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BCRUA_R-10-10-20-7B
RESOLUTION NO. R-10-10-20-711 WHEREAS, the Brushy Creek Regional Utility Authority, Inc. ("BCRUA") desires to enter into an agreement with Chapman Marine, Inc. for the Construction Phase Observation Diving Services for BCRUA Phase 1, Contract 2, Regional Water System, Raw Waterline/Underwater Pipeline Project,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 with Chapman Marine, 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 20th day of October, 2010. MIT FULL , President Brush Cr gional Utility Authority T(1) EST: )J ' . tCowman, Secretary Z:\BCRUA\Board Packets\Packet Doaments\10201OMw.BCRUA-Contract w-Chapman Maine(00205514).DOCt me Brushy Creek Regional Utility Authority (BCRUA) Agreement for Construction Phase Observation Diving Services for BCRUA Phase 1, Contract 2, Regional Water System, Raw Waterline/Underwater Pipeline with Chapman Marine, Inc. THIS AGREEMENT is made as of the _ fn=f 6 (__� ► � day of Ilia month of 0 G+e b e r in the year Two Thousand Ten(2010). BETWEEN the Brushy Creek Regional Utility Authority, a Texas local government corporation, identified herein as the "Authority"or the"BCRUA": Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664-5299 and Chapman Marine,Inc.,a Texas corporation,identified herein as"Chapman": Chapman Marine,Ino. 5107 Beacon.Drive Austin,Texas 78734 For the following Project: BCRUA Plmse 1, Contract 2, Regtonal Water System,Raw Waterline/Underwater Pipeline Project (the"Project'1, 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 Paris,the City of Leander,and fire BCRUA selected Chapman as the proposer offering the best value for the entity. Consulting services to be performed by Chapman include provision of"construction Utdustry underwater observation" standard construction phase observation services, certain quality assurance 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"Schedule of Observer's Responsibilities,"said Exhibit"B"being attached hereto and incorporated herein by reference for all appropriate purposes. When the terms of this Agreement conflict with the terms of Exhibit B,Exhibit B shall control only to the extent of such conflict. 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 agreetnents of the parties contained herein, and for other good and valuable consideration,the BCRUA and Chapman agree as follows: ABTICLE1 INL'l1AL INEMATWS 1.1 This AgreenuW Is based on the following information and assumptions. Section 1.1 is intentionally deleted. 1.2 Proieetrjrrnmclers 1.2.1 The objective or use is: Objectives include,but are not limited to,obtaining consulting services from Chapman Including Chapman's provision of"construction industry underwater observation" standard construction phase observation services, certain related administrative servieos,performance observation support,and field site representation(the"Services")on the site of the BCRUA Phase 1,Contract 2,Regional Water System,Raw WaterllnctUnderwater Pipeline Project. 1.2.2 The physical parameters are: Section 1.2.2 is intentionally deleted. OOIised 9130/10 1.2.3 BCRUA's Program is; Section 1.2.3 is intentionally deleted. 1.2.4 The legal parameters are: Section 1.2.4 is Intentionally deleted. 1.2.5 The financial parameters are as follows.- The ollows:The total fee for Chapman's servfcos shall be In a not-to-exceed amount of One Hundred Sixty Thousand and NOV100 Dollars ($160,000.00). Such not-to-exceed amount shall be tall compensation for all Services performed and to be performed by Chapman under this Agreement, including without limitation any overtime compensation and reimbursement for travel,copying,etc.as set forth in more detail In Sec. 1.2.6.3.The foregoing not-to-exceed amount may not be revised in any fhshlon other than by written Supplemental Agreement as provided for herein. The BCRUA shall pay Chapman on a"time and materials"basis,Chapman agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Chapman will be paid for by the BCRUA. 1.2.6 The Scope of Services parameters are as follows; The above-recited fee for Chapman's Services Is generally comprised of the following until the not-to-exceed amount Is reached; (a) ConstruWo-Observation Visits to the site shall be provided by Chapman as needed,to observe the construction In progress. The site visits 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 (b) Daily ftort Each day's construction activities shall be summarized by Chapman In a daily report. The daily reports are intended to assist Chaprnan's staff as well as engineers on the Project In troubleshooting problems, and shnil 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 CQgtractor Pay Applications A review of the monthly pay applications submitted by the Contractor shall be perfonned by Chapman. The pay application review shall express Chapman's opinion as to the accuracy of the application based on ilia review of materials on-site and the constmction progress to date. At flu completion of Chapman's review,the Contractor will be required to correct any erroneous pay Items before the final pay application Is submitted for payment. (d) Change Orders and ftuests for hi%rmatlog($FIs) Chapman shall provide a review of all change orders and RFI3 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 those documents shall also be kept as part of the Project documentation. Such review does not relieve the Contractor,Authority or its engineers from their duties on this subject. (e) Construction Testing Chapman 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. Chapman 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 ilio contract specifleations. A copy of the test results shalt be kept as part of the Project documentation. 2 (t) P1gject Meetings Chapman shall attend and maintain active involvement in all meetings related to the Project,as required and directed by the BCRUA. Types of meetings anticipated include, but are not limited to, pre-construction meetings, weekly progress meetings, on-site troubleshooting meetings, punch list and final walkthrough meetings, and any other Project-related meetings that may arise. Any meeting notes or documents shall be kept as Project documentation. (g) Fniect Documentation As herein described,copies of all relevant Project documentation shall be compiled and kept by Chapman. Types of documentation anticipated include,but are not limited to,dally reports,photographs,approved submittals,RFIs,and change orders. Chapman shall also assist the BCRUA with any items necessary to complete the as-built drawings and Project close-out documentation. Any and all of Chapman'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 al the BCRUA's cost and expense. (h) Construction Deficiencies In the event that construction deficiencies are noted during daily observations, Chapman shall immediately notify the Contractor and the BCRUA,and shall advise the BCRUA of Chapman'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 Chapman In the dally reports. (1) Daigh Conflicts The recognition of any design conflicts determined by the General Contractor or Chapman which require a change to the construction contract shall be summarized by Chapman and presented to the BCRUA for review end appropriate action. Chapman shall assist the BCRUA by also providhtg 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 Chapman shall include all of the known Project stakeholders in any given aspect of the Project,as directed by the BCRUA. Chapman shail help Identify potential Issues before they arise,and report these issues to the BCRUA on a timely basis. (k) personnel aid Equipment Chapman expressly asserts that Its staff Is highly experienced in underwater diving construction observation and management, in observation diving services, and that its staff is seasoned in dealing with any Issues that may be encountered during a Project of this type within the scope of Exhibit B. Chapman 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 tlmeiy 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 Chapman's Services under this Agreement may be accomplished within the specified time and at the specified cost. Chapman shall conduct all Services In a wanner 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 twelve(12)months specified herein or exceed $160,000.00,thrcugh no fault of Chapman, then additional time and materials may be appropriately authorized by the BCRUA through a written Supplemental Agreement as provided herein 1.2.6.3 Miscellaneous Provisions Relating to Fee Schedule: (a) "Normal working hours"will be Monday through Mday 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. 3 i Chapman 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 (Chapman's "Overtime"). The General ,Contractor shall be responsible for reimbursing the BCRUA for any and all of Chapman's Overtime that is paid by the BCRUA to Chapman;however, the parties expressly acknowledge that the BCRUA is the entity which shall be responsible for making such Overtime payments to Chapman, and that Chapman shall not be required to seek Overtime payment directly from the General Contractor. (c) Travel time from the BCRUA's designated site to Project sites during normal working hours will be charged at die appropriate hourly rate delineated In this subsection. (d) The BCRUA will be responsible fur paying Chapman's customary reimbursable expenses (such as copying and printing services)at actual cost only if approved In writing in advance of Chapman incurring same,and if supported by appropriate documentation, c (e) The BCRUA will be responsible for paying Chapman'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 Chapman incurring same. (f) All Services shall be performed exclusively by representatives of Chapman Marine,inc. in the event that Chapman 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) The BCRUA has a designated Program Lead Observer. Chapman shall coordinate activities with the BCRUA's Program Lead Observer as directed by the Construction Manager. Chapman will work with and coordinate with a Site Lead Observer designated by the BCRUA. In all other cases,Chapman will be a site representative for the BCRUA, (h) Time Commitment and Estimated Rate Projections: The day rate is$3,895.00 plus consumable charge phis four depths at 80' Based on 8-hour day Day Rate $3,895.00 Consumables 125.00 4 depths 80' 640.00 Total $4,660.00 Approximate number of working days is 34 x$4,660.00 s $158,440.00 Approximate additional materials 1.560.00 TOTAL NOT-TO-EXCEED AMOUNT $160,000.00 Also see Exhibit"C," The parties expressly acknowledge and agree that the BCRUA's Designated Representative and Chapman 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: 1,2.7.1 Term. After execution by each party hereto,this Agreement shall be effective on the dato Chapman receives the BCRUA's written Notice to Proceed,and shall remain In full force and eft'ect 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 twelve(12)months following Chapman's receipt of the BCRUA's written Notice to Proceed,unless this Agreement Is extended by written Supplemental Agreement executed by Chapman and the BCRUA prior to the date of term expiration. Any work performed or costs Incurred by Chapman after the date of term expiration 4 or termination shall not be eligible for reimbursement unless such referenced Supplemental Agreement is executed by Chapman and the BCRUA prior to the date of term expiration or termination. 