ESBD_380253_1729271040667_Attachment D - Professional Services Agreement.pdf

TFC Contract No. [Insert] [ARCH Name]

RFQ No. 0002031

INSTRUCTIONS TO ALL RESPONDENTS FOR RFQ NO. 0002031

PROFESSIONAL ARCHITECTURAL AND OTHER RELATED

PROFESSIONAL AND TECHNICAL SERVICES

AGREEMENT

1. Respondents are required to review this Attachment D 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 D 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.

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

Article I, Definitions, Article II, Scope of Services, Article III, Term and Termination Article IV, Subsection 4.1.2, Section 4.2 through 4.6 Article V, Acknowledgement, Covenants, and Agreements Article VI, Warranties and Representations by ARCH Article VII, State Funding Article VIII, Copyrights and Trademarks Article IX, Records, Audit, Proprietary Information, and Public Disclosure Article X, Insurance Article XI, Miscellaneous Provisions

Exhibit A, 2015 Uniform General Conditions Exhibit B, 2018 Supplementary General Conditions Exhibit C, 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 Exhibit F, Criminal Background Checks and Application Guidelines Exhibit G, Approved HUB Subcontracting Plan Exhibit H, HUB Subcontracting Plan Form Exhibit I, HUB Subcontracting Plan Progress Assessment Report Form Exhibit J, Bond Forms

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 Exhibit D, ARCH’s Schedule of Rates and Fees, and Exhibit E, List of ARCH Project Manager and Subcontractors, to General Counsel Division and to the Project Manager for final review and incorporation into this Professional Services Agreement.

Lia Edwards TFC Assistant General Counsel

PROFESSIONAL ARCHITECTURAL AND OTHER RELATED

PROFESSIONAL AND TECHNICAL SERVICES

AGREEMENT

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[INSERT]

The Texas Facilities Commission (hereinafter referred to as “TFC”), a state agency located at 1711 San Jacinto Boulevard, Austin, Texas 78701, as Owner (as defined in 2015 Uniform General Conditions, Section 1.28) and [Insert] (hereinafter referred to as “ARCH,” or for purposes of UGC definition, as “Architect/Engineer,” and “Contractor”), located at [Insert], enter into the following agreement for Professional Architectural and Other Related Professional and Technical Services (hereinafter referred to as the “Agreement”) pursuant to the Professional Services Procurement Act, Tex. Gov’t Code Ann. Ch.

2254, Subchapter. A, to be effective as of the Effective Date (as defined below). The projects for which ARCH agrees to provide Professional Services are generally described as the provision of prime professional architectural services and other related professional and technical services as required by each assigned project, including each component design/construction package that may be prescribed by TFC, as required to address multiple, yet to be determined interior and/or exterior alterations to existing facilities primarily located in Austin, Texas; Dallas, Texas; El Paso, Texas; Fort Worth, Texas; San Antonio, Texas;

and Waco, Texas. Nothing in this Agreement shall be interpreted or construed to make Architect/Engineer (as defined in 2015 Uniform General Conditions, Sections 1.4 and 1.16) a third-party beneficiary hereunder.

I. DEFINITIONS

1.1. Definitions. Unless specifically provided otherwise herein, all words and phrases in this Agreement in initial caps shall have the meanings set out in the 2015 Uniform General Conditions (hereinafter referred to as “UGC”) and this Section 1.1. In the event of any conflict between the definitions in the UGC and in the 2018 Supplementary General Conditions to the 2015 Uniform General Conditions (hereinafter referred to as the 2018 Supplementary General Conditions”), in the TFC 2018 Architectural/Engineering Guidelines Edit Date March 19, 2018 (as defined below), or in any other document referenced herein and incorporated for all purposes, and the definitions in this Agreement, the definitions used in this Agreement shall control to the extent of the conflict.

The 2015 Uniform General Conditions (hereinafter referred to as “UGC”) are incorporated herein for all purposes as Exhibit A.

The 2018 Supplementary General Conditions to the 2015 Uniform General Conditions (hereinafter referred to as the “2018 Supplementary General Conditions”) are incorporated herein for all purposes as Exhibit B.

1.1.1. Additional Services means those services not included in Article II of this Agreement which may be requested by TFC at any time for the duration of this Agreement, as discussed in Section 4.5 below.

1.1.2. A/E Guidelines means the TFC 2018 Architectural/Engineering Guidelines Edit Date March 19, 2018, (also referred to as “A/E Guidelines”). The A/E Guidelines are incorporated herein for all purposes as Exhibit C.

