ESBD_497743_1773865655218_Attachment A - IDIQ Professional Services Contract Sample.pdf

Lamar University IDIQ Agreement for MEP –XXXXX.

THE TEXAS STATE UNIVERSITY SYSTEM

LAMAR UNIVERSITY

INDEFINITE DELIVERY INDEFINITE QUANTITY (IDIQ)

PROFESSIONAL SERVICES AGREEMENT

(Mechanical, Electrical, and Plumbing Professional Engineering Services)

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

University System & Lamar University (“Owner”), and NAME OF FIRM. (“MEP”) is effective the

________ day of_________________, 2026.

WHEREAS, the Owner requires professional services from time to time at the campus of Lamar University with respect to various capital projects to be identified from time to time (individually referred to as a “Project” and collectively as “Projects”); and

WHEREAS, the MEP is licensed to provide such services and is willing to perform such services on the terms and conditions set forth in this Agreement.

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

ARTICLE 1 SCOPE OF SERVICES

1.1 The MEP agrees to perform Basic Services and certain Additional Services for one or more Projects, both as specified more particularly in Article 3, as directed by the Owner, and in accordance with the applicable Standard of Care (see Paragraph 1.2 below).

1.1.1 The term “Basic Services” will, for each Project, be described in the Work Order, but will normally include the following: mechanical, electrical, and plumbing, professional engineering services. Basic Services will also include cost estimating, per paragraph 6.2, for the results of everything that is designed into a Project by the MEP whether from Basic or

Additional Services.

1.1.2 In addition to these Basic Services, Owner may include certain Additional Services not included in Basic Services in the Work Order. During the course of a Project, the MEP may be requested to perform further Additional Services as set forth in Article 4 upon negotiation of additional fees and execution of an Amendment to the Work Order.

1.1.3 The MEP agrees to comply with the Owner’s latest version of the Design Guidelines and

Construction Standards applicable to the campus and/or location of a Project (“Campus

Standards”) when providing the services included in this Agreement.

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

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

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

1.3 To commence any Project under this Agreement, the Owner shall deliver to the MEP a written description of the general requirements of the Project, the services required, an initial milestone schedule for performance of the services, and such other information as may be necessary or desirable for the initiation of the Project. MEP shall prepare a written proposal that comports with the stated scope of work, timelines and any other obligations set forth by the Owner in its written submission to the MEP. The MEP shall submit the proposal within ten (10) business days after receipt of the proposal request. The Owner shall deliver to the MEP a signed Work Order in the form attached to this Agreement as Exhibit B. A Work Order may be amended by an amendment issued by the

Owner in the form attached as Exhibit C.

1.4 Articles 3 through 8 of this Agreement shall apply individually to each Project commenced under this

Agreement.

1.5 The MEP shall make maximum beneficial use of Building Information Modeling (“BIM”) through close coordination with the Owner, the Contractor and their subcontractors and consultants. When requested, MEP will make the BIM products of its work fully available to the Owner and Contractor for their use in constructing and operating/maintaining the Project, subject only to receiving adequate liability protection against unauthorized modification or reuse of the design. The BIM deliverable may be utilized as a Facility Management tool for post construction use.

1.6 Definitions:

1.6.1 Campus Standards: Documents prepared by the Owner to be used by MEP for their use related to Building Codes, Construction Building Systems and Specifications to ensure the Project is designed to a certain level of finish and quality found throughout the Owner’s campus.

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

1.6.3 Project Management Software System (“PMSS”): Owner’s designated project management software system used by the Project team to transact, correspond, and maintain project related correspondence and documentation throughout the life of the Project including Project close-out and final payments. Licensing costs for the PMSS are the responsibility of the Owner.

1.6.4 Work: See as defined in Article 1 of the Uniform General Conditions of The Texas State

University System published date of December 1, 2021, a copy of which is published on the

Owner’s website https://www.tsus.edu/offices/finance/capital-projects.html (referred herein as the “UGC”).

