ESBD_442915_1754337305234_0006148 Attachment D - AE Contract Template FINAL.doc

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INSTRUCTIONS TO ALL RESPONDENTS FOR RFQ 0006148 ATTACHMENT D

PROFESSIONAL SERVICES AGREEMENT

FOR

CONSTRUCTION MATERIALS TESTING AND SPECIAL INSPECTIONS FOR THE

TEXAS JUVENILE JUSTICE DEPARTMENT NEW FACILITIES

Article 3, TFC Responsibilities, Information and Approvals Article 4, Compensation and Payment, Subsection 4.1.1 through 4.7 Article 5, Copyrights/Trademarks/Instruments of Service Article 6, Records, Audit, Proprietary Information and Public Disclosure Article 7, Insurance and Indemnity Article 8, Dispute Resolution Article 9, Term, Suspension, and Termination Article 10, Special Provisions Article 11, Miscellaneous Provisions

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

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Lia Edwards Assistant General Counsel

ARCHITECT/ENGINEER AGREEMENT FOR PROFESSIONAL SERVICES

BY AND BETWEEN

THE TEXAS FACILITIES COMMISSION AND

[INSERT CMT NAME]

FOR

CONSTRUCTION MATERIALS TESTING AND SPECIAL INSPECTIONS

TEXAS JUVENILE JUSTICE DEPARTMENT

TFC CONTRACT NO. [INSERT]

RFQ NO. 0006148

PROJECT NO. 24-43-2558

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TABLE OF CONTENTS

Page

i TFC Contract No. XX-XXX-XXX CMT Name RFQ No. 0006148 Project No. 24-43-2558

Page of 39

AGREEMENT BETWEEN

THE TEXAS FACILITIES COMMISSION AND [CMT]

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 Construction & Materials Testing Consultant (the “CMT”):

[Name] [Address] [City, State, Zip] [Phone:] [Fax:] wherein CMT agrees to provide Professional Services for the following Project (the “Project”): Texas Juvenile Justice Department New Facilities Waxahachie, Texas Rosharon, Texas

More specifically described as:

This project involves the design and construction of two advanced juvenile justice facilities for the Texas Juvenile Justice Department (TJJD). The project aims to modernize the juvenile detention system in Texas by creating secure, rehabilitative environments for youth offenders. These facilities will be strategically located in urban areas to enhance accessibility and community integration in two independent 30+ acre sites. One site will be located in Waxahachie, Texas (Ellis County); the other site will be located in Rosharon, Texas (Brazoria County).

The primary objectives of the project include the construction of modern facilities with cutting-edge security and rehabilitative technologies, the creation of specialized care environments for youth with severe mental health issues and violent behaviors, and the integration of the facilities within urban settings to maintain proximity to families and provide employment opportunities for staff. Sustainability will be a key focus, with the incorporation of eco-friendly design principles to minimize environmental impact and promote energy efficiency.

The facilities will feature therapeutic spaces, including therapy rooms, counseling offices, and group session areas to support mental health and rehabilitation. Educational facilities such as classrooms, vocational training centers, and libraries will provide comprehensive educational opportunities and skill development for the youth. Recreational areas, both indoor and outdoor, will be included to encourage physical activity and social interaction. Secure yet comfortable residential units will be designed to ensure the safety of residents and staff while minimizing an institutional atmosphere. Advanced security infrastructure, including surveillance systems and controlled access points, will maintain order and safety within the facilities.

Both sites will prioritize accessibility via public transportation and major roadways to facilitate family visits and staff commutes. Community impact considerations will involve engaging with local communities to address concerns, integrate the facilities into the urban fabric, and create local employment and community program opportunities. Environmental assessments will be conducted to ensure minimal disruption to local ecosystems and compliance with state and federal regulations.

This project represents a significant investment in Texas' juvenile justice system, aiming to create facilities that not only detain but also rehabilitate and educate youth offenders. Through careful planning, innovative design, and community collaboration, these new facilities will set a new standard for juvenile justice architecture in Texas

TFC and the CMT agree as follows:

1) The Texas Facilities Commission (hereinafter referred to as “TFC”, a state agency located at 1711 San Jacinto Boulevard, Austin, Texas 78701, as Owner (as defined in 2015 Uniform General Conditions, Section 1.28) and [Insert] (hereinafter referred to as "Construction Materials Testing" or "CMT" as defined below), located at [Insert], enter into the following agreement for professional engineering services (hereinafter referred to as the "Agreement") pursuant to the Professional Services Procurement Act, Tex. Gov't Code Ann. Ch. 2254, Subchapter. A, to be effective as of the Effective Date (as defined below). The project for which CMT agrees to provide Professional Services is generally described as construction materials testing and special inspection services for the Department of Public Safety, Williamson County Training Academy, Florence, Texas.