1.1.3. ACC means Autodesk Construction Cloud unless specifically provided otherwise herein.

1.1.4 Basic Services means those Professional Services set forth in Article II below. Such Basic

Services may include, without limitation, architectural design, interior design, furniture, fixtures and equipment layout and consultation, design management, structural engineering, engineering for all MEP Systems, civil engineering, lighting, acoustics, compliance with Title III of the Americans with Disability Act of 1990, 42 U.S. Code (“ADA”), wayfinding, survey, geotechnical engineering, preparation of Drawings, Specifications, and all Construction Documents, construction observation, and construction administration, all as further indicated in Article II of this Agreement.

1.1.5. BIM Execution Plan means a document to be developed by the Parties outlining how a construction project will use Building Information Modeling, in accordance with the A/E Guidelines.

1.1.6. Budget means the construction budget for the Project. A majority of construction budgets are anticipated to range from between $8,000.00 and $250,000.00; however, some construction budgets could be as high as $750,000.00 or more. The Budget may be amended from time to time by TFC as further assessments, design and construction manager cost estimates are provided.

1.1.7. Building Information Modeling, or 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.

1.1.8. Buildings means TFC’s portfolio of buildings.

1.1.9. CAD means AutoCAD DWG format unless specifically provided otherwise herein.

1.1.10. Close-out Documents has the same meaning as defined in UGC, Section 1.10 and includes the Contractor’s marked-up “as-builts.”

1.1.11. Communication Protocol means the communication and tracking procedures to be utilized for interaction and reporting between TFC, Contractors, Subcontractors, and ARCH, including but not limited to, the use of any electronic project management control system utilized by TFC for the Project.

1.1.12. Consideration means the funds and any and all other forms of valid, legal consideration as discussed in Article IV of this Agreement.

1.1.13. Construction Costs means all hard and soft costs for labor, materials, fees, and other similar costs and expenses required to complete the Project, and prepared in the format promulgated by the Construction Specifications Institute.

1.1.14. Construction Documents means, collectively, the drawings, specifications, details, and other documents prepared by the ARCH, 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 Documents become part of the Contract Documents when listed in the Contract or any Change Order.

1.1.15. DD Documents means the design development documents, i.e., such plans, elevations, and such other drawings, calculations, and outline specifications that 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 and type of structure and to coordinate the interface of all architectural and structural elements with all building systems.

1.1.16. 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 ARCH pursuant to the terms of this Agreement.

1.1.17. Design Program means, collectively, the overall goals and design objectives of the Project, the aesthetic considerations, the functional requirements including: (i) allocations of space with uses and adjacency relationships for all areas/spaces; and (ii) 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.

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

1.1.19. 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: (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).

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

1.1.21. Governmental Authorities means all federal, state, and local governmental entities having jurisdiction over the Project, and the ARCH.

1.1.22. Laws and Regulations means any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders of any and all Governmental Authorities, including those governing labor, equal employment opportunity, safety, and environmental protection, including but not limited to, all applicable requirements of Title III of the Americans with Disabilities Act and the Texas Architectural Barriers Act and Texas Accessibility Standards found in Texas Government Code, Chapter 469.

1.1.23. Notice of Termination means the ten (10) day advance written notice of termination that may be delivered pursuant to the terms of this Agreement.

1.1.24. Notice to Proceed (or “NTP”) means the written authorization to proceed with commencement of Professional Services that may be delivered to ARCH by TFC.

1.1.25. PAR means the progress assessment report in such form as is prescribed by TFC and which has the same meaning as defined in UGC, Section 1.31.

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

1.1.27. Periodic Reports means the written reports required to be submitted to TFC by ARCH, which reports shall be compiled and submitted in such form as prescribed by TFC.

1.1.28. Person means an individual, firm, partnership, corporation, association and any other legally recognized entity.

1.1.29. Professional Services means professional architectural or engineering and other related professional and technical services as defined in Texas Government Code, Chapter 2254, Subchapter A, the scope of both of which is set out in Article II below.

1.1.30. Purchase Order means the document signed and issued by the TFC Procurement Director, authorizing the purchase of goods or services under this Agreement.

1.1.31 RAS means a Registered Accessibility Specialist licensed by the Texas Department of

Licensing and Regulation (TDLR) to inspect and ensure that a built environment is compliant with the Texas Architectural Barriers Act (TABA) and the Texas Accessibility Standards (TAS).

1.1.32. Reimbursable Expenses means those reasonable and necessary out-of-pocket costs and expenses incurred by ARCH for the provision of the Professional Services that are approved by TFC pursuant to Section 4.3, of this Agreement.

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

1.1.34. 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.

1.1.35. Scope of Services means the Professional Services as set out in Article II below.

1.1.36. 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 the Contractor and ARCH.

1.1.37. Standard of Care means that certain standard by which ARCH 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.

