terms and conditions - lcra.org€¦ · web viewin consideration of the mutual promises contained...

5. RFQ 8807 Terms and Conditions

Professional Engineering and Ancillary Services

Contract Between LCRA and _________

Contract # ______

Services Contract of 56Contract #__________


TABLE OF CONTENTSARTICLE 1. DEFINITIONS........................................................................................................4ARTICLE 2. SERVICES TO BE PROVIDED...........................................................................5ARTICLE 3. SITE INSPECTION...............................................................................................7ARTICLE 4. NOTICES................................................................................................................8ARTICLE 5. CONTRACT DOCUMENTS................................................................................8ARTICLE 6. TERM......................................................................................................................8ARTICLE 7. SCHEDULE............................................................................................................9ARTICLE 8. COMPENSATION.................................................................................................9ARTICLE 9. PAYMENT............................................................................................................11ARTICLE 10. TAXES.................................................................................................................12ARTICLE 11. COST REDUCTION EFFORTS......................................................................12ARTICLE 12. RISK OF LOSS...................................................................................................12ARTICLE 13. INSURANCE......................................................................................................13ARTICLE 14. REVIEW AND ACCEPTANCE.......................................................................14ARTICLE 15. OWNERSHIP OF DELIVERABLES..............................................................15ARTICLE 16. WARRANTIES AND STANDARDS...............................................................15ARTICLE 17. CONFIDENTIALITY........................................................................................17ARTICLE 18. GENERAL INDEMNITY..................................................................................17ARTICLE 19. INTELLECTUAL PROPERTY INDEMNITY...............................................18ARTICLE 20. INDEMNITY PROCEDURES..........................................................................19ARTICLE 21. LIMITATION OF LIABILITY........................................................................19ARTICLE 22. FAILURE TO ACT............................................................................................19ARTICLE 23. REMEDIES.........................................................................................................20ARTICLE 24. FORCE MAJEURE...........................................................................................20ARTICLE 25. TERMINATION FOR CONVENIENCE........................................................21ARTICLE 26. TERMINATION FOR CAUSE.........................................................................22ARTICLE 27. SUSPENSION.....................................................................................................23ARTICLE 28. DISPUTE RESOLUTION.................................................................................24ARTICLE 29. GOVERNING LAWS, REGULATIONS & STANDARDS...........................24ARTICLE 30. LICENSES AND PERMITS.............................................................................25ARTICLE 31. SUPPLIER DIVERSITY...................................................................................25ARTICLE 32. INDEPENDENT CONTRACTOR...................................................................26ARTICLE 33. INTOXICANTS & DRUGS: EMPLOYEE CONDUCT................................27ARTICLE 34. GENERAL SAFETY, ENVIRONMENTAL & SITE OPERATIONS

REQUIREMENTS...........................................................................................27ARTICLE 35. ON-SITE ACTIVITIES.....................................................................................32ARTICLE 36. SERVICES FOR FAYETTE POWER PROJECT AND LCRA

AFFILIATES....................................................................................................34ARTICLE 37. SECURITY AT LCRA JOB SITE....................................................................35ARTICLE 38. ETHICS REQUIREMENTS.............................................................................35ARTICLE 39. RIGHT TO AUDIT............................................................................................35ARTICLE 40. FINANCIAL OBLIGATIONS..........................................................................36ARTICLE 41. BANKRUPTCY..................................................................................................36ARTICLE 42. PUBLICITY........................................................................................................36ARTICLE 43. APPROVAL........................................................................................................37



ARTICLE 44. CONTRACT NON-EXCLUSIVE.....................................................................37ARTICLE 45. SEVERABILITY................................................................................................37ARTICLE 46. ASSIGNMENT...................................................................................................37ARTICLE 47. THIRD PARTY BENEFICIARIES..................................................................37ARTICLE 48. ENGLISH LANGUAGE....................................................................................38ARTICLE 49. WEB BASED PROCEDURE............................................................................38ARTICLE 50. INTEGRATION & CONTRACT MODIFICATION.....................................38ARTICLE 51. INTERPRETATION AND RELIANCE..........................................................38ARTICLE 52. TITLES AND SECTION HEADINGS.............................................................38ARTICLE 53. SURVIVAL.........................................................................................................38ARTICLE 54. BUSINESS REVIEWS.......................................................................................35ARTICLE 55. MISCELLANEOUS...........................................................................................35EXHIBIT A – STATEMENT OF WORK.................................................................................40EXHIBIT B – LABOR RATES..................................................................................................43EXHIBIT C – TRAVEL PROCEDURES.................................................................................44EXHIBIT D – CHANGE ORDER FORM................................................................................45EXHIBIT E - CONTRACT SCOPE OF WORK.....................................................................47EXHIBIT F - ELECTRONIC ENGINEERING DOCUMENT AND DRAWING REQUIREMENTS FOR ARCHITECTURAL AND ENGINEERING FIRMS ..................49



This is a Services Contract (“Contract”) between the Lower Colorado River Authority (the "LCRA") and ____________________________________ (“Professional”), collectively referred to as the "Parties" or individually as a “Party”.

In consideration of the mutual promises contained herein and for other good and valuable consideration the sufficiency and receipt of which is hereby acknowledged, the parties agree as follows:

ARTICLE 1. DEFINITIONS

a) Amendment - A written instrument executed by the LCRA Agent and a designated representative of the Professional that expressly modifies specific and identified terms of this Contract or an Order other than those that are allowed to be modified by Change Order.

b) Change Order - A written instrument executed by the LCRA Agent or an LCRA Buyer and a designated representative of the Professional that adds to, deletes from, or otherwise modifies (1) the Services to be supplied by the Professional under an Order; (2) the Deliverables to be provided by a Professional under an Order; (3) the time for completion of Professional’s performance under an Order or; (4) the price to be paid by LCRA under an Order. The foregoing four terms are the exclusive list of terms that may be changed by a Change Order.

c) Contract Documents - Those documents as described in the Contract Documents Article in their order of precedence.

d) Contract Time - The number of days or the dates stated in the Order to achieve Completion for a Project.

e) Corrective Action Request - Instructs the Professional to provide a corrective action plan within five (5) business days of issuance that will cure the default or nonconformity.

f) Deliverables – Work products, including without limitation, documentation, photographs, studies, data, schedules, test results, and reports, delivered by Professional to LCRA under an Order.

g) F.O.B. Destination - Professional is responsible for all shipping, packaging, insurance, title, and risk of loss until delivered at LCRA’s site as listed on an Order.

h) Key Person - Any person designated by LCRA who is provided by Professional to provide Services under this Contract and who LCRA deems essential to the services provided.

i) LCRA - Lower Colorado River Authority, a conservation and reclamation district of the State of Texas created pursuant to Article XVI, Section 59, of the Texas Constitution.

j) LCRA Affiliate - Includes Gentex Power Corporation, LCRA Transmission Services Corporation and any similar entity currently existing or hereafter created, membership on the governing body of which is controlled by LCRA.

k) LCRA Agent - The designated representative of LCRA or any successor appointed by LCRA in writing as the single agent who shall have primary responsibility for overall management of the Contract. Only the LCRA Agent may execute this Contract or any Amendment to it; send and receive notices; or enforce contract remedies. The LCRA Agent is also authorized to execute Orders and Change Orders.

l) LCRA Buyer – A designated representative of LCRA who has been given limited authority to execute Orders and Change Orders under this Contract.



m) Lead Engineer - The person identified in the Order who assists the LCRA Agent in monitoring the performance of a Contract. Typically, the Lead Engineer is the Professionals point of contact for coordinating the work and delivering the contracted technical services. In conjunction with the LCRA Agent, the Lead Engineer, monitors performance of Services against contract requirements; helps evaluate proposals and Professional responses; accepts Services; approves invoices; and assists in negotiations. THE LEAD ENGINEER IS NOT AUTHORIZED BY LCRA TO EXECUTE, MODIFY, TERMINATE, ENFORCE, WAIVE COMPLIANCE WITH OR ACCEPT ON LCRA’S BEHALF WORK PERFORMED UNDER THIS CONTRACT AND ASSOCIATED ORDERS.

n) Notice to Proceed - A notice given from Owner to Professional which instructs Professional to commence full performance of the Services under an Order if such authorization is not contained in the Order itself.

o) Order –A written statement of the Services to be provided by Professional under this Contract. Each Order will be signed by both parties will include the following a purchase order and a Statement of Work substantially in the form of Exhibit A to this Contract.Professional - LCRA’s counterparty to a contract and its employees, agents and subcontractors, who will supply Deliverables, and Services to the LCRA.

p) Purchase Order Number - A number that refers to LCRA’s internal accounting number by which expenditures under this Contract and its associated SOWs are tracked.

q) Site - The LCRA’s and its Affiliate’s property (which may be owned as fee owner or tenant in common or held subject to an easement) or property of a third party, including adjacent bodies of water, upon which the Services is to be performed.

r) Services – All services that Professional is obligated to perform under this Contract, including the provision of all associated Deliverables.

s) Statement of Work (SOW) - Describes the particular tasks to be performed and Deliverables to be provided by Professional and will also include the term, schedule, the place of performance, any Key Person(s), price, Technical Specifications and any other pertinent information agreed to by the parties.

t) Technical Specifications - That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Services and certain administrative details applicable thereto.

ARTICLE 2. SERVICES TO BE PROVIDED

General Scope of Work. Professional shall provide to LCRA Professional Engineering Services and related ancillary Services (Services), as further described in Exhibit E or any Order issued under this Contract. As used herein, Services include all Services for which an engineering license or firm registration is required under Ch. 1001 of the Texas Occupations Code or the Rules of the Texas Board of Professional Engineers and related ancillary Services that may not require an engineering license or firm registration. Notwithstanding the foregoing, no Services are authorized unless authorized representatives of both Parties sign an Order in accordance with section (b) of this Article. This Contract does not guarantee a minimum amount Professional will be paid or a minimum number of Orders. As used herein, authorized representatives include only LCRA Agents and agents of the Professional.



(a) Nothing in Exhibit E is intended to include any Services that could be rendered to LCRA through any form of the design-build project delivery method.

(b) Orders. Professional shall provide Services to LCRA under (Order(s)).

(c) Authorization. This Contract, and any Amendments to it, must be executed by an authorized LCRA Agent. Orders and Change Orders may be executed either by an LCRA Agent or an LCRA Buyer. Purported Orders, Amendments, Change Orders, proposals, engagement letters, documents, and other such instruments that are signed by anyone other than an authorized LCRA Agent or LCRA Buyer are void and not merely voidable. Services by the Professional shall not commence until a valid Order or written Notice to Proceed has been executed by an authorized LCRA Agent or LCRA Buyer for the related Statement of Work. Services performed by the Professional without a valid Order or a valid Notice to Proceed shall be at the Professional’s own risk, including financial risk.

(d) This Contract is to be considered a professional services contract. Professional shall provide services to LCRA, as further described in the Exhibits or any Order issued under this Contract. No Services are authorized unless an Order is issued. This Contract does not guarantee a minimum amount Professional will be paid or a minimum number of Orders. In no event is LCRA liable to Professional for any costs or expenses other than for those contained in an Order.

