ESBD_427689_1749658260645_Attachment D-IDIQ ENV Contract PR 0004731 final.pdf

Instructions to Respondents, p. 1 of 2

INSTRUCTIONS TO ALL RESPONDENTS FOR RFQ NO. PR-0004731

INDEFINITE DELIVERY INDEFINITE QUANTITY (IDIQ)

PROFESSIONAL ENVIRONMENTAL ENGINEERING

ENVIRONMENTAL ENGINEERING SERVICES – PHASE I AND PHASE

II ENVIRONMENTAL SITE ASSESSMENTS, AND RELATED

PROFESSIONAL SERVICES

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

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

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

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

Article 1, Definitions Article 3, TFC Responsibilities, Information, and Approvals

Article 4, Consideration Article 5, Copyrights/Trademarks/Instruments of Service Article 6, Records, Audit, Proprietary Information and Public Disclosure Article 7, Insurance and Indemnity Article 8, Dispute Resolution Article 9, Term, Suspension, and Termination Article 10, Special Provisions Article 11, Miscellaneous Provisions

Exhibit A. 2015 Uniform General Conditions Exhibit B. TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 Exhibit C. Assignment Template Exhibit D. List of Key Personnel Exhibit E. Criminal Background Check and Application Guidelines Exhibit F. Approved HUB Subcontracting Plan Exhibit H. Progress Assessment Report Form Exhibit I. Insurance Requirements

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

Instructions to Respondents p. 2 of 2

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

Date:

Lia Edwards Assistant General Counsel

05/02/2025 | 3:17 PM CDT

(Rev. 1/24/2025)

PROFESSIONAL SERVICES AGREEMENT

BY AND BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

INSERT PSP NAME

FOR

INDEFINITE DELIVERY INDEFINITE QUANTITY (IDIQ)

PROFESSIONAL ENVIRONMENTAL ENGINEERING

ENVIRONMENTAL ENGINEERING SERVICES – PHASE I AND PHASE

II ENVIRONMENTAL SITE ASSESSMENTS, AND RELATED

PROFESSIONAL SERVICES

TFC CONTRACT NO. INSERT

RFQ NO. PR-0004731

PROJECT NO.: VARIOUS, TO BE DETERMINED

TFC IDIQ Contract No. Insert Insert Contractor Name RFQ No. PR-0004731

IDIQ Professional Environmental Engineering

TABLE OF CONTENTS

Page

ARTICLE 1. DEFINITIONS

ARTICLE 2. RESPONSIBILITIES AND SCOPE OF SERVICES

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

ARTICLE 4. COMPENSATION AND PAYMENT

ARTICLE 5. COPYRIGHTS/TRADEMARKS/INSTRUMENTS OF SERVICE

ARTICLE 6. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

ARTICLE 7. INSURANCE AND INDEMNITY

ARTICLE 8. DISPUTE RESOLUTION

ARTICLE 9. TERM, SUSPENSION, AND TERMINATION

ARTICLE 10. SPECIAL PROVISIONS

ARTICLE 11. MISCELLANEOUS PROVISIONS

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

Exhibit A 2015 Uniform General Conditions Exhibit B TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18|

In the event that Exhibits A and/or B, are modified subsequent to the execution of this Agreement, the revised, newer version(s) of these exhibits shall, upon execution of an Amendment to this Agreement, replace the prior version(s) and shall govern the Agreement and any Assignment under the Agreement.

Exhibit C Assignment Template Exhibit D List of Key Personnel Exhibit E Criminal Background Check and Application Guidelines Exhibit F Approved HUB Subcontracting Plan Exhibit G HUB Subcontracting Plan Form Exhibit H Progress Assessment Report Form Exhibit I Insurance Requirements

AGREEMENT

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

PROFESSIONAL SERVICES PROVIDER

CAPTION.