1.1.38. Subcontract means any agreements between ARCH and a Subcontractor.

1.1.39. Subcontractor means any Person that enters into an agreement with ARCH to perform any part of the Professional Services.

1.1.40. TDLR means the Texas Department of Licensing and Regulations.

1.1.41. TFC Project Manager means the individual designated by TFC as the owner’s designated representative with the direct responsibility to properly supervise the design and construction of the Project, and the services being provided pursuant to this Agreement on behalf of TFC, including, but not limited to, (i) serving as the point of contact between TFC, the Using Agency (if any), and ARCH; and

(ii) supervising TFC’s review and approval of the Professional Services.

1.1.42. Using Agency has the same meaning as defined in Texas Government Code, Section

2166.001(10).

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

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

Project.

1.1.45. Work means the administration, procurement, materials, equipment, testing, and all services necessary for ARCH, and/or its agents, to fulfill ARCH’s obligations under this Agreement.

II. SCOPE OF SERVICES

2.1. Scope of Services. Professional Services under this Agreement will be performed for TFC at various State-owned and/or maintained office buildings throughout Texas, including facilities in Austin, Dallas, El Paso, Fort Worth, Houston, and San Antonio. There is no guarantee of assigned Work or volume of Work under this Agreement. For each proposed Project under this Agreement, the TFC Contract Manager will contact ARCH for a proposal. ARCH shall not include any additional terms and conditions in its proposal and TFC shall not be bound by any terms and conditions contained in a proposal. ARCH will proceed with the Work under the Project only after the proposal is approved by the TFC Contract Manager through the issuance of a Purchase Order. Work performed without a Purchase Order will not be paid. Each Purchase Order shall be subject to the terms and conditions set forth in this Agreement, and shall include a description of the Project assignment, scope of services, project schedule, term and compensation specific to the Purchase Order, which shall be negotiated at the time of such Purchase Order. ARCH agrees to timely deliver the Professional Services described below in accordance with the negotiated project schedule for each Purchase Order.

2.1.1. Pre-Design Phase. ARCH shall timely deliver the following Pre-Design Tasks to TFC.

2.1.1.1. Consult with staff of TFC, and with any representatives of the Using Agency as may be directed by TFC, and become thoroughly familiar with a Project’s requirements.

2.1.1.2. Inspect and timely become thoroughly familiar with a Site for a Project.

2.1.1.3. Review and become thoroughly familiar with any and all relevant and existing Project, Site and facilities studies.

2.1.1.4. Identify all codes, rules, regulations and all other Site-related requirements, including, but not limited to, environmental and/or traffic impact studies that may affect the timely design and construction of the Project.

2.1.1.5. Interface with all Utility Providers as is reasonably necessary in order to determine the necessary specifications for connecting all Utilities to the Project.

2.1.1.6. Receive and become familiar with requirements of the technical and design standards of TFC and the Using Agency, including, but not limited to, the A/E Guidelines, Exhibit C. Any deviation from the A/E Guidelines must receive prior written approval as indicated in the A/E Guidelines.

2.1.1.7. Determine and identify to TFC which additional Subcontractor(s), if any, that are not engaged, or shall be engaged, by ARCH pursuant to this Agreement, will be necessary to complement the Professional Services in order to fulfill requirements of this Agreement.

2.1.1.8. BIM/EPMCS. ARCH represents that it is proficient in the use of BIM systems, the ACC, and the EPMCS utilized by TFC. A/E will become familiar with requirements of the technical and design standards of TFC and the Using Agency, including, but not limited to, the A/E Guidelines, and coordinate the manner of implementing the BIM system and the EPMCS that will be utilized by TFC throughout the design and construction of the Project. If requested, ARCH will assign appropriate A/E staff to receive instruction regarding the use of the ACC and EPMCS to be utilized by

TFC.

2.1.1.9. BIM Model. ARCH will provide all Services and Deliverables required of ARCH as designated in the BIM Execution Plan. All BIM models shall be structured in accordance with the A/E Guidelines, be developed from currently adopted TFC template files, and reside in TFC’s ACC from the beginning of the project throughout all project phases. Without limitation, ARCH may be called upon to provide (1) process and management of conflict resolution and documentation, including frequency of meetings; and (2) reports and other BIM Deliverables as set forth in the BIM Execution

Plan. Electronic versions of all DD Documents will be delivered to TFC as indicated in the A/E Guidelines. ARCH shall report in writing to TFC any deviations between TFC-provided information or programs and the DD Documents presented.

2.1.2. Construction Documents Phase. ARCH shall deliver the following Construction Documents phase services to TFC.

2.1.2.1. In accordance with a mutually agreed upon schedule for each Purchase Order, ARCH shall prepare and deliver to TFC the proposed one hundred percent (100%) complete Construction Documents.

