ESBD_383171_1732120762912_2024.11.20 - RFQ for Engineering Svcs. 25-00091 - TSUS Lake Ament Dam PE Agreement for CSP (ESBD Attachment A)final.pdf

THE TEXAS STATE UNIVERSITY SYSTEM

OWNER /PROFESSIONAL ENGINEER AGREEMENT

(Competitive Sealed Proposals)

THIS AGREEMENT between the State of Texas, acting through the Board of Regents of The Texas State

University System (“Owner”), and [Professional Engineer Name] (“PE”) is effective the_______ day of

___________, 20___.

WHEREAS, the Owner intends to pursue the Lake Ament Dam Alteration project (the “Project”) at the

Owner’s property north of Terlingua, Texas and

WHEREAS, the Construction Cost Limitation (“CCL “) for the Project is _________________________

Dollars ($_______________), and is defined as the estimated cost of construction, which may include an

Owner’s contingency allowance. This will be the Owner’s target amount for the contract price under a

Competitive Sealed Proposal (“CSP”) construction contract.

NOW THEREFORE, the Owner and PE, for considerations as set forth, agree as follows:

ARTICLE 1 SCOPE OF SERVICES

1.1 The PE agrees to perform professional engineering services (the “Services”) for the Project, both as specified more particularly in Article 3 in accordance with its applicable Standard of Care (see

Paragraph 1.2 below). The term “Services” includes all engineering services required to alter the dam in full compliance with the requirements of TAC, Title 30, Part 1, Chapter 299 – Dam and

Reservoirs. The description and scope of the Project is as follows:

1.1.1 Lake Ament Dam (U.S. Army Corps of Engineers N.I.D. ID TX06492) is located on an unnamed tributary of Dark Canyon Creek in the Rio Grande River Basin, 10 miles north of

Study Butte in Brewster County, Texas. The approximate latitude and longitude coordinates of the dam are 29° 27’ 10.28” N and 103° 29’ 31.36” W. The rock masonry dam was constructed circa 1910’s and is approximately 125 feet long, with a crest width of approximately 12 feet, and a height of 56 feet. It is classified as intermediate size, based on maximum storage capacity at the top of the dam of 1,275 acre-feet. Under existing conditions, Lake Ament Dam is classified as a high hazard dam based on the risk of loss of life and property damage downstream of the dam in the event of a dam breach. In its current configuration, the dam can retain 54.8 percent of a Probable Maximum Flood (“PMF”) without overtopping, and the minimum requirement is that the dam must safely pass 81.7 percent of the PMF. The dam was apparently designed to overtop during excess inflows and meets the hydraulic requirements of Texas Commission on Environmental Quality

(“TCEQ”) so it can be considered hydraulically adequate. However, there are other requirements that must also be fulfilled to consider the dam a being able to “safely pass” the design storm. Lake Ament Dam has several observed deficiencies that may prevent the dam from performing as originally designed.

1.1.2 The Owner intends to remove a portion of the dam, lowering it from its approximately 56-foot-height to a 22.5-foot-high structure. The top of the dam and downstream steps would have a concrete cap secured with dowels to avoid water penetrating the rock masonry dam and protect it from erosion. The reduction of the dam height will potentially modify the hazard classification to low hazard and modify the size classification of the dam to a small size dam with a maximum storage of 24 acre-feet.

1.1.3 The PE shall assist the Owner in securing all necessary approvals from TCEQ and other authorities having jurisdiction in the design and performance of the Project.

1.2 To the fullest extent as may be required pursuant to Section 271.904 of the Texas Local Government

Code (pursuant to Section 2254.0031 of the Texas Government Code) and Chapter 130, Texas Civil

Practice and Remedies Code, or as otherwise permitted by applicable law, the PE shall perform its services consistent with the professional skill and care ordinarily provided by competent design professionals practicing under the same or similar circumstances and professional licenses and as expeditiously as is prudent considering the ordinary professional skill and care of such competent engineer (the “Standard of Care”). Subject to its Standard of Care, the PE shall perform such services consistent with the orderly progress of the Project and within the time parameters as may be required by this Agreement.

1.3 PE shall not replace the in-house personnel named in its submitted Qualifications to lead the Project or its phases identified in the scope of work without prior written approval from the Owner.

1.4 Definitions:

1.4.1 Construction Cost Limitation (“CCL”): means the maximum monetary amount payable to the Contractor for all Construction Phase services, materials, labor and other work required for completion of the Work in accordance with the Contract Documents. The CCL includes, without limitation, the General Conditions Costs, the Cost of the Work, the Contractor’s

Overhead and Profit. The CCL may be adjusted by the parties for changes in the scope of the Project before or after acceptance of the Contractor’s Price Proposal. The CCL does not include the Owner’s Construction Contingency or Owner’s Special Cash Allowance.

