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HomeMy WebLinkAbout2005-12-20-6:00PM-REGULARBRAZOS COiY Y. L i'''n I Ci.Y.J BRYAN, TEXAS NOTICE OF MEETIN AND AGENDA BRAZOS COUNTY COMMISSIONERS COURT THE COMMISSIONERS COURT OF BRAZOS COUNTY WILL MEET IN REGULAR SESSION ON 20 DECEMBER 2005 AT 6:00 P.M. IN ROOM 102 OF THE BRAZOS CENTER, 3232 BRLARCREST DRIVE, BRYAN, TEXAS. 1. Invocation and Pledge of Allegiance - Commissioner Wassermann 2. Call for citizen's input and/or concerns. Consider and take action on agenda items 3 -19: 3. Budget Amendment 05/06-11.1 thru 05/06-11.4. 4. Personnel Change of Status. 5. Payment of Claims. 6. Renewal of the IRC Section 125/Cafeteria "Flex" Plan Administration with David K. Young Consulting, effective 1 January 2006 with no changes in administration fees. 7. Amendment to the current Order prohibiting outdoor burning in Brazos County (Order 05-011), allowing for a temporary exception in the case of campfires no larger than 5' in diameter for the period of 21 December through 31 December 2005. 8. Contract with NetNearU Corp. for general public end-user support and equipment monitoring for the wireless internet access of Brazos County's online legal library. 9. Permission for the Brazos Center to obtain the services of Official Payment Corporation so that credit card payments can be accepted for the use of that facility. There is no cost to Brazos County for their services; a $10.00 convenience fee is charged to Brazos Center customers who elect to pay by credit card. Office of the County Judge • 300 East 26P St. • Suite 114 • Bryan, Texas 77803 • Fax: (979) 361-4503 VOL 75 PAGE d20 a.~..uu.aa. cra wun ageuua V~20 December 2005 Page 2 10. Request from Archie Clark, Precinct 1 Constable, for permission to appoint Eric C. Bales as a non-paid Deputy. 11. Changes in the monthly Retiree Dependent Medical and Dental Insurance Premiums, effective 1 January 2006. 12. Appointment of the following individuals to the Brazos County Bail Bond Board, effective 1 January 2006 thru 31 December 2006: a. Commissioners position: Commissioner Duane Peters b. County Judge position: Judge Jim Locke, County Court at Law #2 13. Rejection of all bids received for Bid 2006-002, Herbicides and Surfactants, opened on 8 December 2005. 14. Contract with Spencer J. Buchanan Associates, Inc. for engineering services and/or construction materials testing. Term of agreement is I January 2006 thru 31 December 2006. 15. Tax Refund Applications for the following: a. Estella J. Hayen b. Interesteam Carpet Care c. Ollie Ruth Ford d. Deborah Elaine Horn 16. Acceptance of a Right-of-Way Easement from the Board of Regents of the Texas A&M University System for improvements to White's Creek Road located in Precinct 1. 17. Final Plat of Taborosa Farms, 20.18 acres, M. L. Fulton League, A-17, Brazos County, Texas. Site is located in Precinct 2. 18. Payment Authorization in the amount of $571.92 to Holiday Inn Express for lodging of a witness in a criminal trial. The lodging exceeded the amount of the purchase order after it was determined that her stay would need to be extended. 19. Payment Authorization in the amount of $500.00 to the Travis County Medical Examiner's Office for expert witness testimony in a criminal trial. A purchase order was not obtained in advance. 20. Announcement of interest items and possible future agenda topics. 21. Call for citizen input and/or concerns. 22. Agency / Board / Committee reports by Court members. 23. Adjourn The Brazos Center is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made two business days before the meeting. To make arrangements, call (979) 361-4102. ':`"9.. r75 PAu'L a '91 COMMISSIONERS' COURT REGULAR MEETING DECEMBER 20, 2005 A regular meeting of the Commissioners' Court of Brazos County, Texas was held in the Brazos Center 3232 Briarcrest Drive, in Bryan, Brazos County, Texas, beginning at 6:00 p.m. on Tuesday, December 20, 2005 with the following members of the Court present: Randy Sims, County Judge, Presiding; Lloyd Wassermann, Commissioner of Precinct 1; Duane Peters, Commissioner of Precinct 2; Kenny Mallard, Commissioner of Precinct 3; Carey Cauley, Jr., Commissioner of Precinct 4; Karen McQueen, County Clerk. The attached sheet contains the names of the citizens and officials that were in attendance. Commissioner Wassermann gave the invocation and led the pledge of allegiance. There was no citizen input/and or concerns. The Court next considered Budget Amendment #05/06-11.1 through 11.4, which would reallocate funds for the Brazos Center, Risk Management, and the Law Library (2). On motion by Commissioner Cauley, seconded by Commissioner Mallard, the Court voted unanimously to approve the budget amendment as submitted, a copy of which is attached. Vol 7 5 Page a a Commissioners Court meeting December 20, 2005 2 The Court proceeded to consider the change of status of employees as submitted on the attached Personnel Action Requests. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the change of status as submitted. The Court next considered the following Claims as submitted by the County Treasurer for payment: 7014323 through 7014619 On motion by Commissioner Wassermann, seconded by Commissioner Cauley, the Court voted unanimously to approve the Claims as submitted. The next matter before the Court was the renewal of the IRC Section 125/Cafeteria Plan Administration known as the "Flex Plan" with David K. Young Consulting. There is no change in the administrative fees. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to renew the IRC Section 125/Cafeteria Plan Administration known as the "Flex Plan" with David K. Young Consulting. A copy is attached. The next matter before the Court was to consider adopting an Amendment to Order #05-011 Prohibiting Outdoor Burning in Brazos County. The amendment would allow campfires not larger than five (5) feet in diameter during the period of December Vol +15 Page a.,2- 3 Commissioners Court meeting December 20, 2005 3 21-31, 2005 only. After that date, there would be no exceptions to Order No. 05-011 during the duration of the ban. Joe Ondrasek, Precinct 4, Volunteer Fire Department Chief and President of the Rural Fire Association expressed firm opposition to this amendment to the order. He said it was very dangerous out there and dangerous for firefighters when they have to put fires out. This is a bad idea he said. It is especially difficult during the holidays when volunteers are away and the KBDI is at 585. Anything over 500 is very dry. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to reject the amendment to Order 05-011. The Court next considered entering into contract with NetNearU Corp. (NNU) for general public, end user support and equipment monitoring for the wireless internet access of the online legal library. On motion by Commissioner Cauley, seconded by the County Judge, the Court voted unanimously to enter into contract with NetNearU Corp. Brazos County will retain seventy percent (700) of all fees charged to the end users for access to the internet. NNU will retain thirty percent (30%) of traffic charges as its License Fee plus a $50.00 monthly fee for each Access Controller and $15.00 for each Access Point device monitored using a unique Vol q!5 Page Q .9 4 Commissioners Court meeting December 20, 2005 4 identification code in TRACKOS (flat fees). The flat fees commence the month of installation. Mr. Caldwell pointed out that this is a five (5) year contract but he had requested a "Non-Availability of Funds Clause". On motion by Commissioner Cauley, seconded by the County Judge, the Court voted unanimously to enter into contract with NNU. A copy is attached. The next matter before the Court was a request from the Brazos Center for permission to obtain the services of Official Payment Corporation so that credit card payments can be accepted for the use of that facility. There is no cost to the County but the customer using the service will have to pay a flat $10.00 "convenience fee". On motion by the County Judge, seconded by Commissioner Peters, the Court voted unanimously to approve the request to obtain the services of Official Payment Corporation. The Court next considered a request from Constable Precinct 1, Archie Clark, to appoint Eric C. Bales, as a non- paid Deputy Constable. On motion by Commissioner Wassermann, seconded by Commissioner Peters, the Court voted unanimously to approve the request from Constable Clark to appoint Eric C. Bales as a non-paid Deputy Constable subject to appointment being within the allotted number of deputies. Vol 15 Page a a 5 Commissioners Court meeting December 20, 2005 5 The Court next considered changes in the monthly retiree dependent medical and dental insurance premiums. Commissioner Mallard moved to approve, the County Judge seconded the motion. Commissioner Peters said that he would like to see a different premium for those retirees that are 65 and older because Medicaid would be primary and cost to the county much lower. Commissioner Mallard and the County Judge withdrew their motion and second. Then on motion by Commissioner Mallard, seconded by the County Judge, the Court voted unanimously to remove this item from the addenda. Commissioner Mallard said he would like a representative present the next time this appears on the agenda. The next matter before the Court was the appointment of individuals to the Brazos County Bail Bond Board. Commissioner Wassermann moved to approve the following individuals. Commissioner Cauley seconded the motion. Commissioners Wassermann, Mallard, Cauley and the County Judge voted "Aye". Commissioner Peters abstained. The names are as follows: Commissioner's position - Duane Peters County Judge position - Judge Jim Locke, County Court at Law # 2 The Court next considered a request from the Purchasing Department to reject all bids received for Bid 2006-002, Vol 15 Page a Commissioners Court meeting December 20, 2005 6 Herbicides and Surfactants. The Road and Bridge Department and the Purchasing Department have found changes that need to be made to insure bids are received on quality products for use on county rights-of-way. On motion by the County Judge, seconded by Commissioner Peters, the Court voted unanimously to accept the recommendation of the Purchasing Agent and reject all bids received on Herbicides and Surfactants. The Court next considered approval of contracts with Spencer J. Buchanan Associates, Inc. for engineering services and/or Construction Materials Testing. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to accept the recommendation of the Purchasing Agent and approve the contracts with Spencer J. Buchanan Associates, Inc. A copy of each contract is attached. The next matter for consideration was approval of tax refund applications from the following individuals and/or companies: a) Estella J. Hayden, Over Payment $114.96 b) Intersteam Carpet Care, Over Payment $100.00 c) Ollie Ruth Ford, Over Payment $150.00 d) Deborah Elaine Horn, Over Payment $7.98 On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the tax refund applications. Vol 115 Page -9 a--7 Commissioners Court meeting December 20, 2005 7 The next matter for consideration by the Court was acceptance of a right-of-way easement from the Board of Regents of the Texas A&M University System conveyed to Brazos County as easement for the purpose of expanding and improving White's Creek Road in Precinct 1. On motion by Commissioner Wassermann, seconded by Commissioner Cauley, the Court voted unanimously to authorize the County Judge to accept the easement grant from the Board of Regents of the Texas A&M University System on the expansion of White Creek Road located in Precinct 1. The Court next considered approval of the Final Plat of Taborosa Farms, 20.18 Acres in Precinct 2. Richard Vance, County Engineer, stated that he had reviewed the plat and found everything to be in order. On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the Final Plat of Taborosa Farms, 20.18 Acres as submitted. The next matter before the Court was consideration of a payment authorization in the amount of $571.92 to the Holiday Inn Express for lodging for a witness in a murder trial. Due to the first trial ending in a mistrial, the extra two days stay in the hotel were necessary to find other accommodations for the witness Vol ~ 5 The $571.92 includes $120.53 in charges for Page aa8 Commissioners Court meeting December 20, 2005 8 several long distance phone calls made prior to a long distance block being put on the phone. The hotel manager removed some of the long distance fees but it did leave a balance of $120.53 on the bill. On motion by the County Judge, seconded by Commissioner Peters, the Court voted unanimously to approve the payment authorization. The Court next considered a payment authorization to Travis County Medical Examiner's Office in the amount of $500.00. This is for expert witness testimony in a murder trial. The District Attorney's office was not aware that there would be charges for Dr. Peacock's testimony. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to approve the payment authorization. Under announcement of interest items and possible future agenda topics the following spoke: Commissioner Mallard a) He is working on the Subdivision and Development Regulations. He has gotten policies from other counties and will E-Mail this to the Commissioners and other committee members. County Judge a) The meeting next week has been changed from Tuesday to Thursday. Vol ~ 5 Page a 01 Commissioners Court meeting December 20, 2005 Under citizen input and/or concerns, the following spoke: Constable, Precinct 2 Donald Lampo a) In reference to the fire that occurred a few weeks ago on FM 2223, there were six (6) different agencies working and they could not get a bulldozer from anywhere locally. The closest one was hours from help. He asked the County Judge about using the Road and Bridge Department bulldozers and getting an employee trained to operate one. 9 Under Agency/Board/Committee reports by Court members, the following spoke: County Judge a) A new Emergency Management Director was hired today. The person is from Orange County. There being no further business to come before the Court, the meeting was adjourned. Vol 1 s Page a 30 The foregoing minutes of the Commissioners Court meeting held December 20, 2005 have been examined and are approved in open Court this the 13{- day of Fihylunriq 2006, in Bryan, Duane Peters Commissioner, Precinct 2 arey C u ey, Jr. ` Commis ioner, Pre inc $ Attest: A ren McQueen County Clerk 441 t~.lct--- ~ Lloy Wassermann Commissioner, Precinct 1 Kenny Mallafc~ Commissioner, Precinct 3 Vol 7 5 Page a Brazos County, Texas. BRAZOS COUNTY COMMISSIONERS COURT MEETING ON ~U 200.E AT 7 (t Name nization/Department ~c (~4 - ~3 LIE -~'x C V0L. 5 .F± r X23, BRAZOS COU TY COMMISSIONERS COURT MEETING ON 200SAT d" Name Organization/Department A21% l/ /-I {41/_1- V,Ple k I P C~T 71,E A,6 A O tic PJP ~U n CQ'l /l 0.1w (urU ~5 PPIIE 23,3 BRAZOS COUNTY, TEXAS BUDGET AMENDMENT(S) FOR THE 2005-2006 BUDGET YEAR NO. 05/06-11.1 thru 05/06-11.4 On this the 20`s day of December 2005 at a regular meeting of the Commissioners' Court, the following members were present: Randy Sims, County Judge, Presiding Lloyd Wassermann, Commissioner, Precinct I E. Duane Peters, Commissioner, Precinct 2 G. Kenny Mallard, Commissioner, Precinct 3 Carey Cauley, Jr., Commissioner, Precinct 4 Karen McQueen, County Clerk The following proceedings were held: THAT WHEREAS, on 20 December 2005 the Court heard and approved a budget amendment for the 2005-2006 budget year for Brazos County, Texas; and WHEREAS, an expenditure is necessary due to the necessity to meet unusual and unforeseen conditions which could not be reasonably included in the original budget adopted 20 September 2005, the following amendment(s) to the original budget are hereby authorized, as described on the attached page(s). ADOPTED AND APPROVED this the 201" day of December 2005. THE COMMISSIONERS' COURT OF BRAZOS COUNTY, TEXAS. By: Ra y Sims, County Judge Original: County Clerk's Office and attached to the original budget Copies: County Auditor County Treasurer Commissioners' Court Minutes VOL,'5 PAGE 234 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 -11.1 12/20/2005 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 36500100 59100000 CR DDEA 500.00 0100 36500100 61010000 DR Advertising 500.00 Brazos Center To reallocate funds for the Duruose of special event advertisine. 