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2011-018oxDnvalvcE No. 2011-018 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH BURNS & MCDONNELL FOR ENVIRONMENTAL PERMITTING SERVICES AND STUDIES 1NCIDENT TO THE DEVELOPMENT OF THE 10 MW CHP FACILITY IN DENTON, TEXAS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTNE DATE (IN AN AMOUNT NOT TO EXCEED $146,806; AND 1N THE AGGREGATE AMOUNT OF NOT-TO-EXCEED $188,681.) WHEREAS, the City Council deems it in the public interest to continue to engage the firm of Burns & McDonnell (`BMCD"), to provide professional further consulting and engineering services for environmental permitting services and studies for the City relating to the development of the 10 MW CHP facility in Denton, Texas; and WHEREAS, previously on September 13, 2010 the Public Utilities Board recommended approval of BCMD to perform air pertnitting services for the operation of gas turbines to be located in the proposed combined heat and power energy and steam generation facility in the amount no-to-exceed $41,875, and the acting Purchasing Agent signed said Agreement within her delegated authority; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional services, that limited City staff cannot adequately perform the services and taslcs with its own personnel, and that the nature of BMCD's professional services is highly technical; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, BMCD has represented the City from time-to-time over the last eleven (11) years, and has proven to be a valuable, reliable, affordable, and competent professional resource that has expertise in the area for which it is being retained; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional services, as set forth in the Professional Services Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: The City Manager is hereby authorized to execute a Professional Services Agreement with Burns & McDonnell, for professional environmental permitting and engineering 1 services in the not-to-exceed amount of $146,806; said Professional Services Agreernent is substantially in the form attached hereto and incorporated herewith by reference, as Exhibit "A." SECTION 2: The award of this Agreement by the City is on the basis of the demonstrated competence, kiowledge, and qualifications of BMCD and the ability of BMCD to perform the professional services needed by the City for a fair and reasonable price. SECTION 3: The further expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2011. d (~l MARK A. BURROUG , MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By 0~- AP A TO LEGAL FORM: ?OVEID) ANITA BURGESS, CITY ATTORNEY B •~r~-~.~ y. o ~ 2 January 18, 2011 William A. Bunselmeyer Key Accounts Executive Denton Municipal Electric 1659 Spencer Road Denton, TX 76205 Denton Municipal Electricl0-MW CHP Project Proposal for Environmental Permitting Services Dear Mr. Bunselmeyer: Burns & McDonnell Engineering Company, Ina (Burns & McDonnell) is pleased to submit this proposal to provide environmental pernutting services to Denton Municipal Electric (DME) for the proposed 10-megawatt (MW) combined heat and power (CHP) energy and steam generation facility (project) within the city limits of Denton, Texas. This proposal identifies the services that would be performed by Burns & McDonnell to obtain the pertinent pertnits/approvals to begin site and pipeline construction activities (earth moving activities), along with other potentially required activities as the project progresses. At this time it is unknown if the CHP facility (site) and the natural gas pipeline (pipeline) will be developed together or separately; however, because of the aggressive site preparation schedule it is anticipated that they will be developed separately. This should allow for more schedule flexibility with developing each facility. As a result, the proposed scope of work below lists the proposed services that will likely be needed to obtain permits/approvals for the site and pipeline separately, followed by additional potentially required services to complete the pernutting for each facility. Details for each task are provided in Attachxnent A. SC(}PE C)F Wt)I2K CHP Site Scrvices Based on lcnown site information the following proposed tasks will likely be necessary prior to conducting any earthmoving activities at the CHP site. Task S1. Wetland Assessment/Delineation Task S2. Threatened & Endangered (T&E) Species Consultation (Federal & State) Task S3. Cultural Resources Review Task S4. Texas Pollution Discharge Elimination System (TPDES) General Permit & Storm Water Pollution Prevention Plan (SWPPP) for Construction Activities Task S5. City Land Disturbing Activity Permits & Plans Task S6. FAA Notifications Costs to perform these services are $29,328, including project managernent. 9400 tNard 1'arkavay Kansas Gity, N6rs4Eaarri 64874-3319 7F>l.• 816 333-9900 Fax; 8763.?3•36.40 tvvw.burizsrz?r, rf, r, mr , . January 18, 2011 Page 2 Other potentially required permits or activities (potential tasks) that may also be required prior to site construction, depending upon site conditions, discovered natural or cultural resources, other agency requests, etc., include: Potential Task S1. Section 404/401 Permitting Potential Task S2. Cultural Resources Survey & THC Consultation Costs to perform these potentially required site services are $12,724, thus a total of $42,052 when considering both the proposed and potential tasks together. Detailed costs are provided in the Cost Summary section of this proposal. Because of the aggressive site preparation schedule it is recommended to start the proposed tasks (listed above) as soon as possible, which will then determine if these potential tasks will be necessary. Yipeline Services Based on known pipeline information and modern pipeline construction methods, it is assumed that the pipeline will be routed to avoid environmentally sensitive areas (e.g. wetland, riparian areas, wooded areas, etc.), thus to reduce the efforts needed to obtain pertinent permits prior to construction. If alignment alone will not avoid sensitive areas, it is assumed that construction measures (e.g. boring method) will be employed to avoid impacts to these areas. Proposed pipeline tasks that will be necessary prior to starting construction activities are listed below. In order to identify environmentally sensitive areas, Tasks P1- P3 should be conducted early in project development. Task P1. Wetland Assessment/Delineation Task P2. T&E Species Consultation (Federal & State) Task P3. Cultural Resources Review Task P4. TPDES General Permit & SWPPP for Construction Activities Task P5. City Land Disturbing Activity Permits & Plans Task P6. City Oil/Gas Pipeline License Agreement The cost to perform these proposed pipeline services is $39,080, including project management. If environmentally sensitive areas cannot be avoided, other potential permits and activities (potential tasks) may also be required, which could include: Potential Task P1. Section 404/401 Permitting Potential Task P2. Cultural Resources Survey & THC Consultation Potential Task P3. City Tree Survey and Preservation/Mitigation Plan The cost to perform these potentially required pipeline services is $21,556, thus a total of $60,636 when considering both the proposed and potential tasks together. Detailed costs are provided in the Cost Sunuiiary section of this proposal. . ~ ~ January 18, 2011 SON ~ i Page 3 Otlier Services In addition to permits and approvals that may be required prior to starting construction of the site or pipeline, other permits are also required to continue development, design, construction, and operation of the facility. As a result, Burns & McDonnell is also providing costs to provide these other services to obtain these permits, approvals, or to demonstrate compliance, which are listed below. Site Potential Task S3. TPDES Multi-Sector General Permit & SWPPP (Operation) Potential Task S4. Building Permit Assistance Potential Task S5. Noise Study Potential Task S6. TPDES General Permit for Hydrostatic