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

The Texas Facilities Commission (“TFC”), a state agency 1711 San Jacinto Boulevard Austin, Texas 78701 as “Owner” (as is defined in UGC Section 1.28), and the Professional Services Provider (the “PSP”):

Name Address City, State, Zip Phone:

Email:

wherein PSP agrees to provide Professional Services for the following Project (the “Project”):

Provision of Indefinite Delivery Indefinite Quantity (IDIQ) Professional Environmental Engineering Services Phase I and Phase II Environmental Site Assessments, and Related Professional Services

TFC and PSP agree as follows:

ARTICLE 1. DEFINITIONS

Unless specifically provided otherwise, all words and phrases in this Agreement in initial caps shall have the meanings set out in this Article 1. All undefined and capitalized terms used herein shall have the meaning given to them in the UGC. In the event of any conflict between the definitions in the UGC, the TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 (as defined below and as hereinafter occasionally referred to as “A/E Guidelines”) or in any other document that is referenced herein and incorporated for all purposes, and the definitions in this Agreement, the definitions used in this Agreement shall control to the extent of the conflict.

ACC unless specifically stated otherwise herein or in an Assignment (as defined below) means Autodesk Construction Cloud.

Additional Services means those Professional Services (as defined below) not included in Sections

2.1 (General Responsibilities) and 2.2 (Scope of Services) of this Agreement which may be requested by TFC at any time for the Term of this Agreement, as discussed in Section 4.4 below.

Additional Services also means those Professional Services not included in the Description of Project section of each Assignment (as defined below) that may be requested by TFC at any time for the duration of an Assignment, as discussed in Article 4.

Architect/Engineer or “A/E” means an architect and/or engineer with whom TFC has entered into an Agreement to provide Professional Services for the Project and which A/E is part of the Project Team.

A/E Guidelines means the TFC 2018 Architectural/Engineering Guidelines Edit Date March 19, 2018, attached hereto and incorporated herein for all purposes as Exhibit B. In the event that Exhibit B is modified subsequent to the execution of this Agreement, the revised, newer version of this exhibit shall, upon execution of an Amendment to this Agreement, replace the prior version and shall govern the Agreement and any subsequent Assignment under the Agreement.

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

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

Environmental Laws, including all storm water, street, utility and other related infrastructure requirements, (vii) all requirements related to the use, removal, storage, transportation, disposal and remediation of Hazardous Materials; and (viii) any other applicable local, state or federal laws respecting the Project.

Assignment means a fully executed document(s) that shall be required in order to evidence any subsequent agreements between TFC and PSP whereby TFC may engage specific professional services of PSP for a particular project(s) pursuant to the terms and conditions stated in the Assignment and in this Agreement.

Basic Services means those Professional Services set forth in Section 2.2.9 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, lighting, acoustics, compliance with Title III of the Americans with Disability Act of 1990, 42 U.S. Code (“ADA”), wayfinding, survey, preparation of Drawings, Specifications, and all Construction Documents, construction observation, and construction administration, all as further indicated in Section 2.2.9 of this Agreement.

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.

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

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

Buildings means such building(s) as may be identified in an Assignment.

CAD means AutoCAD DWG format unless specifically provided otherwise herein or in an Assignment.

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

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

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

Consultant means any person or entity that enters into an agreement with PSP to perform any part of the Professional Services described in this Agreement.

Consulting Agreement means any agreement between PSP and a Consultant.

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

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

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

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

Effective Date: Unless otherwise specifically stated, for this Agreement Effective Date means the date that the last signature of a party is affixed hereto. Unless otherwise specifically stated, for an Assignment executed under this Agreement, Effective Date means the date that the last signature of a party is affixed to the Assignment.

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

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

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

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

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

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

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

HUB Compliance Reporting System means the Texas Facilities Commission Historically Underutilized Business (“HUB”) online reporting system located at https://tfc.gob2.com. The HUB Compliance Reporting System is used to maintain business records documenting compliance with the HUB Subcontracting Plan (“HSP”) by submission of monthly Progress Assessment Reports (“PARs”).

