ESBD_428085_1749852832665_05 Exhibit E - Professional Services Contract template.pdf

TXDMV Contract No. XX-XXX-XXX

Contractor Name RFQ No. 608-25-91113 i

Signature Page Follows

TABLE OF CONTENTS

ARTICLE 1. DEFINITIONS

ARTICLE 2. CxA RESPONSIBILITIES AND SCOPE OF SERVICES

ARTICLE 3. TxDMV and TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

ARTICLE 4. COMPENSATION AND PAYMENT

ARTICLE 5. INTENTIONALLY DELETED

ARTICLE 6. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC DISCLOSURE

ARTICLE 7. INSURANCE AND INDEMNITY

ARTICLE 8-9 INTENTIONALLY DELETED

ARTICLE 10. SPECIAL PROVISIONS

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

Exhibit A. Owner’s Project Requirements Exhibit B. Professional Services Schedule

Exhibit C. List of CxA Key Personnel

Exhibit D. CxA Scope of Services Detail Exhibit E. Approved HUB Subcontracting Plan

Exhibit E-1. HUB Subcontracting Plan Form

Exhibit E-2. Progress Assessment Reporting Form

Exhibit F. CxA Insurance Requirements

TXDMV Contract No. XX-XXX-XXX ii

STATEMENT OF WORK FOR PROFESSIONAL

SERVICES BETWEEN

TEXAS DEPARTMENT OF MOTOR VEHICLES

AND

COMMISSIONING AGENT

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

THE TEXAS DEPARTMENT OF MOTOR VEHICLES (“TXDMV”), a state agency

4000 Jackson Avenue

Austin, Texas 78731 as “Owner” (as is defined in UGC Section 1.28), and the Commissioning Agent (the “CxA”):

[Name]

[Address] [City, State, Zip]

[Phone:] [Fax:] wherein CxA agrees to provide Professional Services for the following Project (the “Project”):

Commissioning Services

Camp Hubbard Renewal

Austin, Texas

TXDMV and the CxA agree as follows:

TxDMV Contract No. XX-XXX-XXX

Contractor Name RFQ No. 608-25-91113

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, or in any other document that is referenced herein and incorporated for all purposes, and the definitions in this

Agreement, the definitions used in this Agreement shall control.

Additional Services means those Professional Services not included in Sections 2.1 to 2.2 of this

Agreement which may be requested by TXDMV at any time for the duration of this Agreement, as discussed in Sections 2.3 and 4.4 below.

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

Project.

A/E Project Manager means the individual designated by A/E and approved by TFC, as the contact person with specific authority to properly supervise and direct the duties and responsibilities of

A/E, on behalf of A/E, pursuant to the terms and conditions of their Agreement with TFC, and who shall have decision-making authority to bind A/E with respect to the Professional Services for the

Project.

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

Agreement means this Agreement between TxDMV and CxA whereby CxA agrees to provide

Professional Services for the Project identified on the cover page of this document, all as outlined herein.

Applicable Law or Law(s) means any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders now in force or hereafter enacted by Authorities Having Jurisdiction

(the “Authorities Having Jurisdiction”), relating to or affecting the Project or arising from this

Agreement, including those governing labor, equal employment opportunity, safety, and environmental protection, and further including (i) applicable building, fire, and life safety codes and zoning requirements of Authorities Having Jurisdiction; (ii) accessibility laws, codes, and ordinances including but not limited to the Texas Accessibility Standards of the Architectural

Barriers Act, Tex. Gov’t. Code Ch. 469, Elimination of Architectural Barriers, and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12181); (iii) occupational safety acts and requirements applicable to the Project, including United States Occupational Safety and Health Administration

(“OSHA”) requirements and related federal and state regulations; (iv) requirements under Title VII of the Civil Rights Act of 1964, as amended; (v) requirements of the Fair Labor Standards Act and applicable state wage and hour laws including Tex. Gov’t. Code § 2258.001 et seq.; (vi)

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

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

Building Information Model (“BIM”) means the computable, digital, multi-dimensional representation of the physical and functional characteristics of the Project’s facilities and their related life-cycle information in Autodesk Revit format and Autodesk Civil 3D, to be used as a repository of design and construction information for use by the Project Team during the design, bidding and construction phases of the Project, and for TFC’s use throughout the life-cycle of the

Project. Members of the Project Team are required to coordinate all efforts with respect to the BIM in accordance with the guidelines set forth in the BIM Execution Plan developed for the Project.

