ESBD_512935_1778078017326_Exhibit D - Professional AE Agreement (Template).pdf

TMD CONTRACT NO. CFMOFY-ENG-AE-00

PROJECT NO. 00000000

Project Name Form Rev. 02/2026

STATE P.O. NUMBER: 401-FY-XXXX

TITLE I, TYPE A, SERVICES: $0.00

TITLE I, TYPE B, SERVICES (OPTIONAL): $0.00

TITLE II, TYPE C, SERVICES (OPTIONAL): $0.00

PROFESSIONAL ARCHITECTURAL/ENGINEERING

SERVICES AGREEMENT FOR PROJECT NAME BETWEEN

THE TEXAS MILITARY DEPARTMENT

AND

A/E FIRM NAME

The Texas Military Department (hereinafter referred to as “TMD”), a state agency located at 2200 W. 35th Street, Austin, TX 78703 and A/E Firm Name (hereinafter referred to as “A/E”), A/E Address, City, State Zip Code, enter into the following contract for Professional Architectural and Engineering Services (hereinafter referred to as the “Agreement”) pursuant to the Professional Services Procurement Act, TEX. GOV’T CODE ANN. Ch. 2254 referenced in “Attachment J - TMD ARCHITECTURAL/ENGINEERING GUIDELINES”.

I. SCOPE OF SERVICES AND RESPONSIBILITIES FOR THE PROJECT

1.1. PROJECT DESCRIPTION

(a) The project for which A/E agrees to provide professional architectural and engineering services is for the Project Name, Project Address, City, TX Zip Code (hereinafter referred to as the “Project”). Changes to A/E’s services for the Project set forth in this Agreement will not be allowed unless approved in writing by TMD. No compensation will be allowed for work by A/E performed without such prior approval per Section 3.1. (c) Contract Limit and Fees and Expenses.

(b) A/E Firm Proposal dated Month Day, Year, schedule and budget for the Project are set forth in “Attachment A – A/E PROPOSAL, SCHEDULE AND BUDGET FOR THE PROJECT” attached hereto and incorporated herein for all purposes.

(c) Unless otherwise specified in TMD’s Design Statement of Work dated Month Day, Year, and incorporated herein by reference as “Attachment B – TMD DESIGN STATEMENT OF WORK,” the following applies to type A, B, and C services.

1.2. MOBILIZATION AND PRE-DESIGN – “TYPE A SERVICES”

A/E shall perform the following mobilization and pre-design services for the Project:

(a) Consult with TMD, the user agency, to become thoroughly familiar with the Project Description as defined in Section 3.0 of the TMD Design Statement of Work, which includes the overall goals of the Project, aesthetic considerations, and functional requirements including:

(i.) allocations of space with uses and adjacency relationships for all spaces, and

(ii) operational objectives.

(b) Visit and become familiar with the site.

(c) Review existing site and facilities studies as may be available and applicable.

(d) Review the construction budget established for the Project by TMD and advise

TMD if, in the opinion of A/E, said construction budget is sufficient to realize the design of the Project. If so, A/E shall confirm in writing its ability to prepare a design that will satisfy the Program requirements within the established construction budget. If the construction budget proposed by TMD cannot be reconciled with the Program requirements proposed by TMD to the satisfaction of A/E, TMD shall make appropriate adjustments to which A/E can subscribe and confirm. If this reconciliation of requirements cannot be accomplished, TMD, at its option, may waive the requirement for A/E budget conformance or terminate the services of A/E. In the event of the confirmation of the propriety of the established budget by A/E, TMD agrees that subsequent changes in Program or scope of the Project may be cause to modify the construction budget, and shall be done so by amendment to this Agreement.

(e) Determine and advise in writing to TMD which codes, regulations and site-related requirements, such as environmental impact studies and interface with utility districts, may impact the design and construction of the Project.

(f) If applicable, receive and become familiar with requirements of the technical and design standards of TMD and the user agency, such as the TMD Architectural/Engineering Guidelines and standards (hereinafter referred to as “A/E Guidelines”) attached hereto and incorporated herein by reference in Attachment J.

(g) Determine and advise TMD which additional, if any, subcontractors not employed by A/E under this Agreement will be necessary to complement the services of A/E in order to fulfill requirements of the Program.

(h) In collaboration with TMD, develop a schedule for the delivery of services under this Agreement. Such schedule shall be consistent with the deadlines and benchmarks of the overall Project schedule set forth in Attachment A.

(i) Confirm A/E ability to utilize the computer-aided design system and the project management control system utilized by TMD as detailed in Attachment B. Coordinate with TMD the manner of implementing these systems throughout the life of the Project.

(j) If necessary, assign appropriate staff to receive instruction from TMD in the use of the electronic project management control system utilized by TMD.

1.3. SCHEMATIC DESIGN

A/E shall perform the following schematic design services for the Project:

(a) Based on the requirements described in Section 1.2(a), prepare concept drawings and block diagrams sufficient to establish design direction and conduct interim reviews of draft solutions with TMD staff until an acceptable approach is established.