ARTICLE 2 PROVISIONS RELATED TO FEE AND REQUIRED INSURANCE

2.1 With respect to each Project, the Owner agrees to pay the MEP a fee (“Fee”) for Basic Services, and any Additional Services calculated on the basis of the fee schedule attached to this Agreement as

Exhibit A. The Fee will be based solely on the level of effort required of the MEP and shall not change unless the Owner directs significant changes to the quantity, quality standards or types of construction included in the Project. Without limiting the generality of the foregoing statement, the Fee will not change due to increases or decreases in the Construction Cost Limitation (“CCL”) of https://www.tsus.edu/offices/finance/capital-projects.html a Project (see Paragraph 8.2).

2.1.1 Reimbursable Expenses are in addition to the Fee for Basic Services and Additional Services.

These include actual out-of-pocket reasonable expenditures made by the MEP and the MEP’s employees and consultants incurred solely and directly in connection with MEP’s performance of its services hereunder. Any expenses that are reimbursable to the MEP under this Agreement shall be billed to the Owner monthly as a direct expense, without any markup for overhead or profit. Owner and MEP may agree to limit reimbursable expenses in the project Work

Order document. Travel costs, but not the salary costs during travel, of out-of-town trips required by the Owner shall be treated as reimbursable expenses under this Agreement.

Reimbursement for these expenses shall be limited to the lesser of actual expenses incurred and the reimbursement rates then allowable for travel by employees of the State of Texas.

MEP shall submit receipts for all reimbursable expenses along with any reimbursement request.

2.2 The total value of the Agreement term shall not exceed TWO MILLION DOLLARS AND

ZERO CENTS ($2,000,000.00) for the total life of the contract, including all renewals. MEP agrees to notify Owner if, at any time, the amount of Fees collected or contracted for under this

Agreement exceeds eighty percent (80%) of the maximum set forth in this paragraph.

2.3 The MEP Services set forth in this Agreement are those normal and customary services necessary to the design and construction administration of a project of the type, size and quality standards as indicated by the Scope of Work provided by the Owner for each Project, and those generally found in the public higher education sector in the State of Texas for similar projects. The MEP shall not deviate from such requirements without written approval from the Owner’s Designated

Representative (“ODR”). The services required are further defined and detailed in, but not limited by, Article 3.

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

2.5 The MEP agrees to proactively comply with the Owner’s established policies regarding the utilization of Veteran Heros United in Business (“VetHUB” or VetHUBs”) and all applicable administrative rules and statutes relating to utilization of VetHUBs by Owner for the project and adhere to the

VetHUB Subcontracting Plan, and any amendments thereto, submitted by MEP and approved by the institution.

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

MEP. The insurance policy shall remain in force for a period of one (1) year beyond the final project completion date. A Certificate of Insurance indicating the expiration date and representing the existence of the MEP’s insurance coverages is required prior to commencement or continuation of performance of the services under this Agreement. Within five (5) business days of the Owner’s request, MEP shall provide Owner a complete copy of each insurance policy required under the

Agreement at no cost to the Owner. MEP shall deliver to Owner replacement certificates not less than thirty (30) days prior to the expiration of any such insurance. If, however, MEP fails to pay any of the renewal premiums for the expiring policies, Owner shall have the right (but not the obligation) to make such payments and set off the amount thereof against the next payment coming due to MEP under this Agreement.

2.6.1 A Certificate of Professional Liability Insurance is required with a minimum limit of One

Million Dollars ($1,000,000) each claim and One Million Dollars ($1,000,000) aggregate. The

Certificate shall indicate the expiration date of the MEP’s professional liability and errors and omissions insurance. The Certificate is to identify the specific name of the Project according to the terms of this Agreement and identify the Board of Regents of The Texas

State University System as the Project’s Owner.

2.6.2 On Site Insurance: For services performed on Owner's premises, the MEP shall furnish to

Owner Certificates of Insurance as set forth below prior to the commencement of any work hereunder and shall maintain such coverage during the full term of the Agreement.