1.4.2 Contractor: See as defined in Article 1 of the UGC.

1.4.3 Project Management Software System (“PMSS”): Owner’s designated project management software system used by the Project team to transact, correspond, and maintain project related correspondence and documentation throughout the life of the Project including

Project close-out and final payments. Licensing costs for the PMSS are the responsibility of the Owner.

1.4.4 Work: See as defined in Article 1 of The Uniform General Conditions, as modified by The

Texas State University System for its use and published date of December 1, 2021, a copy of which is published on the Owner’s website https://www.tsus.edu/offices/finance/capital-projects.html (referred to herein as the “UGC”).

ARTICLE 2 PROVISIONS RELATED TO FEE AND REQUIRED INSURANCE

2.1 The Owner agrees to pay the PE a lump sum fee (“Fee”) of _________________________ Dollars

($_______________). The Fee will not change unless the Owner directs significant changes to the https://www.tsus.edu/offices/finance/capital-projects.html https://www.tsus.edu/offices/finance/capital-projects.html quantity, quality standards or types of construction included in the Project. Without limiting the generality of the foregoing statement, the Fee will not change due to increases or decreases in the

CCL (Paragraph 8.2).

2.1.1 << The Fee is inclusive of all reimbursable expenses of the PE.>> or <<Any expenses that are reimbursable to the PE under this Agreement shall be billed to the Owner monthly as a direct expense, without any markup for overhead or profit. [If a specific limitation on reimbursable expenses is desired, add the following sentence: Such reimbursable expenses shall be limited to a maximum of ___________________ Dollars ($_________).] Travel costs, but not the salary costs during travel, of out of town trips required by the Owner shall be treated as reimbursable expenses under this Agreement. Reimbursement for these expenses shall be limited to the lesser of actual expenses incurred and the reimbursement rates then allowable for travel by employees of the State of Texas.>>

2.2 The PE services contracted in this Agreement, and those services that may be added by Amendment, are those normal and customary services necessary to the design and construction administration of a project of the type, size, and quality standards as indicated by the Scope of Work provided by the

Owner. The PE shall not deviate from the Scope of Work requirements without written approval from the Owner’s Designated Representative (“ODR”). The PE services required are further defined and detailed in, but not limited by, Article 3.

2.3 The terms and conditions of payment for the Fee shall be as described in Article 7.

2.4 The PE agrees to make a Good Faith Effort to allocate twenty percent (20%) of the services required under this Agreement to qualified consultants, which are Historically Underutilized Businesses

(“HUB” or “HUBs”). If the PE is a HUB, it shall perform at least twenty-five percent (25%) of the work. At the time of the construction contract award, the PE shall report and justify to the Owner the percentages of work performed by HUBs.

2.5 Insurance Coverage. The PE shall carry such professional liability/errors and omissions insurance, covering the services provided under this Agreement, whether provided by the PE or by any of its consultants or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable (collectively, “Consultants”), and other coverages as further described, acceptable to and approved by the Owner. The fees for such insurance will be at the expense of the

PE. The insurance policy shall remain in force for a period of one (1) year beyond the final Project completion date. Upon request, PE shall provide a Certificate of Insurance written on a standard

ACORD form acceptable to the Owner, evidencing the existence of the PE’s required insurance coverages and including the expiration date. Within five (5) business days of the Owner’s request, PE shall provide the Owner a complete copy of each insurance policy required under this Agreement, with all their endorsements, without cost to Owner. Each request for payment by the PE shall include the expiration date of the insurance. Upon request PE shall deliver to Owner replacement certificates not less than thirty (30) calendar days prior to the expiration of any such insurance. If, however, PE fails to pay any of the renewal premiums for the expiring policies, Owner shall have the right (but not the obligation) to make such payments and set off the amount thereof against the next payment coming due to PE under this Agreement.

2.5.1 Professional Liability Insurance is required with a minimum limit of One Million Dollars

($1,000,000) each claim and Two Million Dollars ($2,000,000) aggregate. If a copy is requested, the Certificate shall indicate the expiration date of the PE’s professional liability and errors and omissions insurance. The Certificate is to identify the specific name of the

Project according to the terms of this Agreement and identify the Board of Regents of The

Texas State University System as the Project’s Owner.

2.5.2 On Site Insurance: For services performed on Owner's premises, and if so requested, the PE shall furnish to Owner Certificates of Insurance as set forth below prior to the commencement of any work hereunder and shall maintain such coverage during the full term of the Agreement.

Worker's Compensation Statutory Limits

Employer's Liability

Bodily Injury by Accident

Bodily Injury by Disease

Bodily Injury by Disease

$1,000,000 each accident

$1,000,000 policy limit

$1,000,000 each employee

Commercial General Liability $1,000,000 each occurrence

$2,000,000 aggregate

$10,000 Medical Expense each person

Business Auto Liability

Combined Single Limit $1,000,000 each occurrence

2.5.3 Notice of Cancellation: Required insurance shall not be cancelable without written notice to the certificate holder in accordance with the terms of the insurance policy. The PE agrees to provide to the Owner notice of cancellation of any required insurance within five (5) business days of its receipt of notice of such cancellation.