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

MEP Systems means mechanical, electrical, and plumbing systems.

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

Notice to Proceed or “NTP” means the written notice to be issued at the onset of the Project and at each phase or development of Construction Documents by TFC notifying PSP to proceed with the commencement of Professional Services described in this Agreement.

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

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

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

Professional Services Provider or “PSP” means the architect and/or engineer identified on the cover page of this Agreement with whom TFC has entered into this Agreement for the providing of Professional Services and to exercise overall responsibility for the design of the Project as set forth herein.

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

Project means that certain Work more particularly identified on the introductory paragraph of this Agreement and includes the design engineering Project as set out in an Assignment, if any, that may be prescribed by TFC.

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

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

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

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

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

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

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

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

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

Specifications is defined in UGC Section 1.41.

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

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

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

TDLR means the Texas Department of Licensing and Regulations.

TFC Project Manager means the individual designated by TFC as the contact person for TFC with the direct responsibility to properly supervise the design and construction of the Project, and the services being provided pursuant Agreement on behalf of TFC, including, but not limited to, serving as the point of contact between TFC, the Using Agency, as defined below, (if any), PSP, A/E, and Contractor, and supervising TFC’s review and approval of the Professional Services. For the avoidance of doubt, the TFC Project Manager shall be the same person as the Owner’s Designated Representative (or “ODR”) as defined in UGC Section 1.29.

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

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

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

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

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

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

ARTICLE 2. RESPONSIBILITIES AND SCOPE OF SERVICES

2.1 General Responsibilities. PSP shall perform all Professional Services on time and in accordance with the terms of this Agreement and all Exhibits and, in connection therewith, shall render usual and customary services necessary and reasonably inferable to complete professional environmental engineering, and related professional services on an indefinite delivery, indefinite quantity basis for such Projects, and as may be required by a Professional Services scheduled as deemed necessary by TFC during the Term of this Agreement, and as shall be more specifically set out in an Assignment. Specific projects are likely to be identified with requirements for Phase 1 and 2 Environmental Site Assessments and existing facility survey and abatement/remediation specifications for hazardous material, and indoor air quality assessments. PSP shall provide detailed on-site surveys to determine existing historical and or archeological significance, analysis, reports, preliminary construction costs and time schedule estimates, contract administration, sampling, lab analysis, monitoring, detailed on-site inspection/observation and project studies on projects as related to hazardous materials assessment, mediation and abatement. All professional opinions, advice, and exercise of its professional judgment at all times shall be in accordance with the Standard of Care. PSP shall be responsible for the professional quality, technical accuracy, and the coordination and completeness of all Deliverables and Professional Services it provides and for their compliance with Applicable Laws and the Standard of Care. PSP represents that it is properly licensed to provide the Professional Services required by this Agreement and shall cause all delegated Professional Services to be performed by appropriately licensed design professionals.

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

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

2.1.3 Collaboration. PSP shall work collaboratively at all times with the Project Team to review program scope, phasing, schedules, Cost Estimates, decisions and Project execution planning.

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

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

The PSP Project Manager (or one of them as designated by PSP and approved by TFC) shall be authorized to act on behalf of and bind the PSP in all matters related to Professional Services.

The PSP Project Manager, Project engineers, and other representatives, their titles, and a brief description of the limitations of each representative’s authority shall be included in Exhibit D (the “List of Key Personnel”) to this Agreement. PSP shall not change employee assignments without TFC’s written consent, which consent shall not be unreasonably withheld. PSP shall not assign or retain on the Project any person or entity to whom TFC reasonably objects.

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

2.1.5 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 PSP’s providing of Deliverables or any Professional Services.

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

2.1.6 BIM/EPMCS. PSP represents that it is proficient in the use of BIM systems, the ACC, and the EPMCS utilized by TFC. PSP 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, PSP will assign appropriate PSP staff to receive instruction regarding the use of the ACC and EPMCS to be utilized by TFC.