Worker's Compensation Statutory Limits

Employer's Liability

Bodily Injury by Accident

Bodily Injury by Disease

Bodily Injury by Disease

$1,000,000 each accident

$1,000,000 policy limit

$1,000,000 each employee

Commercial General Liability $1,000,000 each occurrence

$1,000,000 aggregate $10,000,000 Medical Expenses Each Person

Business Auto Liability

Combined Single Limit $1,000,000 each occurrence

2.6.3 Notice of Cancellation: Required insurance shall not be cancelable without written notice to the certificate holder in accordance with the terms of the insurance policy. MEP agrees to notify Owner of the cancellation or modification of any insurance policies within five (5) days of its receipt of such notice of cancellation or modification.

2.6.4 MEP shall include the Owner as an additional insured on the General Liability policy, and the

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

To the fullest extent permitted by applicable law, including but not limited to Section 271.904 of the Texas Local Government Code, such General Liability policy shall provide for the defense of the additional insureds in suits or legal actions brought against additional insureds on claims that, if proven by final judgment, would constitute covered claims under such General Liability policy.

2.6.5 MEP shall require its Consultants to maintain Commercial General Liability and Business

Auto Liability coverage with a company satisfactory to Owner and with limits acceptable to

Owner.

ARTICLE 3 SERVICES OF THE MEP

3.1 Schematic Design Phase

3.1.1 Based upon the Scope of Work provided by the Owner, careful observation and investigation of the project site and existing conditions by the MEP and their Consultants, the

CCL and a desired Project Schedule established by the Owner, the MEP shall prepare sufficient alternative approaches to design of the Project to satisfy Owner’s requirements and at completion of this phase, shall submit Schematic Design documents in accordance with

Owner’s Design Guidelines.

3.1.2 MEP shall provide all services necessary to perform the services of this Phase (preparation of Schematic Design documents) including, without limitation, unless otherwise approved by

Owner, the preparation and prompt delivery of all items specified in Owner’s Design

Guidelines.

3.1.3 MEP shall work closely with Owner in preparation of schematic drawings and shall specifically conform to Owner’s requirements regarding aesthetic design issues.

3.1.4 MEP shall demonstrate adherence to the Scope of Work by providing clear and concise information showing such adherence within the documents submitted for approval.

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

3.1.6 The MEP shall furnish and deliver to the Owner an electronic copy and printed sets in the quantity requested by the ODR. All sets shall be distributed as directed by the ODR.

3.1.7 If requested by Owner the MEP shall direct the preparation of a detailed construction cost estimate to confirm compliance with the CCL and complete it within two (2) weeks of delivering the completed Schematic Design documents. (See Section 6.2 for estimate requirements). The MEP shall consult with the Owner, and its designated representatives including the ODR, and recommend any Value Engineering (“VE”) adjustments to the

Project that may be necessary to align the cost estimate and the project budget with the established CCL. The MEP shall revise the Schematic Design documents as may be required to incorporate VE recommendations accepted by the Owner.

3.1.8 Before proceeding into the Design Development Phase, the MEP shall obtain written acceptance of the Schematic Design documents and approval of the MEP’s preliminary construction cost estimate, if any, and schedule by the ODR. The MEP shall submit a fully executed Certificate of Compliance (as required by the Owner’s Policies and Procedures for

Planning and Construction) (“Certificate of Compliance” Exhibit D). The MEP shall furnish and deliver an electronic copy of the complete documents for this phase of the design in a format acceptable by the Owner for the Owner’s record (i.e., all drawings, specifications, product data, cost estimates, etc.).

3.2 Design Development Phase

3.2.1 Based on the approved Schematic Design documents and any adjustments to the building program or CCL authorized by the Owner, and upon receipt of a Notice to Proceed executed by the ODR, the MEP shall prepare, for approval by the Owner, Design Development documents in accordance with Owner’s written requirements. These documents will further define and finalize the size and character of the Project in accordance with Owner’s Design

Guidelines.

3.2.2 The MEP shall furnish and deliver to the ODR an electronic copy and printed sets in the quantity requested by the ODR of Design Development documents.

