ESBD_378360_1728060504019_0002956 Attachment D - Professional Services Contract Template.pdf

INSTRUCTIONS TO ALL RESPONDENTS FOR RFQ NO. 0002956

AGREEMENT FOR PROFESSIONAL SERVICES

FOR

STATEWIDE MEP RETRO-COMMISSIONING SERVICES FOR 22-23

DEFERRED MAINTENANCE PROJECT

1. Respondents are required to review this Attachment prior to submission of qualifications.

2. Other than for typographical or scrivener’s errors, all exceptions to, and/or requests for modification of, this Attachment must be submitted with Respondent’s qualifications/proposals and on time.

3. TFC will not consider any exceptions and/or requests for modification submitted after the date and time for submission of qualifications/proposals.

4. The following Articles, Sections and Exhibits of this Attachment are not negotiable:

Article 1, Definitions Article 2, CxA Responsibilities and Scope of Services Article 3, TFC Responsibilities, Information and Approvals Article 4, Subsection 4.1.1 through 4.7 Article 5, Copyrights/Trademarks/Instruments of Service Article 6, Records, Audit, Proprietary Information and Public Disclosure Article 7, Insurance and Indemnity Article 8, Dispute Resolution Article 9, Term, Suspension, and Termination Article 10, Special Provisions Article 11, Miscellaneous Provisions Exhibit A. 2015 Uniform General Conditions Exhibit B. 2018 Supplementary General Conditions| Exhibit C. TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 Exhibit D. Professional Services Schedule Exhibit E. List of CxA Key Personnel Exhibit F. Criminal Background Check and Application Guidelines Exhibit G. CxA Scope of Services Detail Exhibit H. Approved HUB Subcontracting Plan Exhibit H-1. HUB Subcontracting Plan Form Exhibit H-2. Progress Assessment Reporting Form Exhibit I. CxA Insurance Requirements

5. The Professional Services Agreement shall be fully negotiated between TFC and the Successful Respondent PRIOR TO award, whether award is made by TFC Procurement, or by the TFC Commission.

6. Upon notice of award, awardee shall submit final, negotiated versions of Exhibits D, E and G to General Counsel Division and to the Project Manager for incorporation into the Professional Services Agreement.

Stephen M. Foster TFC General Counsel

AGREEMENT

PROFESSIONAL SERVICES

BY AND BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[INSERT CONTRACTOR NAME]

STATEWIDE MEP RETRO-COMMISSIONING SERVICES FOR 22-23 DEFERRED MAINTENANCE

PROJECT

TFC CONTRACT NO. [XX-XXX-XXX]

RFQ NO. 0002956

PROJECT NO. 22-009-3506

TFC Contract No. XX-XXX-XXX Contractor Name

RFQ No. 0002956 Project No. 22-009-3506 i

TABLE OF CONTENTS

Page

ARTICLE 1. DEFINITIONS

ARTICLE 2. CxA RESPONSIBILITIES AND SCOPE OF SERVICES

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

ARTICLE 4. COMPENSATION AND PAYMENT

ARTICLE 5. COPYRIGHTS/TRADEMARKS/INSTRUMENTS OF SERVICE

ARTICLE 6. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

ARTICLE 7. INSURANCE AND INDEMNITY

ARTICLE 8. DISPUTE RESOLUTION

ARTICLE 9. TERM, SUSPENSION, AND TERMINATION

ARTICLE 10. SPECIAL PROVISIONS

ARTICLE 11. MISCELLANEOUS PROVISIONS

EXHIBITS. The following exhibits are attached to this Agreement and fully incorporated herein by reference:

Exhibit A. 2015 Uniform General Conditions Exhibit B. 2018 Supplementary General Conditions| Exhibit C. TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 Exhibit D. Professional Services Schedule Exhibit E. List of CxA Key Personnel Exhibit F. Criminal Background Check and Application Guidelines Exhibit G. CxA Scope of Services Detail Exhibit H. Approved HUB Subcontracting Plan

Exhibit H-1. HUB Subcontracting Plan Form Exhibit H-2. Progress Assessment Reporting Form

Exhibit I. CxA Insurance Requirements

RFQ No. 0002956 Project No. 22-009-3506 ii

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

COMMISSIONING AGENT

This Agreement (this “Agreement”) is made as of the Effective Date (the “Effective Date”), by and between:

THE TEXAS FACILITIES COMMISSION (“TFC”), a state agency 1711 San Jacinto Boulevard Austin, Texas 78701 as “Owner” (as is defined in UGC Section 1.28), and the Commissioning Agent (the “CxA”):

[Name] [Address] [City, State, Zip] [Phone:] [Fax:] wherein CxA agrees to provide Professional Services for the following Project (the “Project”):

Retro-Commissioning Services 22-23 Statewide Deferred Maintenance Project Multiple Buildings

More specifically described as:

Provide professional commissioning services during the pre-design phase, design phase, construction phase, and post-construction/warranty phases at multiple state buildings across Texas including, but not limited to the following buildings for the respective projects (if no city is identified, building is in Austin, Texas):

A. ARC - Lorenzo de Zavala Archives & Library 1200 Brazos Street B. BHB - Brown-Heatly Building 4900 North Lamar C. CSB – Central Services Building 1711 San Jacinto Blvd D. CSX - Central Services Annex 311 East 14th St.