7S a35 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 - 11.2 12/20/2005 t 75 Fn c 1 3) BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 -11.3 12/20/2005 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 -11.4 12/20/2005 VOL. 75 PAGE 3 8' ~y PERSONNEL CHANGE OF STATUS REQUESTS Commissioner Court Date: December 20, 2005 Department Submitting Information: Human Resources Purpose of Submissions: Consider and Take Action on i Department Submitting Employee Request Action Requested Request(s) Applies To Juvenile Services - Academy Lewis, Byron Resignation Juvenile Services - TJPC Kerr, Keith State Stipend SO/Jail Manry, William Retirement Foster, Richard Resignation Walker, Reginald Promotion Approved in Commissioners' Court: Decembei County Judge's or Commissioner's Signature: (This Copy to be attached to minutes) f~ 95 ROLE X39 PLAN ADMINISTRATION IRC SECTION 125/CAFETERIA The following is agreed, effective 1/1/06, between David K. Young, TPA (DKY) and Brazos County (Employer) for the continuing administration of a Section 125/Cafeteria Plan (the Plan) with Flexible Spending Accounts. The following conditions are agreeable to both parties. DKY GENERAL RESPONSIBILITIES: DKY will consult with the Employer concerning plan design, implementation and maintenance of specified employee compensation and benefits maintained or implemented by the Employer and/or specified human resource (HR) matters. DKY will charge: , $4.00_ per employee per month (minimum $ per month) for Flex Spending Account administration. $1.75_ per employee per month (minimum $ per month) for Premium Only Administration. VC. $1.50 der employee per month (minimum $ per month) for Debit Card option. 0 D. per employee for 0 E. project fee for 0 F. per participating employee per month in flexible spending/premium accounts. DKY ADMINISTRATION RESPONSIBILITIES: DKY will assist Employer in the administration and maintenance of the Plan and provide assistance and support as needed. DKY will also provide claims forms and other necessary means of filing FSA claims; issue reimbursement checks at least twice monthly, and/or perform debit card account administration; issue employer end of month reports to include Deposit Transmittal Report, Bank Reconciliation Report, Detail Statement of Employee Balances for the flexible spending accounts, a Wire Transfer Report/Check register, and issue plan year quarterly reports of account balances for those employees participating in the FSAs with a "Use It or Lose It" warning notice for the last three months of the plan year; provide forms to Employer for communicating participant terminations and changes in family status; provide Employer a dependent/child care report at the end of each calendar year; prepare the IRS Form 5500, ifrequired, for the Employer's signature; prepare the Plan's Plan Document, Summary Plan Description and Adoption Agreement. Maintenance of Information: (a) DKY shall maintain at its principal administrative office adequate books and records of all transactions in which the administrator engages with insurers, plans, plan sponsors, insureds, and plan participants. (b) The books and records will be maintained for the term of the written agreement to which they relate and for the five-year period following the end of the written agreement's term (c) DKY will maintain the books and records in accordance with prudent standards of insurance record keeping. (d) The Commissioner of the Texas Department of Insurance and his designated representative must be given access to those books and records for the purpose of examination, audit, and inspection. (e) Trade secrets, including the identity and addresses of policyholders and certificate holders, are confidential, except the commissioner may use that information in proceeding instituted against the administrator. (f) An insurer, the Plan, Employer is entitled to continuing access to these books and records sufficient to permit the insurer, The Plan, Employer to fidfill contractual obligations to insureds and plan participants. The right provided by this subsection is subject to any restrictions included in the written agreement between the administrator and the insurer, the Plan, or Employer relating to proprietary rights of the parties to the books and records. (g) DKY may fulfill the requirements of this section on termination ofthe written agreement by delivering to the Employer or Employer's designated agent, the books and records and by giving written notice to the commissioner of the location of the books and records. EMPLOYER GENERAL RESPONSIBILITIES: Employer will distribute FSA Checks if mailed to the Employer's offices and participant statements to participants; report to DKY, in a timely manner, participant changes, terminations and changes in family status; if Employer maintains the fiduciary account, then Employer will reconcile the bank statement with the DKY famished end of month report and notify DKY of any discrepancies; cause to be recorded relevant amounts from the DKY provided end of year dependent/child care report on the employee W-2 in the appropriate block; secure, at Employer's expense and option, professional review of the Plan documents, summary plan description and legal and tax implications of the Plan. FSA FUNDS MANAGEMENT: 1.) Depository Bank: a.) DKY representative as puthorzed signatory (If yes, Employer specifically agrees to execute required documents.): Yes ❑ No C Page 1 of 2 b.) DKY representative will be provided with check stock, but without signatory authority: Yes ❑ No ff 2.) DKY representative is assigned authority to request transfer of funds from the Employer: Yes Cr No ❑ DKY AS SUBCONTRACTOR: When DKY is functioning as David K. Young, TPA, Employer shall be the Plan Administrator, unless otherwise stated in the Plan Document. DKY has no authority, discretionary or otherwise, as regards the control and final administrative decisions of the Plan(s). DKY is not an attorney or CPA, and thus all matters regarding legal and tax implications of the Plan(s) should be reviewed by Employer's counsel. AGENT SELECTION: If the Employer desires to install products associated with this agreement, Employer designates as agent(s) of record. ( Employer Initials) Employer understands some or all products sold with any Plan associated with this agreement could be underwritten; therefore, some employees who apply for the coverages may be, at the discretion of the insurance carrier(s), declined coverage, rated at a higher premium than was originally illustrated, or not be covered for certain conditions. It is further understood that DKY may be compensated by the designated agent(s), via separate agreements solely between said Agent(s)7and KY. 13M ay yNot: DKY may or may not receive commissions derived directly from the sale of products associated with this agreement. ARBITRATION: DKY, the Employer, the Plan Trustee and the Plan Administrator agree to meet and confer in good faith on all matters and disputes arising under this Agreement. If a dispute is not resolved under the foregoing, then anyparty may submit such dispute first, to mediation, and then as a final resort, to binding arbitration under the commercial rules of the American Arbitration Association ("AAA"). Such arbitration will be held as promptly as possible in Bexar County, Texas and will be conducted before a single arbitrator, not withstanding any rule of the AAA to the contrary unless otherwise agreed to by the parties at the time of the arbitration. Furthermore, notwithstanding any rule of the AAA to the contrary, such single arbitrator shall not be chosen without a list of potential arbitrators. The AAA shall then have the discretion to select an arbitrator from those remaining. The decision of the arbitrator will be binding on the parties and may be submitted for enforcement to any court of competent jurisdiction. All costs and expense associated with the arbitration, including the attorneys fees of the prevailing party, shall be home by the non-prevailing party to the arbitration. However, notwithstanding the above requirements to submit claims to arbitration, any claim, the amount of which is below the maximum jurisdictional limits of a Justice Court or a Small Claims Court in Bexar County, Texas shall be submitted to such court for determination and shall not be required to be submitted to arbitration. PERFORMANCE: This agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of Employer and DKY are performable in Bexar County, Texas. CANCELLATION: This Agreement shall initially be for 12 months, and thereafter can be canceled by either party with 60 days written notice. PAYMENT TERMS: 1) O In full on commencement of contract; Amount due with contract . 2) O/Partial on commencement and balance in progress; Due with contract ; Remaining balance due 3) Sr in progress (30 days of invoice). All invoices are payable at DKY's business office, 11107 Wurzbach Road, Suite 403, Bexar County, San Antonio, Texas 78230. ACCEPTANCE: All a conditio described and outlined within this agreement, consisting of pages 1 through 2, are agreed to and acc by b parties BY: DATE: BY: / DATE: DKY Representative Page 2 of 2 V0L-7s r.~,, E a 41 7 BRAZOS COUNTY BRYAN. TEXAS AMENDMENT ORDER NO. 05-011 PROHIBITING OUTDOOR BURNING IN BRAZOS COUNTY WHEREAS, the Commissioners Court of Brazos County finds that circumstances present in all or part of the unincorporated area of the county create a public safety hazard that would be exacerbated by outdoor burning; THE FOLLOWING EXCEPTION to this ban on outdoor burning has been approved by the Commissioners Court of Brazos County: Campfires not larger than five (5) feet in diameter will be allowed for the period of 21-31 December 2006 only. After that date, no exceptions to Order No. 05-011 will be allowed for the duration of this ban on outdoor burning. APPROVED this 20th day of December, 2005 by a vote of (0 ayes and ~ays. ATTEST: (Z~~e L aren McQueen, County Clerk Office of the County Judge • 300 East 200 St. . Suite 114 . Bryan, Texas 77803 • Fax: (979) 361-4503 ~?JL ~S fir-~SY~ ~ 1 SOFTWARE LICENSE AGREEMENT FOR MANAGED WIRELESS INTERNET ACCESS This Software License Agreement for Managed Wireless Internet Access (this "License Agreement") is entered into between you (the "Licensee") and NetNearU Corp. ("NNU"), a corporation organized and existing under the laws of Delaware and with a principal place of business at 2908 Finfeather Rd., Bryan, TX. Execution of this License Agreement by Licensee and NNU and Licensee's use of the services signifies Licensee's agreement to the terms and conditions of use set forth in this License Agreement. NNU has developed proprietary software ("Software") that facilitates and manages third parties' ("End Users") access to the Internet. The Software includes a software product marketed by NNU under the trademark TRACKOSTM which is operated on an NNU-owned server. In consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Business Terms 1.0 Revenue Sharing Fees. Licensee shall pay the following License Fees. Licensee shall receive 70% of all fees charged to Licensee's End Users for access to the Internet via the Software ("Traffic Charges"). NNU shall retain 30% of the Traffic Charges as its License Fee. Additionally, Licensee shall remit to NNU a monthly fee of fifty dollars ($50.00) for each Access Controller and fifteen ($15.00) for each Access Point device monitored using a unique identification code in TRACKOS (the "Flat Fees"). Flat Fees commence the month of installation and shall be billed in advance of the month for which service is provided. 2.0 Card Processin Fees. In the event End Users access the Internet through Licensee's Access Points on a pay-per-use or subscription basis, NNU may, at its sole discretion, select a validation and credit card processing service to verify and process End User credit card charges and debit card charges for debit cards that contain the Visa or MasterCard logo. NNU shall incur 100% of the card processing fees. 3.0 Interactive Media. The Licensee shall have the right to select the "accept URL", if applicable, to which End Users are directed following a successful logon. NNU may provide and display advertising and other data and information on or through a device providing wireless access to a TCP/IP network ("Access Point"). However, subject to Section 20.0, Licensee shall have the right to exclude any advertising, data, information or display provided by NNU which is found to be offensive, objectionable, undesirable or in violation of this License Agreement. Any advertising, data, information or display provided by NNU which Licensee has found to be offensive, objectionable, undesirable, or in violation of this License Agreement shall be promptly removed by NNU upon notice by Licensee to NNU. NNU and Licensee shall equally share any revenues collected as a result of advertising. 4.0 Training. NNU will provide at no charge to Licensee training documentation, published from time to time, regarding the installation and operation of Access Points that will utilize the Software. NNU will also retain on staff competent technical employees available to Licensee for inquiries, as described below in Section 6.0, regarding the installation and operation of Access Points. 