1.2,7.1.2 Chapman shall notify the BCRUA in writing as soon as possible if Chapman 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 Chapman. In that event the BCRUA may, In its reasonable discretion, extend the term and increase the amount payable to Chapman by timely written Supplemental Agreement. Chapman shall allow adequate time for the BCRUA to review and approve Chapman's request for extension and request for additional compensation. 1.2,7.2 Work Schedule. Chapman 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 Chapman's Services required herein. In this regard,Chapman shall proceed with sufficient qualified personnel necessary to fully and timoly accomplish all Services required under this Agreement to the highest protmional standard. 1.2.7.3 Notice to Proceed. After execution of this Agreement,Chapman shall not proceed with work delineated in Section 1.2.6 herein and attached Exhibit"B"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: Consulting services herein are engaged by this negotiated Agreement. 1.2.9 Section 1,2.9 is intentionally deleted. 1.3 Prolect Team 1.3.1 The BCRUA's Designated Representative is: Michael P.Thugs,P.E.,Program and Construction Manager 221 East Main Street Round Rock,Texas 78664 Telephone: 512-215-9151 Email Address: mthu3s(@bcrua.ore 1.3.2 The BCRUA's Designated Representative shall be authorized to act on the 13CRUA'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 Chapman in order to avoid unreasonable delay In the orderly and sequential progress of Chap►nan's Services. 1,3.3 The persons or entity, in addition to the BCRUA's Designated Representative, who is required to revicw Chapman's submittals to the BCRUA ars: Chris Lippe,P.E.,BCRUA General Manager 221 E.Main St. Round Rock,Texas 78664 Telephone: 512.844.7419 Email:Address: cllppe@round-rock.tx.us 1.3.4 The BCRUA's other Inspectors and contractors are: Section 1.3.4 is intentionally deleted. I.3.5 Chapman's Designated Representative Is: David Ballard Project Manager,Chapman Marine,Inc. 5107 Beacon Drive Austin,Tons 78734 Telephone: 512-573-3493 Email Address: David.b©chapmanmarineinc.com 5 w 1.3.6 no consultants retained at Chapman's expenso are: Unknown at this time. 1.4 Miscellaneous Initial Inforutation 1.4.1 Additional Work, If Chapman forms a reasonable opinion that any work Chapuuan has been directed to perform Is beyond the scope of this Agreement and as such constitutes extra work,Chapman 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 Chapman and a written Supplemental Agreement may be executed between the parties as provided heroin.Chapman shall not perform any proposed additional work nor Incur any additional costs prior to the execution, by both partlos, of it written Supplemental Agreement. The BCRUA shall not be responsible for actions by Chapman nor for any costs incurred by Chapman relating to additional work not directly associated with ilia performance of the work authorized in this Agreement or any amondunents 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 Chapman shall make such revisions as requested and as directed by the BCRUA. Such revisions shall be considered as additional work and paid for as speeifled heroin.' Chapman 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 Stipplemental Agreement if the BCRUA determines that there has been a significant change In(1)the scope,complexity or character of the work to be porformed, or(2) the duration or cost of the work, or(3) the duration of the actual construction of the Project, which period of time exceeds the twelve(12)month period recited herein. Any such Supplemental Agreement nmst be duly authorized by the BCRUA by a Resolution of its Board of Directors. Where such Board authorization is required, Chapman shall not proceed until the appropriate Resolution has been adopted and the Supplemental Agreement has been executed.Additional compensation,if appropriate,shall be identified as provided herein. 1.4.3.1 Both parties must execute any written Supplemental Agreement within the contract term specified herein, 1.4.3.2 It is understood and agreed by and between both parties that Chapman shall make no claim for extra work done or materials flimished until the BCRUA executes the written Supplemental Agreemont and grants authorization to proceed.The BCRUA reserves the right to withhold payment pending verification of satisfactory work performed. ARTICLE 2 RESPONSIBILITIES OF THE PARTO 2.1 The BCRUA and Chapman shall cooperate with one another to ft IMI their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships. 2.2 I)CRUA's Genal Resnonsibilitles 2.2.1 Unless otherwise provided under this Agreement,the BCRUA shall provide fall information In a timely manner regarding requirements for and limitations on the Project. The BCRUA shall furnish to Chapman,within fifteen(I5) days ager receipt of a written request, information necessary and relevant for Chapman to evaluate, give notice of, or enforce rights. 2.2.3 The 13CRUA'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 Chapman in order to avoid unreasonable delay in the orderly and sequential progress of Chapman's Services. 2.2.4 Unless otherwise provided In this Agreement,and if requested in writing,the BCRUA shall lbralsh or pay for tests,inspections and reports required by law. 2.2.5 The BCRUA shall furnish all legal,insurance and accounting services, including auditing services,that may be reasonably necessary at any time for the Project to meet the BCRUA's needs and Interests. 6 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 Chapman with an approved set of plans and specifications for the Project. Also see Exhibit "A"entitled"Schedule of Authority's Responsibilities,"said Exhibit"A" being attached hereto and Incorporated herein by rePorence for all appropriate purposes. 2.3 Chanman's General Responsibilities 2.3.1 Chapman's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Chapman shall submit for the BCRUA's approval a schedule for performance of Services which initially shall be consistent with the time periods established for the Project and which may be adjusted, if necessary and approved by the BCRUA,as the Project proceeds.Time limits established by this schedule approved by the BCRUA shall not,except for reasonable cause,be exceeded by Chapman or the BCRUA, 2.3.2 Chapman, through Its Designated Representative identified herein, shall be the person authorized to act with respect to the Project 2.3.3 Chapman 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 Chapman from establishing a claim or defense In an adjudicatory prodding. 2.3.4 Except with the BCRUA's knowledge and consent, Chapman shall not engage in any activity, or accept any employment, Interest or contribution that would reasonably appear to compromise Chapman's professional judgment with respect to this Project. 2.3.5 Chapman shall review lases,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 Chapman 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 inconsistonoics in such services or Information. 2.3.7 Chapman shall keep all records pertaining to the Project, and records of accounts between the BCRUA and Chapman,on a generally recognized accounting basis, and shall make saint available to the BCRUA or its authorized representatives at mutually convenient times daring 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 )Nee, The total fca for Chapman's services shall be In a not-to-oxceed amount of One Hundred Sixty Thousand and N6/100 Dollars($160,000.00). Such not-to-exceed amount shall be full compensation for all Services performed and to be performed by Chapman under this Agreoment,and such not-to-exceed amount may not be revised In any fashion other then by written Supplemental Agreement as provided for herein. The BCRUA shall pay Chapman on a"time and materials"basis, Chapman agrees to accept payment from the BCRUA on such basis,and the parties expressly agree that only work actually performed by Chapman will be paid for by the SCRUA. 3.2 Scope of Services. Work tasks, Identified as Services,are delineated hi 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 Chapman based upon Services actually provided amid porformed, and shall be paid based upon BCRUA's receipt of proper invoices from Chapman. Chapman shall prepare and submit to the BCRUA,not leas fi quentiy than once per month,one(1)original and one(l) copy of a certified Invoice in it 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 certifled 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 heroin to the contrary, is due and payable within thirty (30) days. The BCRUA reserves the right to withhold payment pending verification of satisfactory Services 7 performed.Chapman has the responsibility to submit proof to the BCRUA,adequate and sufticlent in its determination, that tasks were completed. No deductions shall be made hom Chaprnan's compensation on account of penalty, liquidated damages or other sums withheld from payments,or on aecowrt of the cost of changes in the work other than those fbr which Chapman has been adjudged to be liable by a court of competent jurisdiction. 3.4 Monthly Progress Reports. Simultaneous with Chapman's submission of its monthly invoice,Chapman shall also submit to the BCRUA reports on the progress of the observation work and the construction work,in sutficlent detail to support the progress of the construction work and to support invoices from Chapman and the construction contractor requesting monthly payment. Such progress reports shalt 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 preconstruetion 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 paymnnt to be made by the BCRUA to Chapman will be made In accordance with the Texas Prompt Payment Policy statutes contained therein. The BCRUA shall document to Chapman the issues related to disputed Invoices within ten (10) calendar days of receipt of such invoke. 