E. DBGL -Dept. of Health Bob Glaze Laboratory Building 1100 W. 49th Street F. DHB - DSHS Headquarters Building (Old MHMR HQ) 909 W. 45th St.

G. DHF - Dept. of Health F Building 1100 W. 49th Street H. DHH - Dept. of Health Hazardous Waste Building 1100 W. 49th Street I. DHK - Dept. of Health K Building 1100 W. 49th Street J. DHNP - Dept. of Health New Plant Building 1100 W. 49th Street K. DHOP - Dept. of Health Old Plant Building 1100 W. 49th Street L. DHR - Dept. of Health Records Building 1100 W. 49th Street

RFQ No. 0002956 Project No. 22-009-3506 iii

M. DHSB - Dept. of Health Service Building 1100 W. 49th Street N. DHT - Dept. of Health Tower Building 1100 W. 49th Street O. DHX - DSHS Annex (Old MHMR Annex) 909 W. 45th St.

P. DROC -Disaster Recovery Operations 1001 W. North Loop Q. ELP -El Paso State Office Building 401 E. Franklin, El Paso, TX R. ERB - Elias Ramirez State Building 5425 Polk Street, Houston, TX S. FTW - Fort Worth State Building 1501 Circle Drive, Fort Worth, TX T. HSW - Human Services Warehouse 1111 W. North Loop U. INS – Insurance Building 1100 San Jacinto Blvd V. INW - Insurance Warehouse 7915 Cameron Road W. INX – Insurance Annex 221 E 11th Street X. JER – James E. Rudder Building 1019 Brazos Street Y. JHR – John H Reagan Building 105 West 15th Street Z. LBJ - Lyndon B. Johnson Building 111 E. 17th St.

AA. NLBB – North Lamar Blvd. Building, 4800 N. Lamar BB. P35A - Park 35 Building A 12100 N. IH 35 CC. P35B - Park 35 Building B 12124 N. IH 35 DD. P35C - Park 35 Building C 12124 N. IH 35 EE. P35D - Park 35 Building D 12118 N. IH 35 FF. P35E - Park 35 Building E 12118 N. IH 35 GG. PDB – Price Daniel Building 209 West 14th Street HH. PROM - Promontory Point 4044 Promontory Point II. RBB - Dr. Robert Berstein Building 1100 W. 49th St.

JJ. RDM – Robert D. Moreton Building 1100 W. 49th Street KK. REJ – Robert E Johnson Building 1501 N Congress Ave LL. SCB – Supreme Court Building 201 W 14th Street MM. SFA – Stephen F Austin Building 1700 N Congress Ave NN. SHB – Sam Houston Building 201 East 14th Street OO. SRC - State Records Center 4400 Shoal Creek Blvd.

PP. SUR1 - Surplus Property, San Antonio District 2103 Ackerman Rd., San Antonio, Texas QQ. SUR2 - Surplus Property, Fort Worth District 2826 N. Beach Rd., Fort Worth, Texas RR. TCC - Tom C. Clark Building 205 West 14th St.

SS. THO - E. O. Thompson Building 920 Colorado TT. TJR – Thomas Jefferson Rusk Building 200 E 10th Street UU. TYL - Tyler State Office Building 3303 Mineola Hwy., Tyler, Texas VV. WAC - Waco State Building 801 Austin Ave., Waco, Texas WW. WBT – William B Travis Building 1701 N Congress Ave XX. WHB - Warehouse at Bolm Road 6506 Bolm Road YY. WLL - Wheless Lane Laboratory 2801 Wheless Lane ZZ. WPC – William P. Clements Building 300 West 15th Street AAA. Associated Parking Lots/Garages BBB. Other State Buildings to be identified later

TFC and the CxA agree as follows:

RFQ No. 0002956

ARTICLE 1. DEFINITIONS

Unless specifically provided otherwise, all words and phrases in this Agreement in initial caps shall have the meanings set out in this Article 1. All undefined and capitalized terms used herein shall have the meaning given to them in the UGC. In the event of any conflict between the definitions in the UGC, the 2018 Supplementary General Conditions, the TFC 2018 Architectural/Engineering Guidelines, Edit Date:

3/19/18 or in any other document that is referenced herein and incorporated for all purposes, and the definitions in this Agreement, the definitions used in this Agreement shall control.

Additional Services means those Professional Services not included in Sections 2.1 to 2.2 of this Agreement which may be requested by TFC at any time for the duration of this Agreement, as discussed in Sections 2.3 and 4.4 below.

A/E means the architect and/or engineer with whom TFC has entered into an Agreement for the providing of Professional Services and to exercise overall responsibility for the design of the Project.

A/E Guidelines means the TFC 2018 Architectural/Engineering Guidelines Edit Date March 19, 2018, attached hereto and incorporated herein for all purposes as “Exhibit C”.

A/E Project Manager means the individual designated by A/E and approved by TFC, as the contact person with specific authority to properly supervise and direct the duties and responsibilities of A/E, on behalf of A/E, and who shall have decision-making authority to bind A/E with respect to the Professional Services for the Project.

A/E Record Drawings are those final, compiled drawings, prepared and approved by the A/E after review of the Contractor’s notes and drawings of the on-site changes to the Drawings provided in the Record Documents.

Agreement means this Agreement between TFC and CxA whereby CxA agrees to provide Professional Services for the Project identified on the cover page of this document, all as outlined herein.