5.0 End User Relations and Information. Licensee is responsible for all End User relations and technical support other than those services provided by NNU as described below in Section 6.0 - Service Repair and Technical Support Center. When subscribing for access to the Internet through the Access Point, every End User will be required to agree to and affirmatively accept the terms and conditions of the NetNearU Wireless Internet Access Subscriber Agreement ("NWIAS"), available on NNU's website at https://wireless.nnu.com/tertns.html. Licensee is required to be named a party ("Provider") to the terms and conditions of the NWIAS. NNU must remain a party to the terms and conditions of the NWIAS in all instances. Any changes to the NWIAS that result in (i) adding or deleting the terms "Licensor" or NetNearU, (ii) altering the meaning of the term "Licensor", (iii) changing in any way the rights and protections provided to "Licensor" ,vv 75 FADE A ~t3 or (iv) modifying the Privacy Policy, Indemnification, Warranty and Limitation of Liability sections requires the advance written authorization of NNU. Licensee acknowledges that it will have access to personal and confidential information private to End Users, including credit card information, passwords and the like. Licensee agrees to hold such information in confidence and not to use such information in any manner not authorized by the End User. 6.0 Service Repair and Technical Support Center. NNU agrees to provide technical support to assist Licensee solely as described below. NNU is not responsible for providing support to Out of Network Provider End Users (hereinafter defined in Section 8.0) or Boingo customers (hereinafter defined in Section 9.0). The following services are provided at no additional charge to Licensee: • Internet-based server access to TRACKOSTM and tools, allowing Licensee to track activity 24 hours a day, 7 days a week, subject to reasonable downtime for maintenance and unexpected events. User name and password will be offered to Licensee to access detailed reporting available through TRACKOSTM. • Telephone technical support provided to Licensee for the Software. • Software updates for TRACKOS'M and (if licensed) ADTRACKOSTM. Telephone set-up assistance for NNU-supported public Internet devices, excluding third-party peripheral hardware (i.e. routers, hubs, etc.) (the "Equipment"), limited to the Software's interaction with the Equipment. • Automated e-mail notification to Licensee of Equipment warnings and errors related to the operation of the Access Points. • Limited telephone assistance to Licensee for ISP, hardware and software-related problems concerning the operation of the Software, provided 24 hours a day, 7 days a week. The following Enhanced Licensee Technical Services are provided at no additional charge to Licensee and will be provided in the English language: • NNU will proactively attempt to diagnose and correct problems through remote means. • Corrective remote reboots in the event Equipment is off-line for Equipment supporting a Remote Power Control device. • Electronic notifications will be provided if on-site assistance is required. • NNU will notify Licensee of Equipment that has any trouble reported by an End User that may require an on-site visit. • NNU will monitor Equipment to ensure it is on-line and operational. • NNU's toll-free phone number will be permitted to be displayed through the Software by Licensee at each U.S. and Canadian-based location containing an NNU solution. The toll-free number is available to only those End Users placing calls within the U.S. and Canada. Licensees will be responsible for providing an alternative support number, at Licensee's sole expense, to enable End Users located outside the U.S. or Canada to contact the NNU Help Desk. NNU Help Desk assistance will be made available to End Users 24 hours a day, 7 days a week. End User assistance will be limited to the following: (a) Username and password inquiries (b) Billing inquiries (c) Refund requests (d) Subscriber account cancellations (e) Limited wireless card configuration support • Processing of refund-related requests will be handled such that all credit card credit related transactions are credited by NNU Help Desk. All refund requests will first be validated by NNU staff through analysis of log detail information prior to issuing refund. `75 a44 vt - 7.0 User Rates. Rate plans are to be determined and maintained by Licensee through TRACKOSTM. End User rates shall at all times be fair and reasonable and shall comply with all applicable laws and regulations. Licensee and NNU shall share, in the same proportion as the revenue split in Section 1.0, any (i) refunds or credits issued to End Users by Licensee, NNU or any other entity and (ii) bad debt, chargebacks and chargeback fees. All of foregoing are collectively referred to as "Payment Adjustments". 7.1 Prepaid Codes. Licensee shall have the option to purchase for resale to End Users numeric codes ("Prepaid Codes") that are generated by NNU via the Software. Licensee may sell Prepaid Codes to End Users for cash at each Access Point location as an alternative to End Users purchasing a rate plan using a credit card. Each Prepaid Code shall have, as determined by the Licensee, an expiration date and a monetary value equivalent to any of the rate plans offered at each Access Point location. Licensee shall be charged for all Prepaid Codes ordered at the time Prepaid Codes are generated by NNU. The cost shall be equal to the face value of the Prepaid Code multiplied by NNU's License Fee percentage stated in Section 1.0 of this License Agreement. 8.0 Roaming. If authorized by Licensee under the terms of this License Agreement, End Users registering for Internet access service on an Access Point operated by Licensee may use Internet access services on an Access Point other than the one used by the End User to register for Internet access services ("Outbound Roaming"). A Licensee authorizing Outbound Roaming shall pay a roaming fee to the operator of the Access Point where such roaming services are provided if (i) the operator of such Access Point charges a fee for such roaming services, and (ii) an End User who registered for Internet access services on Licensee's Access Point utilizes such roaming services. The amount paid by Licensee will be no greater than the maximum roaming fee per minute assigned to each rate plan, as designated by the Licensee. The actual fee per minute paid by Licensee may, however, be less than the maximum roaming fee per minute if the roaming fee per minute charged by the operator of the Access Point being utilized is lower than the Licensee's maximum roaming fee. Also, if authorized by Licensee under the terms of this License Agreement, authorized End Users may utilize Internet access services provided through Licensee's Access Points even if the End User did not register for such service at the Access Point that the End User desires to utilize the services ("Inbound Roaming"). A Licensee authorizing Inbound Roaming shall earn roaming income if (i) Licensee charges a fee for Inbound Roaming and (ii) an End User utilizes such roaming services. Roaming income shall be payable to Licensee by the operator of the Access Point where the End User registered for such services. The amount earned by Licensee will be equal to the fee per minute assigned to the Access Point, as designated by Licensee. If the Inbound Roaming fee per minute charged by Licensee exceeds the Outbound Roaming fee per minute authorized by the operator of the Access Point at which the End User originally registered for service, then roaming access will be denied to the End User. When the End User is obtaining Internet access services from a third party other than from either an Access Point operator or Boingo, which is paying for such End User access on a time-measured basis (e.g., per minute, per hour) ("Out of Network Provider"), then roaming income shall be payable to Licensee by NNU through collections made by NNU from the Out of Network Provider. NNU shall act as a clearinghouse to process all roaming transactions, collect Inbound and Outbound Roaming fees from Access Point operators and Out of Network Providers and remit such fees to Access Point operators in accordance with the foregoing. Owners of Access Points on which roaming transactions occur will be provided, by way of the Software, reporting that includes only log detail (i.e. users IP address, user log in name, Mac address) and session information (i.e. start time, duration, and type of termination) for all roaming users. 9.0 Boingo. Boingo Wireless, Inc. ("Boingo") is a third-party service provider that provides wireless Internet access to its customers usually for a fee, and has contracted with NNU to obtain non-exclusive access to Access Points for Boingo's customers in exchange for a fee. Licensee may, at any time, provide customers of Boingo access to the Internet through the Access Points operated by Licensee as contemplated hereunder and under the terms and conditions included below. Licensee shall be paid a portion of the fees NNU receives from Boingo as set forth in Section 9.2. NNU has the right to terminate Internet access to any Out of Network Provider End User or Boingo customer without notice to Licensee, including terminating all access to Licensee's Access Points from any Out of Network Provider and/or Boingo. ,_J511- _ a4s 9.1 Boingo Venue Consent. Licensee hereby consents and agrees to grant non-exclusive access to the Licensee Network to customers of Boingo. Licensee shall in no event guarantee that all customers of Boingo will be provided access at any given time or upon demand. 9.2 Fee for Access. Boingo shall pay to NNU the current published fees (i) per device, per location, per Member Connection Day (defined below), (ii) per megabyte transferred through Licensee Access Points or (iii) per minute connected to Licensee's Access Points occurring during the term of this License Agreement ("Boingo Fees"). A "Member Connection Day" shall mean as to each customer of Boingo, the 24-hour period beginning with a Log-in (defined below) to the Licensee Network by that customer which does not occur during that customer's prior Member Connection Day. A "Log-in" shall be a connection to the Licensee Network made by a customer of Boingo which has a duration of more than thirty seconds and transfers data to and from such member. A Log-in shall not include (i) any pass-throughs granted by NNU upon sign-up of a new customer of Boingo if that new member aborts the sign-up process, (ii) good-faith administrative functions necessary to be performed by Boingo personnel and (iii) those potential members who are denied membership. 9.3 End User Relations. In no event shall any customer of Boingo be considered an 'End User" for purposes of Licensee's obligations pursuant to Section 5.0 of this License Agreement. 10.0 Card Collections. In the event End Users access the Internet through Licensee's Access Points on a pay- per-use or subscription basis, NNU is solely responsible for collecting the credit card charges from each End User. Licensee shall not bill or collect credit card charges from End Users. 11.0 Monthly Reconciliation. At the end of each month (i.e., the Billing Period), a reconciliation will be prepared to determine net amounts owed to Licensee or from Licensee. The reconciliation procedure shall consider the following elements and any others, if applicable to this License Agreement: Traffic Charges, Boingo Fees, Payment Adjustments and Flat Fees will be determined in the aggregate for all Access Points operated by Licensee. Such fees shall be allocated between Licensee and NNU as set forth in Section 1.0 "Revenue Sharing Fees" of this License Agreement. Prepaid and Promotional Code charges will be determined in the aggregate for all Access Points operated by Licensee. Advertising revenues collected, if any, will be multiplied by 50% to determine Licensee's share of advertising revenues. Amounts owed to Licensee for Inbound Roaming, if any, and amounts owed by Licensee for Outbound Roaming, if any, will be determined. Credit card fees shall be allocated between Licensee and NNU as set forth in Section 2.0 "Card Processing Fees Net amounts owed by Licensee to NNU and other Access Point operators will be invoiced by NNU as soon as practical after the end of each month. All invoices issued to Licensee are payable in U.S. dollars and due upon receipt unless Licensee has applied for and been extended credit terms. Any net amounts owed to Licensee by NNU and other Access Point operators will be paid by NNU or NNU's authorized payment agent via check mailed first class using the U.S. Postal Service within 30 days following the end of the Billing Period. Costs associated with any other payment methods shall be incurred by Licensee. Any amounts owed by Licensee to NNU for any reason (including past due payments) may, at NNU's sole discretion, be deducted from any amounts owed by NNU to Licensee. 5 '"r a wv t 12.0 Transactions in U.S. Dollars. All revenues shall be accounted for in U.S. dollars. Foreign currencies shall be converted into U.S. dollars based upon the exchange rates used by NNU's credit card merchant services provider. 13.0 Internet Access. Licensee is responsible for acquiring, installing and maintaining high speed (DSL, DSL- equivalent or higher speed) Internet access to all Access Points hereunder at all times through the Internet Service Provider ("ISP") and telephone company of its choice. Licensee shall use commercially reasonable efforts to maintain the Licensee Network in good working order. Licensee shall use commercially reasonable efforts to ensure that upon notification of a problem by NNU, Licensee will dispatch the appropriate service personnel to restore the network to working order. NNU is not responsible for any acts or omissions of or goods or services provided by the ISP, telephone company or any other third-party service provider. 14.0 Promotion. Subject to Section 20.0, Licensee shall actively promote wireless Internet access services by providing appropriate signage and marketing materials at each Access Point location. Licensee shall permit NNU, Out-Of-Network Providers and Boingo to promote Licensee's Access Point locations in mediums including, but not limited to, Internet web sites and interactive media. 14.1 Promotional Codes. Licensee shall have the option to purchase alphanumeric codes generated by NNU via the Software for use in promoting wireless Internet access at each Access Point location ("Promotional Codes"). Licensee shall be charged $0.50 per hour for all actual usage occurring through Promotional Codes used by End Users at their Access Point locations. General Terms and Conditions 15.0 Grant of License. NNU hereby grants to Licensee, and Licensee hereby accepts, a nonexclusive license ("License") to use the Software to provide Internet access to End Users. NNU may, from time to time, at its sole option, download updates and enhancements of the Software to the Access Points. 16.0 License Restrictions. Licensee shall have no right to sublicense the License, to use the Software for any purpose not expressly permitted by this License Agreement, or to the source code for the Software. No transfer of title to the Software is affected by this License. NNU shall retain sole and exclusive title to the Software and all modifications, derivative works, and intellectual property rights associated therewith. Except as specifically set forth herein, the License granted herein shall not be construed as a right or license to any other proprietary information, trademarks, trade secrets, or patents owned or licensed by NNU. The License shall cease and terminate immediately upon termination of this License Agreement for any reason. Licensee shall not copy, modify, install, distribute, reverse engineer, disassemble, reverse compile, or otherwise make any translation, adaptation, arrangement or any other alteration of the Software (electronically or otherwise) for any reason whatsoever. 