2.5.4 PE shall include the Owner as an additional insured on the General Liability policy, and the

Worker’s Compensation policy shall include a waiver of subrogation in favor of the Owner.

To the fullest extent permitted by applicable law, including but not limited to Section

271.904 of the Texas Local Government Code, such General Liability policy shall provide for the defense of the additional insureds in suits or legal actions brought against additional insureds on claims that, if proven by final judgment, would constitute covered claims under such General Liability policy.

2.5.5 PE shall require its Consultants to maintain Commercial General Liability and Business Auto

Liability coverage with a company satisfactory to Owner and with limits acceptable to Owner and with limits as stated under paragraph 2.5.2, or as otherwise acceptable to Owner.

ARTICLE 3 SERVICES OF THE PE

3.1 Preliminary Design Phase

3.1.1 Based upon the Scope of Work provided by the Owner, careful observation and investigation of the project site and existing conditions by the PE and their Consultants, the CCL, and a desired Project Schedule established by the Owner, the PE shall prepare a conceptual design of the Project to satisfy Owner’s requirements and at completion of this phase, shall submit

Preliminary Design documents.

3.1.2 The PE shall prepare meeting minutes for any meetings attended that reflect discussions, outcomes and pending issues that require further action by the responsible parties. Meeting minutes shall be presented to the ODR and all attendees within seven (7) business days from the date of the meeting to allow for comments and/or corrections to the minutes. The PE may be required to attend a project meeting weekly either in person, through video conferencing, or telephonically as directed by the ODR.

3.1.3 The PE shall furnish and deliver to the Owner electronic and printed sets of Design documents, in the quantity and type requested by the ODR. All sets shall be distributed as directed by the ODR.

3.1.4 The PE shall direct the preparation of a detailed construction cost estimate to confirm compliance with the CCL and complete it within two (2) weeks of delivering the completed

Design documents. (See Section 6.2 for estimate requirements). The PE shall consult with the Owner, and its designated representatives including the ODR, and recommend any value engineering adjustments to the Project that may be necessary to align the cost estimate and the Project budget with the established CCL. The PE shall revise the Design documents as may be required to incorporate value engineering recommendations accepted by the Owner.

3.1.5 Before proceeding into the Construction Document Phase, the PE shall obtain Owner’s written acceptance of the Preliminary Design documents and approval of the mutually established CCL and schedule by the ODR. The PE shall upload into the Owner’s PMSS a complete documents for this phase of the design in a format acceptable by the ODR for the record (i.e. all drawings, specifications, product data, studies, reports, cost estimates, etc.).

3.2 Construction Document Phase

3.2.1 Based on the approved Design documents and any further adjustments in the scope or quality of the Project or in the CCL authorized by the Owner, the PE shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications in accordance with Owner’s written requirements setting forth in detail the requirements for construction of the Project. The plans, drawings, and specifications for the entire Project shall be prepared so that the construction of the Work, will cost no more than the CCL established by Owner. The PE is responsible for managing the design elements of the Project to stay within the CCL based upon pricing information provided by its independent cost estimator.

3.2.2 The PE shall advise the Owner on matters such as construction phasing and scheduling, bid or proposal alternates, special cash allowances, liquidated damages, the construction contract time period, and other construction issues appropriate for the Project.

3.2.3 The PE shall assist the Owner in connection with the Owner’s responsibility and procedures for obtaining approval of all authorities having jurisdiction over the Project. This includes any and all meetings, preparation of submittals, and timely responses to TCEQ as required by TAC, Title 30, Part 1, Chapter 299 – Dam and Reservoirs, and the Design and

Construction Guidelines for Dams in Texas published by TCEQ (the “TCEQ Guidelines”).

3.2.4 The PE shall prepare meeting minutes for any meetings attended that reflect discussions, outcomes and pending issues that require further action by the responsible parties. Meeting minutes shall be presented to the ODR and all attendees within seven (7) business days from the date of the meeting to allow for comments and/or corrections to the minutes. The PE may be required to attend a project meeting weekly either in person, through video conferencing, or telephonically as directed by the ODR.

3.2.5 The PE, at the fifty percent (50%), and one hundred percent (100%) stages of the

Construction Documents, shall furnish and deliver to the ODR electronic and printed sets of all plans, drawings, and specifications in a quantity and format as required by the TCEQ

Guidelines. The PE shall incorporate into the plans, drawings, and specifications such changes as are necessary to satisfy the Owner’s written review comments or published meeting minutes, any of which may be appealed in writing for good cause. The PE shall furnish and deliver electronic and printed sets of the complete documents for the fifty percent (50%), and one hundred percent (100%) stages of the Construction Document Phase in a quantity and format acceptable by the ODR.

3.2.6 Prior to releasing the Construction Documents “For Construction”, the PE shall provide a document that summarizes all design code requirements and provide written certification that the Construction Documents meet all applicable design codes and the requirements of the TCEQ Guidelines.