(e) Notwithstanding anything to the contrary contained in this Contract, LCRA and Professional agree and acknowledge that LCRA is entering into this Contract in reliance on Professional'sspecial and unique abilities with respect to performing the Services. Professional represents that there are no undisclosed obligations, commitments or impediments of any kind that will or could taint, limit or prevent performance of the Services.

(f) Changes. The Contract and associated Order may be modified to provide for additions, deletions, alterations and revisions in the General Scope of Work, Statement of Work, schedule, price or to modify the terms and conditions hereof. The LCRA Agent is the only person actually authorized by LCRA to execute, modify, terminate, enforce, and waive compliance with this Contract. The LCRA Buyer only has the limited authority to execute an Order and modify by it by Change Order. Professional accepts full risk and responsibility and shall not assert a claim against LCRA if Professional follows direction from another source. The Contract shall be modified only through an Amendment. Any verbal modifications to the Contract or an Order shall have no effect.

(g) Change Order Contents . All Change Orders must be in a form substantially conforming to Exhibit D and must contain:

(i) a description of all changes to the SOW required of either party;

(ii) a statement of the impact of the changes on the Services, Deliverables, schedule, price or other requirements of the SOW; and



(iii) signatures of an LCRA Agent or an LCRA Buyer and an authorized representative of Professional.

(h) Effect of Expiration on Orders. Upon expiration or earlier termination of this Contract, these terms and conditions shall continue in full force and effect with respect to any Order awarded under this Contract that has not been completed or otherwise terminated.

(i) Professional shall properly connect and coordinate its Services with LCRA and others, and shall notify LCRA Agent if a problem with the work of others hinders Professional in the performance of its Services.

(j) Staffing. Professional is to provide all personnel necessary to complete timely the Services in accordance with each Order. If Professional makes any change to its Key Personnel, Professional’s staffing actions and personnel assigned under this Contract shall be approved in advance by the LCRA Agent in order to assure compliance with this Contract and the related Contract Documents. Should Professional be unable to meet the staffing plan, overstaffing during later periods without the approval of LCRA’s Agent may not compensate for such understaffing. LCRA’s Agent may request the removal of any employee or independent contractor of Professional for any reason whatsoever, with or without cause. It is the responsibility of Professional to remove and replace the employee or independent contractor at no cost to LCRA. Any staffing changes pursuant to this Contract shall be done by Professional at no increase to either contract price or timeline. LCRA must approve of any replacement made by Professional.

ARTICLE 3. SITE INSPECTION

Prior to the issuance of an Order and provided that Professional first coordinates access to a Site with the LCRA Agent or LCRA Buyer, Professional’s representatives shall inspect the Site and clearly understand the requirements and risks of the Services to be performed, the Site conditions, traffic conditions, the proximity of high-voltage power lines, buried utilities, biological hazards and other local conditions likely to affect Professional's performance before accepting any Order. By accepting an Order Professional represents and warrants that it has inspected the site to its satisfac-tion, knows local conditions and has accounted for all local conditions in its pricing and scheduling. If necessary, Professional shall conduct regular health and safety inspections of the work area(s) and Services being performed. LCRA reserves the right to inspect the Site(s) at any time and without prior notice to Professional.

ARTICLE 4. NOTICESAll notices required under this Contract must be made in writing and sent by registered or certified United States mail, return receipt requested or by express mail to the address below. Notice may additionally be sent by email or fax as indicated below but such service shall not excuse proper notice as set forth above. Parties may change their address by notifying the other party pursuant to this Article.



LCRA: Professional:Lower Colorado River Authority _________________________________LCRA Agent: Authorized Representative: Laura Guillory, CPPO, C.P.M. _________________________________3700 Lake Austin Blvd _________________________________Austin, TX 78703 _________________________________Email: [email protected] Email: ___________________________

ARTICLE 5. CONTRACT DOCUMENTS

(a) General Definition. As used in this document, the term Contract is synonymous with the Contract Documents as defined in this Article. In order of precedence, this Contract shall consist of the following documents (“Contract Documents”):

1) This Contract, along with any Exhibits, as may be modified by Amendments;2) All written Change Orders executed after the Effective Date of this Contract by the

LCRA Agent or an LCRA Buyer and Professional;3) Each Order, which may include a Statement of Work or other Attachments to the

Order, executed pursuant to this Contract by the LCRA Agent or an LCRA Buyer and Professional;

4) Any other documents specifically identified as Contract Documents.

(b) Exclusion from Contract Documents. No terms and conditions submitted by Professional in connection with any proposal or proposed Order will be considered part of the Contract Documents unless expressly accepted in writing by the LCRA Agent. If accepted by LCRA, the proposed terms and conditions are limited in effect to the proposal with which they were submitted.

ARTICLE 6. TERM

This Contract is for a one (1) year period, with annual automatic renewal periods, not to exceed a maximum of five (5) years. At LCRA’s sole option, these annual renewals may be discontinued by LCRA upon written notice to Professional prior to the next annual renewal date. The primary term begins upon execution of this Contract by an LCRA Agent (“Effective Date”). This Contract will be deemed to extend beyond its expiration or termination date with respect to any Order being performed under it at that time, unless the Order is also terminated.

ARTICLE 7. SCHEDULE

(a) Time shall be of the essence for performance under this Contract. Professional agrees to perform all obligations as set forth in this Contract. If required by an Order, a specific progress schedule will be developed for each individual task in compliance with the Order. If at any time it appears to Professional that it may not meet any of the performance schedules or the scheduled completion date under an Order for any reason, including labor disputes, Professional shall immediately by verbal means (to be confirmed in writing) notify LCRA of the reasons for and the estimated duration of such delay. If requested by LCRA, Professional shall make every effort to avoid or minimize the delay to the maximum extent



possible. Any additional cost caused by these requirements of LCRA shall be borne by Professional. The foregoing requirements are in addition to any of the LCRA rights and remedies, as may be provided by law or this Contract.

(b) The Professional shall be at all times responsible for maintaining the schedule and for keeping the LCRA Agent and Lead Engineer informed of the schedule progress. Unless otherwise stated in an Order, Professional shall provide to LCRA regular, written progress reports which shall show actual and projected progress and costs for all activities, finish dates, and actual percent of performance completed.

(c) Professional shall notify LCRA Agent within twenty-four (24) hours of the first knowledge that any scheduled date(s) will not be met and shall, within five (5) business days thereafter, submit a detailed program depicting the plans and actions being taken to regain the lost time. The notice shall not limit any other rights or remedies afforded LCRA under this Contract or by law.

ARTICLE 8. COMPENSATION

This Contract will not obligate any funds, as all funding will be issued under an Order. Under no circumstances should Professional incur costs in excess of the amount stated in the Order. All mon-etary amounts will be calculated and based upon U.S. Dollars.

(a) Authorized Compensation Structures. Orders shall only be issued either as a firm fixed price or as a time and materials basis with a not-to-exceed price as directed by LCRA in the Order. In no case shall LCRA compensate the Professional for hours incurred due to negli-gence, incompetence, or inefficiencies on the part of the Professional.

(b) Firm Fixed Pricing. Each firm, fixed price Order shall include a complete Statement of Work to be completed in accordance with the requirements of the Order and detail all costs to be paid by LCRA. Any labor, documentation, travel, per diem, testing, materials, soft-ware, copies, mileage, computer charges, courier services, long-distance phone calls, elec-tronic media charges, customs, duties, taxes, shipping and delivery costs, subcontractors, management, contingency fees, or equipment required to produce the intended result will be provided at no additional cost to LCRA, unless specified in an Order. Unless otherwise agreed to in an Order, payments shall be based on a milestone and/or deliverable payment schedule.

(c) Time and Material Compensation. Each time and material Order shall include a compre-hensive SOW detailing all costs to be paid by LCRA. Payments shall be based on deliver-able payment schedule contained in an Order. Professional’s time and material compensa-tion shall be based upon labor rate schedules as agreed between LCRA and Professional in this Contract and reimbursable expenses, all in accordance with the following provisions of this Article:

1) Labor Rates shall be firm, fixed and adequate to cover Professional’s direct and indirect costs, taxes, benefits, overhead and profit, but subject to revision pursuant to Article 8(e). Except for reimbursable expenses below, Professional’s rates shall include all



labor, documentation, testing, materials, software, copies, computer charges, courier services, long-distance phone calls, electronic media charges, customs, duties, taxes, shipping and delivery costs, subcontractors, management, contingency fees, or equipment required to produce the intended outcome, unless specified in an Order. Professional shall provide the components of the mutually agreed labor rates, namely salary rate, overhead multiplier and profit multiplier.

2) Reimbursable Expenses. LCRA shall reimburse Professional for:

(a) Actual, external costs and expenses reasonably incurred by Professional’s employees in performing Services without mark-up by the Professional as detailed in Exhibit B Pricing. Travel by Professional shall comply with the LCRA travel procedures attached as Exhibit C Travel Procedures.

(b) Subcontracting expenses limited to actual pre-approved expenses and shall not be marked up by Professional more than five percent (5%).

(d) Labor Rates. Labor rates shall be based upon bill rates defined by skill level as agreed be-

tween LCRA and Professional in this Contract, pursuant to Exhibit B to this Contract, Labor Rates and subject to revision pursuant to Article 8 (e). Bill rate ranges for any one skill level are not permissible. Professional shall provide to LCRA the components of the labor bill rates, namely salary rate, overhead multiplier and profit multiplier.

(e) Revision to Rates for Labor. The initial contracted rate sheet will be in place for one (1) year from the date of award. After the first year, labor rates may be revised annually. Any such revision must be agreed upon by both parties, will take effect on the renewal date of the Contract, and will remain firm and fixed for the remainder of the Contract (unless subse-quently revised). The maximum revision shall be based on the year over year changed in the Bureau of Labor Statistics Series ID#, ceu6054130008, herein “BLS Index,” in comparing the month of January; provided however, that in no case shall a revision to labor rates ex-ceed 3% for any given year. The Baseline BLS Index shall be the month of January 2014. In the event that the BLS Index is discontinued or the titles, codes or methodology revised, a new index shall be promptly identified and incorporated into the agreement upon mutual agreement between LCRA and Professional. Such revised rates as computed herein shall be incorporated into the Contract by Amendment.

ARTICLE 9. PAYMENT

Professional shall invoice LCRA under the following terms:

(a) Notwithstanding anything in this Contract to the contrary, all payments to be made by the LCRA hereunder are subject to Chapter 2251 of the Texas Government Code, popularly known as the Prompt Payment Act. Payment in full for invoices shall be due within thirty (30) days from date the invoice is received by LCRA. Invoices paid more than thirty (30) days after the invoice is received are subject to a late charge calculated pursuant to Chapter 2251.



(b) Invoices for payment under this Contract shall be sent to:

Lower Colorado River AuthorityAttn: Accounts PayableP.O. Box 679000Austin, Texas 78767

Or Email to [email protected]

(c) Invoices shall include:

1) Purchase Order Number prominently displayed on each invoice. 2) Unique invoice number3) Invoice period4) Invoice or billing date5) Timesheets for Services performed on a time and materials basis.

6) Receipts for all materials used for Services performed on a time and materials basis.7) Itemization of all Deliverables completed and delivered to LCRA. 8) Records supporting all reimbursable expenses, including without limitation for

lodging, meals, mileage, airfare and car rentals.