Building Information Model (“BIM”) Execution Plan means that certain plan prepared by the Project team with the guidelines and protocols for use by the Project Team to effectively utilize the

BIM throughout the design, bidding, construction and life cycle of the Project.

CAD means AutoCAD DWG format.

Certificate of Substantial Completion means the certificate as defined in UGC Section 1.8, signed by the Contractor, CxA, and TFC establishing the date of Substantial Completion, as defined in

UGC Section 1.44, for the applicable part of the Work and identifying responsibilities for security and maintenance as set out in UGC Section 12.1.1.2.

Close-Out Documents has the same meaning as defined in UGC Section 1.10 and includes the

Contractor’s marked-up “as-builts” and A/E’s Record Drawings.

Commissioning Agent (CxA) means the professional engineering individual/s or firm contracted by TxDMV to perform the building systems commissioning as outlined in this Agreement. The

Commissioning Agent shall be part of the Project Team. The Commissioning Agent shall work independently of A/E and Contractor to ensure the proper installation, performance testing, functional testing procedures and operations of all installed and integrated systems.

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

Commissioning Plan (Cx Plan) means the document authored by the Commissioning Agent that documents the procedures, implementation, and execution of the commissioning process, to ensure that the Owner’s project requirements (OPR) and the Construction Documents are met.

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

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

Construction Documents means, collectively, the Drawings, Specifications, details, and other documents prepared by the A/E and its Consultants, by the CxA and, 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.

Construction Manager-at-Risk (“CMR”) or “Contractor” means, subject to the provisions of

UGC Sections 1.16 and 1.18, that entity with whom TFC contracts to provide preconstruction and/or construction services to the Project pursuant to an agreement. The terms “Construction

Manager” and “CMR” are interchangeable with each other and with the terms “Contractor” and

“General Contractor” or other similar terms used in the various parts of the Contract Documents, including the UGC.

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

Consulting Agreement means any agreement between CxA and a Consultant.

Cost Estimate(s) means the cost estimate(s) prepared by the appropriate Project Team member during various pre-construction phases of a Project based on the review of Drawings, Specifications and other Deliverables provided by A/E in the design process.

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

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

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

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

463, 94 Stat. 2055 (1980)), the Solid Waste Disposal Act Amendments of 1980 (Pub. L. No. 96-

482, 94 Stat. 2334 (1980)), and the Hazardous and Solid Waste Amendments of 1984 (Pub. L. No.

98-616, 98 Stat. 3221 (1984)), and regulations promulgated thereunder; (ii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. §

9601 et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub.

L. No. 99-499, 100 Stat. 1613 (1986)), and regulations promulgated thereunder; (iii) the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); (iv) the Endangered Species Act of 1973 (15

U.S.C. § 1531 et seq.) and its amendments; (v) laws, statutes, ordinances, rules, regulations, orders, or determinations relating to “wetlands,” including without limitation those set forth in the Federal Water Pollution Control Act (commonly referred to as the “Clean Water Act”) (33 U.S.C. § 1251 et seq.); (vi) the Texas Water Code; and (vii) the Texas Solid Waste Disposal Act (Tex. Health &

Safety Code Ann. §§ 361.001–361.345 (West 2018)).

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

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

Final Inspection Deadline means the date that is thirty (30) Days after the Substantial Completion

Inspection and the date by which A/E must conduct a Final Inspection, unless such deadline is amended by TFC.