3.2.3 During the Design Development Phase, the MEP shall verify in writing to the Owner the economic feasibility of incorporating into the Project’s design any proposed energy system alternative energy devices for space heating and cooling functions, water heating functions, electrical load functions, and interior lighting functions, with a comparison of the estimated cost of providing energy for each function through conventional systems with the estimated cost of providing energy for each function based on the base of alternative energy devices, over the projected economic life of the building.

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

Design Development documents (See Section 6.2 for estimate requirements). The MEP shall consult with the Owner, and its designated representatives including the ODR, and recommend any VE adjustments to the Project that may be necessary to align the cost estimate and the project budget with the established CCL. The MEP shall revise the Design

Development documents as may be required to incorporate VE recommendations accepted by the Owner.

3.2.5 MEP shall demonstrate adherence to the Scope of Work by providing clear and concise information showing such adherence within the documents submitted for approval.

3.2.6 The MEP shall prepare meeting minutes for any meetings attended that reflect discussions, minutes shall be published and distributed to the ODR and all attendees within seven (7) business days from the date of the meeting to allow for comments and/or corrections to the minutes. The MEP may be required to attend a Project meeting weekly either in person, through video conferencing, or telephonically as directed by the ODR.

3.2.7 Before proceeding into the Construction Document Phase, the MEP shall obtain Owner’s written acceptance of the Design Development documents and approval of the mutually established CCL and schedule by the ODR. The MEP shall submit a fully executed

Certificate of Compliance to the ODR. The MEP shall furnish and deliver to the ODR an electronic copy of the complete documents for this phase of the design in a format acceptable by the Owner for the Owner’s record (i.e., all drawings, specifications, product data, cost estimates, etc.).

3.2.8 The MEP shall prepare preliminary recommended furniture layouts for all spaces where it is deemed important to substantiate the fulfillment of program space requirements, or to coordinate with specific architectural, mechanical, and electrical elements.

3.2.9 MEP shall assist the Owner with preparation of an application for the Project with the Texas

Higher Education Coordinating Board (“THECB”), if necessary. Such assistance shall include (i) the preparation of a listing of the rooms, room type and usage codes, and square footages in the Project; (ii) the preparation of project cost information, in accordance with

THECB Guidelines; and, (iii) the preparation of a presentation to the THECB, if required.

This information shall be provided at the completion of the Design Development Phase when requested by the Owner.

3.3 Construction Document Phase

3.3.1 Based on the approved Design Development documents and any further adjustments in the scope or quality of the Project or in the Project CCL authorized by the Owner, and upon issuance of a Notice to Proceed, the MEP shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications in accordance with

Owner’s written requirements setting forth in detail the requirements for construction of the

Project, including, without limitation, Owner’s Design Guidelines. The plans, drawings and specifications for the entire Project shall be prepared so that the construction of the building and related facilities, including built-in permanent fixtures and equipment, will cost no more than the CCL established by Owner. The MEP is responsible for managing the design elements of the Project to stay within the CCL based upon pricing information provided by his independent cost estimator.

3.3.2 Construction document drawings shall be produced on a Computer Aided Design and

Drafting (“CADD”) software system as part of Basic Services. The Owner will define the

CADD drawing requirements and the final media for the CADD data.

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

3.3.4 The MEP shall assist the Owner in connection with the Owner’s responsibility and procedures for obtaining approval of all authorities having jurisdiction over the Project.

3.3.5 If required by the scope of the Project, the MEP shall file and obtain approval of the Project from the Texas Department of Licensing and Regulations, Architectural Barriers Division, in accordance with Chapter 469, Texas Government Code, as amended, and Title III of the

Americans with Disability Act (ADA) of 1990, 42 U.S.C., Section 12181. The fees for these approvals will be paid by the Owner.

3.3.6 The MEP shall prepare meeting minutes for any meetings attended that reflect discussions, minutes shall be published and distributed to the ODR and all attendees within seven (7) days from the date of the meeting to allow for comments and/or corrections to the minutes.