Professional Services to be provided shall include, but are not limited to, the following list of testing and inspection requirements and all other services necessary and/or reasonably inferable to accomplish the project: (i) Deep foundation inspection and observation; (ii) Structural Steel; (iii) Concrete (includes Reinforcing Steel Observation, Post-Tensioning Steel Observation and Observation for Anchors cast in concrete); (iv) Tendon Stressing Records, (v) Structural Masonry; (vi) Soils; (vii) Sprayed Fire-Resistant Materials; (viii) Fire-Resistant Penetrations and Joints; (ix) Ultrasonic testing of chilled water pipe welds;

(x) Field Testing and Inspections – Earthwork observation and testing to include field density tests; (xi) On-site concrete observation/testing; (xii) Asphalt observation/testing; (xiii) Pre-construction testing;

(xiv) Special testing and inspections; Special Inspections – high strength bolted and welded connections; Inspection of Architecturally Exposed Structural Steel (AESS) in place; and Field weld inspections; (xv) Firestopping field testing ASTM E2174; (xvi) Infrared camera inspections of building envelope and roof systems; (xvii) ASTM window chamber testing; (xviii) Water penetration testing AAMA-501.2; and (xix) Whole building air barrier leakage testing ASTM E779.

To ensure quality of project delivery to TFC, a high level of collaboration will occur between all design and construction teams. Coordination efforts with TFC; Kitchell/CEM, Inc., the project management firm; HDR Architecture, Inc., the Architect/Engineer of Record (hereinafter, referred to as "A/E"); the Construction Manager-at-Risk, as defined in UGC Section 1.18 (hereinafter referred to as "CMR"); and third-party testing firm(s), and contractors during all phases of the Project, as described in this Contract. CMT shall be a part of the Project Team who works independently of A/E and CMR for construction materials observation and testing services for this Project. The CMT firm shall provide professional services for construction materials testing and special inspections throughout the construction duration of thirty months. Nothing in this Agreement shall be interpreted or construed to make CMT a third-party beneficiary hereunder.

ARTICLE 1. DEFINITIONS

Unless specifically provided otherwise, all words and phrases in this Agreement in initial caps shall have the meanings set out in this Article 1. All undefined and capitalized terms used herein shall have the meaning given to them in the UGC. In the event of any conflict between the definitions in the UGC, the 2018 Supplementary General Conditions, the TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 or in any other document that is referenced herein and incorporated for all purposes, and the definitions in this Agreement, the definitions used in this Agreement shall control.

Additional Services means those Professional Services not included in Sections 2.1 to 2.2 of this Agreement which may be requested by TFC at any time for the duration of this Agreement, as discussed in Sections 2.3 and 3.3 below.

A/E means the architect and/or engineer with whom TFC has entered into an Agreement for the provision of Professional Services as the Architect of Record, exercising overall responsibility for the design of the Project as set forth herein.

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

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

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

Agreement means this Agreement between TFC and CMT whereby CMT 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, architectural design, interior design, furniture, fixtures and equipment layout and consultation, design management, structural engineering, engineering for all MEP Systems, civil engineering, lighting, acoustics, compliance with Title III of the Americans with Disability Act of 1990, 42 U.S. Code (“ADA”), wayfinding, survey, geotechnical engineering, preparation of Drawings, Specifications, and all Construction Documents, construction observation, and construction administration, all as further indicated in Section 2.2 of this Agreement.

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

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

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

CAD means AutoCAD DWG format.

Certificate of Substantial Completion means the certificate as defined in UGC Section 1.8, signed by the Contractor, A/E, 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.

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

Communication Protocol means the communication and tracking procedures to be utilized for interaction and reporting between TFC, A/E 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 CMT for the Professional Services provided by CMT as set forth in Article 4 of this Agreement.

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

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

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

Consulting Agreement means any agreement between CMT 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 CMT pursuant to the terms of this Agreement.

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

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

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

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 CMT as submitted in conformance with Article 4 below.

MEP Systems means mechanical, electrical, and plumbing systems.

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

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

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

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

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

Professional Services Schedule or “Schedule” means the schedule/timeline set out in “Exhibit D”, and which schedule/timeline sets out the deadlines in terms of a fixed number of days after a preceding deadline for completion and delivery of discrete portions of the Professional Services. At the discretion of the TFC Project Manager and as mutually agreed upon with CMT, the Schedule may be revised and defined with more detail as the Project develops.

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

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

Project Management Firm or “PMF” means the service provider, if any, with whom TFC enters into a Project Management Professional Agreement for Professional Services (the “PMF 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. CMT 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 PMF Agreement, a copy of which TFC will provide to CMT upon CMT’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, 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 CMT 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 A/E 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(s) 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), A/E, CMT, 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 1.48, the provision of all labor, materials, supplies, and equipment that are required of the CMT to manage, implement, and fully perform in accordance with the requirements of this Agreement and the Contract Documents for the Project.

(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.

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Special inspections – high strength bolted and welded connections.

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Conduct inspections of Architectural Exposed Structural Steel (AESS) in place.

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file_7.png the completed Work in relation to the Work Progress Schedule;

file_8.png projected completion dates;

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