(d) Payments may be based on completion of the Services, fulfillment of milestones, or delivery of Deliverables as agreed in the Order Professional shall invoice LCRA once a month for orders in progress that have activity for that month. Final payment by LCRA shall not waive any rights and remedies that LCRA has and shall not release Professional from any duties and obligations set forth in the Contract Documents.

(e) No invoice shall be considered complete or payable unless all documentation is submitted with invoice supporting reimbursable and LCRA approved expenses, such as time sheets, transportation, lodging and meal expenses.

(f) Invoices shall be supported by billing information, tie to a specific Order and shall detail Amount spent/remaining. Direct expenses shall include supporting detail showing the nature and extent of the expenses and shall reference the appropriate Deliverable, milestone payment, and Order line detail. Labor charges shall detail the name and category of the person providing Services and shall show the hours worked by each category/name, the associated rate, and the extended total for the invoice.

ARTICLE 10. TAXES


mailto:[email protected]


(a) LCRA is exempt from all Federal excise Taxes and the Texas Limited Sales and Use Tax under the provisions of Section 151.309 of the Texas Tax Code. LCRA shall not be required to pay or reimburse Professional for taxes based upon Professional’s net worth, capital, net income, or franchise. All invoices submitted by Professional shall exclude these taxes. The Contract price shall include, and the Professional shall pay, all other applicable taxes and assessments for unemployment insurance, workers’ compensation, social security and disability benefits, and other taxes which are based upon the compensation paid to persons employed by Professional or its subcontractors for the performance under this Contract.

(b) Subject to this Article, the Professional’s compensation shall include all applicable foreign, federal, state and local taxes payable with respect to this Contract. LCRA Agent shall provide Professional with LCRA’s direct pay permit or exemption certificate where applicable. Professional agrees to cooperate in obtaining exemption certificates necessary to claim such exemptions.

ARTICLE 11. COST REDUCTION EFFORTS

Professional agrees to proactively provide to LCRA cost reduction opportunities through the Professional’s focus on innovation, continuous improvement programs, and efficiency enhancements for Orders related to this Contract. Implementation of cost reduction opportunities are at the sole discretion of LCRA. Implemented cost reduction opportunities shall result in immediate price decreases to LCRA.

ARTICLE 12. RISK OF LOSS

(a) Professional shall bear the expense and risk of loss or damage to its work in progress, completed work, materials, equipment and all other incidents of its Services prior to Acceptance (as defined in Review and Acceptance Article) . Professional shall promptly replace or repair any loss or damage to its work at its own expense. In the event of substantial loss or damage due to Force Majeure (as defined in Force Majeure Article), the schedules shall be equitably extended. Professional shall bear the expense of storage space for its stored materials, whether on-site or off-site, and shall bear the risk of loss or damage to all such materials. Professional shall take precautions to protect its work from weather damage, burglary, pilferage, fire, theft and similar hazards.

(b) Professional shall bear the risk of loss or damage to its own equipment, tools, supplies and property and those of its subcontractors and Professionals, regardless of the cause of loss or damage throughout the term of the contract.

ARTICLE 13. INSURANCE

(a) Professional shall maintain or cause to be maintained the insurance required by this Article, together with any other type of insurance required by this Contract, with the following requirements:



1. Policies shall be issued by insurance companies rated A- IX or better, by Best’s Insurance Guide and Key Ratings (or, if Best’s Insurance Guide and Key Ratings is no longer published, an equivalent rating by another nationally recognized insurance rating agency of similar standing) or other insurance companies of recognized responsibility satisfactory to LCRA, until all obligations of Professional pursuant to the Contract Documents have been fully discharged, unless otherwise stated herein.

2. Professional shall obtain and maintain the insurance coverage specified below on an occurrence-basis, with the exception of Professional Liability insurance which may be on a claims-made basis. If Professional Liability insurance is provided on a claims-made form, then the insurance coverage must continue for a minimum period of two (2) years beyond the expiration or termination of this Contract, and any retroactive date must coincide with or predate the Effective Date.

3. Professional shall require any subcontractors to have the required insurance coverage contained herein and shall demand proof of such insurance.

4. THE COVERAGE SHALL NOT BE CONSTRUED AS ESTABLISHING OR LIMITING PROFESSIONAL'S LIABILITY.

5. LCRA shall be listed as an "additional insured" on all policies other than the Workers’ Compensation and Professional Liability policies.

6. Professional for itself and its insurers hereby waives subrogation against LCRA, its directors, officers, employees and agents.

7. If Professional fails to meet the requirements of this Article, LCRA may suspend the Contract, withhold payments or terminate the Contract for breach.

8. All policies will be endorsed to provide that they may not be canceled, not renewed or materially changed without thirty (30) days’ prior written notice sent to LCRA.

9. All policies will be endorsed to specify that they are primary to and not excess to or on a contributing basis with any insurance or self-insurance maintained by LCRA. (not applicable to Workers’ Compensation insurance policies).

10. All liability policies shall include a cross-liability or severability of interest or a separation of insureds clause.

11. Commercial General Liability policy shall not be endorsed with “Exclusion—Explosion, Collapse and Underground Property Damage”.

12. Professional shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. The deductible portion of each type of coverage shall not exceed ten percent (10%) of the coverage limit.

(b) Insurance Requirements

Type of Insurance Minimum Coverage

1. Workers' CompensationCoverage A - statutoryCoverage B - $1,000,000 employer's liability

2. Commercial General Liability Bodily Injury $1,000,000 per occurrenceProperty Damage $1,000,000 per occurrenceProducts-Completed Operation $2,000,000 per occurrenceGeneral Aggregate $2,000,000



3. Automobile Liability (including owned, non-owned, hired or leased vehicles)Combined single limit $2,000,000 per occurrence

4. Professional Liability $1,000,000-$5,000,000 per occurrence (Range to be assessed based on scope of work)

5. Other Insurance The Professional shall obtain, pay for and maintain umbrella liability insurance during the Contract term, insuring the Professional (or subcontractor) for an amount of not less than one million ($1,000,000) to five million dollars ($5,000,000) (Range to be assessed based on scope of work) that provides coverage at least as broad as and applies in excess and follows form of the primary liability coverage (General Liability, Automobile Liability, and Professional Liability) required above.

(c) Individual Orders may require additional coverages, increased limits or project specific insurance.

ARTICLE 14. REVIEW AND ACCEPTANCE

(a) Review and acceptance requirements may be specified in an Order. Review and acceptance of all performance, reports or other Deliverables under this Article shall be performed at the place of delivery specified in the individual Order.

(b) When Professional can demonstrate that the Services are complete in accordance with the acceptance criteria included in the Order and so notifies LCRA, LCRA shall review the Ser-vices for general compliance with the Contract. If the Services comply with the Contract re-quirements, and Professional has furnished any required Deliverables, then LCRA shall no-tify Professional in writing of LCRA's acceptance of the Services (“Acceptance”). If LCRA determines the Services to be deficient, LCRA shall notify the Professional accordingly. The Professional shall, without delay, correct any deficiency without additional compensation. When the Professional can demonstrate that the deficiency has been corrected, the Profes-sional shall notify LCRA for review of said correction. Upon LCRA finding that the correc-tion appears to comply with the requirements and no deficiency remains with the Services, LCRA shall notify the Professional in writing of acceptance of the Services. Acceptance shall not limit nor diminish Professional's warranties and other obligations under the Con-tract.

ARTICLE 15. OWNERSHIP OF DELIVERABLES

(a) Intellectual property and rights to intellectual property owned by any Party on the date of any applicable Task Order shall remain the property of that Party.

(b) The Parties agree that all such Deliverables as plans, drawings, designs, specifications,



computer programs or applications developed or utilized by Professional or its Subcontractors which are developed and specified to be delivered under any Order and which are paid for by LCRA are the property of LCRA, but subject to Professional’s intellectual property rights therein. Professional hereby grants to LCRA an irrevocable, non-exclusive, perpetual, fully paid up license to use, duplicate and disclose such Deliverables, in whole or in part, for the purpose of constructing, completing, maintaining, operating, repairing, altering or demolishing any building, structure, plant, equipment or system that may result from the performance of any Order. If an item produced by Professional (or a Subcontractor) is copyrightable or patentable, it may be copyrighted or patented, subject however to the rights of the LCRA granted under this Contract. Professional shall bind its Subcontractors by its Contract with them in the same manner as it is bound to LCRA in order that any Deliverables prepared by its Subcontractors are subject to the license stated above.

(c) The Parties agree that such Deliverables as photographs, studies, data, schedules, test readings, technical reports, calculations or other work products which are developed and specified to be delivered under any Order and which are paid for by LCRA are considered the sole property of LCRA. To the extent that Professional may have any intellectual property interest in such Deliverables; Professional hereby irrevocably assigns and transfers all its right title and interest in such Deliverables to LCRA.

(d) LCRA RECOGNIZES THAT NO DELIVERABLES WILL BE SUITABLE FOR REUSE AT ANY LCRA FACILITY OR IN CONNECTION WITH ANY PROJECT OTHER THAN THAT UNDER WHICH THE DELIVERABLE WAS PREPARED. PROFESSIONAL DISCLAIMS LIABILITY FOR ANY REUSE OF THE DELIVERABLES ON ANY OTHER FACILITY OR PROJECT THAT IS DONE WITHOUT THE EXPLICIT, WRITTEN APPROVAL OF THE PROFESSIONAL.

(e) The provisions of this Article shall control over any proprietary notices of similar markings placed on any plans, drawings, designs, specifications, regardless of any approval by LCRA of those plans, drawings, designs, or specifications.

ARTICLE 16. WARRANTIES AND STANDARDS

(a) Warranty of Title. Professional warrants the title to any Deliverables it delivers to LCRA incidental to the performance of the Services and that said Deliverables will be free and clear of all liens, mortgages, security interests or other encumbrances. Unless specifically stated in the Order and agreed to by LCRA, all materials, equipment or Deliverables sold and delivered pursuant to this Contract shall be new and shall not be reconditioned, remanu-factured, used or previously used, sold or returned products. Professional shall transfer at no cost, all applicable warranties of their subcontractors to the LCRA.

(b) Standard of Performance. Professional shall perform all Services in a professional man-ner consistent with the Contract Documents and with usual and customary industry stan-dards.



1. Specific Standards of Performance. Without limiting the generality of the following performance standards shall also apply to Professional with respect to each Task Or-der:

i. The Services shall be performed in compliance with Ch. 1001 of the Texas Occupations Code and the applicable Rules of the Texas Board of Professional Engineers;

ii. Each person and Subcontractor performing the Services, shall have the skill, expertise, personnel and resources to perform the Work in accordance with this Contract and the Statement of Work issued with each Order;

iii. The Services shall comply with generally accepted codes and stan-dards in effect at the time the Services are performed and utilized by engineering and design Professionals in the United States performing work of the type required by the Order;

iv. Professional is solely responsible for ensuring that all persons per-forming work under this Contract and related Orders meet the spe-cific standards of performance aforementioned.