3.2.7 The contractors bidding on the project will pay directly for all reproduction provided for bidders/proposers during the bidding stage of the Project; however, addenda documents issued after the bid/proposal documents are reproduced, except for changes generated by

Owner, shall be supplied at the PE’s expense.

3.2.8 Before proceeding into the Bidding and Proposal Phase, the PE shall obtain ODR’s written acceptance of the Final Construction Documents and will reconfirm with the ODR the alignment of the construction cost estimate with the established final CCL. The PE shall upload into the Owner’s PMSS a complete final, Issued for Bid, set of Construction

Documents in a format acceptable by the Owner for the Owner’s record (i.e. all drawings, specifications, product data, cost estimates, studies, reports, etc.).

3.3 Bidding and Proposal Phase

3.3.1 The PE shall assist the Owner in obtaining and evaluating bids or proposals including preparation for and attendance at Pre-proposal Conferences and HUB meetings. PE shall answer inquiries from bidders/proposers at Owner’s request and shall prepare and issue any necessary addenda to the bidding or proposal documents.

3.3.2 In the event the best value proposal received for the Project exceeds the final CCL established at the completion of the Construction Document Phase, the PE if so directed by

Owner, shall revise the drawings and specifications as necessary to bring the cost of the

Project within the final CCL. If the PE has not altered the scope or quality level of the

Project, then the PE may be compensated as an Additional Service for changes to the

Construction Documents needed to satisfy Owner’s budget limitations. The Owner reserves the right to accept a proposal and award a construction contract that exceeds the final CCL, if such award is determined by ODR to be in the Owner’s best interest. The PE’s Fee will not be adjusted if the Owner decides to accept such a proposal. The PE shall upload into the Owner’s PMSS electronic sets of the complete final revised Construction Documents in a format acceptable by the Owner for the Owner’s record (i.e. all drawings, specifications, product data, cost estimates, studies, reports, etc.).

3.4 Construction Phase

3.4.1 The Construction Phase shall commence with the award of the Contract for Construction and issuance of a Notice to Proceed with Construction Services and terminate sixty (60) calendar days after Final Payment to the Contractor is made, or when all of PE’s services have been satisfactorily performed, whichever occurs later.

3.4.2 PE shall assist the Owner in its administration of the Contract for Construction as set forth below.

3.4.2.1 The PE shall establish and maintain a numbering and tracking system for all Project records, including changes, requests for information, submittals, and supplementary instructions and shall provide updated records at each Owner’s monthly meeting and when requested.

3.4.2.2 The PE shall chair all meetings scheduled by the Owner or PE and shall promptly provide summary notes to all parties. The PE shall attend Contractor’s regularly scheduled planning meetings when requested and/or appropriate to the stage of the construction at no additional cost to the Owner.

3.4.2.3 The PE shall actively interact with, report to, and obtain timely approvals from all authorities having jurisdiction over the Work, including all such requirements established in the TCEQ Guidelines.

3.4.3 The PE shall review the Contractor’s list of proposed subcontractors for the work, initial administrative submittals for Project Schedule, Schedule of Values, and Submittal Schedule, to establish appropriate basis for construction monitoring, and payment processing. The PE shall identify necessary revisions to the documents in writing to the Contractor and recommend acceptance of the documents by the Owner when appropriate. The PE shall review periodic updates of all schedules with Owner and Contractor to evaluate appropriateness.

3.4.4 The PE and its Consultants shall prepare appropriate materials for and participate in a Pre-

Construction Conference at the site prior to commencement of the Work by the Contractor.

3.4.5 The PE shall be a representative of the Owner during the Construction Phase and shall advise and consult with the Owner. Instructions to the Contractor regarding changes to the Work shall be forwarded through the PE. The PE shall have authority to act on behalf of the Owner to the extent provided in the Contract Documents (as defined in the Contract between the

Owner and the Contractor). Duties, responsibilities, and limitations of authority of the PE shall not be restricted, modified, or extended without written acceptance of the ODR.

3.4.6 The PE shall visit the site periodically (not less than monthly) during the entire construction period to observe the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. Each of PE’s Consultants shall visit the site periodically (not less than monthly) during construction activities related to the

Consultant’s discipline to observe the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. PE and its

Consultants shall submit timely written reports of their site visits and meetings. The PE shall not be required to make exhaustive or continuous onsite visits to inspect the quality or quantity of the Work. The Owner may require site visits and inspections by the PE or the PE’s

Consultants at any time. The total number of site visits and inspections shall average not more than one (1) per week during the Construction Phase. Owner-required visits beyond this total shall be compensated as an Additional Service.

3.4.6.1 On the basis of the onsite observations, the PE shall keep the ODR informed of the progress and quality of the Work and shall endeavor to identify defects and deficiencies in the Work of the Contractor. PE shall notify ODR and the Contractor in writing of any portions of the Work, which PE has observed as not being in conformity with the Construction Documents and make recommendations as to correction of the deficiencies or defects. PE shall make its site representatives available and shall consult with ODR and the Contractor on any occasion arising during the course of construction, which would make such consultation in Owner’s interests.