The MEP may be required to attend a project meeting weekly either in person, through video conferencing, or telephonically as directed by the ODR.

3.3.7 The MEP shall provide services reasonably designed to ensure coordination and inclusion of sequence of operations for all operable systems in the facility.

3.3.8 The MEP, at the percent completed intervals of the Construction Document preparation defined in the Work Order, shall furnish and deliver to the ODR printed copies, in the quantity and format requested by the ODR, of every character made or furnished in connection with the Work, which copies shall become the property of the Owner. The MEP shall incorporate into the plans, drawings, and specifications such changes as are necessary to satisfy the Owner’s written review comments or published meeting minutes, any of which may be appealed in writing for good cause. The MEP shall furnish and deliver to the Owner an electronic copy of the complete documents at the intervals defined by the Owner and in a format acceptable by the Owner for the Owner’s record (i.e. all drawings, specifications, product data, cost estimates, etc.).

3.3.9 The MEP shall provide with each review submittal a Coordination Document set with colored overlays of required design disciplines. These shall include, but not be limit to, mechanical, electrical, plumbing, sprinkler, slab penetrations, telecommunications, and instructional technologies support. With the exception of fire sprinkler design, the MEP shall provide all designs and shall not use design performance documents, unless approved by the Owner.

3.3.10 Prior to releasing the Construction Documents “For Construction”, the MEP shall provide a document that summarizes all design code requirements and provide written certification that the Construction Documents meet all applicable design codes and the requirements of the local Campus Standards. The MEP shall further certify in writing that no asbestos or lead containing materials have been specified or approved by the MEP for installation into the

Project.

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

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

3.3.12 The MEP shall direct the preparation of a detailed construction cost estimate to confirm compliance with the CCL and provide it to the ODR within ten (10) business after submitting the completed documents at the stages of design identified by Owner for each project (See

Section 6.2 for estimate requirements). The MEP shall advise the ODR of any adjustments to the Project needed to align the cost estimate and the project budget with the established

CCL. The MEP shall revise the Construction Documents as may be required by the adjustments at the MEP’s sole expense.

3.3.13 Before proceeding into the Bidding and Proposal Phase, the MEP shall obtain ODR’s written acceptance of the Final Construction Documents and will reconfirm with the ODR the alignment of the construction cost estimate with the established Final CCL. The MEP The

MEP shall submit to the ODR a fully executed Certificate of Compliance. And shall furnish and deliver to the Owner an electronic copy of the complete documents in a format acceptable by the Owner for the Owner’s record (i.e. all drawings, specifications, product data, cost estimates, etc.).

3.4 Bidding and Proposal Phase

3.4.1 The MEP shall assist the Owner in obtaining and evaluating bids or proposals including preparation for and attendance at Pre-bid or Pre-proposal Conferences and HUB meetings.

MEP shall answer inquiries from bidders/proposers at Owner’s request and shall prepare and issue any necessary addenda to the bidding or proposal documents.

3.4.2 In the event the best value proposal received for the Project exceeds the Final CCL established at the completion of the Construction Document Phase, the MEP, if so directed by Owner, shall revise the drawings and specifications as necessary to bring the cost of the Project within the Final CCL. If the MEP has not altered the scope or quality level of the Project without approval by the ODR, then the MEP may be compensated as an

Additional Service for changes to the Construction Documents needed to satisfy Owner’s budget limitations. The Owner reserves the right to accept a proposal and award a construction contract that exceeds the Final CCL, if such award is determined by ODR to be in the Owner’s best interest. The MEP’s Fee will not be adjusted if the Owner decides to accept such a proposal. The MEP shall furnish and deliver to the Owner an electronic copy of the complete documents of the Final Revised Construction Documents in a format acceptable by the Owner for the Owner’s record (i.e., all drawings, specifications, product data, cost estimates, etc.).