(c) For a period of twenty four months following Acceptance of Services or the completion of any Project associated with the Order, whichever is later, Professional shall correct, without delay and at its sole expense, any Defect in Services or Deliverables. For the purposes of this Article, a Defect may mean i) any error or omission that causes a delay, disruption, or hindrance in the performance or the safety of any LCRA construction or retrofit project, or any other general project for which the Services or Deliverable is intended, or ii) incomplete documentation, or iii) failure to conform to documentation standards, or iv) Services or De-liverables do not conform to Contract or an associated Contract requirement, or v) Services that do not meet the performance standards contained in Articles 16(b) and (c), or vi) Deliv-erable does not conform to Professionals own quality assurance and controls program or vii) any non-compliance in a Deliverable, that could be reasonably construed as a usual and cus-tomary standard for Professional to perform Professionals obligations in this Contract. For any Defect, Professional shall indemnify and hold LCRA harmless in accordance with Arti-cle 18(a). Any correction, replacement or modification of the Services performed pursuant to the provisions of this paragraph shall be supplied on the same terms and conditions as provided for in this Contract and each applicable Order. In particular, a new correction pe-riod shall apply. Such new correction period shall expire twenty-four (24) months from the date of such replacement, or modification.

(d) LCRA reserves the right to reject any Services that do not conform to the Standards of Per-formance stated in Article 16(b) and (c) or that are not in accordance with the Order regard-less of the stage of completion, time or place of discovery and whether LCRA has accepted such Services.

(e) Intellectual Property Warranty. Professional agrees that in performing this Contract it will not use or provide to LCRA any process, program, document, data, design, device or material which infringes on any patent, copyright, trademark, trade secrets, or other propri-etary right of any third party.



(f) Business Standing Warranty. Professional warrants, represents and agrees that (i) if it is a corporation or limited liability company, then it is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, or a foreign corporation or limited liability company duly authorized and in good standing to conduct business in the State of Texas, that it has all necessary corporate power and has received all necessary cor-porate approvals to execute and deliver the Contract, and the individual executing the Con-tract on behalf of Professional has been duly authorized to act for and bind Professional; or (ii) if it is a partnership, limited partnership or limited liability partnership, then it has all necessary partnership power and has secured all necessary approvals to execute and deliver this Contract and perform all its obligations hereunder; and the individual executing this Contract on behalf of Professional has been duly authorized to act for and bind Professional.

(g) Drawing and Deliverable Requirements. For projects performed under the auspices of LCRA Transmission Services Corporation (LCRA TSC), drawing and deliverable require-ments will be established in individual statements of work. For all other work performed un-der this contract, drawing and deliverable requirements will be those stated in Exhibit F.

ARTICLE 17. PUBLIC INFORMATION

(a) LCRA is subject to the Texas Public Information Act (PIA), Chapter 552, Texas Government Code. Any information submitted to the LCRA by a Professional shall be available to the public, unless it is clearly marked "CONFIDENTIAL". If another party requests access to information marked confidential, then LCRA shall ask the Professional if the information may be released. If the release is agreed to, LCRA shall release the information. If the release is denied, the matter shall be referred to the Texas Attorney General's Office where the Professional shall be responsible for substantiating its confidentiality. The Attorney General's office shall rule on the matter. Pricing information contained in proposals or contracts is not considered confidential under the PIA and will be disclosed without making a request to the Texas Attorney General.

(b) The Parties may agree to a separate Confidentiality Agreement with respect to each Order governing the respective rights of the Parties regarding the exchange and use of confidential or proprietary information.

ARTICLE 18. GENERAL INDEMNITY

(a) PROFESSIONAL SHALL INDEMNIFY AND HOLD THE LCRA, LCRA AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES, INCLUDING ATTORNEYS' FEES AND COSTS (JOINTLY “CLAIMS”), ARISING OUT OF OR RESULTING FROM THIS CONTRACT, OR ANY CLAIMED DEFECT IN PROFESSIONAL’S PERFORMANCE , OR ANY CLAIM FROM SUBCONTRACTORS HIRED BY PROFESSIONAL, PROVIDED THAT ANY SUCH CLAIMS ARE EITHER CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENT OR GROSSLY NEGLIGENT ACT OR OMISSION OR WILLFUL MISCONDUCT OF



PROFESSIONAL, ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY IT, OR ANYONE FOR WHOSE ACTS IT MAY BE LIABLE, OR RELATE TO ANY CLAIM REGARDING PAYMENTS DUE OR OWING BETWEEN THE PROFESSIONAL AND ITS SUBCONTRACTORS OR SUPPLIERS

(b) TO THE EXTENT ALLOWED BY LAW, LCRA AGREES TO INDEMNIFY AND HOLD HARMLESS PROFESSIONAL, ITS DIRECTORS, OFFICERS AND EMPLOYEES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS AND EXPENSES ARISING FROM THE NEGLIGENT ACT OR OMISSION OR WILLFUL MISCONDUCT OF THE LCRA RELATED TO THIS CONTRACT WHICH CAUSES THE DEATH OF, INJURY TO, OR DAMAGE TO THE PROPERTY OF, ANY PERSON.

(c) IF THE PARTIES ARE CONCURRENTLY NEGLIGENT, EACH PARTY’S LIABILITY SHALL BE LIMITED TO THAT PORTION OF NEGLIGENCE ATTRIBUTABLE TO IT AS DETERMINED UNDER THE APPLICABLE PROPORTIONATE RESPONSIBILITY RULES OF THE STATE OF TEXAS.

(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO INDEMNIFY THE OTHER FOR THE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER.

(e) THE FOREGOING INDEMNITY PROVISIONS SHALL BE DEEMED INDEPENDENT COVENANTS AND SHALL SURVIVE COMPLETION OR TERMINATION OF THE CONTRACT OR ANY CLAIMED BREACH THEREOF.

ARTICLE 19. INTELLECTUAL PROPERTY INDEMNITY

(a) PROFESSIONAL SHALL, AT ITS OWN EXPENSE, DEFEND ALL SUITS OR PROCEEDINGS INSTITUTED AGAINST LCRA, LCRA AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BASED UPON ANY CLAIM THAT THE SERVICES, OR ANY PART THEREOF, OR THE PROCESS PERFORMED THEREBY CONSTITUTES AN INFRINGEMENT OF EITHER ANY PATENT OR COPYRIGHT OF THE UNITED STATES OR OF ANY TRADEMARK OR TRADE SECRET PROTECTED BY EITHER FEDERAL OR STATE LAW. PROFESSIONAL SHALL PAY ALL AWARDS OF DAMAGES ASSESSED WHICH RESULT FROM ANY SUCH CLAIM, SUIT OR PROCEEDING AND SHALL INDEMNIFY AND SAVE LCRA HARMLESS AGAINST LOSSES, EXPENSES (INCLUDING ATTORNEYS’ FEES), AND DAMAGES RESULTING FROM ANY SUCH CLAIM, SUIT OR PROCEEDING, INCLUDING OBEDIENCE TO RESULTING DECREES AND TO RESULTING COMPROMISES.

(B) IF, IN ANY SUCH SUIT OR PROCEEDING, A RESTRAINING ORDER OR TEMPORARY INJUNCTION IS GRANTED, PROFESSIONAL SHALL MAKE



EVERY EFFORT, BY GIVING A SATISFACTORY BOND OR OTHERWISE, TO SECURE THE SUSPENSION OF ANY SUCH RESTRAINING ORDER OR TEMPORARY INJUNCTION. IF, IN ANY SUCH SUIT OR PROCEEDING, THE SERVICES OR ANY PART THEREOF OR THE PROCESS PERFORMED THEREBY IS HELD TO CONSTITUTE AN INFRINGEMENT AND ITS USE BE PERMANENTLY ENJOINED, PROFESSIONAL SHALL AT ONCE MAKE EVERY EFFORT TO SECURE FOR LCRA A LICENSE AT PROFESSIONAL'S EXPENSE AUTHORIZING THE CONTINUED USE OF THE ALLEGED INFRINGING PORTION OF THE SERVICES. IF PROFESSIONAL IS UNABLE TO SECURE SUCH LICENSE WITHIN A REASONABLE TIME, PROFESSIONAL SHALL, AT ITS OWN EXPENSE AND WITHOUT IMPAIRING PERFORMANCE REQUIREMENTS, EITHER PROVIDE NON-INFRINGING REPLACEMENTS OR MODIFY THE SERVICES TO ELIMINATE THE INFRINGEMENT. IN ADDITION TO INDEMNIFYING AND SAVING LCRA HARMLESS, PROFESSIONAL SHALL REIMBURSE LCRA FOR ANY COSTS INCURRED AS A RESULT OF THE UNAVAILABILITY OF THE INFRINGING ITEM OR ITS NON-INFRINGING REPLACEMENT.

(C) THE FOREGOING INDEMNITY PROVISIONS SHALL BE DEEMED INDEPENDENT COVENANTS AND SHALL SURVIVE COMPLETION OR TERMINATION OF THE CONTRACT OR ANY CLAIMED BREACH THEREOF.

ARTICLE 20. INDEMNITY PROCEDURES

Promptly after receipt by any entity entitled to indemnification of notice of the commencement or threatened commencement of any civil, administrative or investigative action or proceeding involving a claim for which the indemnitee seeks indemnification; it shall notify the indemnitor of such claim in writing. No failure to so notify an indemnitor shall relieve the indemnitor of its obligations under this Contract except to the extent that the indemnitor can demonstrate damages attributable to such failure. Within fifteen (15) days following receipt of written notice from the indemnitee relating to any claim, but no later than ten (10) days before the date on which any response to a complaint or summons is due, the indemnitor shall assume control of the defense and settlement of that claim.

ARTICLE 21. LIMITATION OF LIABILITY

Except for liability arising from, related to, or associated with:

1 Indemnity obligations under this Contract;2. Willful misconduct or fraud ;3. third-party claims for bodily injury, death, or property damage;4. Violation of applicable laws or regulations; 5. Breach of confidentiality obligations; and 6. Liquidated damages;



neither Party shall be liable beyond the value of the Goods and Services stated in the Order,. The foregoing limitation of liability shall apply whether the claim arises in contract, tort (including negligence and strict liability), at law, in equity or otherwise

NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, WARRANTY, FAILURE OF A REMEDY TO ACHIEVE ITS INTENDED OR ESSENTIAL PURPOSES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL THEORY, FOR LOSS OF USE, REVENUE, SAVINGS OR PROFIT, OR FOR COSTS OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE, OR FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE INCURRED BY LCRA, ITS SUCCESSORS OR ASSIGNS FOR DAMAGES OF LCRA'S CUSTOMERS.

The Parties must bring any cause of action arising under the Contract within two (2) years from the time the cause of action accrues.

ARTICLE 22. FAILURE TO ACT

The failure of either Party at any one or more times to insist upon strict performance of the conditions and terms of this Contract shall not be construed as a waiver of the right to demand strict compliance.

ARTICLE 23. REMEDIES

(a) Professional shall be liable for any actual damages incurred by LCRA arising out of Professional’s failure to perform on time.

(b) In the event of a breach of contract by Professional, LCRA shall have the right to any remedy at law or in equity including the remedies of a temporary and permanent injunction and specific performance. All remedies shall be cumulative. In any action to enforce any portion of this Contract or related Order the prevailing party shall be entitled to its reasonable attorney’s fees and costs as authorized under Texas law. LCRA shall have the right to set off any amounts owed it by Professional and deduct those sums from amounts which LCRA may owe Professional.

(c) Back Charges. LCRA may impose back charges against Professional or deduct back charges from moneys owed Professional for performance or re-performance by LCRA or third parties of the Services.