Hazardous Materials means (i) any “hazardous waste” as defined by RCRA, and regulations promulgated thereunder; (ii) any “hazardous substance” as defined by CERCLA, and regulations promulgated thereunder; (iii) any toxic substance as defined under or regulated by the Toxic

Substances Control Act; (iv) asbestos, polychlorinated biphenyls, radon, or explosive or radioactive materials; (v) underground and above ground storage tanks, whether empty, filled or partially filled with any substance, including without limitation any petroleum product or any other “hazardous substance”; (vi) any substance the presence of which at the Project is prohibited by any

Environmental Laws; and (vii) any other substance which by any Environmental Laws requires special handling or notification of any Authorities Having Jurisdiction in its collection, storage, treatment, or disposal.

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

MEP Systems means mechanical, electrical, and plumbing systems.

Notice to Proceed or “NTP” means the written notice to be issued at the onset of the Project by

TxDMV notifying CxA to proceed with the commencement of Professional Services described in this Agreement.

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 TxDMV, Additional Services.

Professional Services Schedule or “Schedule” means the schedule/timeline set out in “Exhibit

B”, and which schedule/timeline sets out the deadlines in terms of a fixed number of days after a preceding deadline for completion and delivery of discrete portions of the Professional Services.

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

Project means the renewal of TxDMV's seven-building headquarters complex in Austin, TX located at 4000 Jackson Ave. The renewal includes construction of a new 141,000 SF office building, renovation of an existing 106,800 SF five floor office building, demolition of four existing buildings, and construction of site amenities.

Project Management Firm (“PMF”) means the service provider, if any, with whom TFC enters into a Project Management Firm Professional Agreement for Professional Services (the “Project

Management Firm Professional Agreement”) for the purpose of the PMF providing certain professional project management services for the Project, which may include, among other services, general Project management, strategic Project planning, Project Site planning, operational planning, capital expenditure planning, budgetary impact analysis, and/or Project controls. CxA acknowledges and agrees that the PMF shall have no authority to act for or on behalf of TFC, TxDMV, or the State of Texas except as expressly provided for in the Project Management Firm

Professional Agreement, a copy of which TFC will provide upon request.

Project Team are those entities who may be involved in the design and/or design assist procedures on the particular Project. Project team members include TxDMV, TFC, CxA and its

Consultants, PMF, the CMR or Contractor, any separate contractors employed by TxDMV or

TFC, and other consultants employed for the purpose of programming, design, and construction of a project. The members of the Project Team may be modified from time to time by TxDMV or TFC.

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

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.

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

Specifications is defined in UGC Section 1.41.

Standard of Care means that certain standard by which CxA shall perform all Professional Services hereunder, as prescribed by Tex. Gov’t. Code § 2254.0031 (incorporating Tex. Local Gov’t. Code

§ 271.904(d)), to wit: (i) with the professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license, and (ii) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.

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

12.1.1.

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

TDLR means the Texas Department of Licensing and Regulations.

TFC means the Texas Facilities Commission.

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, on behalf of TFC, including, but not limited to, serving as the point of contact between TFC, TxDMV, CxA, and Contractor, and supervising TFC’s review and approval of the Professional Services.

TxDMV Project Manager means the individual designated by TxDMV as the contact person for

TxDMV with the direct responsibility to properly supervise the services being provided pursuant

Agreement on behalf of TxDMV.

Uniform General Conditions or “UGC” shall mean the Uniform General Conditions for

Construction Contracts issued by the State of Texas, published date of 2015, and supplements thereto, which are incorporated into and made part of the CMR’s contract and are currently accessible at: https://www.tfc.texas.gov/divisions/facilities/prog/construct/formsindex/.

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

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

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

Work means, in addition to those items set forth in UGC Section 1.48, 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 the Contract Documents for that Project.