2.1.2.2. ARCH shall meet with TFC to review the one hundred percent (100%) complete Construction Documents.

2.1.2.3. ARCH shall timely incorporate responses to TFC review comments into the Construction Documents.

2.1.2.4. In conjunction with the A/E Guidelines and BIM Execution Plan, Construction Documents shall be produced on a BIM system as part of Basic Services. TFC will define the BIM drawing requirements and the final media for the BIM data. Any drawing revisions shall be investigated and coordinated with other design documents and the BIM process. Any redesign required as a result of conflict and/or comparison with the BIM process, if any, shall be provided by ARCH in electronic version and provided to TFC as part of Basic Services

2.1.2.5. All Drawings shall be organized in accordance with the A/E Guidelines.

2.1.2.6. Drawing file format and names shall be in accordance with the A/E Guidelines.

2.1.2.7. All electronic data shall include an organized indexing system and/or a table of contents sufficiently detailed as to each discrete subject matter so as to allow for easy identification and location of each file or page of information.

2.1.2.8. Upon written request by TFC, ARCH shall prepare the Construction Documents so as to enable the various phases of the Work to be awarded pursuant to separate contracts, the preparation of which shall constitute an Additional Service.

2.1.2.9. All Drawings and Specifications shall be appropriately signed, sealed and dated by the responsible architect(s) and engineer(s).

2.1.2.10. Construction Documents must comply with all Laws and Regulations. All Drawings and Specifications must, in conspicuous text, expressly prohibit any electrical systems or equipment from being energized or otherwise activated without a minimum of twenty-four (24) hour advance notice to TFC.

2.1.2.11. No Construction Documents shall be issued, delivered, or released for any purpose without the prior written consent of TFC.

2.1.3. Contract Bidding and Award Phase. Only upon receipt of an applicable written authorization to proceed, ARCH shall prepare and deliver to TFC the following contract bidding and award phase services for a Project.

2.1.3.1. Prepare any addenda and/or amendments to the solicitation documents as necessary.

2.1.3.2. In the event ARCH receives any inquiries whatsoever from bidders or potential bidders regarding a Project, ARCH must refer such inquiries to the appropriate TFC Procurement Division Purchaser indicated in the solicitation document. ARCH is not authorized to provide any comments, answers or other similar responses to such inquiries. All inquiries must be forwarded to TFC for response.

2.1.4. Construction Phase–General Administration of Construction Contract. ARCH shall deliver the following management and administration of construction contract services to TFC during the construction phase of a Project as is specified in the UGC and as follows.

2.1.4.1. When requested by TFC and on an hourly basis, perform professional observation and review of the Work in order to determine that all elements and components of a Project are being timely constructed and installed in substantial compliance with the Construction Documents. Such observation and review shall include, at a minimum, the following services.

2.1.4.1.1. Such observations shall include, but not be limited to, all functions applicable to professional inspections that are described in Texas Government Code, Sections 2166.351(3) and 2166.355.

2.1.4.1.2. No later than the RFI Response deadline, prepare and deliver an RFI Response for each RFI to TFC. If the subject of the RFI cannot be reasonably answered by this deadline, advise TFC and propose an alternative deadline and the basis for such proposal, the acceptance of which shall be in the sole discretion of TFC. Make reasonable efforts to answer a Contractor’s questions and RFIs in the shortest timeframe possible in order to collaborate in the prosecution of a Contractor’s Work (as defined in UGC Section 1.48) on a schedule that recognizes that “TIME IS OF THE ESSENCE.

2.1.4.1.3. Timely review and deliver to TFC complete responses within the specified deadlines to the submittals described below. If the deadline cannot be met, advise TFC and Contractor and propose an alternative deadline and the basis for such proposal, the acceptance of which shall be within the sole discretion of TFC. Make reasonable efforts to review submittals in the shortest timeframe possible to collaborate in the performance of a Contractor’s work on a schedule that recognizes that “TIME IS OF THE ESSENCE”.

2.1.4.1.4. Submittals shall be due within fourteen (14) calendar days after receipt.

2.1.4.1.5. Proposed Change Order (as defined in UGC Section 1.32) reviews and Unilateral Change Order (as defined in UGC, Section 1.47) reviews shall be due within five (5) days after receipt.

2.1.4.2. Prepare such amended or revised Drawings (as defined in UGC Section 1.22) and/or Specifications (as defined in UGC Section 1.41) as would be necessary to fully and accurately reflect any approved changes.