3.4.6.2 In addition to site visits for general observation, the PE and its Consultants shall visit the site as appropriate for specific purposes related to: certification of progress payments, for significant work activities, and for formal inspections of the Work. The

PE and its Consultants shall provide written reports of all site visits to the ODR and

Contractor.

3.4.7 The PE shall not have control or charge of, and shall not be responsible for, construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, for the acts or omissions of the Contractor, subcontractors or any other persons performing any of the Work, or for the failure of any of them to carry out the Work in accordance with the Contract Documents.

3.4.8 The PE at all times shall have access to the Work wherever it is in preparation or progress.

3.4.9 The PE shall determine the amounts owing to the Contractor based on observations of Work performed at the site and on evaluations of the Contractor’s Application for Payment, and shall coordinate its review and evaluation with the ODR, and shall certify Contractor’s

Application for Payment in an appropriate amount.

3.4.10 The certification of a Contractor’s Application for Payment shall constitute a representation by the PE to the Owner, based on the PE’s observations at the site and on the data comprising the Contractor’s Application for Payment, that the Work has progressed to the point indicated;

that, to the best of the PE’s knowledge, information and belief, the quality of the work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifica-tions stated in the Contractor’s Application for Payment); and that the Contractor is entitled to payment in the amount certified. However, the approval of a Contractor’s Application for

Payment shall not be a representation that the PE has: (i) made any examination to ascertain how and for what purpose the Contractor has used the monies paid on account of the Contract

Sum; ii) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (iii) reviewed construction means, methods, techniques, sequences or procedures;

(iv) reviewed copies of requisitions received from subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment; or (v) accepted the Contractor’s responsibility for the quality or quantity of the Work.

3.4.11 The PE shall be the interpreter of the technical requirements of the Contract Documents and the judge, to the extent provided herein, of the performance of the work of the Contractor.

The PE shall render interpretations necessary for the proper execution or progress of the Work with reasonable promptness on written request of either the Owner or the Contractor, and shall render written recommendations within a reasonable time, on all claims, disputes and other matters in question between the Owner and the Contractor relating to the execution or progress of the Work or the interpretation of the Contract Documents.

3.4.12 Interpretations and recommendations of the PE shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in written or graphic form.

3.4.13 The PE shall have the authority, with appropriate notification to the parties, to reject Work which does not conform to the Contract Documents. Whenever, in the PE’s reasonable opinion, it is necessary or advisable for the implementation of the intent of the Contract

Documents, the PE will have authority to require special observation or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work will then be fabricated, installed or completed. The PE shall review construction materials testing and any special testing required and shall provide recommendations for retesting, actions, or any appropriate corrective measures as may be necessary or appropriate based on the results of such tests.

3.4.14 The PE and its Consultants shall review and approve or take other appropriate action upon the

Contractor’s submittals such as Shop Drawings, Product Data and Samples specifically required by the Construction Documents, but only for conformance with the design concept of the Work set forth in the Contract Documents, and shall respond to Contractor’s inquiries and questions and provide supplemental information as appropriate. Action on submittals shall be taken with reasonable promptness so as to cause no delay to the Contractor’s scheduled progress, but in any event no more than ten (10) business days after receipt. The

PE’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. The PE’s review shall not constitute approval of any construction means or methods, or of any safety precautions. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details, such as dimensions and quantities, or for substantiating instructions for installation or performance of systems, all of which remain the responsibility of the Contractor.

3.4.15 PE shall clarify and interpret the intent and scope of the Construction Documents and, if necessary or appropriate, issue supplemental documents to amplify or explain portions of the Construction Documents.

3.4.16 PE shall review and verify the Contractor’s requests for change orders or claims for additional time or costs and make recommendations to Owner as to such requests or claims.

3.4.17 The PE shall prepare Change Orders for the Owner’s approval and execution in accordance with the Contract Documents, and shall have authority to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time, which are not inconsistent with the intent of the Contract Documents. When a change is greater than

One Hundred Thousand Dollars ($100,000), the PE shall prepare an independent cost and time estimate for comparison with the Contractor’s proposal and recommend to the Owner whether the Contractor’s proposal is acceptable. R. S. Means Cost Resources, or Owner approved equivalent cost estimating resources, shall be the basis for all such Change Order estimates.

3.4.18 PE shall prepare revised Contract Drawings, where appropriate, to illustrate and document the work required by approved Change Orders. All proposed changes to drawings, plans and specifications, regardless of how initiated, shall be defined in the document depicting them as to scope of work added, removed, or changed. The original copies of the Construction

Documents may be revised to show such changes, provided that all such revisions shall be separately recorded on the media acceptable to Owner. Such revisions shall be clearly indicated, and a current revision date shall be included on the reproducible copy. Changes to the specifications shall be made by consecutively numbered and dated addenda. All changes to Construction Documents will be identified with date of change, revision number and other customary identification references. Areas changed on drawings will be “clouded” to show each change. Clouds designating previous changes will be removed so that only the most recent changes will be clouded.