ARTICLE 24. FORCE MAJEURE

(a) The nonperformance or delayed performance by Professional or LCRA of any obligation under the Contract shall be excused if such nonperformance or delay is caused by an event beyond the control of the affected Party ("Force Majeure"), except to the extent that Professional knew of or should reasonably have been able to foresee such an event and failed to take measures to avoid the event. Items beyond the control of the Parties include, but are not limited to: acts of war, acts of a public enemy, acts of domestic or foreign terrorism, natural disasters, strikes, epidemics or quarantine restrictions, riot, or sabotage and acts of civil or military authority having jurisdiction. Except for extreme weather events including without limitation named or numbered storms or tornados,



weather shall not be considered a Force Majeure event unless so stated in an Order.

(b) Upon occurrence of a Force Majeure event, the affected party shall notify the other party, in writing, of the reason for such delay, the estimated amount of the delay and the steps which can be taken to minimize the delay. No Force Majeure event shall exist until such writing is received by the unaffected party. Once a Force Majeure event occurs the date for performance of the Services shall be extended for a period equal to the time lost by reason of the delay, provided Professional or LCRA has taken steps to proceed with the performance of the Contract and has made written notification of such delay and of any Corrective Action taken. Professional shall not be entitled to any increase in compensation by reason of Force Majuere.

(c) The following delays shall not be deemed Force Majeure or constitute excusable delays in performance by Professional. The following shall not constitute a reason for extending the date for performance of the Services:

1) Delays by subcontractors or by Professionals for reasons other than Force Majeure;2) Delays in approval of documentation because of inadequate performance or

unrealistic approval schedules;3) Delays caused by Professional's lack of sufficient personnel with the necessary skills;

or4) Delays caused by Services in hazardous environments.

ARTICLE 25. TERMINATION FOR CONVENIENCE

(a) LCRA shall have the right to terminate this Contract and any Order placed under it for its convenience at any time. After receipt of the notice of termination, the Professional shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due at that point in the Contract:

1) Stop all ongoing Services;2) Place no further subcontracts or orders for materials or services;3) Terminate all subcontracts;4) Cancel all Orders, as applicable; and5) Take any action that is necessary to protect and preserve all property related to this

Contract that is in the possession of the Professional.

(b) Upon termination for convenience, Professional will comply with instructions in the notice of termination regarding delivery to LCRA of all Deliverables in progress and all completed Deliverables.

(c) In the event of a termination under paragraph (a) of this Article, LCRA shall pay for portions of Services completed and accepted by LCRA and materials purchased. LCRA shall not be liable in connection with any termination under this Article for indirect, special, incidental, consequential or punitive damages, including without limitation loss of anticipated future Services, anticipated profits, administrative costs or overhead on anticipated Services. Final payment shall be made upon the Parties' agreement of the



amount of the final invoice and LCRA's Acceptance of the Services.

(d) This provision relates only to Services being performed at or for the Fayette Power Project (FPP). Notwithstanding any provisions in this Contract to the contrary, Professional agrees that in the event the FPP is not provided sufficient appropriated funds for performance of the Services, and funds are not otherwise available to pay the Professional, there is no other legal procedure by which payment can be made, and the non-appropriation of funds did not result from any act or failure to act on the part of FPP, the LCRA or Austin Energy, LCRA shall have the right to cancel this Contract by a written notice of termination served no less than thirty (30) days prior to the effective date of the termination.

ARTICLE 26. TERMINATION FOR CAUSE

(a) The occurrence of any one or more of the following events will constitute an event of de-fault:

1) Professional’s persistent failure to perform the Services in accordance with the Con-tract Documents (including, but not limited to, failure to supply sufficiently skilled workers, suitable materials or equipment, or to adhere to project schedules as adjusted from time to time by the Parties);

2) Professional’s disregard of applicable laws or regulations;3) Professional’s disregard of the authority of the LCRA Agent;4) Professional’s violation in any material way of any provisions of the Contract Docu-

ments;5) Failure of Professional to pay subcontractors and/or material Professionals; 6) Professional’s violation of LCRA’s ethics policy, LCRA Board Policy No. 206 or the

Ethics Requirements contained herein; or7) LCRA designates a Key Person and that Key Person is no longer employed by

Professional.

(b) If one or more of the events identified in paragraph (a) occur, the LCRA may, at its sole discretion, choose to either terminate this Contract immediately upon written notification to the Professional, and the surety, or provide a Corrective Action Request to Professional.

(c) If Professional fails to initiate such Corrective Action or submit an acceptable plan within the aforementioned timeframe, or fails to follow through on completion of the plan, LCRA may take any or all of the following actions without affecting the Contract price or schedule:

1) LCRA Agent may direct Professional to cease performance on all or part of the Contract until satisfactory Corrective Action has been taken;



2) LCRA may have others take Corrective Action necessary to achieve compliance with the Contract. LCRA may deduct the cost of such Corrective Action by others from any moneys due to Professional. Corrective Action by others shall be taken when, in the judgment of LCRA, the noncompliance threatens safety, unreasonably interferes with or delays the work of others, or otherwise creates a situation the resolution of which cannot be delayed without adversely impacting quality, cost or timely completion;

3) LCRA may seek any of the Remedies set forth further in this Contract; and/or4) LCRA may Terminate for Cause as provided herein.

(d) If this Contract has been so terminated by LCRA, the termination will not affect any rights or remedies of LCRA against Professional or any surety then existing or which may thereafter accrue. No retention or payment of moneys due Professional by LCRA will release Professional from liability.

(e) In such a circumstance, LCRA shall notify Professional in writing of the termination, with copies of the notice to LCRA’s Site personnel.

(f) If it is ever determined that LCRA wrongfully terminated Professional for Cause, the termination shall be converted to a termination for convenience.

ARTICLE 27. SUSPENSION

(a) LCRA may, at any time and at its sole option, suspend all or any portions of the Professional’s performance under this Contract by providing ten (10) calendar days written notice to the Professional. Upon receipt of any such notice, Professional shall:

1) Immediately discontinue performance of the Contract on the date and to the extent

specified in the notice;2) Place no further orders with subcontractors or Professionals with respect to the

suspended portion of the performance, other than to the extent necessary to protect any portion of the performance already completed;

3) Promptly make every reasonable effort to obtain suspension, upon terms satisfactory to LCRA, of all orders, subcontracts and rental agreements to the extent that they relate to performance suspended by the notice;

4) Continue to protect and maintain the portion of the performance already completed, unless otherwise specifically stated in the notice; and

5) Continue to perform Professional's obligations for the portions of the Contract not suspended.

(b) LCRA shall reimburse Professional for the cost of maintaining and protecting any portion of Professional’s performance that has not been delivered to LCRA, subject to approval by LCRA.

(c) Upon receipt of notice to restart the suspended portion of the performance, Professional shall immediately resume the suspended performance to the extent required in the notice. Within fourteen (14) calendar days after receipt of notice to restart the performance , the Professional shall submit a revised schedule for approval by LCRA. If, as a result of any



suspension, the cost to Professional of subsequent performance or the time required to do so is changed, a claim for an adjustment in the Contract price may be made. Any claim on the part of Professional for change in price or extension of time shall be made in accordance with this Contract.

(d) If amounts set forth in (b) above cannot be negotiated then LCRA may terminate this Contract with no further liability to Professional.

ARTICLE 28. DISPUTE RESOLUTION

Any dispute, controversy or claim arising out of or relating to this Contract, or the breach hereof, must be referred to upper management of the parties for good faith discussion and resolution prior to invoking any other dispute resolution method authorized under this Contract. Pending resolution of any such dispute, Professional must continue to perform its obligations under this Contract and LCRA must continue to make payment to Professional for any undisputed items. The Parties agree that in the event of a dispute concerning the performance or non-performance of any obligations flowing from or as a result of this Contract and prior to the initiation of any litigation, the Parties will voluntarily submit the dispute to mediation before a mediator selected by the Parties as though it were referred through the operation of the Texas Alternative Dispute Resolution Procedures Act, Title 7, Chapter 154, Texas Civil Practices & Remedies Code. No record, evidence, statement or declaration resulting from or in connection with such alternate dispute resolution procedure may be used in evidence in subsequent litigation except to demonstrate that this Article has been complied with in good faith by a Party. Professional shall proceed diligently with performance of the Contract, pending final resolution of any request for relief, claim, appeal, or action arising under the Contract. During a dispute, LCRA has right to use any deliverables, work product, material or equipment provided by Professional under this Contract until the dispute is settled through a predefined court process. ARTICLE 29. GOVERNING LAWS, REGULATIONS & STANDARDS

(a) This Contract shall be governed, interpreted and enforced under the laws of the State of Texas, without regard to its conflict of law principles. In the event of litigation between the Parties arising out of or related to this Contract, venue for such litigation shall be in a court of competent jurisdiction in Travis County, Texas.

(b) Professional shall be aware of and shall comply with all federal, state and local laws, ordi-nances, codes (including applicable professional codes) and regulations applicable to perfor-mance of this Contract, including standards and codes of technical societies that have been adopted by law or regulation or compliance with which is required in the Contract Docu-ments. If any of the work fails to comply with such laws, ordinances, codes and regulations, Professional shall bear any expense arising from that failure, including the costs to bring the work into compliance.

Without limiting the generality of the foregoing, during the performance of the Contract, Professional agrees to comply with all applicable regulations of Executive Order No. 11246 of September 24, 1965, and the rules, regulations and relevant orders of the Secretary of Labor as they may apply to Equal Employment Opportunity. Professional



will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations and orders of the Secretary of Labor pursuant thereto, and will permit access to its books, records and accounts by the cognizant agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.

(c) Professional is solely responsible to ensure that its employees and those of its subcontractors and Professionals, who are not citizens of the United States, hold all documentation required under U.S. immigration law to lawfully work in the United States. PROFESSIONAL SHALL INDEMNIFY AND HOLD HARMLESS, LCRA, LCRA AFFILIATES AND THEIR RESPECTIVE BOARDS OF DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY EXPENSE (INCLUDING ATTORNEYS' FEES, COURT COSTS AND EXPERT WITNESS FEES), LOSS, FINE, SANCTION, PENALTY, LAWSUIT, JUDGMENT OR OTHER PROCEEDING ARISING IN CONNECTION WITH THE VIOLATION OR ALLEGED VIOLATION OF THIS OBLIGATION.

ARTICLE 30. LICENSES AND PERMITS

(a) Professional shall procure and maintain at its expense all licenses and permits necessary for it to perform the Services and shall provide copies of such licenses and permits at the request of LCRA.

(b) PROFESSIONAL SHALL INDEMNIFY AND HOLD LCRA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY AND ALL COSTS OR EXPENSES ARISING OUT OF THE FAILURE OF PROFESSIONAL TO OBTAIN SUCH PERMITS AND LICENSES.

(c) Professional shall ensure that its employees and its subcontractors and their employees are all properly licensed to perform their respective portions of the Services.

ARTICLE 31. SUPPLIER DIVERSITY

LCRA encourages the development of mutually beneficial business relationships with Minority-Owned, Women-Owned, Service Disabled Veteran-Owned and HUBZone (Diverse) Businesses and is committed to increasing their opportunities.