2.1.4.2.1. Deliver said amended or revised Drawings and/or Specifications to TFC.

2.1.4.2.2. Thereafter, review the Contractor’s proposal and recommend approval or disapproval to TFC.

2.1.4.3. In the event TFC and ARCH conclude that the Work, or any portion thereof, has not been performed or completed in accordance with the Construction Documents, notify TFC in a written report.

2.1.4.4. Continue to perform the foregoing described service until TFC can establish that the work is complete.

2.1.4.5. In the event TFC and ARCH conclude that any of the pre-final inspection punchlist items have not been corrected or completed in accordance with the Construction Documents, prepare and deliver, no later than the post-final inspection punchlist deadline, a post-final inspection punchlist to TFC.

2.1.4.6. Upon request from TFC, review Record Documents (as defined in UGC Section 1.34) for accuracy and completeness and provide a report of any deficiencies.

2.1.5. ARCH Services During All Phases. ARCH shall timely deliver the following services, as applicable, during all phases for which ARCH is obligated to provide Professional Services to TFC.

2.1.5.1. Critically review and closely scrutinize all documents submitted by all third parties.

2.1.5.2. Thoroughly review and closely scrutinize the performance, schedules and costs of a contractor and all its subcontractors.

2.1.5.3. Critically review and evaluate Contractor’s proposed schedule and costs as relevant to each consultant’s discipline.

2.1.5.4. Maintain work progress and products consistent with the schedules.

2.1.5.5. Provide supplemental information beyond that presented in a submission of documents which may be reasonably requested to assist cost estimating.

2.1.5.6. Promptly communicate with pertinent parties, including topics regarding information needs and responses to needs of other parties.

2.1.5.7. Actively participate in all meetings and/or teleconferences to bring the full measure of ARCH’s collective experience, expertise and recommendations to a Project as it pertains to the overall project or to a specific discipline.

2.1.5.8. 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.

2.1.5.9. 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 ARCH for accuracy, intended completeness and constructability.

2.1.5.10. Ensure that ARCH Project Manager and any other representative of ARCH whose presence is requested by TFC, attend all meetings and participate in all conference calls that are scheduled by TFC.

2.1.6. TFC Approvals. Any provisions in this Agreement to the contrary notwithstanding, all consents and/or approvals by TFC shall be in its sole and absolute discretion, and must be in writing.

2.1.6.1. No changes to the scope of the Professional Services or the Consideration shall be valid or enforceable unless evidenced by a fully executed written amendment to this Agreement, as set forth in Article IV of this Agreement.

2.1.6.2. ARCH is not authorized to commence providing any Professional Services to TFC or any Using Agency with respect to the Project unless and until an appropriate Notice to Proceed is delivered by TFC.

2.1.6.3. TFC, including by and through the TFC Project Manager, reserves the right to extend any of the deadlines set out above.

2.1.7. Inspections. TFC hereby reserves the right, if deemed appropriate by TFC in its sole discretion, to conduct reviews or inspections during the course of design and construction of a Project.

However, ARCH shall not be relieved of any of its obligations arising pursuant to this Agreement. No inspections of the Project conducted by TFC during the course of construction, either singularly or in the aggregate, shall reduce the level or extent of ARCH’s responsibilities arising pursuant to this Agreement.

Neither the approval and/or final acceptance of a Project or any Deliverables, the payment of any invoice, or the issuance of any Certificates of Final Completion (as defined in UGC Section 1.7) or Substantial Completion (as defined in UGC Section 1.8) by TFC shall constitute, nor be deemed, a release of ARCH’s obligation to perform and timely deliver the Professional Services and any Additional Services (i) in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances; or (ii) as required under this Agreement.

III. TERM AND TERMINATION

3.1. Term of Agreement. This Agreement shall be effective as of the Effective Date and shall terminate on [Insert Date], unless extended or renewed by the parties by amendment to this Agreement or terminated earlier, as provided below. TFC retains the right and option to unilaterally renew this Agreement by written Amendment, upon notice to ARCH, for an additional two (2) year period. In addition, the parties may, upon agreement between the parties as evidenced by a written amendment executed prior to the final expiration of the Term of Agreement, extend the Agreement for a period not to exceed four (4) months for the purpose of re-solicitation.

3.2. Early Termination. This Agreement may be terminated by TFC for its convenience, in whole or in part, at any time without cause, upon delivery of a Notice of Termination to ARCH at the address of record as specified in this Agreement. Upon receipt of a Notice of Termination, ARCH will immediately cease all Professional Services and undertake to terminate any relevant Subcontracts and will incur no further expense related to this Agreement. Such early termination shall be subject to the equitable settlement of the respective interests of the parties accrued up to the date of termination.