The Work may include the Preconstruction and Construction Services described in a Construction

Manager-at-Risk Agreement and all additional work required by any change orders, and any other work reasonably inferable from the Contract Documents. The term “reasonably inferable” includes the understanding of the parties that some minor details of the Work may not be shown on the Drawings or included in the Specifications, but they are included in the Work if they are usual and customary components of the Work for a project of the type depicted in the Contract Documents and they are needed to produce a complete and useable facility.

ARTICLE 2. CxA RESPONSIBILITIES AND SCOPE OF SERVICES

2.1 General Responsibilities. CxA shall perform all Professional Services on time and in accordance with the terms of this Agreement and all Exhibits, the American Society of Heating, Refrigeration, and

Air Conditioning Engineers (ASHRAE) Guideline 0, and the Associated Air Balance Council

Commissioning Group ACG Commissioning Guideline and, in connection therewith, shall render all professional opinions, advice, and exercise its professional judgment at all times in accordance with the Standard of Care. CxA shall be responsible for the professional quality, technical accuracy, and the coordination and completeness of all Deliverables and Professional Services it provides and for their compliance with Applicable Laws and the Standard of Care. CxA represents that it is properly licensed to provide the Professional Services required by this Agreement and shall cause all delegated Professional

Services to be performed by appropriately licensed design professionals.

2.1.1 Cooperation/Collaboration. CxA agrees to provide a high degree of cooperation, collaboration, coordination, and teamwork in the delivery of its Professional Services. To this end, CxA shall perform Professional Services in accordance with the Professional Services Schedule and in keeping with the design intent and construction budget. CxA agrees to work collaboratively with its

Consultants, TxDMV, TFC, and all Contractors and Consultants retained by TFC, including but not limited to A/E, PMF, CMR, and third-party testing firm(s), 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 building systems/equipment incorporated into the Project consistent with the Owner’s Project Requirements of performance, reliability, and maintainability; and (iv) provide valuable input and professional insight in construction meetings which TxDMV, TFC, Consultants, Contractor, and subcontractors attend.

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

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

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

The CxA Project Manager (or one of them as designated by CxA and approved by TxDMV) shall be authorized to act on behalf of and bind the CxA in all matters related to Professional Services. The CxA Project Manager, Project engineers, and other representatives, their titles, and a brief description of the limitations of each representative’s authority shall be included in

“Exhibit X” (the “CxA List of Key Personnel”) to this Agreement. CxA shall not change employee assignments without TxDMV’s written consent, which consent shall not be unreasonably withheld. CxA shall not assign or retain on the Project any person or entity to whom TxDMV or TFC reasonably objects.

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

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

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

2.2 Basic Services. CxA’s Basic Services consist of those described in this Section 2.2 and include the following phases: Construction Administration, post-construction, and warranty phases. Provide building system commissioning services for the phases necessary and reasonably inferable from Exhibit B Owner’s

Project Requirements. To the extent the parties deem it necessary, additional technical detail for the

Professional Services to be provided by CxA hereunder is contained in the CxA Scope of Services Detail attached as Exhibit D, which is provided for additional detail for and not in lieu of the Basic Services set forth in this Agreement.

2.2.1 Development of Pre-functional Checklists and Functional Performance Test procedures. CxA shall develop Pre-functional Checklists which include checks for equipment condition, calibration, component verification, and system connections to ensure safe startup. CxA shall develop step by step procedures for functional performance tests to ensure functionality, performance, and compliance with design and operational standards.

2.2.2 Development of Commissioning Plan. CxA shall develop a commissioning plan that will form the basis of the process to be followed throughout the construction as well as start-up and acceptance of the Project. The commissioning plan will identify commissioning related activities and include roles and responsibilities for each team member (TxDMV, TFC, PMP, CxA, A/E, CMR), including Owner's representatives, contractors, and vendors. Commissioning activities will include tests, procedures, meetings, documentation, scheduling and sequencing of tasks. The commissioning plan will identify systems/equipment to be commissioned and the methodology to be followed in demonstrating performance and operation. The commissioning plan will be updated with checklists and functional protocols as they are developed during construction.