17.0 Term of License and License Agreement. Your right to use the Software under the terms in the License granted in this Section 17.0 shall be for five (5) years ("Initial Term"), unless otherwise terminated as provided herein. Thereafter, this License Agreement shall automatically renew for additional one-year periods ("Renewal Term") unless written notice is given to the other party at least thirty (30) days prior to the renewal date. The Initial Term and any Renewal Terms constitute the Term. NNU may terminate this License Agreement upon written notice if Licensee does not order a service provided for under the terms of this License Agreement within ninety (90) days of the Effective Date of this License Agreement. 18.0 Governmental Approval or Taxation. Licensee shall, at its own expense, promptly obtain any governmental permits, registrations, licenses, assessments, approvals or authorizations required to enable Licensee to utilize the Software and for this License Agreement to become effective and operative. Licensee shall bear the costs of all taxes, fines, penalties and other payments imposed by any governmental authority as a result of the existence or operation of this License Agreement or use of the Software. Licensee shall be solely responsible for all state, local or federal taxes, however designated, levied or based on any charges hereunder or on this Agreement or any products procured for Licensee hereunder, including but not limited to state and local eL '75 PAGE X47 privilege and excise taxes based on gross revenue, and any sales taxes or amounts in lieu thereof, paid or payable by NNU in respect of the foregoing. Licensee shall pay any such taxes to NNU or to any governmental agency, as directed by NNU. Licensee hereby indemnifies and holds NNU harmless from and against the payment of any and all sales or similar taxes, including any penalties or interest thereon. NNU will inform Licensee of any audit by any governmental authority regarding such taxes, will allow Licensee to control any challenge to, settlement of or payment of any amounts deemed payable by such government authority as a result of such audit or inquiry, and will cooperate with all reasonable requests by Licensee for NNU to assist in challenging, settling and paying such amounts. Licensee's obligations pursuant to this Section 18.0 shall survive any termination or expiration of this Agreement. 19.0 Confidential Information. "Confidential Information" shall mean all knowledge and information disclosed, directly or indirectly, by either party pursuant to this License Agreement. Confidential Information includes the Software. All Confidential Information is acknowledged confidential and proprietary to the originating party. Both parties shall take all reasonable steps to safeguard the secrecy and confidentiality of such information, and shall not disclose any of such information to any person or party whatsoever, other than to responsible employees of the parry to whom it is essential to disclose such information solely for a purpose contemplated by this License Agreement, and in such cases only under written conditions of strict confidentiality. Except as provided in this License Agreement, from and after the date hereof, neither Licensee, NNU, their agents, representatives, nor employees, shall disclose or use any Confidential Information, nor shall Licensee, NNU, their agents, representatives, nor employees make, use, offer for sale, or sell any products or services containing, or derived from such Confidential Information. Licensee and NNU shall be responsible and liable for any breach of this License Agreement by their agents, representatives, or employees. The terms and contents of this License Agreement are confidential. These obligations do not apply to Confidential Information which, as shown by reasonably documented proof, was either in the other's possession prior to receipt thereof from the disclosure or was received by one party in good faith from a third party not subject to a confidential obligation to the other party; or, now is or later becomes publicly known through no breach of confidential obligation by the receiving party; or, was developed by the receiving party without the developing person(s) having access to any of the Confidential Information received from the other party. 20.0 Trademarks. All signage, marketing materials, and the logon home page shall include the "Powered by NetNearU" trademark (the "Trademark") displayed in a manner acceptable to NNU. Licensee shall submit such signage and marketing materials for pre-approval by NNU before display or publication. The Trademark, and all other NNU marks and tradenames, and the goodwill associated therewith, are the exclusive property of NNU, and nothing in this License Agreement grants Licensee or any other person any right, title or interest therein, except for the rights expressly granted in this Section 20.0. All uses of the Trademark by Licensee shall inure solely to the benefit of NNU. 21.0 Indemnification of NNU. Except as otherwise provided herein, Licensee, for itself and its successors and assigns, shall defend, indemnify and hold NNU and its corporate affiliates and their respective officers, directors, stockholders, employees, agents, successors and assigns harmless from and against, and shall promptly reimburse them for, any and all losses, claims, damages, settlements, costs, and liabilities of any nature whatsoever (including reasonable attorneys' fees) to which any of them may become subject arising out of, based upon, as a result of, or in any way connected with, the operations of or performance by Licensee under this License Agreement or any breach by Licensee of this License Agreement. 22.0 Indemnification of Licensee. Except as otherwise provided herein, NNU for itself and its successors and assigns, shall defend, indemnify and hold Licensee and its corporate affiliates and their respective officers, directors, stockholders, employees, agents, successors and assigns harmless from and against, and shall promptly reimburse them for, any and all losses, claims, damages, settlements, costs, and liabilities of any nature whatsoever (including reasonable attorneys' fees) to which any of them may become subject arising out of, based upon, as a result of, or in any way connected with, any infringement claim relating to the Software (not including any modifications made by NNU at the request of the Licensee). NNU shall be relieved of the foregoing obligation unless Licensee promptly notifies NNU of any such claim and, at NNU's option, permits ^1 /5 V, v~~Fl NNU to control the defense and settlement thereof. In the event of such infringement, NNU may either use commercially reasonable efforts to obtain a license under the rights that are infringed, or modify the Software to be non-infringing; provided that if in NNU's judgment such remedies are not reasonably available, NNU may terminate this License Agreement. 23.0 Warranty. NNU warrants that the Software licensed will conform, as to all substantial operational features, to NNU's currently published specifications when installed and will be free of defects which substantially affect Software performance. If NNU determines the Software to be defective, NNU's sole obligation under this warranty is to remedy the defect in a manner consistent with NNU's regular business practices. 24.0 Limitation of Warranty. THE WARRANTY PROVIDED IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY NNU. NNU MAKES AND LICENSEE RECEIVES NO WARRANTY EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. NNU SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF NNU FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF ANY OF THE SOFTWARE. 25.0 Modifications to Software. If any modifications are made to the Software by Licensee, this warranty shall immediately be void. Correction of difficulties or defects traceable to Licensee's errors or Software change shall be billed to Licensee at NNU's standard time and material rates. 26.0 Limitation of Liability. NNU'S LIABILITY TO LICENSEE UNDER THIS LICENSE AGREEMENT, AND LICENSEE'S EXCLUSIVE REMEDY FOR ANY LOSS, DAMAGE OR INJURY, REGARDLESS OF THE NATURE THEREOF AND SPECIFICALLY INCLUDING INDEMNITY, BREACH OF CONTRACT, NEGLIGENCE, TORT, AND WARRANTY CLAIMS SHALL NOT EXCEED, AND SHALL BE LIMITED TO, THE LICENSE FEES PAID BY LICENSEE TO NNU IN THE 12 MONTHS PRIOR TO OCCURRENCE OF SUCH CLAIM OR FIVE HUNDRED DOLLARS PER ACCESS POINT MANAGED THROUGH TRACKOSTmt WHICHEVER IS LESS. 27.0 Default. Either party shall be in default under this License Agreement upon the occurrence of any of the following events: (i) Either party breaches any of its obligations under this License Agreement, is advised in writing of such breach by the other party, and such breach continues for thirty (30) days; (ii) Either party breaches any representation or warranty made to the other party herein; (iii) Either party makes a general assignment for the benefit of creditors, suspends all or substantially all of its business operations, or commits any act amounting to business failure; or, (iv) Bankruptcy, reorganization, liquidation, receivership, or other similar proceedings are instituted by or against either party and not fully discharged within thirty (30) days. 28.0 Rights Upon Default. Upon the occurrence of a default, this License Agreement may be terminated immediately at the sole discretion of the non-defaulting party upon notice to the defaulting party. Should Licensee be the defaulting party, (i) Licensee shall pay to NNU a fee of $50 for each access point managed through TRACKOSTm licensed under this License Agreement multiplied by 12 months or the number of full months remaining in the Term of this License Agreement, whichever is less, such payment due upon receipt of invoice from NNU, and (ii) NNU shall have the right to modify or disable the Software licensed hereunder, including the Software's configuration settings and its ability to accept certain types of payments or inputs from -7 5F a 45 Licensee. Should NNU so modify any Software licensed hereunder, such modification shall not constitute a waiver of NNU's rights hereunder, and NNU shall retain the right to subsequently terminate this License Agreement at any time by reason of the default. 29.0 No Liability. The exercise of a party's right of termination shall not impose any liability upon the terminating party by reason of such termination, nor have the effect of waiving any damages to which the terminating party might otherwise be entitled. 30.0 Collection of Money Due. Termination of this License Agreement shall in no manner interfere with, affect or prevent the collection by NNU or Licensee of any and all sums of money owed prior to such termination. Upon termination of this License Agreement for any reason, all amounts owed but not yet due shall become immediately due and payable. 31.0 Return of Software and Confidential Information. Licensee shall deliver all copies, summaries, abstracts or modified versions of the Software and Confidential Information in the Licensee's possession or under its control to NNU within 15 days after the termination of this License Agreement. 32.0 Termination 32.1 Breach of Other Agreements. NNU or Licensee shall have the right to terminate this License Agreement immediately upon the breach or termination of any other agreement or license between NNU and Licensee. 32.2 Non-Availability of Funds. If Brazos County fails to appropriate or authorize the expenditure of sufficient funds to provide for the continuation of this agreement or if a lawful order issued in or for any fiscal year during the Term of this agreement reduces the funds appropriated or authorized in such amounts as to preclude making the payments set out herein, this agreement shall terminate on the date said funds are no longer available without any termination charges or other liability incurring to the Licensee other than any amounts owed through the date of termination. The licensee shall provide NNU with notice not less than thirty (30) days prior to the date of cancellation, if such time is available. Otherwise, prompt notice will suffice. 33.0 Warranties. Each party represents and warrants that it is a duly registered and validly existing company in good standing under the laws of its country and state of residence. Each party has the right, power and authority to enter into this License Agreement and to meet the obligations herein imposed on it, and neither the execution of this License Agreement nor its consummation will result in the breach of any term or provision of, or constitute a default under, any charter provision or bylaw, or material agreement, to which it is a party or which is otherwise applicable to it. 34.0 Binding Effect of this License Agreement. This License Agreement, together with all attachments hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous and contemporaneous representations, understandings or agreements, whether oral or written, relating to the subject matter hereof. This License Agreement may not be modified, amended, altered, or supplemented except by written agreement. 35.0 Assignment. Each party may assign its rights and delegate its obligations under this License Agreement, provided that Licensee shall not sell, assign, transfer or delegate its rights or obligations hereunder (whether voluntarily, involuntarily, or by operation of law) without the prior written consent of NNU, which consent shall not be unreasonably withheld. Furthermore, Licensee shall not sell, assign, or transfer the Software without the written consent of NNU. NNU shall not unreasonably withhold its consent for Licensee to so sell, assign, or transfer, provided that: (i) such sale, assignment, or transfer shall not in any way affect Licensee's obligations which were due and owing hereunder prior to such sale, assignment, or transfer, and °v+75 PE X50 (ii) the purchaser, assignee, or transferee of the Software agrees in writing to either (a) be bound by the terms of this License Agreement, (b) enter into a separate NNU license agreement governing their utilization of the Software, or (c) not utilize the Software, and (iii)the purchaser, assignee, or transferee of the Software is not deemed by NNU to be a competitor to NNU. 36.0 Applicable Law. Forum and Injunctive Relief. This License Agreement shall be governed by, construed under and enforced under the laws of the United States and the State of Texas as applicable without giving effect to the principles of conflicts of law thereof. All disputes relating to this License Agreement or the Software shall be brought in the District Courts of Travis County, Texas or the United States District Court for the Western District of Texas, Austin Division, as applicable. Licensee submits to the jurisdiction of any court as recited in this Section 36.0, and agrees not to challenge the jurisdiction of such court over Licensee. IT IS AGREED THAT BREACH OF THIS LICENSE AGREEMENT BY LICENSEE MAKING ANY UNAUTHORIZED USE OF THE SOFTWARE, BREACHING THE CONFIDENTIAL INFORMATION PROVISION, OR ENGAGING IN ANY OTHER CONDUCT THAT COULD IMPAIR NNU'S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE WELL CAUSE IMMEDIATE AND IRREPARABLE HARM TO NNU. NNU SHALL BE ENTITLED TO PURSUE IMMEDIATE AND INTERIM INJUNCTIVE RELIEF TO RESTRAIN SUCH UNAUTHORIZED USE OR CONDUCT, AND OBTAIN SUCH OTHER INJUNCTIVE RELIEF AS MAY BE NECESSARY TO PROTECT NNU'S COPYRIGHTS AND INTELLECTUAL PROPERTY RIGHTS. 