IV. CONSIDERATION

4.1. Contract Limit–Fees and Expenses.

4.1.1. Fees. In exchange for the timely delivery of the Professional Services as specified by this Agreement, ARCH shall be paid fees and Reimbursable Expenses in accordance with Section 4.3, below, in a total amount not to exceed [INSERT]. Hourly rates shall be invoiced in accordance with ARCH’s Schedule of Rates and Fees, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit D. Any Professional Services performed or delivered by ARCH prior to the Effective Date of this Agreement or after its termination cannot be compensated.

4.1.2. Submission of Invoices. No more frequently than once per month, ARCH shall submit invoices to TFC for (i) services performed based on the schedule set forth in Exhibit D and issued purchase orders; and (ii) reasonable and necessary costs and expenses incurred through the last day of the previous month. Each invoice shall reference services performed under the contract by Purchase Order number. TFC agrees to pay ARCH in accordance with Chapter 2251 of the Texas Government Code, also known as the “Prompt Payment Act.”

4.2. Payments. Payments shall be made to ARCH monthly in proportion to the services performed.

The compensation for services shall be based upon hours of work performed and completed.

4.3. Maximum Reimbursable Expenses. Reasonable lodging and traveling expenses shall be considered a Reimbursable Expense under this Agreement when professional and technical personnel of ARCH are away from the cities in which they are permanently assigned and are conducting authorized business directly connected with this Agreement. For the purposes of this Agreement, no travel reimbursement shall be made for travel within 100 miles of the location identified as the principal place of business or branch office of ARCH, except for overnight stays, which require prior TFC project manager approval. The maximum amount for each Reimbursable Expense for travel and lodging shall be the rates established by the Texas Comptroller of Public Accounts, and outlined in Textravel, https://fmx.cpa.texas.gov/fmx/travel/textravel/index.php, formerly known as the State of Texas Travel Allowance Guide for state employees. No Reimbursable Expenses shall exceed actual cost. In addition to those items specifically identified above as a Reimbursable Expense, and associated costs, certain other incidental direct expenses including, but not limited to, copying, telephone, data, and express mail services, and rental of special equipment or tools required in connection with provision of the Professional Services for the Project, may constitute a Reimbursable Expense; provided however, ARCH must obtain the written approval of TFC prior to incurring the expense. Approval may be granted only under those limited circumstances wherein such costs are not considered normal or customary basic services under this Agreement. All requests for reimbursement must be accompanied by such documentation which, in the judgment of the TFC, allows for complete substantiation of the costs incurred.

4.4. Notice of Depletion. Within seven (7) days of when the accumulated amount of Fees and Reimbursable Expenses reaches eighty percent (80%) of the maximum not-to-exceed contract amount(s), ARCH shall deliver written notice thereof to TFC. Nothing herein shall be construed to require TFC to increase the approved maximum not-to-exceed contract amount(s) established pursuant to this Agreement.

4.5. Additional Services. Upon request by TFC for Additional Services, ARCH shall prepare and submit a proposal for such Additional Services to TFC for approval. Additional Services shall be performed at a rate negotiated between TFC and ARCH and must be approved by the parties by amendment to this

Agreement. Any Additional Services performed or delivered by ARCH prior to execution of the Agreement or amendment thereto, as applicable, cannot be compensated.

4.6. Payments to Subcontractors. For all services rendered, ARCH’s payment to Subcontractors is due within ten (10) days after receipt of payment from TFC and, when appropriate in the sole discretion of TFC, TFC may issue joint checks to ARCH and Subcontractors.

V. ACKNOWLEDGEMENT, COVENANTS, AND AGREEMENTS

5.1. Acknowledgement, Covenants, and Agreements of TFC. TFC acknowledges, covenants, and agrees, as follows.

5.1.1. TFC Deliverables to ARCH. TFC shall provide ARCH a copy of, or reasonable access to, the following information and documentation regarding the Project, the substance of which ARCH shall incorporate into the DD Documents.

5.1.1.1. The UGC.

5.1.1.2. Any Supplementary General Conditions.

5.1.1.3. Any Special Conditions.

5.1.1.4. Sample copies of the following:

5.1.1.4.1. contract forms; and

5.1.1.4. 2. bond forms, incorporated herein by reference as Exhibit J.

5.1.1.5. Bidding information and instructions.

5.1.1.6. Minimum wage rates.

5.1.1.7. The PAR for inclusion in the Specifications.

5.1.1.8. Any maps and Drawings in the possession of TFC that reflect or depict Site boundaries, recorded easements, topography, utility locations, and such other documents in the possession of TFC that reflect Site conditions and/or restrictions which may impact the design and/or construction of the Project.