3.5 Construction Phase

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

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

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

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

3.5.3 The MEP shall review the Contractor’s list of proposed subcontractors for the work, initial administrative submittals for Project Schedule, Schedule of Values, Submittal Schedule, and

Equipment Matrix to establish appropriate bases for construction monitoring, payment processing, and system commissioning. The MEP shall identify necessary revisions to the documents in writing to the Contractor and recommend acceptance of the documents by the

Owner when appropriate. The MEP shall review periodic updates of all schedules with

Owner and Contractor to evaluate appropriateness.

3.5.4 The MEP and its Consultants shall prepare appropriate materials for and participate in a Pre-

Construction Conference prior to commencement of construction by the Contractor.

3.5.5 The MEP shall be a representative of the Owner during the Construction Phase and shall advise and consult with the Owner. Instructions to the Contractor regarding changes to the Work shall be forwarded through the MEP. The MEP shall have authority to act on behalf of the Owner to the extent provided in the Contract Documents. Duties, responsibilities, and limitations of authority of the MEP shall not be restricted, modified, or extended without written acceptance of the ODR.

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

Consultant’s discipline to observe the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. MEP and its Consultants shall submit timely written reports of their site visits and meetings. The MEP shall not be required to make exhaustive or continuous onsite visits to inspect the quality or quantity of the Work. The Owner may require site visits and inspections by the MEP or the

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

3.5.6.1 On the basis of the onsite observations, the MEP shall keep the ODR informed of the progress and quality of the Work and shall endeavor to identify defects and deficiencies in the Work of the Contractor. MEP shall notify ODR and the

Contractor in writing of any portions of the work which MEP has observed as not being in conformity with the Construction Documents and make recommendations as to correction of the deficiencies or defects. MEP shall make its site representative available and shall consult with ODR and the Contractor on the occasion of all circumstances arising during the course of construction, which would make such consultation in Owner’s interests.

3.5.6.2 In addition to site visits for general observation, the MEP and its Consultants shall visit the site as appropriate for specific purposes related to certification of progress payments, start-up or mock-up reviews for significant work activities and for formal inspections of the Work. The MEP and its Consultants shall provide written reports of all site visits to the ODR and Contractor.

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

Work in accordance with the Contract Documents.

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

3.5.9 The MEP shall determine the amounts owing to the Contractor based on observations of Work placed at the site and on evaluations of the Contractor’s Application for Payment, and shall coordinate its review and evaluation with the ODR, and shall certify Contractor’s Application for Payment in an appropriate amount.

3.5.10 The certification of a Contractor’s Application for Payment shall constitute a representation by the MEP to the Owner, based on the MEP’s observations at the site and on the data comprising the Contractor’s Application for Payment, that the Work has progressed to the point indicated; that, to the best of the MEP’s knowledge, information and belief, the quality of the work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated in the Contractor’s Application for Payment); and that the

Contractor is entitled to payment in the amount certified. However, the approval of a

Contractor’s Application for Payment shall not be a representation that the MEP has: (i) made any examination to ascertain how and for what purpose the Contractor has used the monies paid on account of the Contract Sum; (ii) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (iii) reviewed construction means, methods, techniques, sequences or procedures; (iv) reviewed copies of requisitions received from subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment; or (v) accepted the Contractor’s responsibility for the quality or quantity of the Work.

3.5.11 The MEP shall be the interpreter of the technical requirements of the Contract Documents and the judge, to the extent provided herein, of the performance of the Work of the Contractor.

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

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

3.5.13 Subject to approval of the Owner, the MEP’s decisions in matters relating to artistic effect shall be final if consistent with and reasonably inferable from the intent of the Contract Documents.

The MEP shall review interior designs and/or furniture selections proposed by the Owner and advise the Owner on their aesthetic compatibility with the MEP’s design.

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

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

3.5.15 The MEP and its Consultants shall review and approve or take other appropriate action upon the

Contractor’s submittals such as Shop Drawings, Product Data and Samples specifically required by the Construction Documents, but only for conformance with the design concept of the

Work set forth in the Contract Documents and shall respond to Contractor’s inquiries and questions and provide supplemental information as appropriate. Action on submittals shall be taken with reasonable promptness so as to cause no delay to the Contractor’s scheduled progress, but in any event no more than ten (10) business days after receipt. The MEP’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. The MEP’s review shall not constitute approval of any construction means or methods, or of any safety precautions. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details, such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor.