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 Chapman wider the terms of this Agreement are for use solely with respect to this Project. All such materials and all of Chapman'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 Agreemont. By execution of this Agreement and In confirmation of the fee for services to be paid under this Agreetnent,Chapman hereby conveys,transfers and assigns to the BCRUA all rights under the Federal Copyright Act of 1976 (or any successor copyright statute), as amended, all common Iaw copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. Chapman,at its own expense,may retain copies of such documents or any other data which Chapman 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. Chapman shall furnish and maintain, at Chapman's own expense, adequate and sufficlent personnel and equipment to perform the Services as required. All employees of Chapman shall have such general and specialized diving knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Chapman who,in the opinion of the BCRUA, is incompetent or whose conduct becomes detrimental to Chapman'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.Chapman certifies that Chapman presently has adequate hilly-qualified personnel in Chapman's employment for performance of the Services required under this Agreement, or will obtain such personnel from sources other than Ilia BCRUA.Chapman may not change key personnel assigned to the Project without prior written consont of the BCRUA,and no employee of Chapman,or person contracting with Chapman,may perform any services under this Agreement until such time as tho BCRUA has approved the qualificattons of such person in writing, 4.3 Subcontracting. Chapman 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 Chapman of any responsibilities tinder 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 Chapman hereunder and the premises on which such Services are being performed. If any review or evaluation Is made on the premises of Chapman or a subcontractor,then Chapman 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. 8 I 4.5 Submisstou 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 Chapman's reports, and may request such comments be addressed in wrlling. 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 certifleation that the contents of the document are"complete,true,and correct to the best knowledge"of the signer. Pay Applications from construction contractors mid vendors shall be cortifled by the Observer. 4.7 Non-Colluslonl Financial Interest Prohibited. 4.7.1 Non-collusion. Chapman warrants that Chapman has not employed or retained any company or persons, other than a bona fide employee working solely for Chapman,to solicit or secure this Agreement,and that Chapman 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$tom 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 fi'om the contract price or compensation,or to otherwise recover,the full amount of such fee,commission,percentage,brokerage fee,gift or contingent fee. 4.7.2 Financial interest Prohibited. Chapman covenants and represents that Chapman,Chapman'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. 4.8.2 Ilio BCRUA and Chapinim shall endeavor to resolve claims, disputes and other matters in question between them by mediation.Request for mediation shall be flied 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 flling,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 mnother 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 Chapman hereby expressly agree dint no claims or disputes between the BCRUA and Chapman 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,Chapman consents to bo joined in the arbitration proceeding if Chapman'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. Chapman and Ilio 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 falls to make payments to Chapman 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 Chapman elects to suspend services,prior to suspension of services,Chapman shall give thirty(30)days' written notice to the BCRUA. In the event of a suspension of services,Chapman shall have no liability to the BCRUA for delay or damage caused to the BCRUA because of such suspension of services. Before resuming services,Chapman shall be paid ail non-disputed sums due prior to suspension. Cbaprnau's tires for the remaining services and the time schedules shall be equitably Ousted. 9 i 4.11.2 In connection with the work outlined in this Agreement,it is agreed and Nily understood by Chapman 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 Chapman,with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Chapman shall invoice the BCRUA for all work satisfactorily completed acid shall be compensated in accordance with the terms of this Agreement for all work accomplished prlor 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 nffected,and this Agreement will expire as to term on the date specified unless this Agreement is amended indicating otherwise. 4.11.4 The BCRUA assumes no liability for Services performed or costs incurred prior to the date authorized by the BCRUA for Chapman to begin work, and/or during periods whop work Is suspended, and/or subsequent to tate completion date of the PwJect or the termination/expiration date of this Agreement. 4.11.5 In the event of a suspension by the BCRUA In excess of one hundred eighty(1130) days, Chapman has the right to elect to terminate this Agreement. Chapman may exercise such right to terminate by Issuing written notice to the BCRUA at least thirty(30)days In advance of such termination,and such termination shall become effective upon receipt of said written notice by the BCRUA. 4.11.6 Nothing contained herein shall require the BCRUA to pay for any work which is unsatisfactory or which Is not submitted In compliance with the berms of this Agreement. The BCRUA shall not be required to make any payments to Chapman when Chapman 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 Chapman Is in dethult, including the right to bring legal action for damages or to force specific performance of this Agreement. 4.I2 Termination. 4.12.1 This Agreement may be terminated before the stated expiration date by any of the following conditions.- (it) onditions:(a) By mutual agreement and consent,in writing,of bath parties, (b) By the BCRUA Board, by notice In writing to Chapman, as a consequence of a material breach by Chapman in the performance of the Services set forth herein. (e) By either party,upon the falhure of the other party to fult3ll its obligations as set forth herein. (d) By,the BCRUA Board,for reasons of Its own and not subject to the mutual consent of Chapman,upon not less than thirty(30)days'written notice to Chapman. (o) By satisfactory completion of all Services and obligations described herein. 4.12,2 Should the BCRUA terminate this Agreement as heroin provided,no fees other than fees dice and payable at the time of termination shall thereafter be paid to Chapman. In determining the value of the work performed by Chapman prior to termination, the BCRUA shall use reasonable business Judgment. Compensation for work at termination will be based on the actual Services completed at that time. 4.12.3 If Chapman defaults in the performance of this Agreement or if the BCRUA terminates this Agreement for fault on the part of Chapman, then the BCRUA shall give consideration to the actual costs incurred by Chapman 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 f» settlement as prescribed above shall extinguish all rights,dutles,and obligations of the BCRUA and Chapman under this Agreement. ARTI�GS 5 INDEMNIFICATION FICATION 3.1 Chapman agrees to save and hold hannless the BCRUA, its officers, ngents and employees, fi-am 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 10 Chapman's breach of any of the terms or provisions of this Agreement, or by any negligent act, error or omission of Chapman or of any person under Chapman'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 Agreontent;except that the Indemnity provided for In this section shall not apply to any liability resulting from the sole negligence of(lie BCRUA, its of1;'tcers,agents, employees or separate coMmetors, and In the event of joint and concurrent negligence of both Chapman 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 walving any defenses of the parties under Texas law. 5.2 Chapman shall also save and hold harmless the BCRUA, its officers, agents and employees, from any and all expenses, Including but not limited to attorneys fees which may be incurred by the BCRUA in litigation or otherwise defending claims or liabilities which may be imposed on the BCRUA as a result of any negligent act,arror or omission of Chapman or of any person employed by Chapman or under Chapman's direction or control while In the exercise of performance of the Services provided for hereunder or in the perfbmiance of rights and duties under this Agreement. ARTICLE 6 INSURANCE 6.1 Insurance. Chapman, at Chapman's sole cost, shall purchase and maintain during the entire term while this Agreement is In effect general liability insurance coverage in the minimum amount of one Million Dollars from a company authorized to do insurance business In Texas and otherwise acceptable to the BCRUA, 6.2 Subconsultant insurance. Without limiting any of the other obligations or liabilities of Chapman,Chapman 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 perfbrmed by Chapman 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 hus been provided to the BCRUA. 6.3 Subconsultant's Certificates of Insurance, Chapman shall obtain and monitor the certificates of insurance from each subconsultant In order to assure compliance with the insurance requirements. Chapman must retaht the cert(flcates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsubants. 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; Chris Lippe,General Manager Brushy Greek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664 Chapman 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 ftom 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 Chapman. (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. 11 0 (e) Chapman aced the BCRUA mutually,waive subrogation rights each may have against the other for loss or damage,to the extent seine Is covered by the proceeds of insurance. 6.5 Cost or Insurance. The cost of all Insurance required herein to be secured and maintained by Chapman shall be borne solely by Chapman,with certificates of insurance evidencing such minhnum coverage in force to be filed with the BCRUA. Such Certificates of Insurance are evidenced as Exhibit "D" herein entitled "Insurance Cortifleates," said Exhibit"D"being attached hereto mud incorporated herein by reference for all appropriate purposes. ARTICLE 7 NOTICES 7.1 All notices which this Agreement mandates be given by one patty to (lie other shall be personally delivered or mailed to such party at the following respective addresses: Authority Brushy Creek Regional Utility Aud►ority Attention: Chris Lippe,General Manager 221 East Main Street Round Rock,TX 78664 and to: Stephan L.Sheets Attorney at Law 309 E.Main St. Round Rock,Texas 78664 Observer Chapman Marine,Inc. 5107 Beacon Drive Austin,Texas 78734 and to: Jim Ewbank Ewbank&Byrom,PC 1210 Nucces St. Austin,Texas 78701 ARTICL&8 MISCELLANEOUS PROVISIONS 8.1 This Agreement represents the entire and integrated agreement between BCRUA and Chapman and supersedes all prior negotiations,representations or agreements,either written or oral. 8.2 This Agreement shalt be governed by and in accordance with the laws and court decisions of the state of Texas,and exclusive venue shall lie In Williamson County,Texas. 8.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion.In no event shall such statutes of limitations commence to run any later than the date when C.hapman's services are substantially completed. 8.4 To the extent damages are covered by property Insurance during construction,the BCRUA and Chapman 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 Chapman. 