(b) Upon approval by TMD of concept diagrams and drawings, prepare and submit for review to TMD in electronic format per scope of work and five (5) printed copies, each of the following:

(i.) “Schematic Design Drawings” including a site development plan, building plans, elevations, sections and perspective sketches sufficient to convey comprehensive design intent;

(ii.) a written outline summary of the areas within the proposed building, such summary corresponding to the general categories in the space allocation contained in the Program;

(iii.) a written description of the building and general site development which shall include an overview of proposed exterior architectural materials and structural systems, together with the Mechanical, Electrical and Plumbing (“MEP”) systems and services being contemplated; and, (iv.) an order-of-magnitude cost estimate delivered in the form of a Schedule of Values.

(c) Upon receipt of TMD’s review comments on the submittals described in Section 1.3(b), update such documents taking into account said review comments to the satisfaction of TMD and submit for approval until the satisfactory resolution of all issues is achieved. At no such time will approval by TMD of updated documents be unreasonably withheld.

(d) Upon receipt of TMD’s approval of the Schematic Design Documents, prepare final presentation documents comprised of the components described in Section 1.3 (b)(i) plus two

(2) perspective renderings in color, such renderings to include an aerial view (or other view as may be determined by TMD) and ground level view of the main façade. Provide three (3) copies of the presentation documents plus the originals and an agreed upon electronic copy of each of the color perspective renderings. Additional color renderings, models, or presentations in other media, which may be required by TMD, will be considered a “Reimbursable Expense” as defined in Section 3.1 of this Agreement.

(e) Using the final presentation documents in original or an agreed upon electronic format per scope of work as directed by TMD, conduct a total of not more than three (3) explanatory presentations at times during the course of the Project as may be required by TMD.

1.4. DESIGN DEVELOPMENT PHASE – “TYPE B SERVICES”

A/E shall perform the following design and bid document preparation services for the Project:

(a) Based on the approved Schematic Design Documents, prepare “Design Development Documents” consisting of plans, elevations and such other drawings, calculations and outline specifications as are necessary 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 structure, and to coordinate the interface of all architectural and structural elements with all building systems.

(b) Such Design Development Documents shall be based on appropriate calculations which appropriately determine all architectural and engineering components, and A/E shall submit to TMD the following:

(i.) written criteria for structural system proposed, including the rationale for determinations, design loads for floor, roof, and lateral loads;

(ii.) written criteria for HVAC system proposed and single line layout of piping systems;

(iii.) electrical design criteria including design and reserve capacity;

(iv.) a written evaluation of energy conservation alternatives. A/E shall file the Energy Conservation Design Standard Compliance

(v.) Statement with the State Energy Conservation Office and the Texas Comptroller of Public Accounts; and, (vi.) copies of manufacturers' illustrations of materials and equipment proposed to be specified for the Project.

In completing the above, A/E shall coordinate and/or incorporate the work product of any third-party contractors which may have been identified in compliance with Section 1.2 (g) of this Agreement and appointed by TMD.

(c) Using Construction Specifications Institute (“CSI”) format, prepare a detailed estimate of the probable Project construction cost. If such estimated cost exceeds the order-of-magnitude construction cost required in Section 1.3(b)(iv) of this Agreement by more than 15%, A/E shall consult with TMD to identify design modifications which will enable compliance with the budget, set forth in Attachment A. Modifications so identified and approved by TMD shall be made to the Design Development Documents by A/E at no cost to

TMD.

(d) Assure that all design criteria and product as illustrated by the Design Development

Documents are in compliance with all local, State and Federal applicable codes and regulations.

(e) Submit in an agreed upon electronic format per the scope of work and five (5) printed copies to TMD for review, all Design Development Documents. Update documents in compliance with TMD’s review and obtain TMD's written approval before proceeding to the next phase.

1.5. CONTRACT DOCUMENTS PHASE

A/E shall perform the following Contract Documents phase services for the Project:

(a) Based on the approved Design Development Documents, prepare “Contract Documents” consisting of the bid documents, a project manual, and such other drawings and specifications as may be necessary to set forth, in detail, the work required for the Project. Such documents must be complete and sufficiently reflect the design intent established in previous phases of services delivered under this Agreement.

(i.) If requested by TMD in writing, A/E shall as an “Additional Service” as defined in Section 3.2 of this Agreement, prepare the Contract Documents so as to allow the awarding of separate contracts for the various phases of the work.

(ii.) A/E shall date and appropriately seal and sign the Contract Documents to reflect the appropriate professional design disciplines. No Contract Documents shall be issued or released for any purpose without first having been approved by TMD.

(iii.) Include in the Contract Documents applicable requirements of the statutory provisions for disabled persons as required by Title III of the Americans with Disabilities Act (“ADA”) and the Texas Architectural Barriers Act and Texas Accessibility Standards found in Texas Government Code, Chapter 469. A/E will submit all required documents to the Texas Department of Licensing and Regulations (“TDLR”) as TMD’s authorized agent and obtain the TDLR’s opinion that the Project is designed in compliance with accessibility standards. A/E shall submit to TMD a copy of the TDLR compliance opinion upon receipt.