(a) Professional shall read, understand and carry out the Lower Colorado River Authority’s Supplier Diversity Guidelines located at the following website: http://www.lcra.org/about/business-opportunities-with-lcra/pages/default.aspx Professional shall, in conformity with its subcontracting plan, make a good faith effort to provide opportunities for Diverse Businesses to participate in the performance of the Contract with LCRA as a subcontractor, supplier, professional, practitioner or consultant. Professional acknowledges that LCRA reserves the right to change any of its web based guidelines, terms and conditions at any time and with or without notice to the Professional. It is the responsibility of Professional to ensure the continued compliance with all LCRA web based guidelines, terms and conditions which are incorporated by



reference as if set forth fully herein.

(b) LCRA establishes targets for Contracts exceeding $100,000. The target for Diverse Businesses participation under this Contract is 0%.

(c) LCRA has a preference that subcontractors’ contributions to the target be direct second-tier purchases, i.e., products and services that are in direct fulfillment of LCRA requirements. Supplier diversity reports for direct second-tier purchases shall be submitted on a quarterly basis, in accordance with the LCRA Fiscal Year. Failure to submit the report in a timely fashion may be deemed a breach of the Contract and LCRA may exercise any appropriate remedies.

(d) During the performance of a contract, if opportunities to subcontract with Diverse

Businesses develop, LCRA expects Professionals to actively and affirmatively solicit Diverse Businesses and notify LCRA’s Supplier Diversity Personnel.

ARTICLE 32. INDEPENDENT CONTRACTOR

(a) Professional shall perform in all respects as an independent contractor and not as an employee, partner, joint venturer or agent of the LCRA. Professional’s performance shall be subject to the LCRA's review, approval and acceptance as provided in the Contract Documents, but the detailed manner and method of performance shall be under the control of Professional. Professional shall be solely responsible for hiring, supervising and paying its employees, subcontractors and Professionals. Professional shall be solely responsible for payment of all (i) compensation, including any employment benefits, to its employees, (ii) taxes, including withholding for federal income tax purposes, employment and unemployment taxes, and (iii) such other expenses as may be owed to Professional’s employees. However, because Professional's performance may be associated in the minds of the public with LCRA, Professional shall ensure that all work by its employees, subcontractors and agents are performed in an orderly, responsible and courteous manner. PROFESSIONAL AGREES TO INDEMNIFY AND HOLD HARMLESS LCRA FROM ANY DAMAGE, JUDGMENT, LOSS, FINE, PENALTY OR INTEREST AWARDED TO PROFESSIONAL PERSONNEL OR ANY TAXING AUTHORITY BASED UPON A CLAIM THAT PROFESSIONAL PERSONNEL ARE EMPLOYEES OF LCRA.

(b) Upon prior notification to and written approval of LCRA, Professional may hire subcontrac-tors to perform work hereunder. Professional shall be responsible to LCRA for the perfor-mance of all such subcontractors. The LCRA reserves the right, in its sole discretion, to re-ject the employment by Professional of any subcontractor to which LCRA has an objection. Professional, however, shall not be required to contract with any subcontractor to which it has an objection. LCRA shall require any and all such subcontractors to sign contracts with Professional that bind the subcontractors to perform their subcontracts in accordance with the applicable requirements of the Contract Documents. Upon the request of LCRA, Profes-sional shall furnish LCRA with copies of such subcontracts. In addition, Professional agrees that it is Professional's responsibility to ensure that such subcontractors make all appropriate tax payments or tax withholding in relation to subcontractor's employees providing work to LCRA through Professional under this Contract. Professional represents that it and its sub-



contractors have skills necessary to perform the work contemplated in this Contract and any related Orders and are fully trained to perform the tasks required by this Contract and that they need no training by the LCRA.

ARTICLE 33. INTOXICANTS & DRUGS: EMPLOYEE CONDUCT

(a) This Article shall only apply if Professional has any personnel performing Services at an LCRA Site under this Contract.

(b) LCRA shall not allow intoxicants or illegal drugs on its Site. Professional shall not at any time allow personnel for whom it is responsible on the Site if they are under the influence of any substance that may impair their performance. Professional shall promptly remove from the Site any person who is or appears to be under the influence of any of these substances or is otherwise unsafe or disorderly. Professional shall ensure that its employees, subcontractors and their employees avoid excessive noise, exceeding speed limits or reckless driving, possession or use of firearms, ammunition or other weapons on any LCRA Site or trespass on land not owned by or under easement to LCRA. If private property must be entered or crossed to perform the Services, Professional shall obtain permission from the property owner before entering.

ARTICLE 34. GENERAL SAFETY, ENVIRONMENTAL

(a) General. Professional shall perform all Services required by this Contract in a safe manner consistent with both public and worker health. During the course of the Services, the Professional shall comply with and enforce all laws, rules, regulations and industry practices applicable to worker safety and health. LCRA shall identify to Professional the Subject Matter Expert (“SME”).

(b) Scope of Health and Safety Requirements. Professional will manage all subcontractors on site and will be accountable for subcontractor performance with respect to health and safety.

(c) Mandatory Health and Safety Conditions.

(1) Training/Qualification - All workers performing Services on Site shall be properly trained and qualified to perform the Services they are expected to perform, and have received the necessary certifications and other credentials necessary to perform the Services, as required.

(2) Safety Orientation – Prior to the commencement of Services and arrival at the project site, Professional shall arrange, along with the LCRA designated site contact, safety orientation for itself, its employees and subcontractors. This orientation may include, but shall not be limited to: (i) the Emergency Preparedness Plan; (ii) review of LCRA’s safety policies; (iii) lock out/tag out procedures; (iv) confined space entry permits; (v) hot work permits; (vi) waste product disposal (LCRA maintains Material Safety Data Sheets for all material on site); (vii) Hazardous Communication Act/Emergency Response Act; (viii) smoking policy; (ix) plant entry procedures; and (x) designated parking areas. If any workers fail to attend and complete the safety orientation, Professional shall designate an employee (e.g., site superintendent) to provide the orientation before those workers shall be allowed to start



Services. All safety orientations shall be documented and maintained for inspection. Safety orientation is only required once unless otherwise needed, or the Order changes.

(d) Safety Communications

(1) Safety meetings – Professional shall ensure that all hazards and protective measures associated with the work being performed on site are properly communicated to all personnel on site. Professional shall conduct regular health and safety meetings. A copy of the minutes of such meetings shall be submitted to LCRA, upon request. Professional is responsible for providing an interpreter if necessary to ensure its communications are understood by all workers.

(2) Communications with LCRA – The SME shall be the point of communication for all safety and health issues arising under this Contract. Professional shall communicate with the SME in the event of any of the following conditions: Professional shall inform SME twenty-four (24) hours prior to any activity that could

adversely affect a business organization. Examples of these “activities” include but are not limited to welding, painting, fire protection, system maintenance/repair and any ac-tivity impacting emergency systems/egress routes. The SME will take necessary steps to inform any parties potentially impacted by the activities.

Professional shall immediately inform the SME of all federal, state and local safety in-spections, citations and penalties associated with the Services.

Professional shall immediately notify the SME by verbal, person to person communica-tion, in the event of any incident that results in a death, serious bodily injury or serious property damage related to any aspect of the project. Minor incidents and near-misses must be promptly communicated to the SME.

Professional shall investigate all incidents resulting in personal injury or illness, property damage, or near-misses to determine the root causes and shall take appropriate action to eliminate such causes. A copy of the final investigation report shall be promptly submit-ted to the SME.

(3) Coordination with Other Officials – Professional is fully responsible for coordinating with the proper authorities for moving heavy equipment, location of underground utilities, erecting barricades, traffic control and other safety measures, unless otherwise specified.

(4) Communications with Media Restricted - In the event of an accident or other condition on site, Professional shall not communicate with the media or any other entity without the expressed consent of the LCRA.

(e) SUSPENSION OF WORK AND LIMITATION OF LIABILITY. LCRA RESERVES THE RIGHT TO SUSPEND ALL OR ANY PORTION OF THE SERVICES BEING PERFORMED IN VIOLATION OF THESE PROVISIONS. LCRA SHALL NOT BE LIABLE IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY), WARRANTY OR UNDER ANY OTHER LEGAL THEORY FOR JUDGMENTS, DAMAGES, COSTS OR EXPENSES RELATED TO ANY SUSPENSION OR STOPPAGE OF SERVICES, INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH ANY FAILURE ON THE PROFESSIONAL’S PART TO ESTABLISH, ENFORCE OR ADEQUATELY MONITOR ITS HEALTH AND SAFETY PROGRAM.

(f) Preliminary Submittals. Within ten (10) days after the effective date of the Contract.



Professional shall submit to LCRA’s SME for review:1) A letter designating onsite safety representative for general safety and specific activities;

and2) If applicable, a site safety plan to include plans for specific activities.

(g) Environmental. Professional is solely responsible for all costs incurred by LCRA for any spills or leaks caused by Professional or its subcontractors during performance of, or in connection with the Contract. Without limiting the foregoing sentence, Professional shall be responsible for all costs incurred to contain, remediate and restore the site of the spill according to applicable state and federal laws and regulations, and if on LCRA's property, according to LCRA's requirements.

LCRA shall be responsible for all spill or leak-related notifications required by federal, state or local law or regulation. Professional shall immediately notify LCRA, including the Lead Engineer and, if identified to Professional, the Site supervisor and the individual responsible for environmental compliance, with the nature and location of the spill. Professional shall provide a written report to LCRA identifying the substance, quantity released, location of the spill and perform clean up and remediation activities. If the spill occurs off the LCRA's property, then the Professional shall also notify the LCRA of any agencies notified and the representatives of the agencies contacted. The report shall be a narrative that summarizes on-scene activity and remediation efforts. If long-term remediation will be required, it shall be noted in the report. The initial report shall be provided to LCRA within 24 hours after the incident. Follow-up reports shall be provided to LCRA weekly until remediation efforts have been completed and the spill has been properly remediated.

PROFESSIONAL SHALL INDEMNIFY AND HOLD LCRA HARMLESS FROM ANY AND ALL LOSSES, DAMAGES, EXPENSES COSTS AND LIABILITIES, INCLUDING, BUT NOT LIMITED TO, REMEDIATION COSTS, FINES, PENALTIES, COURT COSTS AND ATTORNEYS’ FEES RESULTING FROM SPILLS, RELEASES, IMPROPER HANDLING AND/OR DISPOSAL OF WASTES BY PROFESSIONAL, ITS SUBCONTRACTORS AND/OR ITS CONSULTANTS.

(h) Professional, its employees, agents, subcontractors and Professionals of any tier are prohibited from bringing firearms or other weapons onto a LCRA or LCRA Affiliate property.

ARTICLE 35. ON-SITE ACTIVITIES

(a) This Article shall only apply if Professional has any personnel performing Ancillary Services at an LCRA Site, under this Contract.

(b) Professional shall have an authorized representative at the Site to whom LCRA SME or representative may give instructions at all times when Ancillary Services are being performed. The authorized representative of Professional shall be identified to LCRA in writing.



(c) Professional shall have competent supervision at the Site at all times to direct and observe the Ancillary Services to be performed. Professional will investigate and take appropriate action with respect to any personnel problems brought to its attention by LCRA’s Agent.

(d) Professional shall confine all of its operations and personnel to those areas of the Site to which LCRA authorizes access.