Applicable Law or Law(s) means any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders now in force or hereafter enacted by Authorities Having Jurisdiction (the “Authorities Having Jurisdiction”), relating to or affecting the Project or arising from this Agreement, including those governing labor, equal employment opportunity, safety, and environmental protection, and further including (i) applicable building, fire, and life safety codes and zoning requirements of Authorities Having Jurisdiction; (ii) accessibility laws, codes, and ordinances including but not limited to the Texas Accessibility Standards of the Architectural Barriers Act, Tex. Gov’t. Code Ch. 469, Elimination of Architectural Barriers, and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12181); (iii) occupational safety acts and requirements applicable to the Project, including United States Occupational Safety and Health Administration (“OSHA”) requirements and related federal and state regulations; (iv) requirements under Title VII of the Civil Rights Act of 1964, as amended; (v) requirements of the Fair Labor Standards Act and applicable state wage and hour laws including Tex. Gov’t. Code § 2258.001 et seq.; (vi) Environmental Laws, including all storm water, street, utility and other related infrastructure requirements, (vii) all requirements related to the use, removal, storage, transportation, disposal and remediation of Hazardous Materials; and (viii) any other applicable local, state or federal laws respecting the Project.

Basic Services means those Professional Services set forth in Section 2.2 below. Such Basic Services may include, without limitation, building system commissioning services during the pre-design, design, construction, post-construction, and warranty phases, preparation of Drawings, Specifications, and Construction Documents, construction observation, and construction administration, all as further indicated in Section 2.2 of this Agreement.

Budget means the construction budget for the Project as provided to CxA by TFC and which may be amended from time to time by TFC as further assessments, design, and construction Cost Estimates are provided.

Building Information Model (“BIM”) means the computable, digital, multi-dimensional representation of the physical and functional characteristics of the Project’s facilities and their related life-cycle information in Autodesk Revit format and Autodesk Civil 3D, to be used as a repository of design and construction information for use by the Project Team during the design, bidding and construction phases of the Project, and for TFC’s use throughout the life-cycle of the Project. Members of the Project Team are required to coordinate all efforts with respect to the BIM in accordance with the guidelines set forth in the BIM Execution Plan developed for the Project.

Building Information Model (“BIM”) Execution Plan means that certain plan prepared by the Project team with the guidelines and protocols for use by the Project Team to effectively utilize the BIM throughout the design, bidding, construction and life cycle of the Project.

CAD means AutoCAD DWG format.

Certificate of Substantial Completion means the certificate as defined in UGC Section 1.8, signed by the Contractor, CxA, and TFC establishing the date of Substantial Completion, as defined in UGC Section 1.44, for the applicable part of the Work and identifying responsibilities for security and maintenance as set out in UGC Section 12.1.1.2.

Close-Out Documents has the same meaning as defined in UGC Section 1.10 and includes the Contractor’s marked-up “as-builts” and A/E’s Record Drawings.

Commissioning Agent (CxA) means the professional engineering individual/s or firm contracted by TFC to perform the building systems commissioning as outlined in this Agreement. The Commissioning Agent shall be part of the Project Team. The Commissioning Agent shall work independently of A/E and Contractor to ensure the proper installation, performance testing, functional testing procedures and operations of all installed and integrated systems.

Commissioning Agent Project Manager (CxA Project Manager) means the individual designated by CxA and approved by TFC, as the contact person with specific authority to properly supervise and direct the duties and responsibilities of CxA, on behalf of CxA, pursuant to the terms and conditions of this Agreement, and who shall have decision-making authority to bind CxA with respect to the Professional Services for the Project.

Commissioning Plan (Cx Plan) means the document authored by the Commissioning Agent that documents the procedures, implementation, and execution of the commissioning process, and is developed in increasing detail as the Project progresses through its various phases to ensure that the Owner’s project requirements (OPR) and the Construction Documents are met.

Communication Protocol means the communication and tracking procedures to be utilized for interaction and reporting between TFC, CxA and its Consultants, Contractor, and subcontractors, including but not limited to, the use of any EPMCS, as defined herein, utilized by TFC for the Project.

Compensation means the funds paid to CxA for the Professional Services provided by CxA as set forth in Article 4 of this Agreement.

Construction Documents means, collectively, the Drawings, Specifications, details, and other documents prepared by the A/E, its Consultants, and by TFC’s other Consultants that describe the scope and quality of the Project and the materials, supplies, equipment, systems and other elements required for construction of the Work that are acceptable to TFC.

Construction Manager-at-Risk (“CMR”) or “Contractor” means, subject to the provisions of UGC Sections 1.16 and 1.18, that entity with whom TFC contracts to provide preconstruction and/or construction services to the Project pursuant to an agreement. The terms “Construction Manager” and “CMR” are interchangeable with each other and with the terms “Contractor” and “General Contractor” or other similar terms used in the various parts of the Contract Documents, including the UGC.

Consultant means any person or entity that enters into an agreement with CxA to perform any part of the Professional Services described in this Agreement. The term Consultant excludes Consulting service and Consultant as defined in Chapter 2254.021, Texas Government Code.

Consulting Agreement means any agreement between CxA and a Consultant.

Deliverables means any and all Drawings, Specifications, photos, designs, studies, sketches, computer programs, reports, and other Professional Services, which are specified to be delivered by CxA pursuant to the terms of this Agreement.