2.1.7 BIM Model. PSP will provide all Services and Deliverables required of PSP 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, PSP may be called upon to provide (i) process and management of conflict resolution and documentation, including frequency of meetings;

and (ii) reports and other BIM Deliverables as set forth in the BIM Execution Plan. Electronic versions of all Design Development Documents will be delivered to TFC as indicated in the A/E Guidelines.

PSP shall report in writing to TFC any deviations between TFC-provided information or programs and the DD Documents presented.

2.1.8 BIM Execution Plan. Without limitation, PSP may be called upon to provide (i) interface and information technology requirements including specific hardware/ software to be utilized in the BIM approach; (ii) software requirements and other interface requirements required to enable CAD Drawings files to be imported into the BIM; (iii) process and management of conflict resolution, conflict documentation process and conflict resolution process including frequency of meetings; and

(iv) reports and other BIM Deliverables as set forth in the BIM Execution Plan. Electronic versions of all Design Development Documents will be provided to TFC in a current two dimensional version of CAD through the EPMCS in addition to information provided by the BIM model. PSP shall report in writing to TFC any deviations between TFC-provided information or programs and the Design Development Documents presented.

2.1.9 Scope of Services. TFC may, but is not obligated to, from time-to-time engage the professional services of PSP for one or more specific Projects and identify the particular professional services needed through an Assignment. Services under this Agreement may include, but not be limit to: a) detailed on-site surveys, review of existing documents, verification and validation of items in existing reports; b) presentation of findings to the TFC as Owner for review and approval; and c) provision of detailed design and documentation of construction plans and specifications for remediation.

2.1.1 Assignments As Amendments. Assignments shall constitute amendments to this Agreement, shall be subject to the terms and conditions set forth in this Agreement unless expressly provided otherwise in the Assignment, and shall provide for, among other things, the following, all of which shall be negotiated as part of every Assignment:

2.2.1.1 description of the Project Assignment;

2.2.1.2 scope of services;

2.2.1.3 schedule and term;

2.2.1.4 PSP personnel assigned to the Project;

2.2.1.5 PSP deliverables;

2.2.1.6 TFC’s responsibilities; and

2.2.1.7 compensation specific to the Assignment.

2.2.2 Must Be Written. Any such Assignments, and all other required documentation, must be executed by authorized representatives of both parties.

2.2.3 Must Follow Form. Any such Assignment(s) shall be in substantially the same form as the Assignment, a template for which is incorporated herein by reference for all purposes as Exhibit C.

2.2.4 Conflicts. In the event of a material conflict:

2.2.4.1 between the provisions of the 2015 UGC or any subsequent update to the 2015 UGC, and this Agreement and those of an Assignment, the provisions of the Assignment shall control to the extent of such conflict;

2.2.4.2. between the provisions of this Agreement and/or of an Assignment, and the provisions of the 2015 UGC or any subsequent update to the 2015 UGC, the provisions of this Agreement and/or of the Assignment shall control to the extent of such conflict; and

2.2.4.3 between the provisions of this Agreement and/or of an Assignment, and the provisions of the A/E Guidelines, the provisions of this Agreement and/or of the Assignment shall control to the extent of such conflict.

2.2.5 No Rights of Expectation. PSP acknowledges and agrees that nothing in this Agreement confers any right to, expectation, or guarantee of, a minimum number of Assignments or amount of Work.

2.2.6 HUB Subcontracting Plan Requirements. PSP must comply with the requirements set out in Sections 10.12 and 10.12.1, regarding HUBs (as defined therein), as a condition precedent to the execution of each Assignment by TFC.