12 8.6 The BCRUA and Chapman,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 Chapman shall assign or transfer any intarest in this Agreement without the written consent of the other, except that the BCRUA may assign this Agreement to an Institutional lender providing financing for the Project.In such event,the lender shall assume the BCRUA's rights and obligations under this Agreement. Chapman shall execute all reasonable consents which are 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, theft such Invalidity, illegality or unenforceability shall not affect any other provision thoreof and this Agreement shall be construed as if such invalid,illegal or unenforceable provision had never been contained herein. 8.8 Chapman shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, ntles and regulations, and tiie orders and decrees of any court or administrative bodies or tribunals in any manner affecting the performance of this Agreement, including without limitation, minimum/inaxlmum salary and wage statutes and regulations, and licensing laws and regulations. Chopman'shali furnish the BCRUA with satisfactory proof of its compliance. Chapman shall further obtain all permits and licenses required In the performance of the Services contracted for herein. 8.9 Chapman will pay all taxes, If any,required bylaw arising by virtuo 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. 5.10 Chapman covenants and represents that it will have no financial interest,director indirect,in the purchase or sale of any product,materials or equipment that will be recommended or required for the Project. 8.11 Chapman agrees that time is of the essence and that any failure of Chapman to complete the Services for this Agreement within the agreed schedule will constitute a material breach of Oils Agreement. Chapman shall be Hilly responsible for Chapman's delays or for failures to use Chapman's host eflbrts in accordance with the terms of this Agreement If such are adjudged by a court of competent jurisdiction to have been caused by Chapman. Whero damage is caused to the BCRUA duo to Chapman's failure to perform in these circumstances,the BCRUA may withhold,to the extent of such damage,Chapman's payments hereunder without waiver of any of ilia BCRUA's additional legal rights or remedies subject to the limitations In Section 3.3 and 3.5, 8.12 Neither the BCRUA nor Chapman 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 timrety given, and all reasonable efforts undertaken to mitigate Its effects. ARTICLE 9 SIGNATORY WARRANTY 9.1 The undersigned signatory for Chapman hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Agreement and that be/site has}bit and complete authority to enter into this Agreement on behalf of the firm.The above-stated representations and warranties aro made for the purpose of inducing the BCRUA to enter into this Agreement. IN WITNESS WHEREOF,the Brushy Creek Regional Utility Authority has caused this Agreement to be signed In 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 ' 2010, and by the duly authorized representative of Chapman, with both parties binding themselves,their successors and assigns and legal representatives for the feitlitltl and Rill performance of the terms and provisions of this Agreement. 13 BRUSHY CREEK REGIONAL UTILITY AUTHORITY By: Mitch Fuller,President Date Signed: ATTEST: By: John Cowman,Secretary CHAPMAN MA INC IN By: James Chapma , re dent Date Signed: ba Ift7 ATTEST: By: nor t ecretary LIST OF EXHIBITS ATTACHED Exhibit"A" Schedule of Authority's Responsibilities Exhibit"B" Schedule of Observer's Responsibilities Exhibit"C" Work and Fee Schedule Exhibit "D" Insurance Certificates 14 BCRUA Underwater Transmission Line Observer Contract Chapman Marine I EXHIBIT A,consisting of 2 pages,referred to in and part of the Agreement between the Authority And the Observer Schedule of Authority's ResponelbUldes A. Conduct a Pre-work Conference with the Observer B. 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. C, 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." D. 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 bin not limited to the following: 1. Property descriptions. 2. Zoning,deed,and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site,or hydrographic surveys,with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to a Specific Project, the Site and adjacent areas. E. Give prompt written notice to Observer whenever the Authority 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. F. Authorize the Observer to provide Additional Services as set forth in a change order as required. 15 I G. Arrange for safe access to and make all provisions for the Observers to enter upon public and private property as required to perform services. H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Specific Project. I. Advise the Observer of the identity and scope of services of any independent consultants employed by Owner to perform or fumish services in regard to the Specific Project, including, but not limited to, cost estimating,project peer review,value engineering, and constructability review. J. 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. K. 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. L. Provide the Observer with the findings and reports generated by any independent testing laboratory,if Engineer is required to review such documents. M. Notify the Observer of all meetings and conferences related to the project. N. Pay the Observer in accordance with Texas State Law and the terms of the contract, 0. The Authority will invoice the contractors for compensation for any and all overtime work (weekends,holidays,and work over 8 hours per day). 16 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT B,consisting of 2 pages,referred to in and part of the Agreement between the Authority and the Observer Schedule of Observer's Responsibllitles The Observer will be a member of the Authority's construction management team and will report to the designated BCRUA Construction Manager. The Observer will work with BCRUA management, management staff,the design engineer's staff,other agency representatives,and other Observers. The Authority has a designated Authority Pgggram Lead Observer and the Observer will coordinate activities with the Authority's designated Progm Lead Observer as directed by the Construction Manager, The Observer will work with and coordinate with a 'te Lead Observer designated by the Authority. From time to time the Observer may be designated or act as the S.lg Lead Observer. In all cases, the Observer will be a site representative for the Authority. Pay applications will be submitted to the Program Lead Observer, The regular work day is eight (8) hours. This eight (8) hour day may be adjusted seasonably (for example,may start at 7 am and end at 4 pin)or for special events on a case by case basis, but in any case the regular work day will not exceed eight(8)hours. The duties and responsibilities to be performed as the Authority's Observer for the Underwater Transmission Line Project are: underwater, greater than 15 feet, observation and administrative; and are to be for quality assurance purposes on an as needed basis. Actual work hours will be coordinated in advance with the Authority's Construction Management Staff, They will be performed in accordance with accepted construction industry underwater observation standards. They include but are not limited to: 1. Assist with the preparation of a Risk Management Plan in coordination with BCRUA construction management staff. 2. Inspection,observation,reporting,and documentation. 3. Gross level of detail constructability and value optlons reviews. 4. Assessment and recommendations concerning construction contractor action plans such as for traffic control,site security,crane operations,pipe laying, barge operations, underwater excavations, and underwater backfill operations. Work includes review and processing of pay applications to include certification of work completed, materials stored, work value, schedule,and other pay application regtdrements. 5. Coordinating,reviewing,and recording of quality control testing. 17 6. Attendance at project meetings including safety meetings(contractor, design engineer,and BCRUA),the pre-construction meeting,and progress meetings. 7. Assistance with resolution of conflicts. 8. Coordination with design engineers and management. 9. Reviewing and processing submittals,requests for information,and change orders. 10. Maintain acid 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, as requested by the Authority. 12. Field office files maintenance--electronic and hard copies. 13.Attend other construction meetings when requested. 14.Reporting of observed violations of standard safety regulations. 15.Reporting of observed violations of standard security and employment regulations. 16.Submitting a separate pay application for work categorized as"Overtime." The Observer will provide the Authority for approval with the qualifications and certifications of each of its team members who will work on the Project. The Observer will be housed with the Authority's construction management staff and will be provided identification badge(if required),office space,work station,file space,chair,and access to the BCRUA electronic systems. Access to work sites will be coordinated with the construction contractor. The Observer is expected to arrive at a designated Authority work site as necessary, and with all the appropriate apparel, equipment, and necessary safety gear to conduct underwater construction observation business in any weather condition, 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 hard wire with Authority electronic equipment, This is quality assurance work and not quality control work. The construction contractor is responsible for quality control, The Observer is to check the contractors adherence to the contractors quality control plan, observe and report to the contractor, design engineer, and or management any observed deviation from the plans and specifications for the project. The Observer is responsible for their own safety in accordance with Authority policies and regulations, but is not responsible for the construction contractor's or subcontractor's safety program, 18 The work does not include typical design engineer construction phased services. Design engineers will provide 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. e 19 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT C,consisting of 2 pages,referred to in and part of the Agreement between the Authority and the Observer Work and Fee Schedule This is a "Time and Material with a Not to Exceed Amount" Contract. The Work Schedule is an estimate of the duration of the construction project and the period for which Observation Services will be needed. The Fee Schedule designates the basic fee rates to be charged for work performed. The Not to Exceed Amount is the total estimated expenditures—for any effort over this amount the Observer must have the Authority's prior written approval. "Work Schedule" Normal working hours will be Monday through Friday for an eight(8)hour work day. The