Testing Piroeline Potential Task P4. TPDES General Permit for Hydrostatic Testing The costs to perform these other services for the site and pipeline are $41,780 and $2,338, respectively. Detailed costs are provided in the Cost Summary section of this proposal. General Assumpt'rons for Proposal The following are the assumptions that were used when preparing this proposal, including the cost estimate. • Scope and costs associated with this proposal were generated on an approximate 6.5-acre site and a 12,000-foot long, 30-foot wide (approximately 8.25 acres) gas pipeline area, or a combined project area of no more than 14.75 acres • DME is responsible for platting the site and obtaining approval from the City • Environmentally sensitive areas, including wooded areas will be avoided by alignment or by construction measures, thus not requiring a Section 404 dredge and fill permit (wetlands) and not triggering other requirements (e.g. Section 106 of the National Historic Preservation Act) • DME will provide pertinent site location information such as ROW coardinates and/or drawings in order to conduct the proposed services • Additional efforts, other than what is presented in this proposal, as a result of layout or design changes, equipment changes, land owner agreements or access, or inclement weather will be out-of-scope • DME will provide the necessary property access pernussion (and any necessary padlock keys or codes) to conduct on-site activities • DME shall provide a contaet to be available during on-site visits • Scope assumes that all maps, drawings, or other data files obtained from DME, agents for DME, or agencies will be GIS-compatible and digitized • Besides the site visits and kick-off/city meeting discussed above, no efforts have been included far attending agency meetings or hearings, or other project-related meetings • All estimated application fees associated with the Tasks (refer to Attachment 3 and 4) shall be reimbursed by DME; these fees are not included in the cost estimate „ . January 18, 2011 Page 4 • The cost to collect and analyze any water supply samples and/or to determine effluent characteristics is not included in this proposal • NEPA Compliance (i.e. preparation of an Environmental Assessment, Environmental Impact Statement, etc.) is not included in this proposal Ite►ns NOI' Included in this Sconc of Work Design and other engineering-related permits or plans have not been included in this scope of work as they are relatively specific to design, such as building design, electrical, and plumbing permits (for the site) ar other related plans, such as traffic control plans, grading plans, etc. Another permit not included in this proposal is the City's Certificate of Occupancy Permit. Typically, and according to the City, these permits can be issued under one Building Permit. For purposes of this proposal, Burns & McDonnell provided a potential task (Potential Task 4) far assisting with portions of the Building Permit application package, which includes the environmental review. It is assumed that DME will be the lead entity for coordinating the Building Permit effort. Also, the proposed power plant site appears to be currently zoned as Industrial Center - General (IC-G) and according to the Denton Municipal Code, electric generating facilities are permitted uses on Industrial and Development District zoned land, thus a zoning permit or specific use permit (SUP) should not be required. Likewise, gas pipelines are also allowed on all zoned land with the exception of Outdoor Amusement/Recreation (OAR) zoned land. From the City zoning map (2010) it appears that the gas pipeline is located entirely within IC-G zoned land. Therefore, we did not include efforts for addressing these permits or approvals from the City. The proposed power plant site is not located in a Federal Emergency Management Agency (FEMA) designated floodplain according to available floodplain maps; however, the gas pipeline will cross multiple floodplains. Because the gas pipeline will be underground and construction activities within the floodplains will be temporary, it is assumed that a City Floodplain Development Permit will not be required, thus not included within this proposal. COST SUMMAltY The overall not-to-exceed cost to complete the proposed and potential tasks for the site and pipeline described in this proposal is a total $146,806. This includes $83,832 for the total site efforts and $62,974 for the total pipeline efforts. Work will be conducted on a time and materials basis. Details regarding these costs are provided in the tables below, which show costs for the site and pipeline efforts leading up to construction, followed by other service costs that are and could potentially be required to continue with development of the project. The costs in this proposal do not include fees that may be assessed to apply for agency permits, approvals, reviews, etc.; however, estimated permit fees are provided in the task descriptions (Attachment A). It is anticipated that any fees paid by Burns & McDonnell will be reimbursed by DME. The following table summarizes the costs for conducting the proposed and potential tasks that may be needed prior to starting construction of the site and pipeline. January 18, 2011 Page 5 Site & Pipeline Cost Estimates to Start Construction I Costs Task Nos. Proposed Task/Activity ~ Slte (S) ~ Pipeline (P) TasksSl&P1 ~ WetlandAssessment/Delineation ~ $7,531 ~ $10,967 Tasks S2 & P2 ~ T&E Species Consultation (Federal & State) ~ $2,047 ~ $3,823 Tasks S3 & P3 ~ Cultural Resources Review ~ $2,435 ~ $2,398 Tasks S4 & P4 ~ TPDES General Permit & SWPPP for Con. ~ $5,982 ~ $5,982 Tasks SS & PS ~ City Land Disturb. Activity Permits & Plans ~ $5,405 ~ $5,405 Task S6 ~ FAA Notifications ~ $1,014 ~ - Task P6 ~ City OiUGas Pipeline License Agreement ~ - ~ $6,128 ~ Project Management/Coordination ~ $4,915 ~ $4,378 Proposed Tasks - Totals ~ $29,328 I $39,080 Potential Taslcs S1 & P1 ~ Section 404/401 Permitting ~ $2,885 ~ $2,349 Potential Tasks S2 & P2 ~ Cultural Resources Survey & THC Cons. ~ $9,839 ~ $10,507 Potential Task P3 ~ City Tree Survey and Pres./Mit. Plan ~ - ~ $8,700 Potential Tasks - Totals (may be needed prior to construction) ~ $12,724 ~ $21,556 Proposed & Potential Task Totals (for starting construction) I$42,052 1 $60,636 The following table summarizes the costs for conducting the "Other Services" as indicated in this proposal. Site & Pipeline Cost Estimates for Other Services (Continuation of Project Development) Costs Task Nos. Potential TasklActivity Site (S) ~ Pipeline (P) Potential Task S3 I TPDES Multi-Sector General Permit & SWPPP ~$8,430 I - Potential Task S4 I Building Permit Assistance I$7,132 I - Potential Task SS I Noise Study I$18,925 I - Potential Tasks S6 & P1 I TPDES General Pemut for Hydrostatic Testing ~$2,338 I $2,338 ~ Project Management/Coordination ~$4,955 ~ - , Other Potential Tasks - Totals ~$41,780 ~ $2,338 It is possible that there could be significant cost savings by combining efforts; however, the site and pipeline construction schedules appear to be different. Thus, it is likely that timing of conducting sirnilar proposed activities for the site and pipeline may not be possible or that the pipeline could delay site development, which could jeopardize the site preparation schedule. However, Burns & McDonnell will strive to use synergies when conducting pertinent authorized activities in arder to reduce project costs where possible. ; • ~ January 18, 2011 . , Page 6 I'EItMS & CONDI'IIONS We propose to perform the work, as described in this abbreviated proposal, on a time and materials basis. It will be completed according to the attached Terms & Conditions (Attachment B), along with the task details (Attaclunent A) and assumptions provided in this proposal. Authorized costs will not be exceeded without the written consent of DME. Again, we appreciate this opportunity to provide our professional services to you for the proposed project. If you have any questions or require additional information please contact Robert Everard at 816-363-7251 or reverard@burnsmcd.com. Respectfully submitted, Dale R. Trott, Vice President Burns & McDonnell Engineering Company, Inc. f~~✓`~~ 1,18/2011 (Signature / Date) ~ . ~ Attachments Respectfully ac pted & authorized, Duly AuthorizeAgent Denton Munici fal Electric '4n utiorizi nature / Date) cc: Robert Everard, Mary Hauner-Davis, Burns & McDonnell CITY OF DENTON, TEXAS ATexas Municipal Corpor ' B . ~/.c..