Design Development Documents means the design development documents, prepared by A/E for the Project, including plans, elevations, and such other drawings, calculations, and outline specifications that, in TFC’s sole opinion, are of such quality and detail that enable TFC to fix and illustrate the size and character of the entire Project in its essentials as to kinds of materials and assembly details, type of MEP Systems, and type of structure and to coordinate the interface of all architectural and structural elements with all building systems.

Design Program means the overall goals and design objectives of the Project, the aesthetic considerations, and the functional requirements including allocations of space with uses and adjacency relationships for all areas/spaces, operational objectives and such standards of design that TFC may require for all architectural and engineering disciplines in the design and construction of the Project.

Drawings means the plans, drawings, profiles, cross-sections, and supplemental drawings, or reproductions thereof, prepared by the A/E and approved by TFC, which show the locations, character, dimensions, and details of the Work for the Project.

Effective Date means the date that the last signature of a party is affixed hereto.

Environmental Laws means any local, state, or federal law, rule, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, as may be amended from time to time including: (i) the Resource Conservation and Recovery Act of 1976 (“RCRA”) (42 U.S.C. § 6901 et seq.), as amended by the Used Oil Recycling Act of 1980 (Pub. L. No. 96- 463, 94 Stat. 2055 (1980)), the Solid Waste Disposal Act Amendments of 1980 (Pub. L. No. 96- 482, 94 Stat. 2334 (1980)), and the Hazardous and Solid Waste Amendments of 1984 (Pub. L. No.

98-616, 98 Stat. 3221 (1984)), and regulations promulgated thereunder; (ii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. § 9601 et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub.

L. No. 99-499, 100 Stat. 1613 (1986)), and regulations promulgated thereunder; (iii) the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); (iv) the Endangered Species Act of 1973 (15 U.S.C. § 1531 et seq.) and its amendments; (v) laws, statutes, ordinances, rules, regulations, orders, or determinations relating to “wetlands,” including without limitation those set forth in the Federal Water Pollution Control Act (commonly referred to as the “Clean Water Act”) (33 U.S.C. § 1251 et seq.); (vi) the Texas Water Code; and (vii) the Texas Solid Waste Disposal Act (Tex. Health & Safety Code Ann. §§ 361.001–361.345 (West 2018)).

EPMCS means the TFC’s electronic project management control system.

Final Inspection means the process and procedure described in UGC Section 12.1.

Final Inspection Deadline means the date that is thirty (30) Days after the Substantial Completion Inspection and the date by which A/E must conduct a Final Inspection, unless such deadline is amended by TFC.

Hazardous Materials means (i) any “hazardous waste” as defined by RCRA, and regulations promulgated thereunder; (ii) any “hazardous substance” as defined by CERCLA, and regulations promulgated thereunder; (iii) any toxic substance as defined under or regulated by the Toxic Substances Control Act; (iv) asbestos, polychlorinated biphenyls, radon, or explosive or radioactive materials; (v) underground and above ground storage tanks, whether empty, filled or partially filled with any substance, including without limitation any petroleum product or any other “hazardous substance”; (vi) any substance the presence of which at the Project is prohibited by any Environmental Laws; and (vii) any other substance which by any Environmental Laws requires special handling or notification of any Authorities Having Jurisdiction in its collection, storage, treatment, or disposal.

HUB Compliance Reporting System means the Texas Facilities Commission Historically Underutilized Business (“HUB”) online reporting system located at https://tfc.gob2g.com. The HUB Compliance Reporting System is used to maintain business records documenting compliance with the HUB Subcontracting Plan (“HSP”) by submission of monthly Progress Assessment Reports (“PARs”).

Invoice means the invoice for payment for Professional Services provided by CxA as submitted in conformance with Article 4 below.

MEP Systems means mechanical, electrical, and plumbing systems.

Notice of Authorization or “NOA” means the written authorization to proceed to the next phase of development of Construction Documents. Notice of Authorization is to be distinguished from a Notice to Proceed.

Notice to Proceed or “NTP” means the written notice to be issued at the onset of the Project by TFC notifying CxA to proceed with the commencement of Professional Services described in this Agreement.

Opinion of Probable Construction Cost means a level one Cost Estimate to facilitate budgetary and feasibility determinations, based on historical information with adjustments made for specific Project conditions, wherein estimates are based on costs per square foot, number of rooms/seats, etc. Project information required for estimates at this level shall include a general functional description, schematic layout, geographic location, size expressed as building area, numbers of people, seats, as such, and intended use.

Person means an individual and includes a corporation, an organization, a business trust, an estate, a trust, a partnership, an association, or any other legal entity.

Professional Services means (i) professional architectural services and/or (ii) professional engineering services as defined in Tex. Gov’t. Code § 2254.002, the scope of which is set out in more detail in Article 2 below. Professional Services shall include Basic Services and, as such services are approved by TFC, Additional Services.

Professional Services Schedule or “Schedule” means the schedule/timeline set out in “Exhibit D”, and which schedule/timeline sets out the deadlines in terms of a fixed number of days after a preceding deadline for completion and delivery of discrete portions of the Professional Services.

At the discretion of the TFC Project Manager and as mutually agreed upon with CxA, the Schedule may be revised and defined with more detail as the Project develops.

Project means that certain Work more particularly identified on the introductory paragraph of this Agreement and includes the design, engineering, and construction of each component design/construction package that may be prescribed by TFC.

Project Analysis has the same meaning as defined in Tex. Gov’t. Code § 2166.001(5).