2.2.3 Development of Commissioning Specifications. CxA shall develop commissioning specifications for all commissioned systems/equipment. Coordinate with the Project Team to integrate commissioning-related documents into the Construction Documents. The commissioning specifications shall include definitions of key terms, a detailed description of the responsibilities of all parties, details of the commissioning process, reporting and documentation requirement, alerts to coordination issues, deficiency resolution, construction checklist and startup requirements, the functional testing process and specific functional test requirements including testing conditions and acceptance criteria for equipment to be commissioned.

2.2.4 Building Systems Commissioning Services The following building systems are to be commissioned in accordance with ASHRAE Guideline 0, and the ACG Commissioning Guideline.

All building systems are to be commissioned at 100% unless otherwise noted:

2.2.4.1 Building envelope systems;

2.2.4.2 Life safety and security systems;

2.2.4.3 Fire suppression systems;

2.2.4.4 Fire and smoke detection systems;

2.2.4.5 Heating, Ventilation, Air Conditioning [HVAC] systems including smoke control and fire/smoke dampers;

2.2.4.6 Mechanical systems;

2.2.4.7 Central utility plant and water pumping systems;

2.2.4.8 Building automation and energy management systems;

2.2.4.9 Plumbing systems;

2.2.4.10 Irrigation systems;

2.2.4.11 Renewable energy systems;

2.2.4.12 Emergency power systems including generators and automatic transfer switches;

2.2.4.13 Uninterruptable power supply (UPS) systems;

2.2.4.14 Electrical systems;

2.2.4.15 Vertical transportation systems; and

2.2.4.16 Data and communication systems.

2.2.4.16.1 Data and communication systems and optics cabling shall be governed by the standards set forth by the National Electrical Contractors Association/Fiber Optic

Association [NECA/FOA] 301 Standard for Installing and Testing Fiber; ASTM D

4566-94 Standard Test Methods for Electrical Performance Properties of Insulation and Jackets for Telecommunications Wire and Cable; ANSI/TIA/EIA 568-B, Commercial Building Telecommunications Standard; and ISO/IEC 11801, Information Technology, Generic Cabling for Customer Premises.

2.2.4.16.2 Data Communication commissioning shall include reviewing pertinent submittals, witnessing testing (conducted by others), providing testing documentation, reviewing the test reports, and tracking issues discovered.

2.2.5 Construction Phase Services. CxA shall provide, as part of Basic Services, the following management and administration services during the construction phase of the Project as specified in the UGC and as follows:

2.2.5.1 Periodic Observation/Review Conduct site visits and deliver a periodic report to

TFC for each observation and review of the commissioning Work. Such periodic reports must describe in reasonable detail the status of the following:

2.2.5.1.1 the completed Work in relation to the Work Progress Schedule;

2.2.5.1.2 projected completion dates;

2.2.5.1.3 percentage of completion of each discrete subpart of the Work; and

2.2.5.1.4 any existing or potential deficiencies and/or discrepancies.

2.2.5.2 Administration Timely contract management and administration activities as required herein;

2.2.5.3 Review and Response Timely submission of complete responses to Requests For

Information (RFIs) regarding the equipment and systems within the scope of commissioning:

Timely review of submittals for the equipment and systems within the scope of commissioning and ensure compliance with the commissioning plan; within the specified deadlines, for the following:

2.2.5.3.1 RFI Response: seven (7) Days after receipt, or uploading, of an RFI generated by Contractor;

2.2.5.3.2 Submittals: fourteen (14) Days after receipt;

If the subject of an RFI cannot be reasonably answered by the RFI Response deadline, or any other deadlines set forth above cannot be timely met, CxA shall so advise TxDMV and TFC and propose an alternative deadline and the basis for such proposal. CxA shall make reasonable efforts to answer

Contractor questions, RFIs, and submittals in the shortest timeframe possible in order to collaborate in the prosecution of the Work on a schedule that recognizes that “TIME IS OF THE ESSENCE”.