Observer will be on an as needed basis during the estimated duration of the project for an estimated total of 365 calendar days from the Notice to Proceed. The total estimated work days are 34. Actual work days will be coordinated in advance with the Authority's Construction Management Team. "Fee Schedule" The Authority will reimburse for materials such as copying and printing services if approved in advance. The Authority will reimburse for travel time and mileage out side the local area of the project as long as it is project related travel and is approved in advance. All necessary and requested overtime worts (overtime work defined as "Nights, Weekends, and Holidays") will be invoiced separately at a rate of 1.5 times the listed "Day Rate" ($3,895.00). The Authority will be responsible for any and all reimbursement fees due from the General Contractor for overtone work perfonned. Attendance at meetings and other administrative activities are considered part of the overhead costs included in the per day fee schedule. All days worked will be charged at an 8 hour minimum. If approved in advance,for other than normal meetings and situations, the Authority agrees that the fee schedule for an individual is set at$65,00 an hour. The fee and cost estimate are as shown below; 20 The day rate used is the$3,895.00 plus consumable charge and 4 depths at 80' Based on 8 hr day Day Rate $3,895.00 Consumables_ $125.00 4-depths 80' $640.00 Total $4,660.00 Item tt Description Days Day Rate Totals 1 Inspect 1000'ditch before setting pipe 3 $4,660.00 $13,980.00 2 Inspect 1000'of pipe after setting In ditch 3 $4,660.00 $13,980.00 3 Inspect 1000'of pipe after backfill 3 $4,660.00 $13,980.00 4 Inspect 2000'of pipe supports 5 $4,660.00 $23,300.00 5 Inspect 2000'of pipe 5 $4,660.00 $23,300.00 6 Inspect Manifold pre pour 2 $4,660.00 $9,320.00 7 Inspect Manifold during pour 1 $4,660.00 $4,660.00 8 Inspect Manifold after pour 1 $4,660.00 $4,660.00 9 Buoy off existing anchors 4 $4,660.00 $18,640.00 10 Extra Days 7 $4,660.00 $32,620.00 Totals 34 $158,440.00 Note; Attendance at meetings and other, administrative functions are included in the total estimated amount. Additional materials are estimated at$1,560. Not to Exceed Amount: The Total Not to Exceed Amount is$160,000,00. 21 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT D,consisting of 2 pages,referred to in and part of the Agreement betweelk the Authority and the Observer Insurance Certificates 22 DATE: October 15, 2010 SUBJECT: BCRUA Board Meeting—October 20,2010 ITEM: 7C. Consider a resolution authorizing the President to execute a Second Amendment to the Master Contract for the Financing,Construction, and Operation of the BCRUA Regional Water Treatment and Distribution Project. Presenter: Michael Thane Director of Infrastructure Management City of Round Rock Justification: On September 9, 2008,the Cities entered into a Master contract which provides the terms and conditions for the financing, construction,and operation of Phase 1A of the Brushy Creek Regional Utility Authority(BCRUA) regional water project. On December 18, 2008,the Cities amended the Master Contract to delay the issuance of bonds and the commencement of construction of the project. This Amendment No. 2 to the Master Contract is necessary to revise the actual cost necessary to complete Phase 1A of the regional water project. There are six construction contracts to be awarded as part of Phase 1A. Five of these projects have already awarded construction contracts to the lowest responsible bidder. Because these construction contracts are coming in lower than the construction cost estimate that was included in Exhibit D of the Master Contract,the BCRUA is updating Exhibit D to show these construction cost savings. To date,the BCRUA has saved$30,389,968 in cost for the five projects that have been recently awarded or are under construction. DATE: October 15,2010 SUBJECT: BCRUA Board Meeting—October 20, 2010 ITEM: 7B. Consider a resolution authorizing the President to execute an Observation and Inspection Contract for the Raw Water Transmission Line, Underwater Pipeline,Contract 2 with Chapman Marine in the amount of$160,000. Presenter: Michael Thuss Construction&Program Manager Justification: The Raw Water Transmission Line,Contract 2,the Underwater Transmission Line (UWTL) construction contract has been awarded to Excel, Inc. Construction of the UWTL requires underwater diving services for observation and inspection purposes. J.R.Tolles has been approved by the Board to provide general observation and inspection services and be the lead inspector for the UWTL,and can conduct underwater operations to a depth of 25 feet. The UWTL project will require observation and inspection at greater than 25 foot depth,and requires the services of "hardhat"diver specialists. Requests for proposals were advertised and Chapman Marine was selected to provide these services for BCRUA after a competitive and open procurement process. A committee of engineers from BCRUA and the three Cities selected Chapman Marine based on their qualifications,experience,and rates. Funding: The agreement is a time and materials type contract with a not to exceed amount of$160,000. Funding for this contract is in the BCRUA Program Budget and in the FY11 Spending Plan. This is eligible for Bond Proceeds funding. Brushy Creek Regional Utility Authority (BCRUA) Agreement for Construction Phase Observation Diving Services for BCRUA Phase 1, Contract 2, Regional Water System, Raw Waterline/Underwater Pipeline with Chapman Marine, Inc. THIS AGREEMENT is made as of the &ftcr"nr day of the month of Qc+o b e.r in the year Two Thousand Ten(2010). BETWEEN the Brushy Creek Regional Utility Authority, a Texas local government corporation, identified herein as the "Authority"or the"BCRUA": Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664-5299 and Chapman Marine,Inc.,a Texas corporation,identified herein as"Chapman": Chapman Marine,Inc. 5107 Beacon Drive Austin,Texas 78734 For the following Project: BCRUA Phase 1, Contract 2, Regional Water System, Raw Waterline/Undenvater Pipeline Project (the "Project'), which Project is owned by the BCRUA. A propedy-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 Chapman as the proposer offering the best value for the entity. Consulting services to be performed by Chapman include provision of"construction industry underwater observation" standard construction phase observation services, certain quality assurance 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"Schedule of Observer's Responsibilities,"said Exhibit`B"being attached hereto and incorporated herein by reference for all appropriate purposes. When the terms of this Agreement conflict with the terms of Exhibit B,Exhibit B shall control only to the extent of such conflict. 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 Chapman agree as follows: ARTICLE 1 INITIAL INFORMATION 1.1 This Agreement is based on the following information and assumptions. Section 1.1 is intentionally deleted. 1.2 Prolect Parameters 1.2.1 The objective or use is: Objectives include,but are not limited to,obtaining consulting services from Chapman including Chapman's provision of"construction industry underwater observation" standard construction phase observation services, certain related administrative services,performance observation support,and field site representation(the"Services")on the site of the BCRUA Phase 1,Contract 2,Regional Water System,Raw Waterline/Underwater Pipeline Project. 1.2.2 The physical parameters are: Section 1.2.2 is intentionally deleted. 00203189/jkg Revised 9/30/10 lac-9-v -/0-10-Zb-=7#-s 1.2.3 BCRUA's Program is: Section 1.2.3 is intentionally deleted. 1.2.4 The legal parameters are: Section 1.2.4 is intentionally deleted. 1.2.5 The financial parameters are as follows: The total fee for Chapman's services shall be in a not-to-exceed amount of One Hundred Sixty Thousand and NO 00 Dollars ($160,000.00). Such not-to-exceed amount shall be full compensation for all Services performed and to be performed by Chapman under this Agreement, including without limitation any overtime compensation and reimbursement for travel, copying, etc. as set forth in more detail in Sec. 1.2.6.3.The foregoing 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 Chapman on a"time and materials"basis,Chapman agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Chapman will be paid for by the BCRUA. 1.2.6 The Scope of Services parameters areas follows: The above-recited fee for Chapman's Services is generally comprised of the following until the not-to-exceed amount is reached: (a) Construction Observation Visits to the site shall be provided by Chapman as needed, to observe the construction in progress. The site visits 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 (b) Daily Reports, Each day's construction activities shall be summarized by Chapman in a daily report. The daily reports are intended to assist Chapman'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 Chapman. The pay application review shall express Chapman's opinion as to the accuracy of the application based on the review of materials on-site and the construction progress to date. At the completion of Chapman's review,the Contractor will be required to correct any erroneous pay items before the final pay application is submitted for payment. (d) Changc Orders and Requests for Information(RFls) Chapman shall provide a review of all change orders and RFIs prior to submission to the BCRUA to insure that the documents being submittcd 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. Such review does not relieve the Contractor,Authority or its engineers from their duties on this subject. (e) Construction Tcstins Chapman 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. Chapman 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. 2 i (f) Project Meetingg i Chapman shall attend and maintain active involvement in all meetings related to the Project,as required and directed by the BCRUA. Types of meetings anticipated include, but are not limited to, pre-construction meetings, weekly progress meetings, on-site troubleshooting meetings, punch list and final walkthrough meetings, and any other Project-related meetings that may arise. Any meeting notes or documents shall be kept as Project documentation. (g) Prolect Documentation As herein described,copies of all relevant Project documentation shall be compiled and kept by Chapman. Types of documentation anticipated include,but are not limited to,daily reports,photographs,approved submittals, RFis,and change orders. Chapman shall also assist the BCRUA with any items necessary to complete the as-built drawings and Project close-out documentation. Any and all of Chapman's records regarding the Project shall be made available to the BCRUA upon request; provided, however, that any such review, audit and/or examination of such Project documentation by the BCRUA shall be at the BCRUA's cost and expense. (h) Construction Deficiencies In the event that construction deficiencies are noted during daily observations, Chapman shall immediately notify the Contractor and the BCRUA, and shall advise the BCRUA of Chapman'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 Chapman in the daily reports. (i) Design Conflicts The recognition of any design conflicts determined by the General Contractor or Chapman which require a change to the construction contract shall be summarized by Chapman and presented to the BCRUA for review and appropriate action. Chapman 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 Chapman shall include all of the known Project stakeholders in any given aspect of the Project, as directed by the BCRUA. Chapman shall help identify potential issues before they arise,and report these issues to the BCRUA on a timely basis. (k) Personnel and Equipment Chapman expressly asserts that its staff is highly experienced in underwater diving construction observation and management, in observation diving services, and that its staff is seasoned in dealing with any issues that may be encountered during a Project of this type within the scope of Exhibit B. Chapman further expressly asserts that its staff is provided with all of the necessary safety and communication equipment to perforin all job tasks in a safe, efficient and timely manner. 