Project Management Firm (“PMF”) means the service provider, if any, with whom TFC enters into a Project Management Firm Professional Agreement for Professional Services (the “Project Management Firm Professional Agreement”) for the purpose of the PMF providing certain professional project management services for the Project, which may include, among other services, general Project management, strategic Project planning, Project Site planning, operational planning, capital expenditure planning, budgetary impact analysis, and/or Project controls. CxA acknowledges and agrees that the PMF shall have no authority to act for or on behalf of TFC or the State of Texas except as expressly provided for in the Project Management Firm Professional Agreement, a copy of which TFC will provide upon request.

Project Team are those entities who may be involved in the design and/or design assist procedures on the particular Project. Project team members include TFC, Using Agency, CxA and its Consultants, PMF (if any), the CMR or Contractor, any separate contractors employed by TFC, and other consultants employed for the purpose of programming, design, and construction of a project. The members of the Project Team will be designated by TFC for any particular project and may be modified from time to time by TFC.

Reimbursable Expenses means those reasonable and necessary out-of-pocket costs and expenses incurred by CxA for the provision of the Professional Services approved by TFC.

RFI means a request for information as defined in UGC Section 1.35.

RFI Response means a written clarification, instruction, and/or interpretation, including, but not necessarily limited to, an architect’s supplemental instructions issued in response to an RFI, which response must be consistent with the intent of the Construction Documents.

Schematic Design Drawings means, at a minimum, a Site development plan, building plans, elevations, sections, and perspective sketches sufficient to convey comprehensive design intent.

Schematic Design Package means the combination of: (i) Schematic Design Drawings; (ii) an outline summary of the areas within the proposed Project such summary corresponding to the general categories in the space allocation outlined in the Design Program; (iii) a description of the building and general Site development that shall include an overview of proposed exterior architectural materials and structural systems together with the mechanical, electrical and plumbing systems and services contemplated; and (iv) an Opinion of Probable Construction Cost that demonstrates conformity with the Budget, all that, in TFC’s sole opinion, must be in satisfactory quality and detail.

Site means the lands, areas, and/or buildings indicated in the Contract Documents as being furnished by TFC upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by TFC which are designated for the use of Contractor.

Specifications is defined in UGC Section 1.41.

Standard of Care means that certain standard by which CxA shall perform all Professional Services hereunder, as prescribed by Tex. Gov’t. Code § 2254.0031 (incorporating Tex. Local Gov’t. Code § 271.904(d)), to wit: (i) with the professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license, and (ii) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.

Substantial Completion Inspection means the process and procedure described in UGC Section 12.1.1.

Substantial Completion Inspection Deadline means the date that is a fixed number of days after proper written notification is delivered to TFC, A/E, and CxA by Contractor that Contractor has fully satisfied the requirements set out in UGC Section 12.1.1.1, and by which date A/E must conduct a Substantial Completion Inspection.

TDLR means the Texas Department of Licensing and Regulations.

TFC Project Manager means the individual designated by TFC as the contact person for TFC with the direct responsibility to properly supervise the design and construction of the Project, and the services being provided pursuant Agreement on behalf of TFC, including, but not limited to, serving as the point of contact between TFC, the Using Agency, as defined below, (if any), CxA, and Contractor, and supervising TFC’s review and approval of the Professional Services. For the avoidance of doubt, the TFC

Project Manager shall be the same person as the Owner’s Designated Representative (or “ODR”) as defined in UGC Section 1.29.

Uniform General Conditions or “UGC” shall mean the Uniform General Conditions for Construction Contracts issued by the State of Texas, published date of 2015, as may be amended from time to time, a copy of which is published on TFC’s website and as may be modified by this Agreement and the Special Conditions.

Using Agency has the same meaning as defined in Tex. Gov’t. Code § 2166.001(10).

Utilities means water, sewer, gas, electric, telecom, cable, and like services.

Utility Providers means any and all entities that TFC desires to provide Utilities to the Project.

Warranty Report means the comprehensive report of the findings of CxA pursuant to the inspections, and which must include, but not be necessarily limited to, a list of the items needing replacement, correction, or repair.

Work means, in addition to those items set forth in UGC Section 1.49, the provision of all labor, materials, supplies, and equipment that are required of the CMR to manage, implement, and fully construct a Project in accordance with the requirements of this Agreement and the Contract Documents for that Project. The Work may include the Preconstruction and Construction Services described in a Construction Manager-at-Risk Agreement and all additional work required by any change orders, and any other work reasonably inferable from the Contract Documents. The term “reasonably inferable” includes the understanding of the parties that some minor details of the Work may not be shown on the Drawings or included in the Specifications, but they are included in the Work if they are usual and customary components of the Work for a project of the type depicted in the Contract Documents and they are needed to produce a complete and useable facility.

ARTICLE 2. CxA RESPONSIBILITIES AND SCOPE OF SERVICES

2.1 General Responsibilities. CxA shall perform all Professional Services on time and in accordance with the terms of this Agreement and all Exhibits and, in connection therewith, shall render all professional opinions, advice, and exercise its professional judgment at all times in accordance with the Standard of Care.

CxA shall be responsible for the professional quality, technical accuracy, and the coordination and completeness of all Deliverables and Professional Services it provides and for their compliance with Applicable Laws and the Standard of Care. CxA represents that it is properly licensed to provide the Professional Services required by this Agreement and shall cause all delegated Professional Services to be performed by appropriately licensed design professionals.