3.4.19 PE and its Consultants shall participate in Substantial Completion observations, and Final

Completion observations. In association with each observation, PE and its Consultants shall prepare a list of items which PE and its Consultants have observed as deficiencies in the

Work, requiring remedial work or replacement, assemble and distribute the official list of deficiencies (“Punch list”) to all affected parties, and thereafter review the corrected and/or replaced work and assist in verification of correction of all Punch list items.

3.4.20 PE shall review, for conformance with the Contract Documents, Contractor’s submission of guarantees and warranties.

3.4.21 The PE and its Consultants shall assist the Owner in checking the Contractor’s as-built drawings and specifications during the course of the Work in association with certifying progress payments. Failure to review and advise on the Contractor’s progress and update the as-built drawings in a timely manner will affect the progress of the monthly payment to the

PE for the Construction Phase (Article 7). The PE shall review as-built documents for completeness and compliance with Contract requirements at Substantial Completion and at

Final Completion of the Project. As a part of the Record Drawing and Closeout Documents

Submittal phase of this Agreement (Article 7), the PE shall enter all the Contractor’s records of changes onto the original Construction Documents and shall furnish and deliver to the

ODR electronic and printed copies of the complete documents in a quantity and format acceptable by the Owner for the Owner’s record.

3.4.22 PE shall receive and review Contractor’s submission of as-built drawings, and other closeout documentation, shall require necessary revisions to same if warranted, and when acceptable under the terms of the Contract between Owner and Contractor, shall forward to

ODR. The PE shall certify final payment to the Contractor when the PE believes the requirements of the Contract between Owner and Contractor have been met.

3.4.23 PE shall monitor the Contractor’s schedule for the construction phase work and assist the

Owner in reviewing all relevant activities and advise the ODR of the Contractor’s scheduled progress.

ARTICLE 4 ADDITIONAL SERVICES

4.1 Services may be required for the design of the Project which are not included as part of the Services described in Articles 1 and 3. If such services are required, they will either be provided by the

Owner, contracted for separately from a third party, or authorized in writing to be performed by the

PE and paid for by the Owner as hereinafter provided. If authorized in writing to be performed by the PE, pursuant to an Amendment, such services will be subject to this Article 4.

4.2 Change Order effort performed by the PE during the Construction Phase of the Project shall be compensated as an Additional Service unless the change order is the result of an error or omission on the part of the PE. The PE shall not be entitled to any fee for the portion of the effort required to correct errors or omissions.

4.3 Any Additional Service cost of change order effort shall be agreed to and authorized in writing by the ODR before the work is performed. Fees for change order effort performed by the PE’s staff shall be proposed to the ODR showing a detailed documented required level of effort and using the hourly rate schedule included as Exhibit A. Consultant services for change order work, provided under subcontract to the PE, shall be compensated at actual cost, plus ten percent (10%).

Reimbursable expenses for both the PE and its Consultants shall be compensated at direct cost (with no markup). The Owner may decide to reach a lump sum agreement with the PE prior to authorizing

Additional Services change order effort or may direct the effort to be performed on a time and expenses basis.

ARTICLE 5 THE OWNER'S RESPONSIBILITIES

5.1 The Owner shall provide general requirements and description for the Project (budget limitations and required delivery schedules, etc.).

5.2 The Owner, through its authorized representatives, shall examine and review documents submitted by the PE and shall render decisions and provide comments pertaining thereto promptly, to avoid unreasonable delay in the progress of the PE's work.

5.3 The Owner shall furnish any existing as-built drawings. When required for the Project, the Owner shall furnish to the PE 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 structures, location of trees, and full information concerning available utility services, public and private. The Owner shall provide any additional boundary and topographical surveys that are found to be needed during design.

5.4 The Owner shall provide the necessary geotechnical surveys, reports, soil borings and laboratory testing services, including required test interpretations, test data and reports.

5.5 The services and information required by paragraph 5.3 and 5.4, shall be furnished at the Owner's expense, and the PE shall be entitled to rely on the accuracy thereof; however, the PE shall make site visit(s) to identify any inconsistencies, which may be visually observed without special instrumentation. The PE shall notify the ODR promptly of any such inconsistencies observed.

5.6 The Owner shall furnish the PE, when available and applicable, copies of the UGC (to the extent modified for the Project), Contract Forms, Bond Forms, bidding information and instructions, minimum wage rates for inclusion in the specifications, and design and construction standards of the Owner.

ARTICLE 6 REVISION TO DRAWINGS AND SPECIFICATIONS

6.1 The PE shall prepare Construction Documents containing such provisions which will permit the

Owner to obtain a Competitive Sealed Proposal within the CCL. In the event the lowest acceptable proposal exceeds the CCL, and if the Owner does not see fit to allot additional funds, the PE agrees to revise the Construction Documents as may be necessary to bring the Construction Cost within the

CCL. If the PE has not altered the scope or quality level of the project, then the PE may be compensated as an Additional Service for changes to the Construction Documents needed to satisfy

Owner’s budget limitations.

