer shall not assign, subcontract or transfer any portion of the work under this Agreement without prior written approval from the Authority. All subcontracts shall include the provisions required in this Agreement and shall be approved as to form, in writing, by the Authority prior to work being performed under the subcontract. No subcontract shall relieve the Engineer of any responsibilities under this Agreement. ARTICLE 17 EVALUATION OF WORK The Authority, or any authorized representatives of it, shall have the right at all reasonable times to review or otherwise evaluate the work performed or being performed hereunder and the premises on which it is being performed. If any review or evaluation is made on the premises of the Engineer or a subcontractor, then the Engineer shall provide and require its subcontractors to provide all reasonable facilities and assistance for the safety and convenience of the Authority or other representatives in the performance of their duties. ARTICLE 18 SUBMISSION OF REPORTS All applicable study reports shall be submitted in preliminary form for approval by the Authority before any final report is issued. The Authority's comments on the Engineer's preliminary reports shall be addressed in any final report. ARTICLE 19 VIOLATION OF CONTRACT TERMS/BREACH OF CONTRACT Violation of contract terms or breach of contract by the Engineer shall be grounds for termination of this Agreement, and any increased costs arising from the Engineer's default, breach of contract, or violation of contract terms shall be paid by the Engineer. ARTICLE 20 TERMINATION This Agreement may be terminated before the stated termination date by any of the following conditions. 8 (1) By mutual agreement and consent, in writing, of both parties. (2) By the Authority, by notice in writing to the Engineer, as a consequence of failure by the Engineer to perform the services set forth herein in a satisfactory manner. (3) By either party, upon the failure of the other party to fulfill its obligations as set forth herein. (4) By the Authority, for reasons of its own and not subject to the mutual consent of the Engineer, upon not less than thirty (30) days' written notice to the Engineer. (5) By satisfactory completion of all services and obligations described herein. Should the Authority terminate this Agreement as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to the Engineer. In determining the value of the work performed by the Engineer prior to termination, the Authority shall be the sole judge. Compensation for work at termination will be based on the work completed at that time. Should the Authority terminate this Agreement under Subsection (4) immediately above, then the amount charged during the thirty (30) day notice period shall not exceed the amount charged during the preceding thirty (30) days. If the Engineer defaults in the performance of this Agreement or if the Authority terminates this Agreement for fault on the part of the Engineer, then the Authority shall give consideration to the actual costs incurred by the Engineer in performing the work to the date of default, the amount of work required which was satisfactorily completed to date of default, the value of the work which is usable to the Authority, the cost to the Authority of employing another firm to complete the work required and the time required to do so, and other factors which affect the value to the Authority of the work performed at the time of default. The termination of this Agreement and payment of an amount in settlement as prescribed above shall extinguish all rights, duties, and obligations of the Authority and the Engineer under this Agreement, except the obligations set forth herein in Article 21 entitled "Compliance with Laws." If the termination of this Agreement is due to the failure of the Engineer to fulfill the Engineer's contractual obligations, then the Authority may take over the project and prosecute the work to completion. In such case, the Engineer shall be liable to the Authority for any additional costs incurred by the Authority. The Engineer shall be responsible for the settlement of all contractual and administrative issues arising out of any procurements made by the Engineer in support of the scope of services under this Agreement. ARTICLE 21 COMPLIANCE WITH LAWS (1) Compliance. The Engineer 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 9 administrative bodies or tribunals in any manner affecting the performance of this Agreement, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. The Engineer shall furnish the Authority with satisfactory proof of the Engineer's compliance. The Engineer shall further obtain all permits and licenses required in the performance of the professional services contracted for herein. (2) Taxes. The Engineer will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. The Authority is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE 22 INDEMNIFICATION The Engineer shall save and hold harmless the Authority and its officers and employees from all claims and liabilities which are caused by or which result from error, omission, or negligent act of the Engineer or of any person employed by the Engineer or under the Engineer's direction or control. The Engineer shall also save and hold the Authority harmless from any and all expenses, including but not limited to attorneys fees which may be incurred by the Authority in litigation or otherwise defending claims or liabilities which may be imposed on the Authority as a result of such activities by the Engineer, its agents, or employees. ARTICLE 23 THE ENGINEER'S RESPONSIBILITIES The Engineer shall be responsible for the accuracy of the Engineer's work and shall promptly make necessary revisions