2.2.5.4 Commissioning CxA shall have primary responsibility for execution of the commissioning plan and shall perform the following commissioning construction-related activities:

2.2.5.4.1 Plan and conduct a commissioning kick-off meeting at the project site with all members of the Project Team.

2.2.5.4.2 Update the commissioning plan and provide up to six (6) commissioning updates.

2.2.5.4.3 Update and finalize the Pre-Functional Checklists and Functional Performance Tests. Checklists and tests initially developed during design will be updated during the Construction phase to incorporate submittals and potential design changes.

2.2.5.4.4 Review completed Start-Up Reports and completed Pre-Functional

Checklists.

2.2.5.4.5 Review the Test and Balance Report(s) and conduct verification testing with the Test and Balance contractor on up to 20% of the air devices listed in the Test and Balance Report(s).

2.2.5.4.6 Conduct up to twenty (20) site visits during the construction phase. The site visits will be conducted to remain updated on the construction progress, spot check the completion of Pre-Functional Checklists, answer commissioning-related questions directly in the field, and identify potential issues/concerns before Functional

Performance Testing.

2.2.5.4.7 Conduct Functional Performance Testing. Attend functional performance tests and report observations; verify and document system installations.

2.2.5.4.7.1. Conduct Monthly commissioning meetings for the first 75% of the time of construction phase functional testing; weekly commissioning meetings for the next 22% time of construction phase functional testing; and daily commissioning meetings for the final 3% of Functional Testing.

2.2.5.4.7.2. Daily meetings to include morning huddles with the contractors who are directly involved in the commissioning process to ensure understanding of the daily objectives, and to confirm what was accomplished relative to what was planned.

2.2.5.4.8 Review Operations and Maintenance [O&M] Manuals. Organize and participate in the Owner Training process to ensure the project requirements are met.

2.2.5.4.9 Develop a Systems Manual/Plan that contains the information necessary to operate the building efficiently, with update upon receipt of the necessary As-Built documentation. The plan must include at a minimum the following:

2.2.7.4.9.1. a sequence of operations for the building;

2.2.7.4.9.2. the building occupancy schedule;

2.2.7.4.9.3. equipment run-time schedules;

2.2.7.4.9.4. setpoints for all HVAC equipment;

2.2.7.4.9.5. set lighting levels throughout the building;

2.2.7.4.9.6. minimum outside air requirements;

2.2.7.4.9.7. any changes in schedules or setpoints for different seasons, days of the week, and times of day;

2.2.7.4.9.8. a systems narrative describing the mechanical and electrical systems and equipment;

2.2.7.4.9.9. a preventive maintenance plan for building equipment described in the systems narrative; and

2.2.7.4.9.10. a commissioning program that includes periodic commissioning requirements, ongoing commissioning tasks, and continuous tasks for critical facilities.

2.2.5.4.10 Provide a Final Commissioning Report.

2.2.5.5 Substantial Completion of the Work. Subject to the provisions of UGC Section 12.1.1, no later than the Substantial Completion Inspection Deadline. CxA shall participate in a Substantial Completion Inspection of the CMR Work with the A/E, while accompanied by the TFC Project Manager, to determine whether said portion of the CMR Work has achieved Substantial Completion.