2.1.1 Cooperation/Collaboration. CxA agrees to provide a high degree of cooperation, collaboration, coordination, and teamwork in the delivery of its Professional Services. To this end, CxA shall perform Professional Services in accordance with the Professional Services Schedule and in keeping with TFC’s design intent and Budget. CxA agrees to work collaboratively with its Consultants, the TFC, the Using Agency, and all Contractors, and Consultants retained by TFC to (i) establish and maintain clear lines of responsibility, authority, and communication in accordance with the Contract Documents; (ii) engender a spirit of teamwork among all stakeholders; (iii) guide and provide valuable design input to describe and satisfy the required function of the materials incorporated into the Project consistent with TFC’s requirements of performance, reliability, and maintainability; and (iv) provide valuable input and professional insight in design, preconstruction, and construction meetings which the TFC, Consultants, Contractor, and subcontractors attend.

2.1.2 Coordination of Consultants. CxA shall review all Deliverables prepared by its Consultants so that the Project is appropriately coordinated among the various disciplines. CxA assumes responsibility for the coordination of the Consultants’ documents as part of Basic Services. CxA further agrees to provide its design documents, background information, and design intent for the Project to all Consultants involved in the Project in order to achieve an integrated, consistent, overall design for the Project. CxA shall direct all of its Consultants to make all revisions and modifications to such plans and Drawings as may be necessary to comply with the permitting and other regulatory and legal requirements of the jurisdiction of the Project.

2.1.3 Key Personnel. CxA shall designate in writing to TFC those key employees and representatives who are authorized to act on CxA’s behalf with respect to the Project.

2.1.3.1 Designation. CxA shall designate one or more CxA Project Manager(s) and employees who are responsible for the day-to-day management of the Professional Services.

The CxA Project Manager (or one of them as designated by CxA and approved by TFC) shall be authorized to act on behalf of and bind the CxA in all matters related to Professional Services. The CxA Project Manager, Project engineers, and other representatives, their titles, and a brief description of the limitations of each representative’s authority shall be included in “Exhibit E” (the “CxA List of Key Personnel”) to this Agreement. CxA shall not change employee assignments without TFC’s written consent, which consent shall not be unreasonably withheld. CxA shall not assign or retain on the Project any person or entity to whom TFC reasonably objects.

2.1.3.2 Replacement. The CxA Project Manager and key employees must be committed to the Project. TFC reserves the right to request that the CxA Project Manager and, and any of CxA’s employees and Consultants (and their project managers), be removed and replaced if, in the sole opinion of TFC, their performance on this Project or any other Projects, is and/or was not adequate or their continued involvement with the Project will, is, or has become, detrimental to the timely and successful performance of CxA or completion of the Project, including but not limited to, for such reasons as: (i) any past or present violation of any statute, rule, regulation, or ordinance of any city, county, the State of Texas or the United States, or any other Applicable Laws; (ii) TFC’s reasonable belief that failure to obtain an acceptable criminal background check will occur; (iii) prior unsatisfactory performance on other TFC projects; and (iv) any other like reasons. CxA shall bear the costs associated with the replacement of any of its staff listed on the CxA List of Key Personnel.

2.1.4 No Assumption. No approvals or acceptances by, or on behalf of, TFC shall be deemed to be an assumption of any responsibility by TFC for any defect, error or omission in CxA’s providing of Deliverables or any Professional Services.

2.1.5 Notice to Proceed. CxA shall commence Professional Services only upon issuance by TFC of a Notice to Proceed. No Professional Services shall be undertaken by CxA except with the prior written direction of the TFC Project Manager. CxA understands and agrees that any Professional Services performed without the prior written direction of the TFC Project Manager is work outside the scope of this Agreement and shall be performed exclusively at CxA’s risk.

2.2 Basic Services. CxA’s Basic Services consist of those described in this Section 2.2 and include the following phases: Commissioning Plan development, CMR Commissioning Specifications, Issues Log development and maintenance, submittals review, Pre-functional Checklists, Functional Performance Testing, Building Controls Installation Verification, Start-up, Pre-functional Checklist and Testing and Balancing Reports Review and Coordination, O&M Manual Review, Site Observation and Reports, Commissioning related issues resolution, meeting attendance and reporting and Final Commissioning Report. To the extent the parties deem it necessary, additional technical detail for the Professional Services to be provided by CxA hereunder is contained in the CxA Scope of Services attached as “Exhibit G”, which is provided for additional detail for and not in lieu of the Basic Services set forth in this Agreement. No phase shall begin until all prior phases have been completed and approved by TFC, unless TFC gives its prior written consent thereto.

2.2.1 Pre-Design. CxA shall deliver the following Pre-Design tasks to TFC no later than the Pre- Design Deadline set forth in “Exhibit D”:

2.2.1.1 Analyses/Standards. Consult with TFC staff and representatives of the Using Agency as may be directed by TFC to become thoroughly familiar with (i) the Project Analysis, or the equivalent thereof; (ii) the Design Program; and (iii) TFC and any Using Agency’s technical and design standards including, but not limited to, the CxA Guidelines.

2.2.1.2 Site. Inspect and become thoroughly familiar with the Site and any and all relevant and existing Project, facilities studies, and Site-related requirements, including, but not limited to, codes, rules, regulations, and environmental and/or traffic impact studies that may affect the timely design and construction of the Project.