5.1.1.9. Any soil reports or traffic impact studies in the possession of TFC.

5.1.1.10. The Project Analysis, or equivalent thereof.

5.1.1.11. The Budget.

5.1.1.12. The Communication Protocol.

5.1.2. TFC Services to ARCH. TFC shall provide, or cause to be provided, the following services to PE.

5.1.2.1. Upon ARCH’s receipt of general and criminal background check clearance, assist ARCH in obtaining such access to the Sites as is reasonably necessary to enable ARCH to provide the Professional Services.

5.1.2.2. Designate the TFC Project Manager who will supervise the design and construction of the Project and the services being provided pursuant to this Agreement and the respective Contract Documents.

5.1.2.3. Provide intermediate reviews of the work product of ARCH as necessary to allow ARCH to proceed with delivery of the Professional Services in a timely manner.

5.2. Acknowledgements, Covenants, and Agreements of ARCH. ARCH acknowledges, covenants, and agrees as follows.

5.2.1. Timely Delivery of Conforming Services. ARCH will, subject to Force Majeure events, as defined in Section 11.14 below, timely provide the Professional Services in conformity with, and as specified in, this Agreement, the UGC, the Supplementary General Conditions, any Special Conditions, and in the Construction Documents.

5.2.2. Modifications. Modifications to the Construction Documents which are made necessary by the errors and/or omissions of ARCH shall be corrected by ARCH at its sole cost and expense.

5.2.2.1. For purposes of this subsection, an omission is defined as any change or addition to the Construction Documents required to make the Project conform to its original design intent.

5.2.2.2. For purposes of this subsection, an error is defined as any change or addition to the Construction Documents where remediation of previously constructed or installed Work must take place in order to meet code and/or design intent or any omission that is caused by willful misconduct or gross negligence by ARCH. In the event that ARCH is determined to have been the cause of such an error, ARCH shall bear the reasonable construction costs to resolve said error.

5.2.3. Limitation of Authority. ARCH agrees that the TFC Contract Manager shall not have any express or implied authority to vary or otherwise amend the terms and conditions of this Agreement in any way, or waive strict compliance with the terms and conditions of this Agreement, except as to the deadlines set out in Section 2.1 above, any deviation from which must be evidenced by the TFC Contract Manager in writing.

5.2.4. ARCH Safety. All ARCH’s and subcontractors conducting work for TFC shall abide by all OSHA rules and regulations provided by the Department of Labor, OSHA, Code of Federal Regulations, Chapter 29. Employees of ARCH and subcontractors shall be trained in accordance with Chapter 29, Occupational Safety and Health Regulations. ARCH and subcontractors shall inform the TFC Contract Manager of their Hazardous Electrical Energy Control, Lockout/Tag-out Procedure. ARCH’s procedure must meet or exceed TFC’s procedure as determined by the TFC Contract Manager. Work shall not be done on energized electrical circuits, components or equipment. When de-energizing is impractical due to possible harm to personnel, equipment or facility damage, negative onsite or offsite environmental impact, or business interruption Contractor must follow OSHA requirements as detailed in OSHA Regulations

1910.331 – 1910.399.

5.2.5. Cooperation. All project managers, employees, and associated Subcontractors shall cooperate with and assist each other and all other Contractors and design professionals retained by TFC.

5.2.6. ARCH Cooperation. ARCH agrees to conduct all of its services under this Agreement by and through appropriate communications with the TFC Contract Manager. No work, installation or other services shall be undertaken by ARCH except with the prior written direction of the TFC Contract Manager.

ARCH understands and agrees that work, installation or any other service performed without the prior written direction of the TFC Contract Manager is work outside the scope of this Agreement and shall be performed exclusively at ARCH’s risk. ARCH agrees to employ competent personnel meeting the requirements outlined in the specifications, who shall be satisfactory to TFC. Personnel assigned to perform services under this Agreement may not be reassigned without the prior written approval by the TFC Contract Manager. TFC may request that ARCH replace unsatisfactory personnel, which request shall not be unreasonably denied. ARCH agrees to cooperate and coordinate its work with that of other Contractors retained by owner. Upon discovery of an apparent conflict in the sequencing of work with another Contractor, ARCH shall report the concern to the TFC Contract Manager who will resolve the conflict.

5.2.7. E-Verify. By entering into this Agreement, ARCH certifies and ensures that it utilizes and will continue to utilize, for the term of this Agreement, the U.S. Department of Homeland Security’s E- Verify system, in accordance with the U.S. Department of Homeland Security’s rules, to determine the eligibility of: all persons employed to perform duties within the State of Texas, during the term of the Agreement; and all persons (including subcontractors) assigned by the ARCH to perform work pursuant to the Agreement, within the United States of America. ARCH shall provide, upon request of TFC and if available, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three (3) most recent hires that match the criteria above, by the ARCH, and ARCH’s subcontractors, as proof that this provision is being followed. If this certification is falsely made, the Agreement may be immediately terminated, at the discretion of TFC, and at no fault to TFC, with no prior notification. ARCH shall also be responsible for the costs of any re-solicitation that TFC must undertake to replace the terminated Agreement. For persons not eligible for E-Verify screening, ARCH (including sub-contractors) shall provide, upon request by TFC, another form of documentation of proof of eligibility to work in the United States of America.