► _ ~ ATTEST: CITY SECRETARY, JENNIFER WALTERS r B 1 APPROVED AS TO LEGAL FORM: ANITA BURGE55, CITY ATTORNEY By; 41 ~ ATTACHMENT A Task Descriptions CHP Site Services Proqosed Site Tasks Task S 1. Wetland Assessment/Delineation To comply with the Clean Water Act (CWA) Sections 404 and 401, and to determine if wetlands or other waters of the U.S. exist at the site, Burns & McDonnell will conduct a site assessment. Prior to conducting the site visit, Burns & McDonnell will first conduct a desktop review of the site, including review of U.S. Geological Survey (USGS) 7.5-minute topographic maps, National Wetland Inventory (NWI) maps, the county soil survey, and available aerial photography, which should give a good indication if and where wetlands or other waters of the U.S. may exist on site. Upon completion of the desktop review, Burns & McDonnell will conduct a site visit to evaluate the study area for the presence of wetlands or other waters of the U.S. according to U.S. Army Corps of Engineers (Corps) requirements. The site visit will consist of a pedestrian survey by a wetland scientist and a global positioning system (GPS) specialist to identify any jurisdictional areas that may be present and to record the locations and boundaries using GPS. These jurisdictional areas will be delineated in accordance with the 1987 Corps of Engineers Wetlancls Delineation Manual (Corps Manual) and the Regional 5upplement to the Corps of Engineers Wetland Delineation Manual: Great Plains Region (Regional Supplement). In addition, Burns & McDonnell will gather information on the hydric soils, wetland hydrology, and upland and wetland vegetation of the project site. The wetland scientist will assess whether a delineated area is likely to be considered under jurisdiction of the Corps by deterxnining if a hydrologic connection to waters of the U.S. exists. As part of this effort, photographs will also be taken on-site to provide a visual documentation of any identified features. It is assumed that if the wetland delineation is completed outside of the normal growing season (March 14 - November 16), it will still be considered a valid delineation and be acceptable by the Corps district. Recent experience indicates that the Corps does consider winter delineations as an acceptable practice given the right conditions. Based on the desktop review and delineation, Burns & McDonnell will prepare a wetland delineation letter report describing the background research, methodologies, and results. After reviewing limited project information to date, it appears that wetlands or other waters of the U.S. do not exist, thus the letter report is anticipated to be a brief suminary of the desktop review and site visit. Burns & McDonnell will provide the draft letter report to DME for review and one round of comments. Burns & McDonnell will address pertinent comments and finalize the report, then providing a final electronic version to DME. Since it is likely that wetlands will not exist or can be avoided by the project, it is anticipated that a Section 404 dredge and fill permit from the Corps and a Section 401 water quality certification (WQC) from the Texas Commission on Environmental Quality (TCEQ) will not be required, thus these permitting efforts are provided as a Potential Task later in this proposal. Task S2. Threatened & Endangered Svecies Consultation (Federal & State)To comply with federal and state laws regarding impacts to threatened, endangered, and concerned species (protected species) or their respective habitat and for purposes of project due diligence, Burns & McDonnell will conduct an informal consultation with both the U.S. Fish and Wildlife Service (FWS) and Texas Parks and Wildlife Department (TPWD), respectively. Burns & McDonnell will collect pertinent background information for the project area, as well as use information collected during the wetland assessment (Task S 1), to prepare concurrence request letters, including pertinent figures and photographs. Far the TPWD, a Project Coordination and Review Request form will also be prepared. These letters (and TPWD form) will be provided to DME electronically for review and one round of comments. Bums & McDonnell will finalize the letters and submit them to the FWS and TPWD to seek a project concurrence. Based on the current conditions of the project area, being mostly open fields adjacent to existing manmade features, it is anticipated that the agencies will concur without having to perfortn any additional studies or site visits. Therefore, this proposal does not include efforts for detailed habitat assessments, species specific studies, or additional agency consultation. Task S3. Cultural Resources Review Section 106 of the National Historic Preservation Act (NHPA) may apply to a project if there is the potential for impacts to cultural resources, a federal approval is required (e.g. Corps permit), or the project is seeking federal funding. If Section 106 applies, a federal agency (e.g. Corps) may be willing to coordinate further correspondence with other participating agencies, thus becoming a lead federal agency. Although it is likely that Section 106 will not apply to the site, nar a lead federal agency will occur, it would be prudent for a cultural resources review to be conducted for the project site. As a result, Burns & McDonnell proposes to perform this site due diligence to address cultural resources by conducting desktop background research, including review of the THC's Texas Historic Sites Atlas to determine if there are previously-recorded archaeological sites or properties listed on the National Register of Historic Places (NRHP) within or near the project area. The research will also include a review of previous archaeological surveys in the area. Data gathered during this research will be analyzed to establish a background for the project and to determine where archaeological sites are likely to occur in the project area. Once the background research is completed, Burns & McDonnell will draft a brief letter summarizing the results of the review. Burns & McDonnell will provide the draft letter to DME for review and one round of comments. Burns & McDonnell will address pertinent comments and finalize the letter, then providing a final electronic version to DME. If Section 106 does apply Burns & McDonnell has provided additional efforts for consulting with the THC and performing a cultural resources field survey as a Potential Task later in this proposal (Attachment 4). Task S4. TPDES General Permit & SWPPP for "Construction" Activities, Projects that will disturb one or more acres of land, but less than five acres are required to prepare a Storm Water Pollution Prevention Plan (SWPPP), post a construction site notice, and comply with the TPDES General Pernut requirements. For purposes of this proposal it is assumed that the project will disturb rnore than five acres, thus also subjecting the project to submit a Notice of Intent (NOI) to TCEQ to obtain coverage under the permit. To obtain this pertnit, Burns & McDonnell will prepare the NOI form and pertinent required project information. It is assumed that DME will provide the pertinent project information and details to prepare the NOI. The NOI and accompanying cover letter will be provided to DME electronically for review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the documents and provide them to DME for signature and submittal to the TCEQ. The NOI must be postmarked to the TCEQ at least seven days prior to starting construction. The NOI package will include a cover letter, the signed NOI, and permit fee in the amount of $325 (to be reimbursed by DME). If DME is already included in the TCEQ STEERS system then the application can be submitted electronically, which the permit coverage would start immediately, and include a fee of only $225. In addition to the NOI package, and as a requirement of the General Permit, Burns & McDonnell will prepare the SWPPP. This document will include the pertinent best management practices (BMPs) far the project, as well as General Permit requirements. The SWPPP will need to be completed prior to submitting the NOI to TCEQ; however, it is not necessary to submit the SWPPP to TCEQ for review unless requested. A typical SWPPP contains the project description, location of BMPs, erosion and sediment control techniques, re-vegetation requirements, good housekeeping, grading plans, etc. It is assumed that DME (ar their engineer) will provide the pertinent project information, including BMPs and details to prepare the SWPPP. Burns & McDonnell will provide a draft SWPPP to DME for review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the SWPPP and provide up to five hard copies and one electronic copy to DME. Task S5. Citv Land Disturbing Activitv Permits & Plans Similar to the TPDES General Pernut for construction activities, Burns & McDonnell will prepare and assemble the pertinent permit applications (no mare than 3) and attach the SWPPP to obtain permits from the City for clearing and grading, grubbing, and stockpiling/excavation. It is assumed that the information required for the TPDES General Permit NOI and SWPPP will also suffice for applying and receiving the City permit. Again, based on discussions with the City, it is imperative that DME immediately proceeds with getting the proposed project site platted, because the City typically will not issue permits without having a project platted. From reviewing aerial photographs of the site it appears that trees do not exist on site, thus a City tree survey would not be necessary, thus would not be included as part of the application package to the City. Again it is assumed that pertinent engineering and design related information will be provided by DME (or their engineer) to prepare the application and SWPPP. For each of the three permit applications, Burns & McDonnell will provide a draft application package to DME for review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the application packages and provide five hard copies and one electronic copy (on CD) to DME for signature and submittal to the City. It is anticipated that each application fee is $100, and if paid by Buns & McDonnell it will be reimbursed by DME. Task S6. Federal Aviation Administration (FAA) Notifications To address facility structure height (typically exhaust stacks and temporary construction equipment (e.g. cranes)), and since the facility is in close proximity to the Denton Municipal Airport (runway approximately one-mile west of site), Burns & McDonnell wi11 prepare up to three FAA Form 7460-1 and submit them electronically to the FAA for a hazard to airspace review. It is assumed that DME (or their engineer) will provide the pertinent project information, such as structure height, elevation data, construction schedule, etc. The notifications and FAA responses will also be provided to the City to address structure heights within an IGG designated area. It is assumed that the FA.A will deternune that there will not be impacts to navigable airspace or interference to radar, thus no additional efforts will be required for this Task. It is also assumed that facility structure heights (assume less than 140 feet tall) will be allowed by the City, thus not requiring any additional information ar permit requirements (or variances). Proiect Coordination/Manaeement The proposed activities will require coordination with internal staff, as well as with DME. To initiate the project and to discuss in detail about the City's regulatory involvement and permit requirements, Burns & McDonnell anticipates having a Project Manager attend a one-day meeting in Denton, Texas. It is anticipated that DME will coordinate this meeting with City permitting staff. If DME elects to internally address City permitting prior to this meeting, then it is assumed this meeting will not be necessary. To continue coordination of activities, provide status updates, and to discuss project information, Burns & McDonnell anticipates attending monthly conference calls (up to three meetings, each meeting expected to be one-hour in length or less), along with email correspondence. This Project Coordination/Management Task only includes efforts associated with the authorized tasks proposed above, thus additional authorized tasks (e.g. potential tasks) may warrant additional project management/coordination efforts. It is estimated that project management and permitting activities will occur for about three months from the time the notice to proceed is issued by DME. Potenlial Site Tnsl:s Potential Task S 1. Section 404/401 Permitting If wetlands or others waters of the U.S. do exist on site and cannot be avoided, it is assumed that impacts would be less than a 0.5-acre, thus qualifying the project for a Nationwide Permit (NWP) 39. To obtain this permit, Burns & McDonnell will prepare a Section 404 dredge and fill pernut application and provide it to DME for review and one round of comments. Burns & McDonnell will address pertinent comments and finalize the application. The application along with the previous completed wetland delineation letter report will be provided to the Corps for review and issuance of a NWP 39. In Texas, Section 401 WQC's are issued with all NWP's except for NWP 16, thus it is assumed no additional efforts for the Section 401 WQC will be required for the project. Also assumes that mitigation will not be required. Potential Task S2. Cultural Resources Survev & THC Consultation Once the background research is completed for cultural resources, and if Section 106 applies, Burns & McDonnell will draft a consultation letter to the THC. In addition and if necessary, consultation letters will also be prepared for up to five Native American Tribes with a historic or current interest in the project area. These letters will serve to initiate consultation with THC and pertinent tribes to ensure compliance with Section 106 and state requirements. Typically, THC requests field surveys for greenfield sites prior to issuing a concurrence. As a result, Burns & McDonnell has provided the efforts to complete a field survey and follow-up THC consultation as described below. If THC requires a field survey, Burns & McDonnell will propose to conduct a Phase I Cultural Resources Survey far the project site as described below. A Burns & McDonnell archaeologist will conduct a pedestrian survey of the project site (6.5 acres) to identify the presence of cultural resources. The ground surface within the survey area will be examined for the presence of cultural materials. In areas where surface visibility is poor, shovel testing will be conducted; however for purposes of this proposal it is assumed that visual inspection can occur for 80% of the survey area. All soil excavated from shovel tests will be screened through'/a-inch (6 mm) wire mesh to facilitate artifact recovery. This effort will not include an architectural review as it is assumed that old building structures will not be impacted by the project. Once the fieldwork is completed, a report will be generated. This report will describe any cultural resources identified, and give recommendations as to the NRHP eligibility of any resources. An electronic version of the report will be submitted to DME for review and one round of comments. Once the pertinent comments are addressed, the report will be submitted to the THC, as well as appropriate Native American Tribes (assumes no more than five) for review and comment. Agency and tribal comments will be addressed and the report will be produced in final form. The final report will be submitted to the THC, Native American Tribes, and DME. It is anticipated that