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

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

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

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

Documents may be revised to show such changes, provided that all such revisions shall be separately recorded on the media acceptable to Owner, including, without limitation, BIM.

Such revisions shall be clearly indicated, and a current revision date shall be included on the reproducible copy. Changes to the specifications shall be made by consecutively numbered and dated addenda. All changes to design documents or specifications will be identified with date of change, revision number and other customary identification references. Areas changed on drawings will be “clouded” to show each change. Clouds designating previous changes will be removed so that only the most recent changes will be clouded.

3.5.20 MEP and its Consultants shall participate in concealed space observations, systems start-up observations, systems integration/operational demonstrations, Substantial Completion observations, and Final Completion observations. In association with each observation, MEP and its Consultants shall prepare a list of items which MEP and its Consultants have observed as deficiencies in the Work, requiring remedial work or replacement, assemble and distribute the official list of deficiencies (“Punch list”) to all affected parties, and thereafter review the corrected and/or replaced work and assist in verification of correction of all Punch list items.

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

3.5.22 The MEP and its Consultants shall assist the Owner in checking the Contractor’s as-built drawings and specifications during the course of the Work in association with certifying progress payments. Failure to review and advise on the Contractor’s progress and update the as-built drawings in a timely manner will affect the progressing of the monthly payment to the MEP for the Construction Phase (Article 7). The MEP shall review as-built documents for completeness and compliance with Contract requirements at Substantial Completion and at Final Completion of the Project. As a part of the Record Drawing and Closeout Documents

Submittal phase of this Agreement (Article 7) the MEP shall enter all the Contractor’s records of changes onto the original Construction Documents and shall furnish and deliver to the ODR an electronic copy of the complete documents in a format acceptable by the Owner for the Owner’s record.

3.5.23 MEP shall receive and review Contractor’s submission of as-built drawings, operating and maintenance instructions, and all manuals, brochures, drawings, and other closeout documentation furnished by the Contractor, shall require necessary revisions to same, and when acceptable under the terms of the Agreement between Owner and Contractor, shall forward to ODR. The MEP shall certify final payment to the Contractor when the MEP believes the requirements of the Agreement between Owner and Contractor have been met.

3.5.24 MEP shall monitor the Contractor’s schedule for the construction phase work and assist the

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

3.5.25 MEP shall prepare a complete list of project close-out and Owner-training requirements contained in the Construction Documents and will display them in matrix form similar to

Exhibit E. The matrix shall be displayed as part of the front end of the Construction Document

Specifications.

3.5.26 The MEP shall be available after final payment to advise the Owner regarding Warranty items and to inspect Warranty work during the Warranty period. MEP shall participate in the Project’s one (1) year warranty review.

ARTICLE 4 ADDITIONAL SERVICES

4.1 Services may be required for the design of the Project which are not included as part of the Basic

Services described in Articles 1 and 3 or the Additional Services described in the Work Order. If such services are required, they will either be provided by the Owner, contracted for separately from a third party, or authorized in writing to be performed by the MEP and paid for by the Owner as hereinafter provided. If authorized in writing to be performed by the MEP, such services will be subject to this Article 4.

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

4.3 Any Additional Service cost of Amendment effort shall be agreed to and authorized in writing by the ODR before the work is performed. Fees for an Amendment effort performed by the MEP’s staff shall be proposed to the ODR showing a detailed documented required level of effort and using the hourly rate schedule included as Exhibit A. Consultant services for Amendment work, provided under subcontract to the MEP, shall be compensated at actual cost, plus ten percent (10%). Reimbursable expenses for both the MEP and its Consultants shall be compensated at direct cost (with no markup).

The Owner may decide to reach a lump sum agreement with the MEP prior to authorizing

Additional Services for a n Amendment effort or may direct the effort to be performed on a time and expenses basis.