(e) Professional's personnel may not operate LCRA's tools, vehicles, materials or equipment (collectively “LCRA Equipment”) without LCRA Agent’s prior authorization. If Professional borrows LCRA Equipment, it is conclusively presumed Professional agrees to the following terms and conditions, regardless as to whether such authorization is granted by LCRA:

1) The LCRA Equipment is provided AS IS, with no representations or warranties;2) Professional assumes full responsibility for the protection of the LCRA Equipment;3) Professional agrees to return the LCRA Equipment to LCRA in the same condition as

when it was borrowed, or, if repairs are necessary, to cause such repairs to be performed promptly at Professional’s sole expense before the LCRA Equipment is returned to LCRA. LCRA may deduct or offset any costs associated with repairing any damage to the LCRA Equipment from any payment owed to the Professional hereunder;

4) Professional releases and discharges LCRA, its directors, officers, and employees from all liability for any loss or damage arising from, related to, or resulting from any use of the LCRA Equipment by any individuals, other than LCRA employees; and

5) Professional agrees to defend, indemnify and hold harmless LCRA, its directors, officers, and employees from and against any and all claims, demands, suits, causes of action, proceedings, judgments, damages, costs, expenses, and liabilities (including reasonable attorneys fees and costs) arising out, related to, or resulting from any use of the LCRA Equipment by any individuals, other than LCRA employees.

CONTRACTOR SHALL PROVIDE ALL TOOLS AND EQUIPMENT ASSOCIATED WITH WORKER SAFETY AND HEALTH, NEEDED TO PERFORM THE WORK, INCLUDING WITHOUT LIMITATION AIR MONITORING EQUIPMENT, CONFINED SPACE EQUIPMENT, PERSONAL PROTECTIVE EQUIPMENT, WARNINGS, BARRICADES AND LOCK OUT/TAG OUT EQUIPMENT. Professional shall cooperate with LCRA and others working at or near the Site. LCRA has no obligation to lend LCRA Equipment to Professional and may decline to do so at any time in its sole discretion.

(f) . Professional shall promptly report to LCRA Agent any defects in the work of others which impacts on Professional’s Ancillary Services or the performance of its obligations hereunder. Failure to report such defects constitutes acceptance of the conditions by Professional.

(g) Professional shall keep all of its work areas free from trash and debris, and keep its work areas “broom clean” on a continuous basis.



(h) Professional shall secure and protect its own materials, tools, equipment and Ancillary Services, including any LCRA Equipment, whether provided by LCRA under the Contract or borrowed from LCRA.

ARTICLE 36. WORK FOR FAYETTE POWER PROJECT AND LCRA AFFILIATES

(a) This paragraph only applies if Professional’s performance is to be provided at or for the Fayette Power Project (FPP). LCRA is the Project Manager for FPP, portions of which LCRA owns with Austin Energy, the municipally owned utility of the City of Austin, Texas. With respect to any performance to be provided under this Contract at or for FPP, all warranties and indemnities under this Contract shall extend both to LCRA, its Board of Directors, officers, agents and employees, and to Austin Energy and its council members, directors, officers, agents and employees, as their respective interests may appear. In addition, the protections afforded by the additional insured requirement waiver of subrogation and limitations of liability shall extend both to LCRA, its Board of Directors, officers, agents and employees, and to Austin Energy and its council members, directors, officers, agents and employees, as their respective interests may appear.

(b) This paragraph only applies if Professional’s performance is to be provided in connectionwith an LCRA Affiliate. LCRA operates both electrical generation and transmission assets for LCRA Affiliates under service contracts between LCRA and those Affiliates. With respect to any performance to be provided under this Contract in connection with LCRA Affiliates, all warranties and indemnities under this Contract shall extend both to LCRA, its Board of Directors, officers, agents and employees, and to the applicable Affiliate, its Board of Directors, officers, agents and employees. In addition, the protections afforded by the additional insured requirement waiver of subrogation and limitations of liability shall extend both to LCRA, its Board of Directors, officers and employees, and to the Affiliate, its Board of Directors, officers, agents, and employees.

ARTICLE 37. SECURITY AT LCRA JOB SITE

Professional must provide a list of its employees and its subcontractor’s employees to the LCRA Lead Engineer prior to commencing work at any LCRA Site. An employee will only be allowed on an LCRA Site if the employee is able to show photo identification and their name is on the list. Any addition or deletion must be provided to the LCRA Lead Engineer.

ARTICLE 38. ETHICS REQUIREMENTS

Professional shall not, either before or after contract award, give or offer to give any personal benefit to any LCRA employee in connection with this Contract. This prohibition includes any gift, entertainment, compensation, employment, subcontract, property, favor, or service to an LCRA employee, or a member of an employee’s family, in order to obtain a favorable treatment by LCRA or for the employee’s having exercised his or her authority as an LCRA employee or for performing his or her LCRA duties in favor of another. Professional shall not offer or agree to give any type of personal benefit to an LCRA employee in exchange for a decision, opinion, recommendation, vote,



or other exercise of discretion by an LCRA employee.Professional must comply with Ch. 176, Texas Local Government Code at all times.

ARTICLE 39. RIGHT TO AUDIT

LCRA shall have the right to audit all books and records (including the supporting or underlying documents and materials), in whatever form they may be kept, whether written, electronic or other, relating or pertaining to this Contract (Collectively “Records”), kept by or subject to the control of the Professional, including, but not limited to those kept by the Professional, its employees, agents, assigns, successors and subcontractors The Professional shall maintain, and shall require its subcontractors to maintain, such books and records, together with such supporting or underlying documents and materials, for the duration of this Contract and for at least two (2) years following the completion of the last Order completed under this Contract, including any and all extensions thereof. The books and records, together with the supporting or underlying documents and materials shall be made available, upon request, to LCRA during normal business hours at the Professional’s office or place of business. In the event that no such location is available, then the books and records, together with the supporting or underlying documents and records, shall be made available for audit at a time and location which is convenient for LCRA. This right to audit applies to all books, records and supporting documents and materials regardless of the format in which those items are maintained. In the event that the Professional fails the audit, LCRA shall be compensated by Professional as appropriate and as demonstrated by the audit findings. Specifically, in the case that the audit finds that Professional over-charged LCRA, Professional shall compensate LCRA by the amount of the overcharge plus a late charge of 1% per month beginning with the month in which the overcharge occurred to the month in which the overcharge is compensated by the Professional.

ARTICLE 40. FINANCIAL OBLIGATIONS

(a) Professional hereby certifies that it has the financial ability to perform this Contract and all the Orders executed hereunder to final completion and that it shall notify LCRA if it appears that: Professional ceases to have the financial ability to perform this Contract or any Order hereunder, if the Professional’s liabilities exceed its assets, or if it is generally unable to pay its debts. Upon notice thereof, LCRA reserves the right to require a letter or credit or other financial guarantee acceptable to LCRA.

(b) Professional shall, at its own expense, prepare and submit for review annually by LCRA audited financial statements. Such statements shall be submitted to LCRA no later than May 1 of each year. If LCRA, in its sole judgment, concludes that Professional’s financial statements indicate that Professional poses an unwarranted risk to LCRA, then LCRA may terminate this Contract for its own convenience.

ARTICLE 41. BANKRUPTCY

Subject to the rights of any trustee in bankruptcy and to applicable law, in the event that either Party becomes or is declared insolvent or bankrupt, is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the



composition, extension, or readjustment of all or substantially all of its obligations, such Party agrees to furnish notification to the other within five working days by registered mail. Then the other Party may, by giving written notice thereof to the other Party, terminate this Contract as of a date specified in such notice of termination.

ARTICLE 42. PUBLICITY

Professional shall not directly or indirectly publish, approve or issue any advertising, sales promotion, press release or public statement relating to this Contract or any other work performed by Professional for LCRA wherein LCRA’s name, trade name, trademark and/or logo is expressly mentioned or language is used from which LCRA’s identity may, in LCRA’s responsible judgment, be inferred or implied (a “Prohibited Publication”), without the prior written approval of the LCRA Agent, which approval may be withheld in LCRA’s absolute discretion. If during the term of this Contract, Professional makes any Prohibited Publication available to third parties without first obtaining the LCRA Agent’s written approval, the Parties agree that LCRA shall suffer irreparable harm from such disclosure and LCRA may, at its sole discretion, immediately elect to (a) issue at Professional’s sole expense, or have Professional issue with LCRA Agent’s prior approval, a retraction or correction of such Prohibited Publication; (b) obtain an injunction to prevent Professional from issuing additional Prohibited Publications, or (c) pursue other legal or equitable remedies against Professional that may be available to LCRA to redress the breach of this Article.

ARTICLE 43. APPROVAL

Contracts with the LCRA that exceed $2,000,000 (either initially or through a Change Order) must be approved by the LCRA Board of Directors before they become effective. Consulting contracts that exceed $50,000 (either initially or through a Change Order) must be approved by the LCRA Board of Directors before they become effective. Change Orders to contracts must be approved by the LCRA Board of Directors if they exceed $2,000,000 ($50,000 for consulting contracts), either separately or in the aggregate. Change Orders must be executed by the LCRA Agent.

Contracts in excess of $14,999 involving the Fayette Power Project or the Smithville Railcar Facility must be reviewed and approved by the FPP Management Committee prior to becoming effective. Change Orders to contracts must be approved by the FPP Management Committee if they exceed $14,999, either separately or in the aggregate. Change Orders must be executed by the LCRA Agent.

ARTICLE 44. CONTRACT NON-EXCLUSIVE

The Contract is not exclusive. LCRA has the right to hire others to provide the same or similar work.

ARTICLE 45. SEVERABILITY

If any term or provision of this Contract is held illegal or unenforceable by a court of competent jurisdiction, all other terms in this Contract will remain in full force and effect and the illegal or unenforceable provision shall be deemed stricken. In the event the stricken provision materially



affects the rights, obligations or duties of either party, LCRA and Professional shall substitute a provision by mutual agreement that preserves the original intent of the parties as closely as possible under applicable law.

ARTICLE 46. ASSIGNMENT

Professional may not assign this Contract or any portion thereof without the express written consent of an LCRA Agent. Any permitted assignee must notify the LCRA in writing that it accepts the assignment on the same terms and conditions contained in this Contract. No permitted assignment shall limit Professional’s responsibility for performance of this Contract. Attempted assignment or delegation of this Contract, including obligations under it, without the written consent of LCRA shall be void, and not merely voidable.

ARTICLE 47. THIRD PARTY BENEFICIARIES

All persons who are not parties to this Contract, but who are entitled to indemnification under it, to the protection of the additional insured and waiver of subrogation requirements, and to the limitation of liability provisions, are third party beneficiaries of this Contract. Otherwise, there are no third party beneficiaries to this Contract and the provisions of this Contract shall not create any legal or equitable right, remedy or claim enforceable by any person, firm or organization other than the Parties and their permitted successors and permitted assignees.

ARTICLE 48. ENGLISH LANGUAGE

All Professional prepared material to be furnished under this Contract shall be written in the English language, all measurements shall be in the English linear measure and statistical weights systems, and all monetary amounts will be calculated and based upon U.S. Dollars.

ARTICLE 49. WEB BASED PROCEDURE

To the extent possible, Orders shall be processed in any appropriate web-based and electronic manner. The parties agree that the web-based Orders shall be processed as if they were received in writing and shall be legally binding to the same extent as a written Order.