or corrections resulting from errors, omissions, or negligent acts, and same shall be done without compensation. The Authority shall determine the Engineer's responsibilities for all questions arising from design errors and/or omissions. The Engineer shall not be relieved of responsibility for subsequent correction of any such errors or omissions or for clarification of any ambiguities until after the construction phase of the project has been completed. Such determination shall not preclude the Engineer's rights under law. When the Engineer is called upon to observe the work of the Authority's construction contractor(s) for the detection of defects or deficiencies in such work, excluding Engineer's responsibilities regarding its scope of work regarding contractor's compliance in accordance with the project plans and specifications, the Engineer will not bear any responsibility or liability for such defects or deficiencies or for the failure to so detect. Engineer shall not make inspections or reviews of the safety programs or procedures of the construction contractor(s), and shall not review their work for the purpose of ensuring their compliance with safety standards. (b) If the Engineer is called upon to review submittals from construction contractors, the Engineer shall review and approve or take other appropriate action upon construction contractor(s)' submittals such as shop drawings, product data and samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the contract documents. The Engineer's action shall be taken with such 10 reasonable promptness as to cause no delay in the work while allowing sufficient time in the Engineers professional judgment to permit adequate review. Review of such submittals will not be conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities. (c) The Engineer shall not assume any responsibility or liability for performance of the construction services, or for the safety of persons and property during construction, or for compliance with federal, state and local statutes, rules, regulations and codes applicable to the conduct of the construction services. The Engineer shall have no influence over the construction means, methods, techniques, sequences or procedures. Construction safety shall remain the sole responsibility of the construction contractor(s). ARTICLE 24 ENGINEER'S SEAL The responsible engineer shall sign, seal and date all appropriate engineering submissions to the Authority in accordance with the Texas Engineering Practice Act and the rules of the State Board of Registration for Professional Engineers. ARTICLE 25 NON-COLLUSION, FINANCIAL INTEREST PROHIBITED (1) Non-collusion. The Engineer warrants that the Engineer has not employed or retained any company or persons, other than a bona fide employee working solely for the Engineer, to solicit or secure this Agreement, and that the Engineer has not paid or agreed to pay any company or engineer 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 Authority reserves and shall have the right to annul this Agreement without liability or, in its discretion and at its sole election, to deduct from the contract price or compensation, or to otherwise recover, the full amount of such fee,commission, percentage,brokerage fee, gift or contingent fee. (2) Financial Interest Prohibited. The Engineer covenants and represents that the Engineer, the Engineer'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. ARTICLE 26 INSURANCE (1) Insurance. The Engineer, at the Engineer's sole cost, shall purchase and maintain during the entire term while this Agreement is in effect professional liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to The Authority. (2) Subconsultant Insurance. Without limiting any of the other obligations or liabilities of the Engineer, the Engineer shall require each subconsultant performing work under this Agreement to maintain during the term of this Agreement, at the subconsultant's own expense, the same stipulated minimum insurance required in Article 26, Section (1) above, including the required provisions and 11 additional policy conditions as shown below in Article 26, Section (3). The Engineer shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. The Engineer 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 Authority shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. (3) Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy: 1. Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to the Authority by certified mail to: Program Manager Brushy Creek Regional Utility Authority 221 East Main Street Round Rock, Texas 78664 The Engineer shall also notify the Authority, within 24 hours of receipt, of any notices of expiration, cancellation, non-renewal, or material change in coverage it receives from its insurer. 2. Companies issuing the insurance policies shall have no recourse against the Authority for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of the Engineer. 3. The Term "Authority" or"The Brushy Creek Regional Utility Authority" shall include all authorities, Boards, Commissions, Departments, and officers of the Authority and the individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the Authority. 4. The Engineer and the Authority 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. (4) Cost of Insurance. The cost of all insurance required herein to be secured and maintained by the Engineer shall be borne solely by the Engineer, with certificates of insurance evidencing such minimum coverage in force to be filed with the Authority. Such Certificates of Insurance are evidenced as Exhibit "E" herein entitled "Certificates". 