2.2.1.3 Consultants. Determine and identify to TFC which additional Consultants, if any, that are not engaged, or to be engaged, by CxA pursuant to this Agreement, will be necessary to complement the Professional Services in order to fulfill requirements of this Agreement.

2.2.1.4 CAD/EPMCS. CxA represents that is proficient in the use of the EPMCS utilized by TFC. During this Pre-Design phase, CxA will coordinate the manner of implementing the EPMCS that will be utilized by TFC throughout the design and construction of the Project. If requested, CxA will assign appropriate CxA staff to receive instruction regarding the use of the EPMCS to be utilized by TFC.

2.2.1.5 Report. CxA shall deliver a Pre-Design Task Report to TFC outlining when and how it has accomplished these tasks and providing comments for consideration by TFC. Upon consent of TFC, CxA may deliver one (1) amendment to the Pre-Design Task Report no later than the Pre-Design Deadline.

2.2.2 Design Phase Deliverables. CxA agrees to direct and timely provide Professional Services to facilitate the following Deliverables for TFC and its Contractors and resolve all items of exception noted, including the following:

2.2.2.1 Commissioning Plan. Developing a Commissioning Plan and updating the Commissioning Plan throughout the project; all bid packages/phases to be included in a single plan document.

2.2.2.2 Issues Log. Developing procedures for an issues log to track all commissioning related issues, deficiencies, and resolutions.

2.2.2.3 Commissioning Specifications. Developing and Updating the Commissioning Specifications for incorporation into the project.

2.2.2.3.1 CxA shall develop Commissioning Specifications for the commissioned equipment, listed below under “Commissioned Equipment.” Additionally, CxA will coordinate with the A/E design team and TFC to integrate the Commissioning Specifications into the overall project manual specifications package. The Commissioning Specifications shall follow the intent of ASHRAE Guideline 0-2005 and the ACG Commissioning Guideline, The Commissioning Process. The Commissioning Specifications shall include definitions of key terms; a detailed description of the responsibilities of all parties; details of the commissioning process; reporting and documentation requirements (including formats); alerts to coordination issues; deficiency resolution; construction checklist and startup requirements; the functional testing process;

and specific functional test requirements including testing conditions and acceptance criteria for equipment to be commissioned.

Commissioned Equipment

Building Automation/Energy Management Systems Fire Suppression Systems Heating, Ventilation, Air Conditioning (HVAC) Systems Plumbing Systems Emergency Power Systems Electrical Systems

2.2.3 Construction Phase Services

2.2.3.1 Request for Information. CxA will respond to Requests for Information (RFI) concerning Commissioning from the Contractor.

2.2.3.2 Instruction to Contractor. CxA will prepare Instructions to Contractor (ITC) for issues that require modification to the contract documents.

2.2.3.3 Site Inspections/Construction Observations. CxA will provide Construction Observation services to observe the work is being completed in accordance with the design documents. Such visits and observations are not intended to be exhaustive or to extend to every aspect of the Contractor’s work in progress or to involve detailed inspections of the Contractor’s work in progress beyond responsibilities specifically assigned to CxA in this agreement, but rather to witness equipment and system installations, determine commissioning progress, and determine if the systems have received operational checkout by installation contractors compliant with the Commissioning Plan and specifications, and similar methods of general observation of the work based on CxA’s exercise of professional judgment.

2.2.3.4 Pre-functional Checklists. CxA will develop Construction Checklists for the commissioned equipment and submit to the contractors, the A/E design team, and TFC for review and approval. The Construction Checklist captures equipment nameplate and characteristics data and confirms the as-built status of the equipment or system. The Construction Checklists document that the systems are complete and operational. They document the installation of sensors, components, and completion of systems. CxA will review the completed Construction Checklists following each construction meeting to verify the contractor’s progress and quality meet the design documents.

2.2.3.5 Meetings and Site Visits. CxA will attend and represent TFC at meetings to coincide with the site visits and construction observations described above.

2.2.3.6 Updated Commissioning Plan.

2.2.3.7 Reviews. CxA will provide reviews on Commissioned Equipment Submittals, Start-up Reports, Pre-functional Checklists and Testing and Balancing reports.

2.2.4 Acceptance Phase Services. The CxA will work with the project team to complete functional performance testing, integrated systems testing, and training to verify successful turnover to TFC personnel and optimize building performance. During the Acceptance Phase, commissioning tasks will include:

2.2.4.1 Functional Testing. CxA will coordinate, oversee, and document the functional testing performed for each commissioned system or equipment listed above under “Commissioned Equipment.”

2.2.4.2 O&M Documentation. CxA will review O&M Documentation for completeness and accuracy.

2.2.4.3 Training Program. CxA will verify operations and maintenance training to ensure the project requirements are met.

2.2.4.4 Issues Log. CxA will maintain a master commissioning Issues Log and a separate testing record. The Issues Log will be a formal and ongoing record of problems or concerns and their resolution that have been raised by members of the Commissioning Team during the Commissioning Process. CxA will maintain Documentation of Corrections and Retesting of Non-compliance Items by the Contractors.

2.2.4.5 Functional Testing Summary Report. CxA will develop a complete Functional Testing Summary Report. The report will include an executive summary, list of participants and roles, brief equipment description, overview of commissioning and testing scope, and a general description of testing and verification methods. For each piece of commissioned equipment, the report will contain the disposition of the Commissioning Authority regarding the adequacy of the equipment, documentation, and training meeting the contract documents in the following areas: Equipment meeting the equipment specifications;

Equipment installation; Functional performance; Equipment documentation ;design intent and; Operator training.