5.2.8. Identification of Project Manager and All Subcontractors. The Project Manager identified in the initial List of ARCH Project Manager and Subcontractors (hereinafter referred to as the “List”), attached hereto and incorporated herein for all purposes as Exhibit E, will supervise the efforts of ARCH to timely provide TFC with the Professional Engineering Services required by this Agreement.

5.2.8.1. The Project Manager must be committed to the Project on a full- time basis. TFC reserves the right to approve the appointment of the Project Manager and to demand that the Project Manager, and any of ARCH’s employees or Subcontractors, 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 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 Laws and Regulations; (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.

5.2.8.2 . The Project Manager and Subcontractors identified in the List shall not be removed or replaced by PE, nor shall any other Subcontractors be engaged by ARCH, unless prior written consent is obtained from TFC, which consent shall not be unreasonably withheld, conditioned, or delayed.

5.2.9. Buy Texas. If ARCH is authorized to make purchases under this Agreement, ARCH certifies that ARCH will buy Texas products, services, and materials when available at a comparable price and in a comparable period of time pursuant to Texas Government Code, Chapter 2155.

5.2.10. 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 said Deliverables or Professional Services.

5.2.11. No Guaranty. ARCH does not control or guarantee the performance of any Contractor, provided however, ARCH shall promptly notify TFC of any observation of a Contractor’s or subcontractor’s failure to perform their duties and responsibilities in accordance with the Construction Documents and Work Progress Schedule, and shall recommend to TFC candidate measure(s) to correct such failures.

5.2.12. Debts or Delinquencies Owed to the State. Any payment due under this Agreement may be withheld and applied toward payment of any debt that is owed to the State of Texas including, but not limited to, delinquent taxes and child support pursuant to Texas Government Code, Section 43.055.

5.2.13. General and Criminal Background Check.

5.2.13.1. ARCH represents and warrants that neither ARCH nor any of ARCH’s employees, have been convicted of a felony criminal offense, or of a crime involving moral turpitude, or that, if such a conviction has occurred, ARCH has fully advised TFC in writing as to the facts and circumstances surrounding the conviction(s).

5.2.13.2. All of ARCH’s employees and Subcontractors that will perform any Professional Services on-site at a state-owned property shall be subject to a criminal background check.

Any expense associated with such criminal background check shall be borne by ARCH.

5.2.13.2.1. All criminal background check forms for all of ARCH employees and Subcontractors that will initially commence any work on-site must be fully completed and submitted to TFC within fifteen (15) days of the date of the notice of award, and the process thereafter must be diligently pursued by ARCH.

5.2.13.2.2. The process must be satisfactorily completed for every employee and Subcontractor before they perform services at the Site.

5.2.13.2.3. All criminal background checks must be accomplished by the Texas Department of Public Safety (hereinafter referred to as “DPS”), which includes fingerprint processing by an independent third-party company selected by DPS. Upon receipt of the fingerprints of ARCH’s employees and/or Subcontractors, DPS or TFC, will adjudicate the results of the criminal background searches in accordance with the criteria set forth in the Texas Facilities Commission Criminal Background Checks and Application Guidelines, incorporated herein for all purposes as Exhibit F:

ARCH’s or Subcontractor’s failure to timely secure criminal background check clearance shall not be considered a legitimate delay in the Professional Services Schedule.

5.2.14. Equal Opportunity. ARCH shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, national origin, disability, political affiliation, or religious belief. ARCH shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex, religion, age or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. ARCH shall post in conspicuous places, available to employees or applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination subsection. ARCH shall include the above provisions in all Subcontracts pertaining to the Professional Services.

5.2.15. No Advertising. ARCH shall not advertise that it is doing business with TFC or use this Agreement as any sort of marketing or sales tool without the prior written consent of TFC.

5.2.16. No Warranties by TFC. ARCH acknowledges that any and all tests, maps, reports, and drawings and any other documentation (hereinafter referred to collectively as “Reports”) in the possession of TFC that reflect or depict any Site boundaries, recorded easements, topography, utility locations, and other Site conditions and/or restrictions which may impact ARCH’s prosecution of the Work were prepared solely for the benefit of TFC, and that ARCH shall have no right to…