2.2.5.5.1 Work Does NOT Meet Substantial Completion Requirements. In the event TFC and A/E conclude that the Work, or any portion thereof, has not been performed or completed in accordance with the Construction Documents, A/E shall prepare and deliver to Contractor, within fourteen (14) Days after the Substantial

Completion Inspection, a Substantial Completion punchlist with a copy to TFC. A/E shall continue to inspect the Work completed from the punchlist until TFC can issue an appropriate Certificate of Substantial Completion. In the event TFC and CxA conclude that the CMR Work, or any portion of the commissioning scope thereof, has not been performed or completed in accordance with the Construction Documents, CxA shall prepare and deliver, no later than the Prefinal Inspection Punchlist Deadline, a Prefinal Inspection Punchlist to Contractor with a copy to TFC.

2.2.5.5.2 Work Meets Substantial Completion Requirements. In the event A/E and

TFC conclude that the Work, or a discrete and identified phase thereof, has been performed or completed in accordance with the Construction Documents so as to be determined to be substantially complete, TFC shall promptly issue an appropriate

Certificate of Substantial Completion as to the completed Work, as provided in UGC Section 12.1.1.2. Any provision in the foregoing to the contrary notwithstanding, A/E shall not recommend the issuance of a Certificate of Substantial Completion if, in its reasonable opinion, A/E determines that any of the items to be contained in the Substantial Completion punchlist referenced in Section 2.2.7.5(i) above cannot or, in all reasonable likelihood will not be, satisfactorily completed within thirty (30) Days of the date of the Substantial Completion Inspection Deadline.

2.2.6 Warranty Phase Services. During the Warranty phase, CxA shall perform the following activities:

2.2.6.1 Conduct Seasonal Testing; attend seasonal testing and report observations.

2.2.6.2 Conduct Functional Testing on up to 20% of equipment originally tested. Confirm operations ten (10) months into the warranty period with a warranty walk with TxDMV, TFC and A/E;

2.2.6.3 With TxDMV facility operators and occupants, execute post-occupancy Thermal

Comfort Surveys during the peak cooling and peak heating times of the year. Develop and distribute a report to the Project Team for the appropriate action to address the occupant concerns. Administer follow-up surveys after any resulting corrective actions; and

2.2.6.4 Update and submit a final commissioning process report to TXDMV that shall include approved test and balance reports, all pre-test checklists and functional performance test checklist results.

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

TxDMV.

2.2.7.1 Critically review and closely scrutinize appropriate documents submitted by third parties.

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

2.2.7.3 Conduct commissioning meetings as appropriate to phase of project.

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

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

2.2.7.6 Periodically review overall project schedule and make comments to assure commissioning-related tasks are coordinated with scheduled project activities.

2.2.7.7 Maintain an issues and benefits log to track all commissioning-related issues, deficiencies, and resolutions.

2.2.7.8 Provide access to commissioning process and document storage software for appropriate amount of time (for unlimited number of project users with training and support for all parties using the software). Provide facility grid commissioning software using a cloud-based software for the Project that enables users to distribute to all parties.

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

2.3.

ARTICLE 3. TxDMV and TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

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

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

3.1.1.1 The UGC, Supplementary General Conditions, and any Special Conditions;

3.1.1.2 Appropriate Drawings and information that may impact the CxA design and/or commissioning of the Project;

3.1.1.3 Any required delivery schedules;

3.1.1.4 Information concerning the Communication Protocol and TFC’s EPMCS; and

3.1.1.5 Owner’s Project Requirements.

3.1.1.6 The construction budget and any required delivery schedules.

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

3.1.2.1 TxDMV shall provide assistance to CxA to obtain access to the Site as is reasonably necessary to enable CxA to provide the Professional Services.

3.1.2.2 TFC has designated the TFC Project Manager who will provide oversight of the design and construction of the Project and the Professional Services.

3.1.2.3 TFC has designated 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 defined in the PMF definition above and in the Project Management Firm Professional Agreement.

CxA shall, at all times, work collaboratively with PMF, CMR, the TxDMV Project

Manager and the TFC Project Manager as well as other members of the Project Team and shall work to help integrate its Services throughout the Project.