no more than the Phase I survey will be required to obtain THC and tribal concurrence far the project, thus no additional studies or testing will be required. This Task was generated based on the following assumptions: • Because such costs are impossible to know beforehand, costs for the curation of cultural information/materials collected during the survey are not included in this proposal • Costs for deep testing (i.e. geomorphology) have not been included in this proposal • Costs for NRHP significance tesring (i.e. Phase II) have not been included in this proposal Pronosed Pineline Services Many of these tasks include the same efforts as described for the site. As result, and to reduce the pages of this proposal, the same detailed efforts for each task may not be repeated. Additional activities to complete the respective task have been provided. ProDosed I'ineline 'Tasks Task P1. Wetland Assessment/Delineation This Task will consist of the same effort as described above for the site, but will only include the pipeline portion of the project. The same assumptions are considered for this pipeline effort as for the site. Task P2. T&E Snecies Consultation (Federal & State) This Task will consist of the same effort as described above for the site, but will only include the pipeline portion of the project. The same assumptions are considered for this pipeline effort as for the site. Based on the current location of the pipeline ROW, being adjacent to existing roadways and mostly open fields, it is anticipated that the agencies will concur without having to perform any additional studies or site visits. Therefore, this proposal does not include efforts for detailed habitat assessments, species specific studies, or additional agency consultation. Task P3. Cultural Resources Review This Task will consist of the same effort as described above for the site, but will only include the pipeline portion of the project. The same assumptions are considered for this pipeline effort as for the site. Task P4. TPDES General Permit & SWPPP for "Construction" Activities. This Task will consist of the same effort as described above far the site, but will only include the pipeline portion of the project. The same assumptions are considered for this pipeline effort as for the site. Task P5. Citv Land Disturbine Activitv Permits & Plans This Task will be the same as for the site, including the same assumptions. Task P6. Citv OiUGas Pineline License Aereement In order to cross City streets and utilize City ROW for locating the gas pipeline and for access to construction areas, approval must be obtained by the City. As a result, Burns & McDonnell will prepare the application package to obtain such approvals. This will entail completion of an application form and assembling pertinent project information, including design details, location plans, access plans/details, operating parameters, valve locations, traffic control plans, ete. It is assumed that pertinent gas pipeline information, including a traffic control plan (if necessary) will be provided by DME (or their engineer) to prepare the application package. Burns & McDonnell will provide a draft application package to DME far review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the application package and provide 14 hard copies and one electronic copy (on CD) to DME for signature and submittal to the City. Initial base application fee is $1,000, followed by $500 and $250 additional fees for crossings of City streets and public tracts, respectively. If application fee paid by Buns & McDonnell it will be reimbursed by DME. Assumes all crossings will be included in one application. Proiect Coordination/Manaeement As with the site permitting, the proposed activities will require close coardination with Burns & McDonnell internal staff, as well as with DME. To initiate the project and to discuss in detail about the City's regulatory involvement and permit requirements, Burns & McDonnell anticipates having a Project Manager attend a one-day meeting in Denton, Texas. It is anticipated that DME will coordinate this meeting with the City's permitting staff as well. If DME elects to internally address City permitting prior to this rneeting, then it is assumed this meeting will not be necessary. To continue coordination of activities, provide status updates, and to discuss project information, Burns & McDonnell anticipates attending monthly conference calls (up to three meetings, each meeting expected to be one-hour in length or less), along with email correspondence. This Project Coordination/Management Task only includes efforts associated with the authorized tasks proposed above, thus additional authorized tasks may warrant additional project management/coordination efforts. It is estimated that project management and pernutting activities will occur for about three months from the time the notice to proceed is issued by DME. I'ateiitia[ I'ineline '1"aslcs Potential Task P1. Seetion 404/401 PermittinLy This Task would assume to be the same as for the potential site efforts described above, thus the same assumptions are considered for the pipeline effort as for the site. However, it is anticipated that a NWP 12 would be issued for the pipeline. Potential Task P2. Cultural Resources Survev & THC Consultation This Task would assume to be the same as for the potential site efforts described above, thus the same assumptions are considered for this pipeline effort as for the site described above. Potential Task P3. Citv Tree Survev & Preservation/Mitieation Plan If the pipeline cannot avoid wooded areas and DME is not exempt from following the City's Tree Preservation Code, Burns & McDonnell will perform a tree inventory (survey) far the pipeline ROW following the City's Tree Protection Standards. During the wetland delineation field efforts described above, we will identify areas that contain trees within the proposed 30-foot ROW (likely the area along Old State Highway 24) that are 3 inches or more dbh. The tree inventory will be performed along with the wetland delineation, thus likely during winter when trees will have no or minimal foliage as not to adversely affect the ability to record tree locations using GPS. Trees 6 inches or greater dbh will be identified to species level and their location will be recorded using a Trimble sub-meter GPS unit. The dbh (in inches) and health condition of each tree will also be recarded. Areas containing 3-inch dbh trees will be recorded for purposes of applying for a tree removal permit described below. Based on the results of this inventory, we will generate and provide a tree survey map (and pertinent GIS data layers) and data summary table to DME. The map will show the location of the recorded trees, as well as the potential critical root zone area for each protected tree (6-inch dbh and of certain species). Through coordination with DME or their engineer, protected trees to remain within the ROW will be determined. These trees, along with other protected and unprotected 6-inch dbh trees (that will and will not remain) will be represented on a map. A table including pertinent information for each tree will accompany the map, thus representing the tree survey preservation/mitigation plan. Trees that will be removed and that are 6-inch dbh or greater will require mitigation. It appears that gas pipelines can mitigate on a fee basis, which is determined by the size (diameter) of the tree. To obtain approval of the plan and a tree removal permit, the tree survey preservation/mitigation plan information will be submitted to the City Landscape Administratar for review and determination of the mitigation fee. Mitigation fees are not included within this proposal. Prior to submitting the plan information to the City, Burns & McDonnell will provide a draft copy to DME for review and one round of comments. Burns & McDonnell will then address comments and finalize the plans. Prior to completion of project grading, grubbing, excavation plans and pernuts (as described below), the tree survey and