2.2.4.5.1 All outstanding non-compliance items will be specifically listed.

Recommendations for improvement to equipment or operations, future actions, commissioning process changes, etc., will also be listed. Each non-compliance issue will be referenced to the specific functional test, inspection, trend log, etc., where the deficiency is documented. The functional performance section for each piece of equipment will include a brief description of the verification method used (manual testing, trend logs, data loggers, etc.) and include observations and conclusions from the testing. Appendices shall contain acquired sequence documentation, logs, meeting minutes, progress reports, deficiency lists, site visit reports, findings, unresolved issues, communications, etc. Pre-functional checklists and functional tests (along with blanks for the operators) and monitoring data and analysis will be provided in a separate labeled binder.

2.2.5 Post-Acceptance Phase Services. Commissioning activities in the Post-Acceptance Phase include:

2.2.5.1 Deferred (Off-Season) Testing. CxA will conduct testing, if required, that was deferred from the Acceptance Phase.

2.2.5.1.1 Seasonal Commissioning - Provide seasonal testing for HVAC equipment to confirm proper operation of the sequences of operations and to test equipment capacity and turndown capabilities.

2.2.5.1.2 Thermal Comfort Survey - Provide post occupancy Thermal Comfort Surveys during peak cooling and peak heating times of the year. Develop and distribute a report to the design and construction teams for the appropriate action to address the occupant concerns.

2.2.5.2 Updated Master Issues Log.

2.2.5.3 Warranty Walk-Through. CxA will conduct one, ten-month Warranty Walk-Through with TFC and the A/E team to document outstanding warranty items. The walk-through will confirm the performance is still in acceptable condition and that no corrective actions need to be completed by the Contractors. The Warranty Walk-Through is anticipated to be no more than two hours on-site per building.

2.2.6 CxA Services Applicable to all Phases. CxA shall timely deliver the following services, as applicable, during all phases for which CxA is obligated to provide Professional Services to TFC.

2.2.6.1 Critically review and closely scrutinize all documents submitted by third parties, the performance, schedules, and costs of Contractor and all its subcontractors, and evaluate Contractor’s proposed schedule and costs as relevant to each design discipline.

2.2.6.2 Actively participate in all meetings and/or teleconferences to bring the full measure of CxA’s collective experience, expertise and recommendations to the Project as it pertains to the overall Project or to a specific discipline. CxA shall promptly communicate with and respond to requests for information from all members of the Project Team. CxA shall make its CxA Project Manager and other employees available, as reasonably requested by TFC, at all meetings and conference calls scheduled by TFC.

2.2.6.3 Prepare and deliver all meeting agendas and meeting minutes, field reports, and other similar documentation within one (1) week of the respective work or event, unless directed otherwise by TFC.

2.2.6.4 Answer questions and provide clarifications for the Contractor and its subcontractors to facilitate their thorough examination of all Drawings, Specifications and other documents authored by CxA for accuracy, intended completeness, and constructability.

2.3 Additional Services. Services may be required for the design of the Project which are not included as part of the Basic Services described in Section 2.2. If such services are required, they will either be provided by TFC, contracted for separately from a third party, or authorized in writing to be performed by the CxA and paid for by TFC as hereinafter provided. If authorized in writing to be performed by the CxA pursuant to an amendment or otherwise, such services will be subject to this Section 2.3.

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

3.1 Information and Documents to be Provided by TFC. TFC shall, with reasonable promptness, provide information and documents to CxA:

3.1.1 TFC Documents to CxA. When available and applicable, TFC will furnish to CxA copies of or reasonable access to, the following information and documentation regarding the Project:

3.1.1.1 The UGC, Supplementary General Conditions, any Special Conditions, and the A/E Guidelines.

3.1.1.2 Contract forms, bond forms, bidding information and instructions, minimum wage rates for inclusion in the Specifications, and design and construction standards.

3.1.1.3 The PAR for inclusion in the Specifications.

3.1.1.4 Any existing as-built and other Drawings that may impact the design and/or construction of the Project. When required for the Project, TFC shall furnish to the CxA existing boundary surveys and topographic maps giving, as applicable, grades and lines of streets and other physical features, both on and adjoining site, boundaries and contours of land, rights-of-way, restriction, easements, deed restrictions, locations, dimensions and complete data pertaining to existing buildings, location of trees, and full information concerning available Utilities, public and private. TFC shall provide any additional boundary and topographical surveys that are found to be needed during design.

3.1.1.5 Any geotechnical surveys, reports, soil borings and laboratory testing services, including required test interpretations, test data and reports, and traffic impact studies in the possession of TFC.

3.1.1.6 The Project Analysis or equivalent thereof.

3.1.1.7 The Budget and any required delivery schedules.

3.1.1.8 Information concerning the Communication Protocol and EPMCS.

3.1.1.9 TFC’s Project Requirements.

3.1.2 TFC Services to CxA. TFC may further assist CxA as follows:

3.1.2.1 Upon CxA’s receipt of general and criminal background check clearance, TFC may provide assistance to CxA to obtain access to the Site as is reasonably necessary to enable CxA to provide the Professional Services.

3.1.2.2 TFC shall designate the TFC Project Manager who will provide supervision the design and construction of the Project and the Professional Services.

3.1.2.3 TFC may designate a PMF for the Project to provide certain Project management services in addition to those provided by TFC Project…