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

3.2 Actions of TxDMV and TFC. No inspections of the Project or review of Deliverables by TxDMV or TFC shall reduce the level or extent of CxA’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

TxDMV shall constitute or be deemed, a release of CxA’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 TxDMV 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. CxA acknowledges that the TxDMV

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.

3.4 No Warranties by TFC. CxA acknowledges that any and all tests, maps, reports, and Drawings in the possession of TxMDV and 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 TxDMV/TFC’s benefit and for information only purposes, and that CxA shall have no right to rely upon such and that any reliance thereon shall be at CxA’s own risk. TxDMV HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AS TO

THE ACCURACY OR COMPLETENESS OF THE ABOVE-MENTIONED REPORTS, TESTS,

MAPS AND DRAWINGS.

ARTICLE 4. COMPENSATION AND PAYMENT

4.1 Compensation for Basic Services. For CxA’s timely performance of Basic Services described under

Section 2.2 and in accordance with the Schedule set forth, TxDMV shall pay CxA a stipulated sum of

($ ). Professional Services performed or delivered by CxA prior to the Effective Date of this Agreement or after it terminates cannot be compensated.

4.1.1 Proportional Payments. Payments shall be made to CxA monthly upon submission of an

Invoice as set forth in Section 4.1.2 below. Payments shall be made in proportion to the services performed so that the Compensation for Basic Services shall not exceed the following cumulative percentages at the completion and acceptance of each phase:

4.1.2 Submission of Invoices. No more frequently than once per month, CxA shall submit an Invoice to TxDMV for services performed and reasonable and necessary costs and expenses incurred through the last day of the previous month. TxDMV agrees to pay CxA 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, CxA shall make payment to Consultants within ten (10) Days after receipt of payment from TxDMV. Should it become necessary, and in the sole discretion of TxDMV and after five (5) Day notice to CxA, TxDMV may issue joint checks to

CxA and Consultants.

Construction Administration Fifty percent 50%

Substantial Completion Eighty-five percent 85%

Warranty Phase One hundred percent 100%

Rule of thumb percentages.

Percentages to be negotiated for each contract.

4.2 Reimbursable Expenses. Reasonable lodging and traveling expenses shall be considered a

Reimbursable Expense under this Agreement when professional and technical personnel of CxA 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

CxA, except for overnight stays, which require prior TxDMV 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, CxA must obtain the written approval of TxDMV 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 TxDMV, 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 above, CxA shall deliver written notice thereof to TxDMV. Nothing herein shall be construed to require TxDMV to increase the approved amount(s) established pursuant to this Agreement.

4.4 Additional Services. Upon request by TxDMV for Additional Services, CxA shall prepare and submit a proposal for such Additional Services to TxDMV for approval. Additional Services shall be performed at a rate negotiated between TxDMV and CxA and must be approved by the parties by amendment to this Agreement. Once approved by TxDMV, in writing, in advance of the Service, payment shall be made monthly, in accordance with the Tex. Gov’t. Code Ch. 2251.

ARTICLE 5. INTENTIONALLY DELETED.

ARTICLE 6. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

6.10 Confidentiality Provisions Applicable to CxA

6.10.1 Protection of Confidential Information. CxA hereby acknowledges, understands and agrees:

(i) that in the course of its provision of services to TxDMV, certain Confidential Information (as defined below) will be disclosed to CxA; and (ii) that whether developed by TxDMV or others employed by or associated with TxDMV, all Confidential Information is, and shall remain, the exclusive and confidential property of TXDMV, and shall be at all times regarded, treated and protected as such by CxA in accordance with this Agreement. Failure to mark any information “Confidential” shall not affect the confidential nature of such information.

6.10.2 Definition of Confidential Information. “Confidential Information” shall mean all information, whether or not originated by TXDMV, which is used in, or a part of, TXDMV’s business and operations and is: (i) proprietary to, about, or created by TXDMV; (ii) gives TXDMV some competitive advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the…