2.2.7 Applicability of A/E Guidelines. Subject to the provisions in this Agreement concerning conflicts, the provisions of the Agreement and/or of the Assignment shall govern over provisions of the edition of the A/E Guidelines that are in effect as of the Effective Date of any Assignment (see Section 2.2.4.3, above). In the event the A/E Guidelines are modified subsequent to the execution of this Agreement or of an Assignment, the revised newer version of the A/E Guidelines shall, upon delivery of written notice to PSP, replace the prior version; shall govern the Assignment; and shall be attached to the Assignment as an exhibit and incorporated therein by reference.

2.2.8 Firm Registration with Texas Board of Professional Engineers and Land Surveyors.

TFC may only assign projects under this Agreement as permitted by the Texas Engineering Practice Act, Chapter 1001 of the Texas Occupations Code. This Act requires professional services provided and any Subcontractor performing engineering services to maintain firm registration of their business entities with the Texas Board of Professional Engineers and Land Surveyors. In the event such firm registration lapses, the provider is ineligible to receive Assignments under this Agreement or perform engineering services pursuant to Chapter 1001. For any time period when PSP does not have a valid firm registration, as required under this Section 2.2.4, TFC may not assign PSP work under this Agreement. (See also Section 10.3, below.)

2.2.9 PSP’s Basic Services may consist of those described in this Section 2.2.9 and may include the following phases: Pre-Design, Schematic Design, Design Development, Construction Documents, Bidding and Award, and Construction Administration. To the extent the parties deem it necessary, additional technical detail for the Professional Services to be provided by PSP hereunder is contained in PSP’s Scope of Services and/or Proposal incorporated into an Assignment provided for additional detail for and not in lieu of the Basic Services set forth in this Agreement. No phase shall begin until all prior phases have been completed and approved by TFC, unless the TFC gives its prior written consent thereto.

2.3. Additional Services. Services may be required for the design of the Project which are not included as part of the Scope of Services described in Section 2.2 and as may be more specifically set forth in an Assignment. If such services are required, they will either be provided by TFC, contracted for separately from a third party, or authorized in writing to be performed by the PSP and paid for by TFC as hereinafter provided. If authorized in writing to be performed by the PSP pursuant to an Assignment or otherwise, such services will be subject to Section 4.4.

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

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

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

3.1.1.1 The UGC and the A/E Guidelines.

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

3.1.1.3 The HUB Subcontracting Plan Form (Exhibit G) and Progress Assessment Report Forms (Exhibit H) for inclusion in the Specifications, as may be required.

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

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

3.1.1.6 The Project Analysis or equivalent thereof.

3.1.1.7 Project Implementation Plan and Program of Requirements Reports.

3.1.1.8 The Budget and any required delivery schedules.

3.1.1.9 Information concerning the Communication Protocol and EPMCS.

3.1.1.10 TFC’s Project Requirements.

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

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

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

3.1.2.3 TFC may designate a PMF for the Project to provide certain Project management services in addition to those provided by TFC Project Manager. The PMF will provide overall management of the Project, with a scope of services as further defined in the PMF definition above and in the Project Management Firm Professional Agreement, but which shall include, but shall not be limited to, the following Deliverables:

Planning, management, and coordination of the Project as further defined in the Project Management Firm Professional Agreement, a copy of which shall be provided upon request to PSP;

Providing an initial Project program scope and strategy for implementation of the scope;

Review of solicitation documents and other contractual templates and provide recommendations on same;

Development and management of the Project cost control system;

Development and monitoring of a master schedule and integration with Project cost control system;

Development of quality control plan;

Management of EPMCS;

HUB/S/M/WBE outreach and compliance consultation;

Geotechnical, and/or Construction Materials Testing project planning services;

Functional and space programming services;

Estimating services;

Peer review of designed systems, including Geotechnical, and/or Construction Materials Testing, building envelope, roofing, weatherproofing, elevators, architectural and structural systems and utilities and civil site development;

Reporting; and

Such other Deliverables as may be developed or assigned to PMF by TFC.