preservation/mitigation plan will need to be completed as it must accompany the City Land Disturbing Activity permit applications. In addition, after identifying all protected trees to remain and receiving City approval, and prior to construction, Burns & McDonnell will tag each protected tree to remain with an identification tag and flag with survey tape. DME or their contractar will assume responsibilities for protecting trees during construction such as installing protection fences prior to site preparation activities and will maintain tree protection zones throughout construction. For purposes of this proposal a separate trip to conduct tree tagging will be necessary. Also, it is assumed that no more than 50 trees will need to be surveyed and recorded and no mare than 25 protected trees will remain that will need tagging. Details regarding design and ROW, including elevation contours will be provided by DME (or their engineer). In addition, and to reduce costs for the proposed City Tree Survey (described later in this proposal), areas containing trees that are 3-inch or greater diameter at breast height (dbh) will be recorded during the delineation fieldwork. Other Services Other Poteutiftl Site Taslcs Potential Task S3. TPDES Multi-Sector General Permit & SWPPP (Oneration) Since the facility is a CHP project, it will likely require a TPDES Multi-Sector Storm Water Runoff General Permit from the TCEQ prior to operation of the facility. To obtain this permit, Bums & McDonnell will prepare an NOI form, including pertinent proj ect information. The form and associated information constitute the application package. It is assumed that DME (or their engineer) will provide the pertinent project details/information to prepare the application package. The application package will be provided to DME electronically for review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the submittal package and provide it to DME for signature and submittal to the TCEQ. The NOI must be postmarked to the TCEQ at least 48 hours prior to starting operation of the facility (or discharge event). The NOI package will include a cover letter, the signed NOI, pertinent project information, and an application fee in the amount of $100 (to be reimbursed by DME). If DME is already listed in the TCEQ STEERS system then the application can be submitted electronically. Then, the permit coverage would start in 24 hours, and the fee can be paid on-line (to be reimbursed by DME). In addition to the application package, and as a requirement of the General Permit, Burns & McDonnell will prepare an operational SWPPP. This document will include the operational BMPs for the project, as well as General Permit requirements. Similar to a SWPPP for construction activities, the SWPPP will contain the project description,location of BMPs, pollution prevention measure techniques, location of outfalls, good housekeeping, monitoring plan, etc. It is assumed that DME will provide the pertinent project information, including storm water plans, outfall locations, calculations, ete. to prepare the SWPPP. Burns & McDonnell will provide a draft SWPPP to DME for review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the SWPPP and provide up to three hard copies and one electronic copy to DME. Potential Task S4. Building Permit Assistance According to the City, many approvals can be granted under the Building Perxnit application. Part of the Building Permit application includes an environmental review. As a result, Burns & MeDonnell is proposing a level of effort to assist DME with preparing portions of the application, likely the environmental review and wastewater discharge portions. It is unknown at this time what exactly will be needed or what environmental resources exist or will be impacted by the project, thus only a specified level of assistance has been included in this proposal. It is assumed that a summary of natural resource impacts will be provided, including wetlands, habitat, cultural resources, floodplain, and possibly air emissions and wastewater discharges (stormwater, industrial, and sanitary). Because the facility is proposing to discharge its industrial wastewater and sanitary wastes to the City's sewer/wastewater treatment facility, and considering that the City has a State-approved treatment system, approval must be granted prior to discharging wastewater to the City's facility. It is likely that the City will require detailed inforxnation for these discharges. For purposes of this proposal it is assumed that the project engineer will provide detailed water supply, discharge, and sanitary information to be included within the application. Detailed information may not be limited to a water balance, effluent characteristics, proposed treatment measures, monitoring measures, site plan, sanitary details, etc. It is assumed that DME (or their engineer) will take the lead on preparing and submitting the application to the City. It is also assumed that the City can issue this approval/permit without TCEQs review, intervention, or comments. The cost to collect and analyze any water supply samples and/or to determine effluent characteristics is not included in this proposal Potential Task S5. Noise Studv To deternune if the project will comply with the City's noise requirements, Burns & McDonnell will conduct a noise study. The City's noise ordinance will be reviewed for applicability to this project and site. A Type I noise meter will be used to take noise measurements at various locations around the property and as close to the nearest residences as possible at four different time periods during the day and nighttime to determine existing ambient noise levels in the area. The meter will recard total ambient noise levels (dBA) as well as individual octave bands. Noise measurements will be made in accordance with appropriate sound ordinances. Operational noise levels will be predicted using state-of-the-art noise modeling software, CadnaA, by DataKustik. Sound power levels for each piece of new sound-emitting equipment will be included in the model. The noise model follows ISO 9613 for noise propagation and calculation of noise given attenuation and reflection from buildings, terrain, and eta The model will predict overall sound levels at each nearby receiver and locarions where existing noise measurements were taken. Noise contours will be developed from the model to display the noise as it is propagated to the area surrounding the site. The measured ambient background noise levels will be compared to the model project equipment's total noise levels at each receiver. The project noise levels will be compared to any local or state noise requirements. If unacceptable noise impacts are predicted at the property line or the residences, the model may be updated to determine the effects of mitigation to the site, such as noise walls, berms, mechanical noise silencers, and etc. Two rounds of modeling iterations are included in this scope to obtain noise levels at the property line or residences to below acceptable or regulatory standards. A report summarizing the noise monitoring efforts and the noise projections will be sent to DME for their review. Burns & McDonnell will incorporate DME's revisions and a final report will be sent to DME. The cost estimate for this activity assumes: • noise measurements will take no more than two days • the noise meter will record total noise levels (dBA) as well as individual octave bands • weather conditions will be adequate for monitoring (wind speed less than 10 mph and no precipitation) • 100 percent property access will be granted • Sound power levels for the equipment will be required for the model. Where applicable, Burns & McDonnell may use some of their sound power levels from other projects. Other sound power levels will be required from the manufacturer of each piece of equipment Potential Task 56. TPDES General Permit for Hvdrostatic Testine A permit from TCEQ will be required prior to discharging wastewaters to surface waters that are associated with hydrostatic