ARTICLE 50. INTEGRATION

The Contract Documents contain the entire and integrated agreement between Professional and LCRA as to their subject matter and supersedes all prior negotiations, correspondence, understandings, representations and agreements, written or oral, related to it. All work performed by the Professional, actions taken, and payments made, if any, under any other prior written or oral agreements, with respect to this Contract, shall be deemed to have been work performed, actions taken or payments made under this Contract.

ARTICLE 51. INTERPRETATION AND RELIANCE

While this Contract form was initiated by LCRA, Professional had the opportunity to take exception to and seek clarification of it. Thus, this Contract is the product of negotiations between the Parties.



No presumption will apply in favor of any Party in the interpretation of this Contract or in resolution of any ambiguity of any provision.

ARTICLE 52. TITLES AND SECTION HEADINGS

The titles and section headings of this Contract are included for convenience only and shall not be deemed to constitute a part of this Contract.

ARTICLE 53. SURVIVAL

Termination or expiration of this Contract shall not relieve, reduce, or impair any rights or obligations of a party which expressly or by implication survive termination or expiration of this Contract. Without limiting the generality of the foregoing, the following Articles shall survive the termination or expiration of this Contract: Services to be Provided, Site Inspection, Risk of Loss, Insurance, Ownership of Deliverables, Warranties and Standards, General Indemnity, Intellectual Property Indemnity, Indemnity Procedures, Limitation of Liability, Failure to Act, Remedies, Termination for Convenience, Termination for Cause, Dispute Resolution, Governing Laws, Regulations & Standards, Licenses and Permits, General Safety, Environmental & Site Operations, On-Site Activities, Work for Fayette Power Project and LCRA Affiliates, Ethics Requirements, Right to Audit, Publicity, and Third Party Beneficiaries.

ARTICLE 54. BUSINESS REVIEWS

LCRA and Professional shall conduct business reviews at least annually. Professional shall attend business reviews at Professional’s own expense. These business reviews may be held formally or informally at the discretion of LCRA. As part of the business review process, the Professional shall be evaluated on ability to perform, quality, service, value, and innovation. Professional shall be required to submit updated qualifications to the LCRA Agent upon request.

As part of the Business Review process, Professional shall provide to LCRA proposals for cost reduction opportunities on open Orders or opportunities available overall.

ARTICLE 55. MISCELLANEOUS

The Professional shall prepare and execute in any form and detail as LCRA shall direct all estimates, certificates, reports, and other documents required to be executed by the Professional pursuant to any Order or this Contract, including, without limitations, a monthly report of progress on the form of schedule referred to within this Contract or any subsequent Order showing the percentage of completion of each of the Deliverables thereof. Reporting for Time and Materials based Orders shall include costs incurred and matched to its respective SOW Deliverable. Reporting shall also include this cost incurred against the forecasted total cost and indicate any potential schedule or cost impacts. Reporting shall include spend to date. Any representations or recommendations on the part of the Professional made subject to this Article shall not constitute a change to the Order.



Lower Colorado River Authority: Professional:

By: ___________________________ By: ___________________________

Name:__________________________ Name: _________________________

Title:___________________________ Title:___________________________

Date: __________________________ Date: __________________________



EXHIBIT A – STATEMENT OF WORK1. Representatives:

LCRA Project Manager [Name][Title][Address][Tel. No.][email]

LCRA Project/Lead Engineer [Name][Title][Address][Tel. No.][email]

LCRA Agent [Name][Title][Address][Tel. No.][email]

LCRA Construction Coordinator [Name][Title][Address][Tel. No.][email]

Professional [Name][Title][Address][Tel. No.][email]

2. Project Background:

3. Description of Deliverables:

a. Throughout the project the Professional is required to deliver a Monthly Report to the LCRA Lead Engineer and Agent that includes but is not limited to:

i. Narrative (to be provided in MS Word)1. Prior period accomplishments2. Next period activities3. Risks / Issues / Resolution (proposed)4. Schedule update and milestone status

ii. Budget Status (to be provided in MS Excel)1. Report period2. Project Name3. Task description4. Labor category assigned to task5. Hours expended (Period)6. Hours expended (Total to Date)7. Hours budgeted8. Billing rate for labor category (actual or calculated from presented information)9. Percent of Task Complete10. Estimated hours needed to complete task (actual or calculated from presented information)



11. Projected variance from budget (hours and dollars) (actual or calculated from presented information)

4. Description of Services:

5. Professional’s Key Person(s):

The following individuals are identified as Key Personnel for the delivery of services herein and cannot be changed without prior written authorization from LCRA:

6. Service Level Agreements:

a. Schedule – Professional shall provide necessary resources to ensure that the Professional’s Schedule responsibilities described in Section 9 are adhered to.

i. Remedies – In the event that Professional does not provide the necessary resources to ensure compliance to its requirements in the Schedule as more fully described in Sections 3, 4, and 9:1. Professional shall complete a Root Cause and Corrective Action assessment within 10 business

days for comment by LCRA and implementation by Professional.2. In the event Professional does not implement the corrective action assessment as agreed, LCRA

may terminate this SOW for Cause.b. Work Quality – The Professional shall provide all Deliverables and Services with the required work quality

in accordance with the terms of the Contract to achieve LCRA Acceptance as more fully described in Sections 3,4,and 10.

i. Remedies – In the event that Professional does not perform in accordance with the terms of the Contract and as described in Section 101. Professional shall complete a Root Cause and Corrective Action assessment within 10 business

days for comment by LCRA and implementation by Professional.2. In the event Professional does not implement the corrective action assessment as agreed, LCRA

may terminate this SOW for Cause.

7. Liquidated Damages:

8. Assumptions:

9. Other Requirements:

10. Schedule:

Deliverable or Milestone StartDate

CompletionDate

Monthly Report (if applicable) One Month after project commences

Monthly throughout project



11. Acceptance Criteria:

i. Services shall be accepted upon receipt and review of the Deliverables as fully described above in Section 3.

ii. Written acceptance of the Deliverables shall be provided by LCRA.iii. Any dispute by the Professional regarding LCRA’s non-acceptance of a Deliverable shall be made

within 10 business days after LCRA’s notice of non-acceptance.

12. Location:

13. Payment Schedule:

a. For the Services and Deliverables to be provided hereunder, LCRA will pay Professional a Time and Materials Price Not to Exceed $XXX, in accordance with Exhibit A of this SOW.

b. Invoices shall be generated once monthly.c. LCRA Task Order No. __________ must be prominently displayed on each invoice submitted for this

project.

14. Approval:

a. The parties hereto have caused this Statement of Work to be executed by their respective duly authorized representatives as of the Effective Date hereof. Any changes to this statement of work must be made in writing and demonstrate written authorization on the part of the parties. With regards to the LCRA authorized representative, contractual and SOW changes that modify specific contract obligations may only be made by the LCRA Agent noted here or one appointed by LCRA Supply Management with appropriate delegation of authority. All other terms and conditions of the Agreement not expressly modified herein remain unchanged and in full force and effect.

Professional Lower Colorado River Authority

By: By:

Printed Name: Printed Name:

Title: Title:

Date: Date:



EXHIBIT B – LABOR RATES



EXHIBIT C – TRAVEL PROCEDURES

Qualifying expenses are automobile rental, fuel, lodging, meals, airline tickets, taxi cabs, parking, and mileage. Travel that does not follow the policy outlined herein shall not be payable without prior written consent by LCRA. :

1. Travel Per Diem shall equal the U.S. General Services Administration domestic federal per diem rates (“Per Diem”) for the applicable primary destination for the year in which travel shall occur, which can be located here: http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=17943a. Should the primary destination not be referenced in the Per Diem, the per diem amount shall be no greater than $120.b. Meals shall not exceed a total of $40 per day.

2. Mileage shall be based on the IRS standard mileage rate (currently located at http://www.irs.gov/newsroom/article/0,,id=200505,00.html)

3. Airline tickets shall be booked fourteen (14) days in advance. Only economy class tickets shall be booked.

4. Professional shall use its corporate rate for hotels, when available or book hotels through a discount travel service.

5. Entertainment and alcoholic beverages are not reimbursable.


http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=17943

http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=17943


EXHIBIT D – CHANGE ORDER FORM

CHANGE ORDER

Change Order No.: Effective Date:

Project:

Contract Name & Number: (“Contract”)

Reference: _______________, dated as of ____, between (“Professional”) and the Lower Colorado River Authority, as the same may be amended, supplemented or restated from time to time. Each term used herein with its initial letter capitalized and not defined herein shall have the meaning set forth in the “___________”

WHEREAS, ____________________________________________________________________________________________________________________________________________

WHEREAS, the Parties desire to enter into this Change Order to reflect their agreement with respect to the terms and conditions relating to matters described above.

NOW, THEREFORE, for and in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Change in Service:

(a) ____________________________________________________________________________________________________________________________________________

(b)___________________________________________________________________________________________________________________________________________

2. Change in Price ____________________________________________________________________________________________________________________________________________

3. Dispute Resolution

(a)____________________________________________________________________________________________________________________________________________



(b) The Parties agree that this Change Order sets forth the entire consideration for the settlement of the matters described herein, that said consideration is contractual and not a mere recital, and that no promise or inducement has been offered for the settlement of the matters described herein except as expressly set forth herein. This Change Order shall not be construed as an admission of liability on the part of the Parties, who expressly deny liability.

4. Miscellaneous.

(a) All work performed by Professional pursuant to this Change Order shall be performed in accordance with this Change Order and the terms and conditions of the Contract.

(b) This Change Order shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Change Order embodies, merges, and integrates all prior and current agreements and understandings of the Parties, oral or written, with regard to the matters contained herein. This Change Order shall constitute a part of the Contract.

(c) This Change Order shall be governed, interpreted, construed and enforced in accordance with the Contract and the substantive laws of the State of Texas, without regard conflict of law rules that would direct application of the laws of another jurisdiction.

(d) This Change Order shall be effective on and as of the date first written above. Except as expressly set forth herein, this Change Order shall not alter, amend or change the Contract in any manner, which Contract shall continue in full force and effect. Without limiting the foregoing, except as expressly set forth herein, Professional shall not have the right to any consideration, reimbursement of costs and expenses, extension of time or other changes in the Contract.

(e) The Parties may execute this Change Order in separate counterparts, each of which when so executed shall be an original and all of which shall constitute but one and the same document. Without limiting the manner in which this Change Order may be executed and delivered, a Party shall be considered to have fully executed and delivered this Change Order by executing a counterpart of this Change Order and sending the execution page by facsimile or .pdf to the other Party.

IN WITNESS WHEREOF, LCRA and Professional have entered into this Change Order to be effective on and as of the date first written above.

Lower Colorado River Authority PROFESSIONAL

By: _____________________________ By: _____________________________Name: _____________________________ Name: _____________________________Title: _______________________________ Title: ______________________________Date:_______________________________ Date:______________________________



EXHIBIT E – CONTRACT SCOPE OF WORK



EXHIBIT F – ELECTRONIC ENGINEERING DOCUMENT AND DRAWING REQUIREMENTS FOR ARCHITECTURAL AND ENGINEERING FIRMS



EXHIBIT F – ELECTRONIC ENGINEERING DOCUMENT AND DRAWING REQUIREMENTS FOR ARCHITECTURAL AND ENGINEERING FIRMS (CONT)