ARTICLE 5 THE OWNER'S RESPONSIBILITIES

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

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

5.3 The Owner shall furnish any existing as-built drawings. When required for the Project, the Owner shall furnish to the MEP 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 utility services, public and private. The Owner shall provide any additional boundary and topographical surveys that are found to be needed during design.

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

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

5.6 The Owner shall furnish the MEP, when available and applicable, copies of Owner's Standard

General Conditions, Contract Forms, Bond Forms, bidding information and instructions, minimum wage rates for inclusion in the specifications, and design and construction standards of the Owner.

ARTICLE 6 REVISION TO DRAWINGS AND SPECIFICATIONS

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

Owner to obtain a Competitive Sealed Proposal within the CCL. In the event the lowest acceptable proposal exceeds the CCL, and if the Owner does not see fit to allot additional funds, the MEP agrees to revise the Construction Documents as may be necessary to bring the Construction Cost within the CCL. If the MEP has not altered the scope or quality level of the Project in ways that were not approved by the ODR, then the MEP may be compensated as an Additional Service for changes to the Construction Documents needed to satisfy Owner’s budget limitations.

6.2 Since a CCL will be established in a Work Order or an Amendment to a Work Order, an estimate of cost prepared in detail form shall be provided by the MEP at each stage of the design where a review submittal is required by this Agreement. All such estimates shall be prepared by a recognized independent third-party estimating consultant retained and paid by the MEP out of its Basic Services

Fee. The estimates shall be prepared in detail in the Construction Specifications Institute (CSI)

MasterFormat. If such estimates, at any required submittal stage, exceed the stated CCL (including contingencies), the Owner may modify the CCL, accept VE recommendations; revise the program, scope or quality, or any combination of these to bring the construction cost within the CCL. The MEP shall then revise the Construction Documents (at no added charge to the Owner) as may be necessary.

The Owner may decide to include alternate bid items in the Construction Documents as a means of adjusting the actual construction cost to the cost limit. If the Owner requests alternates to be designed which by estimate exceed the CCL during design, and those alternates, or parts thereof, are not constructed within the CCL, then the MEP shall be compensated for having prepared these alternate bids items on an Additional Services basis as provided in Article 4. This compensation will be provided whether or not the alternates are actually constructed.

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

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

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

ARTICLE 7 DELIVERABLE SCHEDULE AND PAYMENTS TO THE MEP

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

Government Code Chapter 2251, and in proportion to the services performed to increase the compensation for services to the following percentages at the completion and acceptance of each phase of the work. Should the Project be designed in several phases or bid packages, the MEP shall submit a revised payment schedule for signatory approval by the ODR prior to the payment of any services. This revised MEP payment schedule will be based on the master schedule described in this paragraph 7.1.

By Phase Cumulative

7.1.1 Schematic Design Phase 15% 15%

7.1.2 Design Development Phase 20% 35%

7.1.3 Construction Documents Phase 40% 75%

7.1.4 Bidding or Negotiation Phase 2% 77%

7.1.5 Construction Phase 20% 97%

7.1.6 Record Drawing and Closeout Documents Submittal 3% 100%

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

7.3 If any work designed or specified by the MEP is abandoned or suspended, in whole or in part, the

MEP will be paid for the service actually performed on account of it, provided that such abandonment or suspension is not caused by the nonfeasance, malfeasance, fault and/or negligence of the MEP.

ARTICLE 8 CONSTRUCTION COST LIMITATION

8.1 Construction Cost Limitation (“CCL”) is defined as the estimated cost of construction plus the construction contingency allowance established by the Owner and is to be used as a basis for determining whether the MEP has met its obligation under to this Agreement to design the Project within the Owner’s budget allowance.

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

ARTICLE 9 TERMINATION OF AGREEMENT

9.1 The term of this Agreement shall commence on the effective date first entered above and end on the second anniversary of the effective date. The Owner shall have the option to extend this Agreement for three (3) additional one- year terms by written notice to the MEP.