testing of certain facilities (e.g. pipelines, tanks, etc.). To obtain this permit, Burns & McDonnell will prepare an NOI form, including pertinent project information. It is assumed that DME (or their engineer) will provide the pertinent project details/information to prepare the NOI. The NOI will be provided to DME electronically for review and one round of comments. Upon receiving the comments, Burns & McDonnell will finalize the NOI and provide it to DME for signature and submittal to the TCEQ. The NOI must be postmarked to the TCEQ at least 48 hours prior to discharge (there is no STEERs or electronic filing for this particular permit). The NOI package will include an application fee in the amount of $100 (to be reimbursed by DME). The cost to collect and analyze any hydrostaric discharge water samples is not included. (}ther Potential Pipe(ine Tasks Potential Task P4. TPDES General Permit for Hvdrostatic Testin2 This Task will consist of the same effort as described above for the site, but will only include the pipeline portion of the project. The same assumptions are considered for this pipeline effort as for the site. ATTACHMENT B Terms & Conditions BURNS & MCDONNELL ENGINEERING COMPANY, INC. TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES Project : Environmental Permittina 10 MWCHPIPipeline Proiect Date of Letter, Proposal or Agreement: Januarv 18, 2011 Client: Denton Municipal Electric 1. SCOPE OF SERVICES For the above-referenced Project, Burns & McDonnell Engineering Company, Inc. ("BMCD") will perform the services set forth in the above-referenced Letter, Proposal or Agreement, in accordance with these Terms and Conditions. BMCD has relied upon the information provided by Client in the preparation of the Proposal, and shall rely on the information provided by or through Client during the execution of this Project as complete and accurate without independent verification. 2. PAYMENTS TO BMCD A. Compensation will be as stated in the above-referenced Letter, Proposal or Agreement. Statements will be in BMCD's standard format and are payable upon receipt. Time is of the essence in payment of statements, and timely payment is a material part of the consideration of this Agreement. A late payment charge will be added to all amounts not paid within 30 days of statement date and shall be calculated at 1.5 percent per month from statement date. Client shall reimburse any costs incurred by BMCD in collecting any delinquent amount, including reasonable attorney's fees. If a portion of BMCD's statement is disputed, Client shall pay the undisputed portion by the due date. Client shall advise BMCD in writing of the basis for any disputed portion of any statement. B. Taxes as may be imposed on professional consulting services by state or local authorities shall be in addition to the payment stated in the above-referenced Letter, Proposal or Agreement, 3. INSURANCE A. During the course of perFormance of its services, BMCD will maintain Worker's Compensation insurance with limits as required by statute, Employer's Liability insurance with limits of $1,000,000 and Commercial General Liability and Automobile Liability insurance each with combined single limits of $1,000,000. B. If the Project involves on-site construction, construction contractors shall be required to provide (or Client may provide) Owner's Protective Liability Insurance naming Client as a Named Insured and BMCD as an Additional Insured or to endorse Client and BMCD using ISO form CG 20 10 11 85 endorsement or its equivalent as Additional Insureds on all construction contractor's liability insurance policies covering claims for personal injuries and property damage in at least the amounts required of BMCD in 3 A above. Construction contractors shall be required to provide certificates evidencing such insurance to Client and BMCD. Contractor's compensation shall include the cost of such insurance including coverage for contractual and indemnification obligations herein. C. Client and BMCD release each other and waive all rights of subrogation against each other and their officers, directors, agents, or employees for damage covered by property insurance during and after the completion of BMCD's services. A provision similar to this shall be incorporated into all construction contracts entered into by Client, and all construction contractors shall be required to provide waivers of subrogation in favor of Client and BMCD for damage covered by any construction contractor's property insurance. 4. INDEMNIFICATION A. To the extent allowed by law, Client will require all construction contractors to indemnify, defend and hold harmless Client and BMCD from any and all loss where loss is caused or alleged to be caused in whole or in part by the construction contractors, their employees, agents, subcontractors or suppliers. B. If this Project involves construction and BMCD does not provide consulting services during construction including, but not limited ta, on- site monitoring, site visits, site observation, shop drawing review and/or design clarifications, Client agrees to indemnify and hold harmless BMCD from any liability arising from this Project or Agreement, except to the extent caused by BMCD's negligence, Client Signature: 5. PROFESSIONAL RESPONSIBILITY - LIMITATION OF REMEDIES A. BMCD will exercise reasonable skill, care and diligence in the pertormance of its services and will carry out its responsibilities in accordance with customarily accepted professional practices. If BMCD fails to meet the foregoing standard, BMCD will perform at its own cost, the professional services necessary to correct errors and omissions reported to BMCD in writing within one year from the completion of BMCD's services for the Project. No warranty, express or implied, is included in this Agreement or regarding any drawing, specification, or other work product or instrument of service. B. In no event will BMCD be liable for any special, indirect or consequential damages including, without limitation, damages or losses in the nature of increased Project costs, loss of revenue or profit, lost production, claims by customers of Client or for governmental fines or penalties. C. BMCD's aggregate liability for all damages connected with its services for the Project not excluded by the preceding subparagraph, whether or not covered by BMCD's insurance, will not exceed the greater of $100,000 or the compensation paid for BMCD's services. D. These mutually negotiated obligations and remedies stated in this Paragraph 5, Professional Responsibility - Limitation of Remedies, are the sole and exclusive obligations of BMCD and remedies of Client, whether liability of BMCD is based on contract, warranty, strict liability, tort (including negligence), indemnity or otherwise. 6. PERIOD OF SERVICE AND SCHEDULE The provisions of this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion of the services stated in the Proposal. BMCD's obligation to render services hereunder will extend for a period, which may reasonably be required for the completion of said services. BMCD shall make reasonable efforts to comply with deliverable schedules (if any) and consistent with BMCD's professional responsibility. 7. COMPUTER PROGRAMS OR MODELS Any use, development, modification, or integration by BMCD of computer models or programs does not constitute ownership or a license to Client to use or modify such computer models or programs. 8. ELECTRONIC MEDIA AND DATA TRANSMISSIONS A. Any electronic media (computer disks, tapes, etc.) or data transmissions furnished (including Project Web 5ites or CAD file transmissions) are for Client information and convenience only. Such media or transmissions are not to be considered part of BMCD's instruments of service. BMCD, at its option, may remove all indicia of its ownership and involvementfrom each electronic display. B. BMCD shall not be liable for loss or damage directly or indirectly, arising out of ClienPs use of electronic media or data transmissions. 