6.2 Since a CCL is stated herein, an estimate of cost prepared in detail form shall be provided by the PE at each stage of the design where a review submittal is required by this Agreement. All such estimates shall be prepared by a recognized independent third-party estimating consultant retained and paid by the PE out of its Fee. The estimates shall be prepared in detail in the Construction

Specifications Institute format. If such estimates, at any required submittal stage, exceed the stated

CCL (including contingencies), the Owner may modify the CCL, accept value engineering recommendations; revise the program, scope or quality, or any combination of these to bring the construction cost within the CCL. The PE shall then revise the Construction Documents (at no added charge to the Owner) as may be necessary. The Owner may decide to include alternate bid items in the Construction Documents as a means of adjusting the actual construction cost to the cost limit. If the Owner requests alternates to be designed which by estimate exceed the CCL during design, and those alternates, or parts thereof, are not constructed within the CCL, then the PE shall be compensated for having prepared these alternate bids items on an Additional Services basis as provided in Article 4. This compensation will be provided whether or not the alternates are actually constructed.

6.3 After the Owner approves a definite plan, with the revisions above being made during the Design

Phase, then if decisions by the Owner are subsequently made which, for their proper execution, involves added services and expenses for conceptual revisions and additions to the Construction

Documents, or if the PE is put to added labor or expense by delays imposed on them from causes not within their control, such as the delinquency or insolvency of construction contractors, the PE shall be equitably compensated as an Additional Service.

ARTICLE 7 DELIVERABLE SCHEDULE AND PAYMENTS TO THE PE

7.1 Payments of Fees shall be made monthly, in accordance with the Prompt Payment Provisions of

Texas Government Code Chapter 2251 and in proportion to the services performed, to increase the compensation for services to the following percentages at the completion and acceptance of each phase of the work. Should the Project subsequently be designed in several phases or bid packages, the PE shall submit a revised payment schedule for signatory approval by the ODR prior to the payment of any services.

By Phase Cumulative

7.1.1 Preliminary Design Phase 20% 20%

7.1.2 Construction Documents Phase 40% 60%

7.1.3 Bidding or Negotiation Phase 2% 62%

7.1.4 Construction Phase 36% 98%

7.1.5 Record Drawing and Closeout Documents Submittal 2% 100%

7.2 No deduction shall be made from the PE's compensation on account of penalty, liquidated damages or other sums withheld from payments to the Contractors.

7.3 If any work designed or specified by the PE is abandoned or suspended, in whole or in part, the PE will be paid for the service actually performed on account of it, provided that such abandonment or suspension is not caused by the nonfeasance, malfeasance, fault and/or negligence of the PE.

ARTICLE 8 CONSTRUCTION COST LIMITATION

8.1 The CCL, as defined herein, is to be used as a basis for determining whether the PE has met its obligation under to this Agreement to design the project within the Owner’s budget allowance.

8.2 The PE Fee shall be a lump sum amount as stated in this Agreement whether the Owner chooses to award the project over or under the CCL. The PE Fee will not be adjusted based on the actual construction cost of the Project.

ARTICLE 9 SCHEDULE

The schedule of events below represents a basic timeline for the Project. With the exception of an adjustment to the PE completes Construction Documents date, a final and more detailed project timeline for construction will be developed with the Owner and the selected Contractor. The PE can be expected to work with the

ODR and the selected Contractor to optimize this initial schedule.

9.1 Design begins ................................................................................................................... XX/XX/XX

9.2 PE completes Design ....................................................................................................... XX/XX/XX

9.3 Chancellor approval of Design ........................................................................................ XX/XX/XX

9.4 Construction Document Phase begins.............................................................................. XX/XX/XX

9.5 PE completes Construction Documents ........................................................................... XX/XX/XX

9.6 Bidding and Proposal Phase begins ................................................................................. XX/XX/XX

9.7 Contractor selected........................................................................................................... XX/XX/XX

9.8 Notice to Proceed for Construction Phase issued ............................................................ XX/XX/XX

9.9 Owner accepts Substantial Completion ........................................................................... XX/XX/XX

9.10 Final Completion ............................................................................................................. XX/XX/XX

ARTICLE 10 TERMINATION OF AGREEMENT

10.1 Should either party be in material breach of this Agreement, the other party may give written notice to the breaching party that it intends to terminate this agreement for default absent appropriate corrective action upon the seventh (7th) calendar day following receipt of such notice by the breaching party. At such time and absent appropriate corrective action, the non-breaching party may terminate this Agreement in writing.

10.2 Owner may terminate this Agreement without cause upon the seven (7) calendar days’ written notice. If Owner terminates this Agreement pursuant to this section, the PE shall be paid for services performed to the termination date and any costs incurred by PE for which the Owner is responsible under Article 2 of this Agreement. As a condition of the final payment involving such a termination, the PE shall promptly and orderly arrange data accumulated and products of its professional services, and delivery of same to the Owner.