1.2.6.1 Both parties expressly acknowledge that Section 1.2.6 herein and Exhibit`B"represent a mutually-acceptable Scope of Services, and that such documents contain a complete scope and schedule so that Chapman's Services under this Agreement may be accomplished within the specified time and at the specified cost. Chapman 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 twelve (12)months specified herein or exceed $160,000.00,through no fault of Chapman, then additional time and materials may be appropriately authorized by the BCRUA through a written Supplemental Agreement as provided herein 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. 3 Chapman 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 (Chapman's "Overtime"). The General ,Contractor shall be responsible for reimbursing the BCRUA for any and all of Chapman's Overtime that is paid by the BCRUA to Chapman; however, the parties expressly acknowledge that the BCRUA is the entity which shall be responsible for making such Overtime payments to Chapman, and that Chapman shall not be required to seek Overtime payment directly from the General Contractor. (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 Chapman's customary reimbursable expenses (such as copying and printing services)at actual cost only if approved in writing in advance of Chapman incurring same,and if supported by appropriate documentation. (e) The BCRUA will be responsible for paying Chapman'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 Chapman incurring same. (f) All Services shall be performed exclusively by representatives of Chapman Marine, Inc. In the event that Chapman 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) The BCRUA has a designated Program Lead Observer. Chapman shall coordinate activities with the BCRUA's Program Lead Observer as directed by the Construction Manager. Chapman will work with and coordinate with a Site Lead Observer designated by the BCRUA. In all other cases,Chapman will be a site representative for the BCRUA. (h) Time Commitment and Estimated Rate Projections: The day rate is$3,895.00 plus consumable charge plus four depths at 80' Based on 8-hour day Day Rate $3,895.00 Consumables 125.00 4 depths 80' 640.00 Total $4,660.00 Approximate number of working days is 34 x$4,660.00= $158,440.00 Approximate additional materials 1.560.00 TOTAL NOT-TO-EXCEED AMOUNT $160,000.00 Also see Exhibit"C." The parties expressly acknowledge and agree that the BCRUA's Designated Representative and Chapman 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: 1.2.7.1 Term. After execution by each party hereto,this Agreement shall be effective on the date Chapman receives the BCRUA's written Notice to Proceed,and shall remain in Hill 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 twelve(12)months following Chapman's receipt of the BCRUA's written Notice to Proceed, unless this Agreement is extended by written Supplemental Agreement executed by Chapman and the BCRUA prior to the date of term expiration. Any work performed or costs incurred by Chapman after the date of term expiration 4 or termination shall not be eligible for reimbursement unless such referenced Supplemental Agreement is executed by Chapman and the BCRUA prior to the date of tern expiration or termination. 1.2.7.1.2 Chapman shall notify the BCRUA in writing as soon as possible if Chapman 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 Chapman. In that event the BCRUA may, in its reasonable discretion, extend the tern and increase the amount payable to Chapman by timely written Supplemental Agreement. Chapman shall allow adequate time for the BCRUA to review and approve Chapman's request for extension and request for additional compensation. 1.2.7.2 Work Schedule. Chapman 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 Chapman's Services required herein. In this regard, Chapman 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, Chapman shall not proceed with work delineated in Section 1.2.6 herein and attached Exhibit"B"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: Consulting services herein are engaged by this negotiated Agreement. 1.2.9 Section 1.2.9 is intentionally deleted. 1.3 Prosect Team 1.3.1 The BCRUA's Designated Representative is: Michael F.Thuss,P.E.,Program and Construction Manager 221 East Main Street Round Rock,Texas 78664 Telephone: 512-215-9151 Email Address: mthuss(ftcru8 orsz 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 Chapman in order to avoid unreasonable delay in the orderly and sequential progress of Chapman's Services. 1.3.3 The persons or entity, in addition to the BCRUA's Designated Representative, who is required to review Chapman's submittals to the BCRUA are: Chris Lippe,P.E.,BCRUA General Manager 221 E.Main St. Round Rock,Texas 78664 Telephone: 512-844-7419 Email Address: clippe@round-rock.tx.us 1.3.4 The BCRUA's other inspectors and contractors are: Section 1.3.4 is intentionally deleted. 1.3.5 Chapman's Designated Representative is: David Ballard Project Manager,Chapman Marine, Inc. 5107 Beacon Drive Austin,Texas 78734 Telephone: 512-573-3483 Email Address: David.ben chapmanmarineinc.com 5 i i 1.3.6 The consultants retained at Chapman's expense are: Unknown at this time. 1.4 Miscellaneous Initial Information 1.4.1 Additional Work. If Chapman forms a reasonable opinion that any work Chapman has been directed to perform is beyond the scope of this Agreement and as such constitutes extra work,Chapman 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 Chapman and a written Supplemental Agreement may be executed between the parties as provided herein. Chapman 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 Chapman nor for any costs incurred by Chapman 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 Chapman 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. Chapman 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 or cost of the work, or(3) the duration of the actual construction of the Project, which period of time exceeds the twelve(12)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, Chapman shall not proceed until the appropriate Resolution has been adopted and the Supplemental Agreement has been executed.Additional compensation, if appropriate,shall be identified as provided herein. 1.4.3.1 Both parties must execute any written Supplemental Agreement within the contract tern specified herein. 1.4.3.2 It is understood and agreed by and between both parties that Chapman shall make no claim for extra work done or materials furnished until the BCRUA executes the written Supplemental Agreement and grants authorization to proceed.The BCRUA reserves the right to withhold payment pending verification of satisfactory work performed. ARTICLE 2 RESPONSIBILITIES OF THE PARTIES 2.1 The BCRUA and Chapman 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 Chapman, within fifteen(15) days after receipt of a written request, information necessary and relevant for Chapman 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 Chapman in order to avoid unreasonable delay in the orderly and sequential progress of Chapman's Services. 2.2.4 Unless otherwise provided in this Agreement,and if requested in writing,the BCRUA shall furnish or pay for tests,inspections and reports required by law. 2.2.5 The BCRUA shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the BCRUA's needs and Interests. 6 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 Chapman with an approved set of plans and specifications for the Project, Also see Exhibit "A" entitled "Schedule of Authority's Responsibilities," said Exhibit "A" being attached hereto and incorporated herein by reference for all appropriate purposes. 2.3 Chapman's General Responsibilities 2.3.1 Chapman's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Chapman shall submit for the BCRUA's approval a schedule for performance of Services which initially shall be consistent with the time periods established for the Project and which may be adjusted, if necessary and approved by the BCRUA,as the Project proceeds.Time limits established by this schedule approved by the BCRUA shall not,except for reasonable cause,be exceeded by Chapman or the BCRUA. 2.3.2 Chapman, through its Designated Representative identified herein, shall be the person authorized to act with respect to the Project. 2.3.3 Chapman 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 Chapman from establishing a claim or defense in an adjudicatory proceeding. 2.3.4 Except with the BCRUA's knowledge and consent, Chapman shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise Chapman's professional judgment with respect to this Project. 2.3.5 Chapman 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 Chapman 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 Chapman shall keep all records pertaining to the Project, and records of accounts between the BCRUA and Chapman, 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(tours. 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 Chapman's services shall be in a not-to-exceed amount of One Hundred Sixty Thousand and No/100 Dollars ($160,000.00). Such not-to-exceed amount shall be full compensation for all Services performed and to be performed by Chapman 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 Chapman on a "time and materials" basis, Chapman agrees to accept payment from the BCRUA on such basis, and the parties expressly agree that only work actually performed by Chapman 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 Chapman based upon Services actually provided and performed, and shall be paid based upon BCRUA's receipt of proper invoices from Chapman. Chapman 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 7 performed. Chapman has the responsibility to submit proof to the BCRUA, adequate and sufficient in its determination, that tasks were completed. No deductions shall be made from Chapman'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 Chapman has been adjudged to be liable by a court of competent jurisdiction. 