37.0 Section Headings. The headings contained in this License Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this License Agreement. 38.0 Counterparts. This License Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument. Facsimile copies of this License Agreement are given the dignity of original documents. If a counterpart in a local language, other than English, is executed, the English language version controls. 39.0 Severability. If any provision of this License Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, the legality, validity, and enforceability of the remaining provisions of this License Agreement shall not be affected thereby, and in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this License Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be legal, valid and enforceable. 40.0 Notices. Any notices required or permitted to be given under this License Agreement shall be deemed sufficiently given if hand delivered with receipt acknowledged, mailed by certified or registered mail postage prepaid, return receipt requested, sent by any expedited delivery service that provides proof of service, or transmitted by facsimile (such facsimile accompanied by a transmission report and followed by the delivery of a hard copy of such notice) to the addresses shown in the signature block of this License Agreement. Such addresses may be changed by written notice to the other party. 41.0 Attome s' Fees. The prevailing party in any legal proceeding based upon this License Agreement shall be entitled to reasonable attorneys' fees and court costs in addition to any other recoveries allowed by law. 42.0 No Agency. Neither party is an agent, partner, joint venturer, or legal representative of the other party and has no authority to act for or incur any obligations on behalf of or in the name of the other party. 43.0 Remedies. All rights and remedies under this License Agreement are cumulative, not exclusive, and shall be in addition to all rights and remedies available to either party at law or in equity. 44.0 Excused Performance. The parties shall be excused from performance, and shall have no liability, for any period and to the extent that they are prevented, hindered or delayed from performing any obligations under this VOL -~-5 PAGE a5) License Agreement, in whole or in part, as a result of acts, omissions or events beyond the reasonable control of that party. 45.0 No Waiver. No failure of either party to exercise any power of right given either party hereunder or to insist upon strict compliance by either party with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. 46.0 Advertising and Publiciri. NNU and Licensee shall communicate and cooperate with respect to advertising and publicity regarding this Agreement and their relationship. Except as provided for in this Agreement, NNU and Licensee shall each obtain the written consent of the other before publishing or releasing any such advertising or publicity. 47.0 Export and Import Licenses. In all instances where Licensee is responsible for shipments of NNU Products outside of the United States, Licensee will obtain, at its own expense, any export and/or import license, permit or other authorization necessary for the exportation of each copy of the Software from the United States and importation of each copy of the Software into the country of destination. If requested, evidence of such license, permit or other authorization shall be provided to NNU before shipment of the affected Software to Licensee. 48.0 Survival. The respective obligations of the parties which by their nature would continue beyond the termination or expiration of this License Agreement, shall survive the termination or expiration of this Agreement. Such obligations include, by way of illustration only and not limitation, those contained in the LICENSE RESTRICTIONS, GOVERNMENTAL APPROVAL OR TAXATION, CONFIDENTIAL INFORMATION, INDEMNIFICATION OF NNU, LIMITATION OF LIABILITY, APPLICABLE LAW, FORUM AND INJUNCTIVE RELIEF clauses. IMPORTANT!!! If Licensee is non-U.S. (foreign) based or if Licensee plans to export Access Points and/or Software outside the United States, the following additional Sections 49.0 through 53.0 shall apply: 49.0 Translation of Terns and Conditions. Before activating any Access Points, Licensee shall determine if the terms and conditions in the NWIAS need to be translated from the English language version provided by NNU into a different language in order to ensure that the translated terms and conditions are legally enforceable in the country of the location of the Access Point. If it is determined by either NNU or Licensee that a translation of the NWIAS is required, then Licensee shall immediately have such a translation performed, at Licensee's sole expense. Licensee shall (1) ensure, to NNU's satisfaction, that the translated terms and conditions provide substantially equivalent legal rights and obligations as stated in the English language version provided by NNU and (2) indemnify, hold harmless and defend NNU from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees and costs, arising from or relating to a term or condition in a NWIAS translated by Licensee with a legal right and/or obligation not substantially equivalent to the legal right and/or condition stated in the English language version provided by NNU or arising from or relating to a term or condition in the NWIAS translated by Licensee that is unenforceable in the country of the location of the Access Point. NNU shall have the right at any time to perform their own translation of the NWIAS from the English language version into a different language in order to ensure that the translated terms and conditions are legally enforceable in the country of the location of the Access Point. NNU's translation of the NWIAS shall supersede Licensee's translation and be displayed on the logon page of the Access Point for the End Users to accept. NNU shall be responsible for posting and maintaining the translated NWIAS on the NNU wireless website. 50.0 Communications. All communications and notices to be made or given pursuant to this License Agreement, and all documentation, products, and services to be hereunder, unless otherwise provided herein or by other written agreement, shall be in the English language. u~ -75 PAGE ash 51.0 Convention on Contracts for the International Sale of Goods The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this License Agreement. 52.0 Applicable Law Outside the U.S Pursuant to Section 36.0, this License Agreement may be governed by local law if Access Point(s) or Software resides outside the U.S. 53.0 Payments to NNU. All invoices issued to Licensee are due upon receipt, unless Licensee has applied for and been extended credit terms, in U.S. dollars, and are to be wire transferred at the expense of Licensee to the following account: Compass Bank, 2405 Texas Avenue South, College Station, Texas, USA 77840, (979) 764- 1341. ABA No.: 113010547, Account No.: 00034649, Account Name: NetNearU Corp. Federal ID#: 74- 2816278. IF LICENSEE CONDUCTS BUSINESS WITH NNU THROUGH AN ENTITY THAT HAS EXECUTED AN NNU DISTRIBUTOR AGREEMENT, THE FOLLOWING SECTION 54.0 SHALL APPLY: 54.0 Distributor Rights. Certain entities or individuals have executed agreements with NNU that enable them to resell the NNU solution ("Distributors"). Licensee's Distributor reserves the right to observe limited activity related to the operations of Licensee in the Software. Distributor shall have no edit rights and will retain all information proprietary to Licensee and their respective activities in the strictest confidence. VOL 75 PAGE as3 IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of the Effective Date. AGREED: NETNEARU CORP., a Delaware Corporation ("NNU") 2908 Finfeather Road Phone: (979) 775-3405 Bryan, Texas 77801 Fax: (979) 775-4393 By (signature) Printed Name: Title: Effective Date: LICENSEE, a _ Corporation Address: C?. 2(. '5h, 5uiG I I Y Phone: 4'n -3(- t - 4002-- , n, ('Zi ? R13 Fax: 4?4 - 13; t - q M3 By (signal Printed Na Title: C'U'gt Date: cS VOLJ5 PAGE 754 c~.ryrs.atlr. rw®NTb1 Brazos County Events Facilities Brazos Center 3232 Briarcrest Drive Bryan, TX 77802 December 16, 2005 Re: Letter of Undetstandina for Services Ladies and Gentlemen This letter confirms the terms agreed upon by Official Payments Corporation ("OPC') and Brazos County ("Agency'), pursuant to which OPC will provide credit card payment services (the "Services') to individuals or entities ("Citizens') attempting to make the payments to Agency ("Agency Payments'). A. OPC's Provision of the Services: OPC shall provide the Services in accordance with the following guidelines: • OPC shall provide Citizens the opportunity to make Agency Payments by credit card and "pin-less" debit card through both an interactive telephone voice response system ("IVR') and ]ntemet website (the "OPC Website" which together with the iVR, shall constitute the system ("System'). • OPC shall, on behalf of Agency, collect and process Agency Payments from Citizens using the American Expresso Card, MastcrCare, V1SAO, Discover' Card or other credit card mutually agreed upon by Agency and OPC (each, a „Card„ • OPC shall begin providing the Services to Citizens on a date to be mutually agreed upon by OPC and Agency. • OPC may charge Citizens a "convenience fee" for each Card transaction processed (the "Convenience Fee'), to be collected in addition to the corresponding Agency Payment. A schedule of the Convenience Fees is attached to this letter as Exhibit A. OPC may amend this schedule at any time upon prior written notice to Agency. • Fxcept for any fees to be paid by Agency as set forth in Exhibit A, OPC shall not charge Agency a fee in consideration for OPC providing the Services to Citizens UPC: LOU (June 2009) VOL 75 PAGE ass as contemplated by this letter. Enhancements to the Services or additional services not provided for in this letter, and any related fees payable by Agency in connection therewith, will be mutually agreed upon by OPC and Agency. Agency authorizes OPC to debit the Agency depository account in connection with (i) any "reversed" Card transaction that is approved by an authorized representative of Agency and OPC, and (ii) any "chargeback" Card transaction that is initiated by a Cardholder and approved by an authorized representative of OPC and the Card company. OPC shall refund to the Cardholder the corresponding Convenience fee. The Agency agrees that it shall not refund in cash to a Cardholder any Agency Payment made by a Cardholder using Official Payments' services, OPC shall forward. Agency Payment transactions to the appropriate Card organizations for settlement to the Agency Bank Account. OPC shall retain all Convenience Fees collected by it hereunder, In the event that OPC is unable to collect all amounts owed by Agency hereunder through debiting the Agency Bank Account, Agency shall promptly pay all owed amounts to OPC in immediately available funds. • OPC will confirm the dollar amount of all a Citizen's Agency Payment and the corresponding convenience fees to be charged to his/her Card and obtain the Citizen's approval (electronic or otherwise) of such charges prior to initiating credit authorizations. • OPC will provide Citizens with electronic confirmation of Card transactions. • For authorization purposes, OPC will electronically transmit all Card transactions to the appropriate Card-processing center, in real time as the transactions occur. • OPC will retain Card authorization logs and transaction records for such period of time as required by applicable law and the regulations of the respective Card organizations. • OPC will arrange for a unique line merchant descriptor for the Agency Payment that references the name of Agency and arrange for a separate unique line merchant description for the Convenience Fee that references Official Payments and the nature of the fee. • OPC will provide Agency with logos, graphics, and other appropriate marketing materials for Agency's use in its communications with Citizens. • OPC will provide Agency with reports summarizing use of the Services by Citizens for a given reporting period. wt~L 75 PAGE J'S ~ B. Agency's Obliastians: In order for OPC to provide the Services as outlined in this letter, Agency will be required to comply with the following guidelines: • If required by the credit card organizations, Agency will enter into all applicable merchant Card agreements. Agency shall fully adhere to the rules, regulations and operating procedures of the various Card organizations, including withom limitation, with respect to the use of specific Card logos and marks. • Other than permitting OPC to charge the Convenience Fees In accordance with this Agreement, Agency will not impose any surcharge or other penalty on Card transactions made by Citizens for Agency Payments, • Agency will provide OPC with the electronic record specifications necessary for funds. settlement and the posting of Agency Payment data related to the Card payments. • If applicable, Agency will provide OPC its desired reporting formats sufficiently in advance of the desired report delivery date, • Agency will provide to OPC all necessary documents and correspondence in connection with chargeback transactions or other similar refund transactions. • Agency will establish a reasonable adjustment policy to accommodate adjustments that ate required in the normal course of Agency's daily operations. • Agency will not require, as a condition to making an Agency Payment, that a Cardholder agree in any way to waive such person's rights to dispute the transaction with the Card issuer for legitimate reasons. • Agency will promote the Services to its Citizens. These promotions shall include publishing the relevant telephone number and URL for the Official Payments Website on all tax instruction booklets, tax preparer communications, taxpayer information publications, citations and notices, as applicable, and all related marketing materials. Agency will obtain OPC's consent prior to publishing any materials that reference the Services and/or OPC, C. Additional Matters • Confidentiality. Agency will not disclose to any third party or use for any purpose inconsistent with this letter any confidential or proprietary non- public information it obtains during the term of this Agreement about OPC's business, operations, financial condition, technology, systems, know-how, products, services, suppliers, customers, marketing data, plans and models and personnel. OPC will not disclose to any third party or use for any purpose inconsistent with this letter any confidential Citimn information it receives in connection with its performance othhe Services, except that OPC may use (1) such information for collection and other purposes as would be permitted for federal tax information; (2) personal information provided by Citizens to establish and maintain individual user accounts requested to be established by such Citizens with OPC; and (3) aggregated non personally identifiable transaction data and