9. DOCUMENTS A. All documents prepared by BMCD pursuant to this Agreement are instruments of service in respect of the Project specified herein. They are not intended or represented to be suitable for reuse by Client or others in extensions of the Project beyond that now contemplated or on any other Project. Any reuse, extension, or completion by Client or others without written verification, adaptation, and permission by BMCD for the specific purpose intended will be at ClienYs sole risk and without liability or legal exposure b BMCD. B. In the event that BMCD is to reuse, copy or adapt all or portions of reports, plans or specifications prepared by others, Client represents that Client either possesses or will obtain permission and necessary rights in copyright, patents or other proprietary rights and will be responsible for any infringement claims by others. Client warrants the completeness, accuracy and efficacy the information, data, and design provided by or through Client (including prepared for Client by others), for which BMCD shall rely on to perform and complete iYs services. (continued on reverse side) HOU TC DME Edits Final_Permitting 10. ESTIMATES, SCHEDULES, FORECASTS, AND PROJECTIONS Estimates, schedules, forecasts, and projections prepared by BMCD relating to loads, interest rates and other financial analysis parameters, construction costs and schedules, operation and maintenance costs, equipment characteristics and performance, and operating results are opinions based on BMCD's experience, qualifications and judgment as a professional. 5ince BMCD has no control over weather, cost and availability of labor, material and equipment, cost of fuel or other utilities, labor productiviry, construction contractor's procedures and methods, unavoidable delays, construction contractor's methods of determining prices, economic conditions, government regulations and laws (including the interpretation thereofl, competitive bidding or market conditions and other factors affecting such estimates or projections, BMCD does not guarantee that actual rates, costs, quantities, pertormance, schedules, etc., will not vary significantly from estimates and projections prepared by BMCD. 11. POLLUTION In view of the uncertainty involved in investigating and recommending solutions to environmental problems and the abnormal degree of risk of claims imposed upon BMCD in performing such services, notwithstanding the responsibility of BMCD set forth in Paragraph 5.A; To the maximum extent allowed by law, Client agrees to release, defend, indemnify and hold harmless BMCD and its officers, directors, employees, agents, consultants and subcontractors from all liability, claims, demands, damages, losses, and expenses, including, but not limited to, claims of Client and other persons and organizations, reasonable fees and expenses of attorneys and consultants, and court costs, except where there has been a final adjudication that the damages were caused by BMCD's willful disregard of its obligations under this Agreement. Such indemnification includes claims arising out of or in any way relating to the actual, alleged, or threatened dispersal, escape, or release of, or failure to detect or contain, chemicals, wastes, Ilquids, gases or any other material, irritant, contaminant or pollutant. 12. ON-SITE SERVICES A. Project site visits by BMCD during investigation, observation, construction or equipment installation, or the furnishing of Project representatives shall not make BMCD responsible for construction means, methods, techniques, sequences or procedures; for construction safety precautions or programs; or for any construction contractor(s') failure to perform its work in accordance with the contract documents. B. Client shall disclose to BMCD the location and types of any known or suspected toxic, hazardous or chemical materials or wastes existing on or near the premises upon which work is to be pertormed by BMCD's employees or suhcontractors. If any hazardous wastes not identified by Cllent are discovered after a Project is undertaken, Client and BMCD agree that the scope of services, schedule and compensation may be adjusted accordingly. Client agrees to release BMCD from all damages related to any pre-existing pollutant, contaminant, toxic, or hazardous substance at the site. 13. CHANGES Client shall have the right to make changes within the general scope of BMCD's services, with an appropriate change in compensation and schedule, upon execution of a mutually acceptable amendment or change order signed by authorized representatives of Client and BMCD. 14. TERMINATION Services may be terminated by Client or BMCD by seven (7) days' written notice in the event of substantial failure to pertorm in accordance with the terms hereof by the other party through no fault of the terminating party. If so terminated, Client shall pay BMCD all amounts due BMCD for all services properly rendered and expenses incurred to the date of receipt of notice of termination, plus reasonable costs incurred by BMCD in terminating the services such as wrapping up, debriefing, filing, and archiving the project. 15. DISPUTES, NEGOTIATIONS, MEDIATION A. If a dispute arises relating to the performance of the services to be provided and should that dispute result in litigation, it is agreed that the substantially prevailing party (as determined In equity by the court) shall be entitled to recover all reasonable costs of litigation, including, court costs, and attorney's fees. B. The parties shall participate in good faith negotiations to resolve any and all disputes. Should negotiations fail, the parties agree to submit to and participate in a third party facilitated mediation as a condition precedent to resolution by litigation. Unless otherwise agreed to, mediation shall be conducted under the rules of the American Arbitration Association. C. Causes of action between the parties shall accrue, and applicable statutes of limitation shall commence to run the date BMCD's services are substantially complete. 16. WITNESS FEES A. BMCD's employees shall not be retained as expert witnesses, except by separate written agreement. B. Client agrees to pay BMCD pursuant to BMCD's then current schedule of hourly labor billing rates for time spent by any employee of BMCD responding to any subpoena by any party in any dispute as an occurrence witness or to assemble and produce documents resulting from BMCD's services under this Agreement. 17. CONTROLLING LAW AND VENUE This Agreement shall be subject to, interpreted and enforced according to the laws of the State of Texas, without regard to any conflicts of law provisions. Parties agree to submit to the exclusive venue and jurisdiction of the State District Court, Dallas County, Texas, or the United States District Court, Northern District of Texas. 18. RIGHTS AND BENEFITS - NO ASSIGNMENT BMCD's services will be performed solely for the benefit of Client and not for the benefit of any other persons or entities. Neither Client nor BMCD shall assign or transfer interest in this Agreement without the written consent of the other. 19. ENTIRE CONTRACT These Terms and Conditions and the above-referenced Letter, Proposal or Agreement contain the entire agreement between BMCD and Client relative to BMCD's services for the Project herein. All previous or contemporaneous agreements, representations, promises and conditions relating to BMCD's services for the Project are superseded. Since terms contained in purchase orders do not generally apply to professional services, in the event Client issues to BMCD a purchase order, no preprinted terms thereon shall become part of this Agreement. Said purchase order documents, whether or not signed by BMCD, shall be considered only as an internal document of Client to facilitate administrative requirements of ClienYs operations. 20. SEVERABILITY Any unenforceable provision herein shall be amended to the extent necessary to make it enforceable; if not possible, it shall be deleted and all other provisions shall remain in full force and affect. -END- HOU TC DME Edits Final_Permitting