3.4 Monthly Progress Reports. Simultaneous with Chapman's submission of its monthly invoice,Chapman 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 Chapman and the constriction 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 Chapman will be made in accordance with the Texas Prompt Payment Policy statutes contained therein. The BCRUA shall document to Chapman the issues related to disputed invoices within ten (10) calendar days of receipt of such invoice. Any non-disputed invoices shall be considered correct and payable per the terms of Chapter 2251,V.T.C.A.,Texas Government Code. ARTICLE 4 TERMS AND CONDITIONS 4.1 Ownership of Documents. All data,basic sketches,charts,calculations,plans,drawings,reports,specifications and other documents,including those in electronic form,created or collected or prepared by Chapman under the terms of this Agreement are for use solely with respect to this Project. All such materials and all of Chapman'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, Chapman hereby conveys,transfers and assigns to the BCRUA all rights under the Federal Copyright Act of 1976 (or any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. Chapman, at its own expense,may retain copies of such documents or any other data which Chapman has furnished to the BCRUA tinder 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. Chapman shall furnish and maintain, at Chapman's own expense, adequate and sufficient personnel and equipment to perform the Services as required.All employees of Chapman shall have such general and specialized diving knowledge and experience as will enable them to perform the duties assigned to them. Any employee of Chapman who, in the opinion of the BCRUA, is incompetent or whose conduct becomes detrimental to Chapman'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. Chapman certifies that Chapman presently has adequate fully-qualified personnel in Chapman's employment for performance of the Services required under this Agreement, or will obtain such personnel from sources other than the BCRUA. Chapman may not change key personnel assigned to the Project without prior written consent of the BCRUA,and no employee of Chapman,or person contracting with Chapman, 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. Chapman 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 Chapman 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 Chapman hereunder and the premises on which such Services are being performed. if any review or evaluation is made on the premises of Chapman or a subcontractor,then Chapman 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. 8 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 Chapman's reports, and may request such comments be addressed hi 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 the Observer. 4.7 Non-Collusion; Financlal Interest Prohibited. 4.7.1 Non-collusion. Chapman warrants that Chapman has not employed or retained any company or persons, other than a bona fide employee working solely for Chapman,to solicit or secure this Agreement,and that Chapman 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. 4.7.2 Financial Interest Prohibited. Chapman covenants and represents that Chapman, Chapman'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. 4.8.2 The BCRUA and Chapman 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 Chapman hereby expressly agree that no claims or disputes between the BCRUA and Chapman 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,Chapman consents to be joined in the arbitration proceeding if Chapman'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. Chapman 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 Chapman insubstantial compliance with this Agreement,such failure may be considered substantial nonperformance and cause for suspension of performance of services under this Agreement. If Chapman elects to suspend services,prior to suspension of services,Chapman shall give thirty(30)days' written notice to the BCRUA. In the event of a suspension of services, Chapman shall have no liability to the BCRUA for delay or damage caused to the BCRUA because of such suspension of services. Before resuming services,Chapman shall be paid all non-disputed sums due prior to suspension. Chapman's fees for the remaining services and the time schedules shall be equitably adjusted. 9 4.11.2 In connection with the work outlined in this Agreement, it is agreed and fully understood by Chapman 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 Chapman,with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Chapman 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 (lie BCRUA for Chapman to begin work, and/or during periods when work is suspended, and/or subsequent to the completion date of the Project or the tenmina(ion/expira(ion date of this Agreement. 4.11.5 In the event of a suspension by the BCRUA in excess of one hundred eighty(180) days, Chapman has the right to elect to terminate this Agreement. Chapman may exercise such right to terminate by issuing written notice to the BCRUA at least thirty(30) days in advance of such termination,and such termination shall become effective upon receipt of said written notice by the BCRUA. 4.11.6 Nothing contained herein shall require the BCRUA to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. The BCRUA shall not be required to make any payments to Chapman when Chapman 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 Chapman 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 Chapman, as a consequence of a material breach by Chapman 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 Chapman, upon not less than thirty(30)days'written notice to Chapman. (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 Chapman. In determining the value of the work performed by Chapman prior to termination, the BCRUA shall use reasonable business judgment. Compensation for work at termination will be based on the actual Services completed at that time. 4.12.3 If Chapman defaults in the performance of this Agreement or if the BCRUA terminates this Agreement for fault on the part of Chapman, then the BCRUA shall give consideration to the actual costs incurred by Chapman 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 Chapman under this Agreement. ARTICLE 5 INDEMNIFICATION 5.1 Chapman 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 10 i Chapman's breach of any of the terms or provisions of this Agreement, or by any negligent act, error or o►nission of Chapman or of any person under Chapman'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 Chapman 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 Chapman shall also save and hold harmless the BCRUA, its officers, agents and employees, from any and all expenses, including but not limited to attorneys fees which may be incurred by the BCRUA in litigation or otherwise defending claims or liabilities which may be imposed on the BCRUA as a result of any negligent act, error or omission of Chapman or of any person employed by Chapman or under Chapman'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. ARTICLE 6 INSURANCE 6.1 Insurance. Chapman, at Chapman's sole cost, shall purchase and maintain during the entire term while this Agreement is in effect general liability insurance coverage in the minimum amount of One Million Dollars from a company authorized to do insurance business in Texas and otherwise acceptable to the BCRUA. 6.2 Subconsultant Insurance. WIthout limiting any of the other obligations or liabilities of Chapman,Chapman 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 Chapman 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 Subconsultant's Certificates of Insurance. Chapman shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Chapman 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: Chris Lippe,General Manager Brushy Creek Regional Utility Authority 221 East Main Street Round Rock,Texas 78664 Chapman 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 Chapman. (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. it (e) Chapman 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 Chapman shall be borne solely by Chapman, with certificates of insurance evidencing such minimum coverage in force to be filed with the BCRUA. Such Certificates of Insurance are evidenced as Exhibit "D" herein entitled "insurance Certificates," said Exhibit"D"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: Chris Lippe,General Manager 221 East Main Street Round Rock,TX 78664 and to: Stephan L.Sheets Attorney at Law 309 E.Main St. Round Rock,Texas 78664 Observer Chapman Marine,Inc. 5107 Beacon Drive Austin,Texas 78734 and to: Jim Ewbank Ewbank 8t Byrom,PC 1210 Nueces St. Austin,Texas 78701 ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 This Agreement represents the entire and integrated agreement between BCRUA and Chapman and supersedes all prior negotiations,representations or agreements,either written or oral. 8.2 This Agreement shall be governed by and in accordance with the laws and court decisions of the state of Texas,and exclusive venue shall lie in Williamson County,Texas. 8.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. in no event shall such statutes of limitations commence to run any later than the date when Chapman's services are substantially completed. 8.4 To the extent damages are covered by property insurance during construction,the BCRUA and Chapman 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 Chapman. 12 8.6 The BCRUA and Chapman,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 Chapman shall assign or transfer any interest in this Agreement without the written consent of the other, except that the BCRUA may assign this Agreement to an institutional lender providing financing for the Project. In such event, the lender shall assume the BCRUA's rights and obligations under this Agreement. Chapman shall execute all reasonable consents which are 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 Chapman shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, riles and regulations, and the orders and decrees of any court or administrative bodies or tribunals in any manner affecting the performance of this Agreement, including without limitation, minimum/maximum salary and wage statutes and regulations, and licensing laws and regulations. Chapman'shall furnish the BCRUA with satisfactory proof of its compliance. Chapman shall further obtain all permits and licenses required in the performance of the Services contracted for herein. 8.9 Chapman 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 Chapman 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 Chapman agrees that time is of the essence and that any failure of Chapman to complete the Services for this Agreement within the agreed schedule will constitute a material breach of this Agreement. Chapman shall be fully responsible for Chapman's delays or for failures to use Chapman'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 Chapman. Where damage is caused to the BCRUA due to Chapman's failure to perform in these circumstances,the BCRUA may withhold,to the extent of such damage,Chapman's payments hereunder without waiver of any of the BCRUA's additional legal rights or remedies subject to the limitations in Section 3.3 and 3.5. 