IVR and OPC Website traffic information for marketing and public company reporting purposes. l 75}ttg a57 Intellectual Property. In order that Agency may promote the Services and OPC's role in providing the Services, OPC grants to Agency a revocable, non-exclusive, non transferable, royalty-free license to use OPC's logo and other service marks (the "OPC Marks") for such purpose only. Agency does not have any other right, title, license or interest, express or implied, in and to any object code, software, hardware, trademark, service mark, OPC Marks, trade name, trade dress, formula, System, know-how, telephone number, telephone line, domain name, URL, copyrighted image, text, script (including, without limitation, any script used by OPC on the IVR or the OPC Website) or other intellectual property right of OPC ("OPC intellectual Property"), All such OPC Intellectual Property, and all rights and title therein (other than rights expressly granted in this letter) and goodwill pertain thereto belong exclusively to OPC. Agency's license to use any OPC Marks shall terminate upon the earlier of (a) the effective date of termination or expiration of this Agreement, or (b) immediately, in the event of any breach of this Agreement by Agency. Agency will not utilize any such OPC Intellectual property in any manner that would diminish its value or harm the reputation of OPC. Agency agrees that any use of the OPC Marks will conform to standards of acceptable use specified by OPC. • Force Maioure. OPC will be excused from performing the Services as contemplated by this letter to the extent its performance is delayed, impaired or rendered impossible by events that are beyond OPC's reasonable control, including without limitation, acts of God, natural disasters, war, terrorist acts, riots, acts of a governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine restrictions, floods, explosions, labor strikes/aotions, extraordinary losses of utilities (including telecommunications services failure), external computer "hacker" attacks and/or delays of common carriers. • Remedies. Agency's sole remedy in the event of OPC's failure to perform the Services in accordance with the guidelines set forth herein shall be for Agency to terminate the arrangement contemplated by this letter. Accordingly, OPC shall not be liable for any damages in connection with Services or this letter, whether arising from such termination or otherwise, Including but not limited to special, direct, punitive, indirect, or consequential damages, lost revenues, lost profits, substitute services or loss of data. • Govern ingj aw. The arrangement contemplated by this letter shall be governed by the laws of Texas, without regard to its principles of conflicts of laws. Exclusive venue and Jurisdiction shall be in the state or federal courts in the State of Texas. • Term of Arran¢ement. The arrangement under this letter shall continue from the date of this letter until 10 days after such time as either OPC or Agency has notified the other party in writing of its decision to terminate this arrangement, VOO-5 PAGE 0,5S' We look forward to working with you on implementing a successful credit card payments program. Kindly confirm our mutual understanding of the terms as set forth in this letter by providing us necessary deposit instructions and signing the attached Bleotronie Deposit instructions sheet. If you have any questions or concerns, please do not hesitate to call me at 254-956.6042. Sincerely, OFFICIAL PAYMENTS CORPORATION Dorothy Keller Account Executive APPROVED: County Judge date U L75 PA-;E a59 V°OL')S PAGE x(00 ,,Vl(-CIAL PAYMENTg I,~RP es Official Payments Corp.® (OPC) enables government entities to accept tax and fee payments electronically. OPC's services provide citizens with simple, safe, and convenient options for making federal, state, and local payments. These include VISAS, MasterCard®, American Express®, and Discover® credit and charge cards, PIN-less debit cards, and electronic checks. Payments are made via the Internet at www,gfFc elpayments.com or via 1-800-2PAY-TAXI", our Interactive Voice Response (IVR) telephone system. OPC's government clients enjoy comprehensive transaction reports, relief from manual processing, and quick, reliable settlement. Citizens enjoy payment flexibility, credit card rewards, and the ease of paying electronically at any time from any place. QUESTIONS AND ANSWERS ABOUT SIGNING UP WITH OFFICIAL PAYMENTS CORP. Q. What are the costs associated with Official Payments Corp. services? A. Official Payments Corp. charges a convenience fee to the end user for processing a payment. The convenience fee is assessed by OPC to cover operating costs and the cost associated with servicing thousands of transactions. The fee is assessed according to a pre-determined schedule. At several points in the transaction process, the user is informed of the amount that Official Payments is charging. When a consumer uses the service, two line items will appear on their credit card bill. One is for the amount paid to the government entity and the other is for the convenience fee charged by OPC. Q. What forms of payment can be accepted through Official Payments Corp? A. American Expresss, MasterCards, Visa®, and Discovere credit and charge cards are accepted. PIN-less debit cards with a Visa or MasterCard logo are also accepted. OPC can also provide electronic check transaction services. A separate contract is required to setup this service. Q. How does Official Payments Corp.'s IVR system work? A. Official Payments Corps IVR system is a service bureau solution. All hardware and software are housed and maintained by OPC. The IVR payment system,1-800-2PAY-TAX, (or unique 800 phone number) processes credit card and PIN-less debit card payments by phone. This payment solution is easily established to accept payments for taxes, fines and fees owed to the government entity. Features of our IVR Payment Center include: 1. Faso access: All citizens with access to a telephone can pay taxes or fees by calling a toll-free number. 2. User-friendly IVR: An interface that allows for easy, accurate data and payment card entry. 3. Real-time authorizations: Payment card authorization is performed while user is on the phone. 4. Confirmation numbers: A Unique number issued upon completion of transactions for record keeping. 5. Customer service: OPC provides easy access to answers and support 6. Seamless integration: OPC can connect to existing government systems for simplified reporting and settlement. While the user is on the phone, the system links to the payment card processor to validate cardholder credit, ensures that the card has not been reported lost or stolen and authorizes the transaction. When the payment transaction is successfully completed, the OPC system issues the user a confirmation number generated by our system. The user is notified if the transaction cannot be completed for any reason. If authorization is denied, the system advises the user that the payment could not be completed and prompts the user to contact the card issuer, or use an alternate card. PAGE 0(c ;'i71 '7 5 When the convenience fee is charged, the user is advised of the convenience fee by the payment system. Later, when the system captures the payment amount and account number, it advises the user of the convenience fee again. The user must confirm the convenience fee in order to proceed with the payment and receive a confirmation number. Users of our IVR system can exit out of the payment session at any time without cost or penalty. Typically, an IVR payment session lasts approximately four (4) minutes. Official Payments Corp.'s Four-Step IVR Payment Process: Step 1 Select a Service: User is prompted to select the government agency to which he or she would like to make a payment. Step 2. Select a Payment: User is prompted to choose from a list of the payment types being accepted by the chosen government agency (Example: Real Estate Tax) Step 3. Enter Information: User enters identification and payment information and then holds momentarily while the transaction is processed. Step 4. Receive a Confirmation Number: Upon completion of a successful transaction, a confirmation number is issued, and the user is prompted to move on and make other payments or end the session. If a transaction is rejected, the user will have the opportunity to start over by giving a new card number or by returning to the beginning of the transaction. Q. How does Official Payments Corp.'s Internet system work? A. Official Payments Corps Internet systems are service bureau solutions. All hardware and software are housed and maintained by OPC. We use the most current and stable technology available along with best-in-class vendor partners to create a system our clients feel confident in. This technology can easily be adapted to accommodate a wide variety of government fees, taxes, and fines. OPC uses 128-bit Secure Socket Layer (SSL) encryption technology to prevent any unauthorized viewing of data exchanged between the use's browser service and www.officialpayments.com• Customer data and credit card information is encrypted and stored in an internal file that is further protected by a sophisticated firewall. Our servers have internal monitoring and reporting features that alert our technicians if any unauthorized intrusions are attempted. All transactions are electronically settled to the government client's designated bank account directly from our processing bank between 48 and 72 business hours from the time of the transaction. At no point in the transaction path are any funds owed to a government client stored in an OPC bank account The full amount of the government agency's payments are settled into its bank account and are not adjusted or netted. Features of the Online Payment Center include: 1 Top Security: The Payment Center features the highest level of encryption technology (128-bit SSL, version 3) and a secured private network OPC operates multiple payment server sites to ensure complete data redundancy and reliability. 2. Electronic Receipt and Payment Verification: Upon completion of a tax payment, users are issued an onscreen confirmation number and an electronic receipt, which can be printed as a transaction record. Taxpayers can return to the site at any time to confirm that their payment was submitted. In addition, confirmation is e-mailed to the user as verification of payment if an email address is provided. 3. Optional User Registration: Users can maintain a complete transaction history and request e-mail reminders of upcoming payment dates when they register for "My Account" at the Online Payment Center. 4. Convenience Fee Calculator: A convenience fee calculator is available at www.officialpayrnents corn for users who wish to k now the exact amount of the fee before starting the payment process. 5. Online & Live Customer Support: The site provides answers to Frequently Asked Questions and telephone numbers for automated and live customer support. VUL~5 PAGE aka Official Payments Corp.'s Six-Step Internet Payment Process: Step 1. Make a Payment: User chooses to make a federal, state, or local payment. Step 2. Enter Information: User selects a specific payment type, enters identifying information. Step 3. Accept Terms: User reviews payment amount, convenience fee, and legal terms. Step 4. Complete Details: User enters name, address, contact information, identification number, and payment information. Step 5. Confirm Details: Previously entered user data is verified. If correct, user submits the information for processing. Step 6. Receive Electronic Receipt: User is issued a confirmation number and an electronic receipt when a successful transaction has been completed. Official Payments Corp.'s systems capture the user's transaction information, and while the user is online, OPC systems link to the credit card processor to validate the ACH information or post the credit card transaction. The system maintains a daily transaction log detailing each payment processed, and the master control system remits files nightly for ACH processing and settlement OPC's master control system downloads data from the credit card clearing facility for the nightly batch balancing procedure. The system automatically transmits a "mirror" balanced report for the Client daily to ensure that the payments posted are in ACH processing. The daily report totals can be used by the government client for deposit slip information and to compare with bank records. Q. How safe is Official Payments Corp.'s system? A. Security is a core concept of our business, and Official Payments Corp. takes seriously the responsibility of ensuring that government payments are transmitted safely and securely. All OPC security and privacy policies and procedures meet and exceed the requirements of the Internal Revenue Service, our largest client Since 1998, OPCs systems have passed annual auditing by the IRS's team of Independent Verification & Validation personnel OPC is committed to ensuring the security of all sensitive information (e.g., credit card information and taxpayer identification number). We take precautions to protect this information from loss, misuse, unauthorized disclosure, or alteration. OPC uses the most sophisticated encryption technology permitted by law, as well as hardware and software security procedures and safeguards, when collecting or transferring sensitive data. This is done in order to assure government clients and taxpayers of the confidentiality of their information. Additionally, OPC maintains a highly secure firewall to protect confidential client data and files. Our firewall protects against unauthorized access, maintaining the integrity and confidentiality of the information. Customer/Users are reminded to use an Internet browser capable of maintaining the security of their data for the purpose of completing a secure session. Doing so allows OPC to exchange data in a complete, accurate, confidential, and secure manner. OPC has been approved by TRUSTe and has been given the company's TRUSTe "trustmaric" an online branded seal displayed by member Web sites. The trustmark is awarded only to sites that adhere to established privacy principles and agree to comply with ongoing TRUSTe oversight and consumer resolution procedures. OPC's privacy principles embody fair information practices and have been approved by the U.S. Department of Commerce, the Federal Trade Commission, and prominent industry organizations and associations. Q. What types of reports does Official Payments Corp. provide? A. Our systems maintain a Daily Transaction Log (DTL) of every payment processed with information including payment type and code. Overnight, our master control system downloads files from both the government client's account and the credit card clearing facility for the nightly batch balancing procedure. Our systems automatically transmit a "mirror" balance report to the government client each day to ensure that the payments posted are in Automated Clearing House (ACH) processing. The daily report totals can be used by the government client for deposit slip information and to compare with their banks' records. Separate daily transaction logs are generated for electronic check payments. VOL-7 5 PAGE a(o3 OPC