12 ARTICLE 27 COPYRIGHTS The Authority shall have the royalty-free, nonexclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any reports developed by The Engineer for governmental purposes. ARTICLE 28 SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, lawful assigns, and legal representatives. The Engineer may not assign, sublet or transfer any interest in this Agreement, in whole or in part, by operation of law or otherwise, without obtaining the prior written consent of the Authority. ARTICLE 29 SEVERABILITY 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. ARTICLE 30 PRIOR AGREEMENTS SUPERSEDED This Agreement constitutes the sole agreement of the parties hereto, and supersedes any prior understandings or written or oral contracts between the parties respecting the subject matter defined herein. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing. ARTICLE 31 THE ENGINEER'S ACCOUNTING RECORDS Records pertaining to the project, and records of accounts between the Authority and the Engineer, shall be kept on a generally recognized accounting basis and shall be available to the Authority or its authorized representatives at mutually convenient times. The Authority reserves the right to review all records it deems relevant which are related to this Agreement. ARTICLE 32 NOTICES All notices to either party by the other required under this Agreement shall be personally delivered or mailed to such party at the following respective addresses: 13 Authority: Brushy Creek Regional Utility Authority Attention: Program Manager 221 East Main Street Round Rock, TX 78664 and to: Stephan L. Sheets BCRUA Attorney 309 East Main Street Round Rock, TX 78664 Engineer: Brian D. Rice 10801 N. Mopac Expy., Building 1, Suite 120 Austin, TX 78759 ARTICLE 33 GENERAL PROVISIONS (1) Time is of the Essence. The Engineer understands and agrees that time is of the essence and that any failure of the Engineer to complete the services for each phase of this Agreement within the agreed Work Schedule may constitute a material breach of this Agreement. The Engineer shall be fully responsible for the Engineer's delays or for failures to use the Engineer's best efforts in accordance with the terms of this Agreement. Where damage is caused to the Authority due to the Engineer's failure to perform in these circumstances, the Authority may withhold, to the extent of such damage, the Engineer's payments hereunder without waiver of any of the Authority's additional legal rights or remedies. (2) Force Majeure. Neither the Authority nor the Engineer shall be deemed in violation of this Agreement if prevented from performing any of their 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. (3) Enforcement and Venue. This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 14 ARTICLE 34 SIGNATORY WARRANTY The undersigned signatory for the Engineer 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 Authority to enter into this Agreement. IN WITNESS WHEREOF, the Brushy Creek Regional Utility Authority has caused this Agreement to be signed in its co rate nFr7l its,resident, duly authorized to execute the same on its behalf by Resn No. ^ I ' V/ • , approved by the Authority' Board of o u i Directors on the day of the month of Vl U , 2010, and the Engineer, Lockwood, Andrews & Newnam, Inc., signing by and through his/her/its duly authorized representative(s), thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereof. Brushy Creek Regional Utility Authority, Round Rock, TEXAS: By: Mitc Fuller, Pre 'dent ATTEST: By: 0 ohn Cowman, Secretary Lockwood, Andrews & Newnam, Inc., Austin, TEXAS: By: Roy L. Follmuth, Vice President ATTEST: !``�9aauurrr►hr�ZZ By: "�� �� ���` �EWS Homer Hernand orpor �ret y�,••'•.F '%; r 30: •�-=. m00% :y • � ice. 15 LIST OF EXHIBITS ATTACHED (1) Exhibit A "Services to be Performed by the Authority" (2) Exhibit B "Services to be Performed by the Engineer" (3) Exhibit C "Work Schedule" (4) Exhibit D "Fee Schedule" (5) Exhibit E "Certificates of Insurance" 16 DATE: April 16, 2010 SUBJECT: BCRUA Board Meeting—April 21, 2010 ITEM: 8E. Consider a resolution authorizing the President to execute an Agreement with Lockwood,Andrews, & Newnam, Inc.for Construction Phase Engineering Services. Presenter: Michael Thuss Program Manager Justification: Lockwood,Andrews& Newnam, Inc. (LAN) was selected as the planning and design engineer of record for the Treated Water Transmission Line, Segment 1 project through an open competitive process. Their planning and design contract has been administered by Don Rundell, PE -with the City of Round Rock Staff. They have carried the project through planning, design, and contracting. This agreement is for construction phase engineering services for the BCRUA Treated Water Transmission Line,Segment 1 project. The work to be performed by Lockwood,Andrews & Newnam, Inc. (LAN) consists of providing construction and warranty phase services required for the construction of approximately 10,000 linear feet of 78-inch water line.This line segment will commence at the Regional Water Treatment Plant that is currently under construction and will terminate at its connection to the existing Treated Water Transmission Line, Segment 2A at New Hope and Bagdad Road. LAN will provide record design engineer services for the Segment 1, Treated Water Transmission Line construction project. Services include site visits, progress meetings, submittal review and approvals, change order documentation, general responses to engineering requests for information, warranty work,and general engineering consulting services for the project. Funding: The total cost for this agreement is$309,217 and will be distributed to the Cities based on their allocated capacity in the pipeline. Funds are budgeted and available in the BCRUA Construction Program,Treated Water Transmission Line, and Segment 1 account.