8.12 Neither the BCRUA nor Chapman 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 Chapman hereby represents and warrants that the signatory is an officer of the organization for which he/she has executed this Agreement and that he/she has full and complete authority to enter into this Agreement on behalf of the firm.The above-stated representations and warranties are made for the purpose of inducing the BCRUA to enter into this Agreement. IN WITNESS WHEREOF,the Brushy Creek Regional Utility Authority has caused this Agreement to be signed in its corporate name bydits General Manager, duly authorized to execute the same on its behalf b Resolution No. approved by the BCRUA's Board of Directors on the 4 day of the month of l-- , 2010, and by the duly authorized representative of Chapman, with both parties binding themselves,their successors and assigns and legal representatives for the faithful and full performance of the terms and provisions of this Agreement. 13 i BRUSHY CREEK REGIONAL UTILITY AUTHORITY By: Mitch Ful r, Presi nt Date Signed: 26 ATTES . By: ` John wman,Secretary CHAPMAN MA INE IN By: — i, JamesChapma , resident Date Signed: f7 ATTEST: By: 4 1 port ecretary LIST OF EXHIBITS ATTACHED Exhibit"A" Schedule of Authority's Responsibilities Exhibit"B" Schedule of Observer's Responsibilities Exhibit"C" Work and Fee Schedule Exhibit"D" Insurance Certificates 14 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT A,consisting of 2 pages,referred to in and part of the Agreement between tine Authority and the Observer Schedule of Authority's Responsibilities A. Conduct a Pre-work Conference with the Observer B. 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. C. 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." D. Furnish to the Observer any other available information pertinent to the Specific Project including reports and data relative to designs, or investigation at or adjacent to the Site of the Specific Project. Such additional information or data would generally include but not limited to the following: 1. Property descriptions. 2. Zoning,deed,and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site,or hydrographic surveys,with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to a Specific Project, the Site and adjacent areas. E. Give prompt written notice to Observer whenever the Authority 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. F. Authorize the Observer to provide Additional Services as set forth in a change order as required. 15 G. Arrange for safe access to and make all provisions for the Observers to enter upon public and private property as required to perform services. H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Specific Project. I. 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. J. 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. K. 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. L. Provide the Observer with the findings and reports generated by any independent testing laboratory, if Engineer is required to review such documents. M. Notify the Observer of all meetings and conferences related to the project. N. Pay the Observer in accordance with Texas State Law and the terms of the contract. O. The Authority will invoice the contractors for compensation for any and all overtime work (weekends,holidays, and work over 8 hours per day). 16 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between the Authority and the Observer Schedule 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. The Observer will work with BCRUA management, management staff,the design engineer's staff,other agency representatives, and other Observers. The Authority has a designated Authority Program Lead Observer and the Observer will coordinate activities with the Authority's designated Program Lead Observer as directed by the Construction Manager. The Observer will work with and coordinate with a Site Lead Observer designated by the Authority. From time to time the Observer may be designated or act as the Site Lead Observer. In all cases, the Observer will be a site representative for the Authority. Pay applications will be submitted to the Program Lead Observer. The regular work day is eight (8) hours. This eight (8) hour day may be adjusted seasonably (for example,may start at 7 am and end at 4 pm) or for special events on a case by case basis, but in any case the regular work day will not exceed eight(8)hours. The duties and responsibilities to be performed as the Authority's Observer for the Underwater Transmission Line Project are: underwater, greater than 15 feet, observation and administrative; and are to be for quality assurance purposes on an as needed basis. Actual work hours will be coordinated in advance with the Authority's Construction Management Staff. They will be performed in accordance with accepted construction industry underwater observation standards. They include but are not limited to: 1. Assist with the preparation of a Risk Management Plan in coordination with BCRUA construction management staff. 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, pipe laying, barge operations, underwater excavations, and underwater backfill operations. Work includes review and processing of pay applications to include certification of work completed, materials stored, work value, schedule,and other pay application requirements. 5. Coordinating, reviewing, and recording of quality control testing. 17 6. Attendance at project meetings including safety meetings (contractor, design engineer, and BCRUA),the pre-construction meeting,and progress meetings. 7. Assistance with resolution of conflicts. 8. Coordination with design engineers and management. 9. 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, as requested by the Authority. 12. Field office files maintenance—electronic and hard copies. 13. Attend other construction meetings when requested. 14. Reporting of observed violations of standard safety regulations. 15. Reporting of observed violations of standard security and employment regulations. 16. Submitting a separate pay application for work categorized as"Overtime." The Observer will provide the Authority for approval with the qualifications and certifications of each of its team members who will work on the Project. The Observer will be housed with the Authority's construction management staff and will be provided identification badge (if required), office space, work station, file space, chair, and access to the BCRUA electronic systems. Access to work sites will be coordinated with the construction contractor. The Observer is expected to arrive at a designated Authority work site as necessary, and with all the appropriate apparel, equipment, and necessary safety gear to conduct underwater construction observation business in any weather condition, 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 hard wire with Authority electronic equipment. This is quality assurance work and not quality control work. The construction contractor is responsible for quality control. The Observer is to check the contractors adherence to the contractors quality control plan, observe and report to the contractor, design engineer, and or management any observed deviation from the plans and specifications for the project. The Observer is responsible for their own safety in accordance with Authority policies and regulations, but is not responsible for the construction contractor's or subcontractor's safety program. 18 The work does not include typical design engineer construction phased services. Design engineers will provide 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. 19 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT C,consisting of 2 pages,referred to in and part of the Agreement between the Authority and the Observer Work and Fee Schedule This is a "Time and Material with a Not to Exceed Amount" Contract. The Work Schedule is an estimate of the duration of the construction project and the period for which Observation Services will be needed. The Fee Schedule designates the basic fee rates to be charged for work performed. The Not to Exceed Amount is the total estimated expenditures—for any effort over this amount the Observer must have the Authority's prior written approval. "Work Schedule" Normal working hours will be Monday through Friday for an eight(8)hour work day. The Observer will be on an as needed basis during the estimated duration of the project for an estimated total of 365 calendar days from the Notice to Proceed. The total estimated work days are 34. Actual work days will be coordinated in advance with the Authority's Construction Management Team. "Fee Schedule" The Authority will reimburse for materials such as copying and printing services if approved in advance. The Authority will reimburse for travel time and mileage out side the local area of the project as long as it is project related travel and is approved in advance. All necessary and requested overtime work (overtime work defined as "Nights, Weekends, and Holidays") will be invoiced separately at a rate of 1.5 times the listed "Day Rate" ($3,895.00). The Authority will be responsible for any and all reimbursement fees due from the General Contractor for overtime work performed. Attendance at meetings and other administrative activities are considered part of the overhead costs included in the per day fee schedule. All days worked will be charged at an 8 hour minimum. If approved in advance, for other than normal meetings and situations, the Authority agrees that the fee schedule for an individual is set at$65.00 an hour. The fee and cost estimate are as shown below: 20 The day rate used is the$3,895.00 plus consumable charge and 4 depths at 80' Based on 8 hr day Day Rate $3,895.00 Consumables $125.00 4-depths 80' $640.00 Total $4,660.00 Item# Description Days Day Rate Totals 1 Inspect 1000'ditch before setting pipe 3 $4,660.00 $13,980.00 2 Inspect 1000'of pipe after setting in ditch 3 $4,660.00 $13,980.00 3 Inspect 1000'of pipe after backflll 3 $4,660.00 $13,980.00 4 Inspect 2000'of pipe supports 5 $4,660.00 $23,300.00 5 Inspect 2000'of pipe 5 $4,660.00 $23,300.00 6 Inspect Manifold pre pour 2 $4,660.00 $9,320.00 7 Inspect Manifold during pour 1 $4,660.00 $4,660.00 8 Inspect Manifold after pour. 1 $4,660.00 $4,660,00 9 Buoy off existing anchors 4 $4,660.00 $18,640.00 10 Extra Days 7 $4,660.00 $32,620.00 Totals 34 $158,440.00 Note: Attendance at meetings and other administrative functions are included in the total estimated amount. Additional materials are estimated at$1,560. Not to Exceed Amount: The Total Not to Exceed Amount is$160,000.00. 21 BCRUA Underwater Transmission Line Observer Contract Chapman Marine EXHIBIT D, consisting of 2 pages,referred to in and part of the Agreement between the Authority and the Observer Insurance Certificates 22