provides two reporting options: 1) an ASCII flat file of the OR for government client to use in updating payment information in its host system, or 2) reports in Excel that detail the number of transactions for both the IVR and Internet payment channels. OPC only transmits successfully completed transaction information in its daily reporting to the client. Chargebacks and returns, if any, are both processed and reported in a batch at the end of each month. Q. When and how does the government client receive its funds? A. Credit Card transactions are electronically deposited via ACH in the gross amount into the government client's designated bank account directly from each credit card processor or company. VISA and MasterCard transactions will be deposited within 48 hours or two business days. American Express and Discover Card transaction are deposited within 72 hours or three business days. Electronic check transactions are processed through the ACH in the same way as paper checks. They settle within 72 hours. Prior to the implementation phase, the bank account number and ABA routing number for the agency settlement account should be provided. To ensure the correct bank account is being used, during testing a live test transaction will be initiated by OPC. Q. What type of customer service does OPC provide? A. Official Payments provides outstanding customer service support for both our government clients and their constituents. OPC has extensive knowledge of taxpayer problems and how to solve them from our years of handling a wide variety of payment types from citizens in all 50 states. OPC will work with the government client to ensure that any issues are resolved quickly and comprehensively to the total satisfaction of the government client and its citizens. Q. Does Official Payments Corp. provide marketing assistance? A. OPC provides a comprehensive array of marketing support materials such as press releases, point-of sale items, logos, graphics, and language. These can be used directly on tax booklets, bills, inserts, citations, websites, and other communications materials. OPC has determined through market research that the best way to advertise electronic payment options is to place information about them directly on the government agency's bill or statement. Our Marketing Managers will assist you with best location and verbiage to place on your bills for this purpose. Thank you for your interest in becoming a client of Official Payments Corp. If you have any further question, please feel free to contact one of our sales associates via email at info@officialpayments.com. Kevin Connell Senior Vice President Sales and Business Development (203) 969-0310 ext 106 ; L -75 P E 2 AGREEMENT for ENGINEERING SERVICES and/or CONSTRUCTION MATERIALS TESTING January 1, 2006 by and between ENGINEER: SPENCER J. BUCHANAN ASSOCIATES, INC. 206 North Sims Street Bryan, Texas 77803 -and- CLIENT: Brazos County Engineer 2617 Highway 21 West Bryan, Texas 77803 -for services rendered in association with- PROJECT: Various 2006 projects OWNER: 1 `10L-7S PAGE )4aS Engineering Services and/or Construction Materials Testing Agreement THIS AGREEMENT (hereinafter called "AGREEMENT") is effective as of January 1, 2006 by and between Brazos County Engineer (hereinafter called "CLIENT") and Spencer J. Buchanan Associates, Inc., a corporation organized under the laws of the State of Texas with principal offices located at 206 North Sims Street, Bryan, Texas, 77803 (hereinafter called "ENGINEER"). ENGINEER and CLIENT hereby agree as follows with respect to Engineering Services to be performed by ENGINEER: 1.0 ENGINEERING SERVICES 1.1 ENGINEER shall act for Client in a professional manner, using that degree of care and skill ordinarily exercised by and consistent with the standards of competent engineers practicing in the same or similar locality of the PROJECT site. 1.2 Engineer shall provide services that, in the opinion of the ENGINEER, lie within the technical or professional areas of expertise of ENGINEER and which ENGINEER is adequately staffed and equipped to perform. 13 ENGINEER shall perform all technical services under the general direction of a Registered Professional Engineer and in a substantial accordance with the basic requirements of the appropriate Standards of the American Society for Testing and Materials, where applicable, The Texas Engineering Practices Act, or other standards designated by ENGINEER. 1A ENGINEER shall consider all reports the confidential property of CLIENT, and distribute reports only to those persons, organizations or agencies specifically designated in writing by CLIENT or his authorized representative. 1.5 ENGINEER shall retain samples of soil or rock for a period of sixty (60) days following submission of the report, unless requested otherwise by CLIENT, after which time, samples will be discarded. ENGINEER shall discard concrete cylinders after testing unless requested otherwise by CLIENT. 1.6 ENGINEER shall retain all pertinent records relating to the services performed for a period of ten years following submission of a report, during which period the records will be made available to CLIENT at reasonable times. Duplicates shall be made at reasonable fees. 1.7 A written definition of the Services (Exhibit A) to be performed by ENGINEER is incorporated in this AGREEMENT. 2 d` L 75 PAGE Z?6~ 2.0 CLIENT RESPONSIBILITIES 2.1 CLIENT shall provide ENGINEER full information regarding the structure(s) to be contemplated on the PROJECT including location and elevation of structure(s) on the PROJECT site, locations of existing underground utilities on the PROJECT site, magnitudes and configurations of loads, permissible settlements, planned cuts and fill, proximity of adjacent structures, and design loadings for paving areas and railways, and other information required for the proper performance of ENGINEER. 2.2 CLIENT shall furnish right of entry into the PROJECT site for ENGINEER to make the necessary field studies. ENGINEER will endeavor to minimize damage to the land but makes no guarantee to restore the site to its original conditions unless a separate Agreement is made for such restoration, in which case ENGINEER shall add the cost of restoration to the fee for the PROJECT. 2.3 CLIENT shall designate in writing those persons, organizations or agencies to be contacted in the event conditions are revealed during execution of ENGINEER's study or testing that would require possible alteration of the study or would potentially influence design that is proceeding in parallel with the study. 2.4 In the absence of an express designation from the CLIENT to the contrary, services requested by CLIENT's representative will be deemed as requested by CLIENT. 3.0 GENERAL CONDITIONS 3.1 ENGINEER, by the performance of services covered hereunder, does not in any way assume, abridge or abrogate any of those duties, responsibilities or authorities with regard to the PROJECT customarily vested in the PROJECT architects, design engineers, or any other design agencies or authorities. 3.2 ENGINEER shall not be responsible or liable for errors, omissions or deficiencies of any other party(s) involved in the design of the PROJECT, or the failure of any architect, design engineer, contractor, subcontractor or any other design agency or authority to design and/or construct any aspect of the PROJECT in accordance with recommendations contained in any correspondence or verbal recommendation issued by ENGINEER. 3.3 This Agreement may be terminated by either party on receipt of written notice or by mutual agreement. If this Agreement is terminated by either party, ENGINEER shall be immediately paid in full for all services performed through the termination date, and the CLIENT shall be provided with a complete report of the results of tests and analysis conducted prior to termination. 3.4 Neither CLIENT nor ENGINEER may delegate, assign, sublet or transfer his duties or interest in this Agreement without the written consent of the other party. 3.5 The only warranty made by ENGINEER in connection with its services performed hereunder is that it will use that degree of care and skill as set forth in Article 1.1 above. No other warranty, expressed or implied, is made or intended for services provided hereunder or furnishing oral or written reports of findings made. 3.6 In the event that CLIENT issues its Standard Purchase Order for engineering services, which shall be prepared and executed for each specified Project assignment requested by CLIENT, the terms and 3 J VJ(. 75 FF,,ar a 47 conditions of this AGREEMENT shall be incorporated as terms and conditions of the CLIENT's Standard Purchase Agreement unless expressly noted to the contrary. 3.7 CLIENT may make changes in the Services of the ENGINEER by notifying the ENGINEER to perform additional Services or to omit part(s) of the Services. ENGINEER reserves the right not to comply with CLIENT directed changes in the event such changes are contradictory to the basic requirements of the Texas Engineering Practices Act or appropriate Standards of the American Society for Testing and Materials, where applicable, or other standards designated by ENGINEER. The provisions of this Agreement shall apply to such additions and omissions. 4.0 INSURANCE 4.1 ENGINEER shall secure and maintain throughout the full period of this Agreement sufficient insurance to protect it adequately from claims under applicable Workmen's Compensation Acts and from claims for bodily injury, death or property damage as may arise from the performance of services under this Agreement. ENGINEER will, upon request, file certification of such insurance coverage with CLEENT or his authorized representative. 4.2 No insurance of whatever kind or type which may be carried by ENGINEER, is to be considered as in any way limiting the architect, design engineer, contractor, subcontractor or any other design agency or authority's responsibility for damages resulting from its operations or for furnishing work and materials to the PROJECT. CLIENT agrees therefore, to include or cause to be included in the PROJECT's design and construction contracts, such requirements for insurance coverage and performance bonds to be secured and maintained by the PROJECT's designers and contractors as CLIENT deems adequate to indemnify CLIENT, LABORATORY, and other concerned parties, against claims for damages and to insure compliance of work performance and materials with PROJECT requirements. 4.3 Worker's Compensation ($500,000 per incident limit), Comprehensive General Liability ($1,000,000 limit per occurrence), and Comprehensive Automobile Liability ($1,000,000 combined single limit, per accident), Insurance coverage(s) will be provided. Any additional insurance requirements will be negotiated and reimbursed to ENGINEER. 4.4 ENGINEER agrees to indemnify and save harmless CLIENT, its agents and employees from and against all loss or expense (including court costs and attorneys fees) for personal injury including death at any time resulting therefrom sustained by any person or persons or on account of damage to property (other than property of CLIENT or construction work in progress, for which CLIENT assumes responsibility) if and to the extent arising out of the negligence of ENGINEER. The parties hereby waive and shall require their insurers to waive subrogation against the other under any applicable policies of insurance. 4 VOL 75 FADE a to 8 5.0 PAYMENT 5.1 CLIENT will pay ENGINEER for services and expenses in accordance with the attached fee schedule (Exhibit B). ENGINEER's invoices will be presented monthly and will be paid by CLIENT within thirty (30) days of receipt by CLIENT or his authorized representative. 5.2 ENGINEER shall be paid in full for all services under the Agreement, including any overruns of CLIENT's contract or any unforeseen need for ENGINEER's services exceeding original contract requirement. CLIENT shall make payment for such services irrespective of any claim for compensation for additional work conducted. Any such claim shall in no respect delay payment of fees for services performed by ENGINEER Failure of CLIENT to pay ENGINEER shall entitle ENGINEER to file a Mechanic's and Materialman's Lien on Project property. . 6.0 EXTENT OF AGREEMENT 6.1 This Agreement, including these terms and conditions, represents the entire agreement between CLIENT and ENGINEER and supersedes all prior negotiations, representations or agreements, written or oral. The Agreement may be amended only by written instrument signed by CLIENT and ENGINEER 7.0 APPLICABLE LAW 7.1 This Agreement shall be governed by the laws of the State of Texas. Any disputes that arise from this Agreement shall be resolved in a Texas venue. 8.0 WARRANTY 8.1 ENGINEER shall perform its Services hereunder on a best professional effort basis, consistent with generally accepted industry standards, or in the absence of generally accepted industry standards, consistent with reasonable engineering practice. ENGINEER's liability in the event of defect, error, omission, or failure (collectively called "defect") in any of Engineer's Services under this AGREEMENT shall be limited to defects arising out of its sole negligence and further limited to the correction of defects in ENGINEER's original Services, by ENGINEER reperforming the defective portion of the Services without additional costs to the CLIENT, provided Engineer is notified by Client in writing of such defect within one (1) year after completion of ENGINEER's Services or completion of project under this AGREEMENT, and such notice specifically includes a request for reperformance. However, ENGINEER shall not be liable for any other costs, including but not limited to, replacement materials, equipment, or labor incurred by CLIENT in connection with the correction of any such defects. 8.2 ENGINEER's work product (including, but not limited to, a geotechnical report or "REPORT") pertains solely to the PROJECT for which it is prepared. Such REPORT is based upon the geotechnical investigation of the particular site for the PROJECT, and its findings and recommendations may not be generally or specifically applied to any other project. 5 iA -75 PALL ~ ~PCJ 9.0 9.1 Should the REPORT be used in conjunction with any project other than the PROJECT at issue in this Agreement, CLIENT shall defend, indemnify and hold harmless ENGINEER from and against any claims, demands, suits, causes of action, losses, damages, liabilities, fines, penalties and costs (including attorneys' fees, costs of litigation and investigation and other costs associated therewith) arising in any way from such use of the REPORT. 9.2 Should CLIENT or OWNER (or any agent or subcontractor of either) fail to follow ENGINEER's written plans and/or recommendations regarding any aspect of the PROJECT (including, but not limited to, a geotechnical report or "REPORT"), CLIENT shall defend, indemnify and hold harmless ENGINEER from and against any claims, demands, suits, causes of action, losses,.damages, liabilities, fines, penalties and costs (including attorneys' fees, costs of litigation and investigation and other costs associated therewith) arising in any way from the PROJECT or from any services provided by ENGINEER in connection with the PROJECT. 