3.1.2.4 PSP shall, at all times, work collaboratively with A/E, PMF, CMR, and the TFC Project Manager as well as other members of the Project Team and shall work to help integrate its Professional Services with those of the PMF and TFC Project Manager throughout the Project.

3.1.2.5 TFC may review and comment on Deliverables submitted by the PSP in such a manner as to avoid unreasonable delay in the progress of the PSP’s work. No approvals, comments, decisions or acceptances by, or on behalf of, TFC shall be deemed to be an assumption of responsibility by TFC for any defect, error, or omission in said Deliverables or in PSP’s performance of Professional Services.

3.2 Actions of TFC. No inspections of the Project or review of Deliverables by TFC shall reduce the level or extent of PSP’s responsibilities arising pursuant to this Agreement. Neither the approval and/or final acceptance of a Project or any Deliverables, nor the payment of any Invoice by TFC shall constitute or be deemed, a release of PSP’s obligation to perform and timely deliver the Professional Services and any Additional Services in accordance with the Standard of Care and this Agreement.

3.3 Any provisions in this Agreement to the contrary notwithstanding, all consents, revisions, and/or approvals by TFC shall be in its sole and absolute discretion and shall not be valid or enforceable unless evidenced by a fully executed written amendment to this Agreement. PSP acknowledges that the TFC Project Manager shall not have any express or implied authority to vary or otherwise amend or waive compliance with the terms of this Agreement in any way, except for any identified deadlines and then only as evidenced in writing, signed by TFC Project Manager.

3.4 No Warranties by TFC. PSP acknowledges that any and all tests, maps, reports, and Drawings in the possession of TFC that reflect or depict Site boundaries, recorded easements, topography, utility locations, and other Site conditions and/or restrictions which may impact the design and/or construction of the Project were prepared solely for TFC’s benefit and for information only purposes, and that PSP shall have no right to rely upon such and that any reliance thereon shall be at PSP’s own risk. TFC HEREBY

DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE ACCURACY OR

COMPLETENESS OF THE ABOVE-MENTIONED REPORTS, TESTS, MAPS AND DRAWINGS.

ARTICLE 4. CONSIDERATION

4.1 Fees and Expenses. The fees for this Agreement shall not exceed the sum of $500,000.00 or as otherwise set by the TFC Commission, for each two-year (2-year) term of this Agreement. Professional Services performed or delivered by PSP prior to the Effective Date of this Agreement or after it terminates cannot be compensated; provided, however, that an Assignment executed during the Term of this Agreement may continue until such Assignment is completed.

4.1.1 Proportional Payments. Payments shall be made to PSP monthly upon submission of an Invoice as set forth in proportion to the services performed.

4.1.2 Submission of Pay Applications or Invoices. No more frequently than once per month, PSP shall submit a Pay Application or Invoice per Assignment to TFC for services performed and reasonable and necessary costs and expenses incurred through the last day of the previous month. TFC agrees to pay PSP in accordance with Tex. Gov’t. Code Ch. 2251 also known as the “Prompt Payment Act”.

4.1.3 Payments to Consultants. For all services rendered, PSP shall make payment to Consultants within ten (10) Days after receipt of payment from TFC. Should it become necessary, and in the sole discretion of TFC and after five (5) Day notice to PSP, TFC may issue joint checks to PSP and Consultants.

4.2 Reimbursable Expenses. Reasonable lodging and traveling expenses shall be considered a Reimbursable Expense under this Agreement when professional and technical personnel of PSP 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 PSP, 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.state.tx.us/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, permit fees 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 Basic Services for the Project, may constitute a Reimbursable Expense;

provided however, PSP 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.

4.3 Notice of Depletion. Within seven (7) days of when the accumulated amount of fees and Reimbursable Expenses reaches eighty percent (80%) of the not-to-exceed amount(s) set forth in an Assignment, PSP shall deliver written notice thereof to TFC.