ARTICLE 11 OWNERSHIP OF DOCUMENTS

11.1 At the completion or termination of services, and as a part of the Services of this Agreement, the PE shall deliver to the ODR one (1) printed copy of the drawings and specifications and upload into the

Owner’s PMSS a complete electronic file of all drawings and specifications, including all clarifications, change order supplemental drawings, in a format acceptable to the Owner. All such deliverables shall be marked as “Record Documents”. The Owner will retain ownership of the documents produced under this Agreement, though the PE shall be free to reuse any part of them as it sees fit in its sole discretion.

11.2 The PE shall insert in the specifications the requirement that the Contractor will keep a current set of Project drawings and specifications on the Work site and will timely indicate changes made during construction as they occur. These documents will be reviewed at least monthly by the PE and will inform the Owner of their status immediately after this review.

ARTICLE 12 SUCCESSORS AND ASSIGNS

The PE binds itself, its partners, successors, assigns, and legal representatives to the Owner, successors, assigns and legal representatives in respect to all covenants of this Agreement. Neither the Owner nor the

PE shall assign, sublet or transfer its interest in or delegate any of its duties under this Agreement without the written consent of the other.

ARTICLE 13 MISCELLANEOUS PROVISIONS

13.1 Public Information Pertaining to the Official Business of Governmental Bodies and to Contracts by

Certain State Governmental Entities that Involve the Exchange or Creation of Public Information.

The Texas State University System adheres to all statutes, court decisions and the opinions of the

Texas Attorney General with respect to disclosure of public information under the Texas Public

Information Act (“TPIA”), Chapter 552, Texas Government Code. In accordance with Section

552.002 of TPIA and Section 2252.907, Texas Government Code, and at no additional charge to

Owner, PE is required to make any information created or exchanged with the Owner pursuant to this Agreement, that is not otherwise excepted from disclosure under the TPIA, available in a format reasonably requested by Owner that is accessible by the public. The following format(s) shall be deemed to be in compliance with this provision: electronic files in Word, PDF, or similar generally accessible format.

13.2 Dispute Resolution. In the event of any dispute arising under this Agreement, the parties agree to follow the procedures set forth in Chapter 2260 of the Texas Government Code. The Owner designates the Vice Chancellor and Chief Financial Officer as its officer for examining, negotiating, and resolving claims and counterclaims under Chapter 2260 of the Texas Government Code.

13.3 State Auditor’s Office. PE understands that acceptance of state funds under this Agreement acts as acceptance of the authority of the State Auditor’s Office to conduct an audit or investigation in connection with those funds. PE further agrees to cooperate fully with the State Auditor’s Office in the conduct of the audit or investigation, including providing all records requested. PE will ensure that this clause concerning the State Auditor’s Office’s authority to audit state funds and the requirement to cooperate fully with the State Auditor’s Office is included in any subcontracts it awards. Additionally, the State Auditor’s Office shall at any time have access to and the right to examine, audit, excerpt and transcribe any pertinent books, documents, working papers and records of PE relating to this Agreement. PE further understands that Owner may conduct a financial and/or performance audit of this Agreement and agrees to cooperate fully in such an audit to the same extent as an audit by the State Auditor’s Office. The provisions of this Article 13.3 shall survive the termination of this Agreement.

13.4 Licensure of Engineers. The Texas Board of Registration for Professional Engineers, 1917 IH35

South, Austin, Texas 78741, Phone (512) 440-7723, has jurisdiction over individuals licensed under the Texas Engineering Registration Law, Texas Occupations Code, Section 1001.

13.5 Family Code Certification. By signing this Agreement PE is certifying, pursuant to Section 231.006 of the Texas Family Code, that it is not ineligible to receive the award of or payments under this Agreement by reason of its Family Support requirements and acknowledges that this Agreement may be terminated and/or payments may be withheld if this certification is inaccurate.

13.6 Eligibility Certification. By signing this Agreement PE is certifying that, pursuant to Section 2155.004 of the Texas Government Code, the individual or business entity named in this Agreement is not ineligible to receive the award of or payments under this Agreement and acknowledges that this

Agreement may be terminated and payment withheld if this certification is inaccurate.

13.7 Franchise Tax Certification. By signature hereon, PE hereby certifies that it is not currently delinquent in the payment of any Franchise Taxes due under Chapter 171, of the Texas Tax Code, or that it is exempt from the payment of such taxes, or that it is an out-of-state corporation or limited liability company that is not subject to the Texas Franchise Tax, whichever is applicable.

13.8 Debts Owed to State. By signing this Agreement PE agrees that, pursuant to Sections 2107.008 and

2252.903 of the Texas Government Code, any payments owing to PE under this Agreement may be applied directly toward any debt or delinquency that PE owes the State of Texas or any agency of the

State of Texas regardless of when it…