10.0 CONSEQUENTIAL DAMAGES 10.1 Notwithstanding anything in this Agreement to the contrary, it is agreed that ENGINEER shall not be liable in any event for any indirect, special, incidental, or consequential damages suffered by CLIENT and arising out of the Services performed hereunder. Indirect, special, incidental, or consequential damages as used herein shall include, but not be limited to loss of capital, loss of product, loss of profit, loss of use of any system or other property or any other indirect, special, incidental, or consequential damages, whether arising in contract, tort (including negligence and strict liability), warranty, statute, or otherwise. 11.0 LIMITATIONS 11.1 Liabilities, obligations, warranties, and remedies of the parties are exclusively those expressly set forth in this AGREEMENT and in lieu of any others available at law or otherwise. No other liabilities, obligations, or warranties are either expressed or implied. Releases from liability and limitations of liability set forth in this AGREEMENT shall apply notwithstanding the fault, negligence, or strict liability of the party released or whose liability is limited, and shall extend to the directors, officers employees, partners agents, and affiliated companies of such party. 12.0 INDEPENDENT CONTRACTOR 12.1 In the performance of Services hereunder, ENGINEER shall act as an independent contractor, maintaining full and complete control over its employees. 6 1~v -75 PA 13.0 13.1 14.0 14.1 14.2 FORCE MAJEURE Neither CLIENT nor ENGINEER, including ENGINEER's subcontractors, if any, shall be liable for any delay in or failure of performance hereunder due to labor disputes, fires, accidents, acts of God or nature, or any other cause beyond the reasonable control of such party whether listed herein or not. Events of force majeure shall extend the payment schedule set forth in the Proposal by a time period equal to the time of the delay. NOTICES Any notice required or permitted to be given hereunder shall be given in writing to the other party either personally or by certified mail, return receipt required, facsimile, or by a recognized overnight courier (e.g., Federal Express), addressed as indicated on the cover page of this Agreement. Any notices sent by mail shall be effective upon receipt. Each party shall notify the other of any change of address in writing in the manner stated above. 15.0 TERM OF AGREEMENT 15.1 This Agreement will remain in effect for Services provided through December 31, 2006. After that date, this Agreement will be subject to review and as a result of this review may be modified or revised with the mutual consent of both parties. 15.2 Should CLIENT breach any provision of this Agreement (including, but not limited to, any indemnity provision), ENGINEER shall recover from CLIENT all attorney fees, costs and expenses arising from such breach. CLIENT hereby waives the thirty (30) day notice requirement set forth in Chapter 38 of the Texas Civil Practice and Remedies Code. IN WITNESS WHEREOF, CLIENT AND ENGINEER have caused this AGREEMENT to be executed by their duly authorized officers. Spencer . Buc an ssociates, Inc. B > s-- Robin Corr Title: Ouerations Administrator Date: Date: December 6, 2005 7 ',U -76 FnE a-7I Title: oan-* EXHIBIT A Scope of Services Construction Materials Testing For Various 2006 projects Fees for this project will be in accordance with attached Fee Schedule Rates GAPublic\Contmt K-Dazu\2- Engineering Cmuuhing Agreement - CW ONLY doc A-I kl0 `15„_px: , F a7a SPENCER J. BUCHANAN ASSOCIATES, INC. 206 North Sims Street, Bryan, Texas 77803 • Post Office Box 672, Bryan, Texas 77806-0672 Telephone 979-822-3767 *Fax 979-822-7604 Spencer I. Buchanan, P.E. (1903-1982) Philip N. Buchanan, Ph.D., P.E. FEE SCHEDULE Laboratory Services soils 1.00 Strength and Compressibility Tests Unit Price 1.01 Unconfined Compression (Q„) and Unit Weight (ASTM D 2166) 25.00 1.02 Triaxial Shear: Unconsolidated-Undrained (Q) (ASTM D 2850) 30.00 1.03 Hand Penetrometer ..........2.50 1.04 Consolidation (ASTM D 2435) 220.00 1.05 One-Dimensional Swell/Settlement (ASTM D 4546) Procedure C ........76.00 1.06 One-Dimensional Swell/Settlement (ASTM D 4546) Procedure A 70.00 1.07 California Bearing Ratio (CBR) (ASTM D 1883) 250.00 1.08 Soil-Cement or Soil-Fly Ash Series (ASTM D 1632) ......295.00 1.09 Compressive Strength of Soil-Cement Cylinders (ASTM D 1633) ........10.00 1.10 Optimum Moisture Density Relation: Standard Effort (ASTM D 698, Procedure A or B) 100.00 1.11 Optimum Moisture Density Relation: Standard Effort (ASTM D 698, Procedure C) ......130.00 1.12 Optimum Moisture Density Relation: Modified Effort (ASTM D 1557, Procedure A or B) ......110.00 1.13 Optimum Moisture Density Relation: Modified Effort (ASTM D 1557, Procedure C) ......140.00 1.14 Optimum Moisture Density Relation: (Tex-1 13-E) 140.00 1.15 Torvane Shear ..........2.50 1.16 Miniture Vane Shear (ASTM D 4648) ........15.00 1.17 Undrained Confined Direct Shear 100.00 2.00 Identification and Classifications Tests 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 Atterberg Limits (ASTM D 4318) 21.00 Sieve Analysis (ASTM D 422) .............................37.50 Hydrometer (ASTM D 422) .............................95.00 Percent Passing No. 200 Sieve (ASTM D 1140) .............................12.00 Bar Linear Shrinkage (Tex-107-E) .............................12.00 Moisture Content (ASTM D 2216) 3.00 Moisture Content and Dry Density .............................11.00 Specific Gravity (ASTM D 854) .............................25.00 Permeability of Granular Soils: Constant Head (ASTM D 2434) 86.00 Permeability Test: Falling Head (EM 1110-2-1906 App. VIIA) 75.00 Organic Content (ASTM D 2974) .............................17.00 PH Determination of Soil or Soil/Lime Mixture (Tex-128-E) 9.50 Pinhole Dispersion Test (ASTM D 4647) ...........................105.00 Gradation of Soil/Lime Mixture (TXDOT Item 260) 25.00 Optimum Lime Content: pH Method (ASTM D 6276 / C 977) 72.50 Optimum Lime Content: Atterberg Limit Method: 113.00 January 2006 t)5 rtg ~ 'j •e k. ~ ~ *11 ~ ~-7 3 Page 2 Laboratory Services (cont'd) Base Material 3.00 Strength and Compressibility Unit Price 3.01 Optimum Moisture Density Relation: Standard Effort (ASTM D 698, Procedure A or B) 100.00 3.02 Optimum Moisture Density Relation: Standard Effort (ASTM D 698, Procedure C) 130.00 3.03 Optimum Moisture Density Relation: Modified Effort (ASTM D 1557, Procedure A or B) 110.00 3.04 Optimum Moisture Density Relation: Modified Effort (ASTM D 1557, Procedure C) 140.00 3.05 Optimum Moisture Density Relation: (Tex-113-E) 140.00 3.06 Soil Cement Testing (Tex-113-E) single point 89.50 3.06.1 Soil Cement Testing (Tex-113-E), 3 or more points 70.00 3.07 Maximum -Minimum Density 60.00 4.00 Identification and Classification 4.01 TXDOT Ball Mill (Tex-116-E) ..................................115.00 4.02 Specific Gravity (ASTM D 854) ....................................25.00 4.03 Sieve Analysis (ASTM D 422) (through No. 40 sieve) ....................................37.50 4.04 Sieve Analysis (ASTM D 422) (through No. 200 sieve) 54.00 Concrete and Masonry (also see Section 9.00) 5.00 Cylinders, Beams and Cubes 5.01 Compressive Strength of Cylindrical Concrete Specimens (ASTM C 39) 10.00 5.01.1 Compressive Strength of Cylindrical Concrete Specimens (ASTM C 39), (cast by others) 14.00 5.02 Flexural Strength of Concrete (ASTM C 78) 14.00 5.03 Compressive Strength of Mortar Cubes(ASTM C 780) 8.00 5.04 Compressive Strength of Light Weight Insulating Concrete (ASTM C 495) 10.00 5.04.1 Compressive Strength of Masonry Blocks 10.00 5.05 Compressive Strength of Concrete Core Specimens (ASTM C 42) 16.50 5.06 Compressive Strength of Grout Specimen (ASTM C 1019) 15.00 5.07 Thickness Determination of Concrete Core Specimen (ASTM C 174) 5.00 5.08 Unit Weight and Yield (ASTM C 138) 24.00 5.09 Concrete Mix Design Verification 454.00 Asphalt 6.00 Material Tests 6.01 Bitumen Content (ASTM D 2172) 97.50 6.02 Sieve Analysis (Tex-200-F, Part 1) 37.50 6.03 Marshall Stability (ASTM D 1559), per set of 3 140.00 6.04 Hveem Stability (ASTM D 1560), per set of 3 140.00 6.05 Bulk Specific Gravity (ASTM D 2726), per set of 3 40.00 6.06 Theoretical Maximum Specific Gravity (ASTM D 2041) 35.00 6.07 Density of Asphaltic Pavement Cores, (ASTM D 2776), each 20.00 6.08 Mixing Asphaltic Concrete, per set 30.00 6.09 Thickness Determination of Asphaltic Pavement Cores (ASTM D 3549), each 5.00 January 2006 Page 2 Field Services 7.00 Aggregate Tests Unit Price 7.01 Sieve Analysis of Fine or Coarse Aggregate (ASTM C 136) 37.50 7.02 Specific Gravity an Absorption of Coarse Aggregate (ASTM C 127) 30.00 7.03 Specific Gravity an Absorption of Fine Aggregate (ASTM C 128) 30.00 7.04 Clay Lumps and Friable Particles (ASTM C 142) 45.00 7.05 Bulk Density ("Unit Weight") (ASTM C 29) loose or dry rodded 30.00 7.06 Percent Passing No. 200 Sieve (ASTM C 117) 20.50 7.07 Organic Impurities in Fine Aggregates for Concrete (ASTM C 40) 50.00 7.08 Los Angeles Abrasion ( ASTM C 131) 100.00 7.09 Sulfate Soundness (ASTM C 88), 5 cycles, Coarse or Fine 185.00 7.10 % Deleterious Materials 29.00 7.11 Crushed Face Particle Count (Tex-460-A) 30.00 7.12 Determination of Flakiness Index (Tex-224-F) I................................... 35.00 Soils and Base 8.00 In-place Field Density and Moisture Content and Control Tests (Minimum 3 per trip) 8.01 Nuclear Gauge Method (ASTM D 2922), per test 21.50 8.02 Drive-Cylinder Method (ASTM D 2937), per test 30.00 8.03 Sand Cone Method (ASTM D 1556), per test 40.00 8.04 Lime Treated or Base Depth Determination, per test 8.00 8.04.1 Crushed Stone Base Depth Determination, per test 10.00 8.05 Stiffness Measurements using Humboldt Soil-Stiffness Modulus Gauge, per test 21.50 Concrete and Masonry 9.00 Cylinders, Beams and Cubes 9.01 Casting Cylinder (ASTM C 31), includes slump 9.02 Air Content of Freshly Mixed Concrete (ASTM C 173) 9.03 Casting Beam (ASTM C 31), includes slump 9.04 Molding Mortar Cube (ASTM C 109 / ASTM C 780) 10.00 Concrete Coring 10.01 Coring, 4-inch Diameter, per inch of thickness (ASTM C 42) 10.02 Soiltest Model CT-320 Concrete Test Hammer rental (3 hour min.), per hour Non Destructive Testing - Concrete Thickness Measurements without Coring: 10.03 Concrete Thickness Verification using NDT Concrete Thickness Gauge, per test Minimum 3 tests per trip plus Technician time for testing 11.00 Asphalt 11.01 Asphalt Pavement Coring (ASTM D 979) 11.02 Nuclear Gauge Density (ASTM D 2950) January 2006 10.00 15.00 14.00 8.00 10.00 23.00 21.50 30.00 22.00 Page 3 Field Services(cont'd) Unit Price (S1 12.00 Soil Borings 12.01 Drill and obtain Shelby Tube samples in cohesive soils and Standard Penetration Test samples in cohesionless soils: 12.01.1 Continuous sampling, 3-inch diameter, (000 to 020-ft), per ft 12.00 12.01.2 Continuous sampling, 3-inch diameter, (020 to 050-11), per ft 16.00 12.01.3 Continuous sampling, 3-inch diameter, (050 to 100-ft), per ft 24.25 13.00 Soil Borings continued.. 12.01.4 Intermittent sampling on 541 centers, 3-in diameter, (000 to 100-ft), per ft 9 50 12.01.5 Intermittent sampling on 5-ft centers, 3-in diameter, (100 to 200-ft), per it . 14 50 12.02 Wash Boring, 4 1/2 -inch diameter, (000 to 100-ft) per it . 12.03 , Wash Boring, 4 1/2 -inch diameter, (100 to 200-ft) per ft . 5.50 12.04 , Wash Boring, 7 1/2 -inch diameter, (000 to 100-ft) per ft 8.00 12.05 , Wash Boring, 7 1/2 -inch diameter, (100 to 200-ft) per it 7.50 12.06 , Auger Boring, 4-inch diameter, (00 to 012-ft), per ft 11.50 12.07 Auger Boring, 4-inch diameter, (12 to 022-ft) per ft 8.50 12.08 , Shelby Tube or Standard Penetration Test samples, per sample 11.00 12.09 Pitcher barrel sampling in soil or soft rock, 3-inch diameter (004 to 050-ft) 22.50 12.10 , Pitcher barrel sampling in soil or soft rock, 3-inch diameter (050 to 100-ft) 20.75 12.11 , Pitcher barrel sampling in soil or soft rock 3-inch diameter (100 to 200 ft 27.50 , , - ) 34.50 13.00 Rock Borings 13.01 Rock Coring with NX size (2 1/8-inch diameter) core barrel 13.01.1 002 to 050-ft, per R 13.01.2 050 to 100-ft, per ft 22.00 13.01.3 100 to 200-ft, per ft 27.50 13.02 . Rock Coring, other sizes to 6-inch diameter . . 34.50 13.03 Drilling Mud, Rock Bits and Rock Core Boxes ..............................Quotation 13.04 , Wash Boring, 4 %:-inch diameter (plus items 13.01 and 13.03) Cost plus 15% 13.04.1 000 to 100-ft, per it 13.04.2 100 to 200-ft, per ft 7.50 11.50 14.00 Miscellaneous 14.01 Mobilization of truck-mounted drilling equipment with crew: per mile (min. $75.00) 3 00 14.02 Crew and equipment standby time necessitated by safety or operational . Requirements of client in excess of %z hour, per crew hour 14.03 Grout Borings with Bentonite, per ft 115.00 14.04 . 3.00 Installation of piezometers, slope indicator casing, or observation wells by drill crew per hour 115 00 14.05 , Procurement and preparation of items listed in Item 14.04: . 14.05.1 Materials . . 14.05.2 Personnel charges per Item . Cost plus 15% 14.06 Drill crew per diem, (projects in excess of 50 miles of Bryan, TX.) per man-day 17.00 80 00 14.07 , Casing of boring (when required) . 14.08 Rental equipment ............Quotation 14.09 . All Terrain Drill Rig, when required, per hour Cost plus 15% 80.00 January 2006 Page 4 'r )1.. T5 k.4s G2 / 6P Personnel Rates and Special Services 15.00 Engineering Services 15.01 Principal Engineer, per hour 15.01.1 Consulting in Legal Matters, per hour 95.00 15.02 Engineer, per hour 125.00 15.03 Drafter, per hour 65.00 15.04 Stenographer, per hour 45.00 15.05 Visual Observation & Opinion of structure 30.00 15.06 Foundation Design 250.00 15.07 Phase I, Environmental Site Assessment ........................................750.00 15.08 Administrative Overhead ..........................................Quote 150.00 16.00 Technicians 16.01 Senior Engineering Technician, per hour 16.02 Certified Engineering Technician II, per hour 37.50 16.03 Engineering Technician, per hour 35.00 . 16.04 Lab Manager, per hour 29.50 16.05 Sample Prep/Processing (when extra time is required) per hour 50.00 , 29.50 17.0 Drill Crew 17.01 Drill Crew Supervisor, per hour 17.03 Drill Crew Helper or Technician, per hour 30.00 17.10 Structural Steel Inspections, per hour 27.50 Cost Plus NOTES: (1) Spencer 1. Buchanan Associates, Inc. offers many other construction materials testing and engineering services not listed within this Fee Schedule. A complete list of our services is available upon request. (2) Additional charge of $40.00 will be applied for picking up concrete cylinders, soil samples or other materials for testing within Brazos County. (3) Mileage charges will be added to services at $0.50/mile for trips outside of Brazos County. (3) Additional charges may be added for technician time, sample preparation and/or other procedures required for certain services listed. (4) Overtime rates apply to Items 15.02 through 17.04 before 8:00 a.m. and after 5:00 p.m., any time over 8- hours on one job per day, all weekends and holidays. (6) A minimum 2-hour charge applies for services performed on weekends or holidays. (7) For individual borings less than 10-ft depth, a $50.00 setup fee will be applied. (8) "Hold" cylinders and "hold" beams will be charged at $8.50/ea and $12.00/ea, respectively. January 2006 Page 5 j ~5'. 977