(b) Using CSI format, prepare a detailed estimate of the probable Project Construction Cost. If such estimated cost exceeds by more than 15% the Project Construction Cost, A/E shall consult with TMD to identify design modifications which will enable compliance with the budget, as set forth in Attachment A. Modifications so identified and approved by TMD shall be made to the documents by the A/E at no cost to TMD.

(c) If applicable, file all documents required to secure approval and fulfill requirements of governmental authorities identified under Section 1.2(e) of this Agreement. Costs associated with submitting documents to such authorities and permit fees will be reimbursed to A/E by TMD pursuant to Section 3.1 of this Agreement.

(d) Submit in electronic format per scope of work and five (5) printed copies to TMD for review, all Contract Documents described in this Section. Update documents in compliance with TMD’s review and obtain TMD's written approval before release of documents for bidding or construction. Provide TMD a full set of electronic data disk(s) in the format agreed in accordance with Section 1.2(i) of this Agreement.

(e) Modifications to the Contract Documents which are made necessary by the errors and omissions of the A/E shall be corrected by the A/E at its expense.

(i.) An omission is defined as any change or addition in the Contract Documents required to make the Project whole to its original design intent.

(ii.) An error is defined as any change or addition to the Contract Documents where remediation of a previously implemented work must occur to meet code and/or design intent or any omission that is caused by gross negligence by A/E. In the event that A/E is determined to have been the cause of such an error, which is greater than the 3% industry standard, A/E shall bear the reasonable costs, in excess of value added to the Project, to resolve said error.

1.6. OPTIONAL CONTRACT BIDDING AND AWARD PHASE

Five percent of the Type B Services fee shall be held for an optional contract bidding and award Phase. TMD will notify A/E of their intent to continue or suspend the Project with 90 days after the completion of the Contract Documents Phase (section 1.5). If the TMD elects to continue the Project into the contract bidding and award phase the A/E shall perform the following services for the Project:

(a) At the sole expense of A/E, furnish TMD with up to ten (10) sets of reproductions of the approved Contract Documents and provide electronic sets to bidders. TMD shall request and pay direct expenses for the reproduction of additional copies, if required.

(b) Assist TMD in the bidding process by performing the following:

(i.) Draft Bid documents:

(A) A/E shall review the construction payment schedule provided by the awarded General Contractor (GC). This payment schedule shall be based on project specific milestones (or phases) appropriate to the scope and complexity of the work performed.

Milestone and payment schedules shall be approved by TMD’s ODR.

(c) A/E shall perform the following:

(i.) Attend pre-bid meeting(s) conducted by TMD.

(ii.) Provide cost breakdown to TMD.

(iii.) Provide plans and specifications to potential bidders, if requested.

(iv.) If designated by TMD, take the necessary action in providing documents to selected on-line electronic plan rooms, the cost of which is a Reimbursable Expense.

(v.) Respond to questions about the Contract Documents as well as prepare any addenda or amendments required to the solicitation documents which arise during the bid process. All questions and responses shall go through TMD.

(d) A/E shall participate in the evaluation and scoring of all proposals received prior to the bid closing date and time in accordance with TMD processes and procedures which are included in the Bid/Contract Documents.

(e) If Respondents price exceeds the established budget allocated for construction, as set forth in Attachment A or any subsequent modifications and TMD does not allocate additional funds, A/E agrees to redesign the Project and revise the drawings and reissue the bid documents as may be necessary, without additional cost to TMD, to bring the total Project cost within the funds allocated for construction. Should TMD elect to allocate additional funds to compensate for such overrun construction cost and the Project proceeds, A/E agrees there will be no increase in its fee.

1.7. CONSTRUCTION PHASE - GENERAL ADMINISTRATION OF CONSTRUCTION

CONTRACTS – “TYPE C SERVICES”

A/E shall perform the following services for the general administration of the construction contract(s) during the construction phase of the Project:

(a) Perform professional observation to determine that all elements of the Project are being constructed in compliance with the plans and specifications outlines in the Contract Documents.

(b) Provide periodic observations during all phases of work. Such observations shall include, but shall not be limited to, all functions described in Section 1.8 (b) and the TMD Design Statement of Work applicable to professional inspection. A/E acknowledges that professional observation requires presence at the site not less than weekly during construction unless otherwise agreed upon in writing.

(c) Provide five (5) complete sets of construction documents, to include all addenda & revisions, at commencement of Type C services. Construction documents shall also be provided in PDF and AutoCAD electronic formats.

1.8. ADDITIONAL SERVICES

If requested by TMD as an Additional Service, as defined in Section 3.2 of this Agreement, provide an on-site representative, approved by TMD, during the construction phase of the Project. This representative shall have decision-making authority to bind the A/E applicable to the work and the Project. TMD has the right to approve A/E’s on-site representative and require replacement if necessary, during the course of the Project if not performing adequately.

(a) Be the final authority concerning design intent and interpretation of plans and specifications in the administration of the construction contract.

(b) Properly and periodically inspect the work in progress on the Project and follow established procedures in the handling of submittals, change orders affecting plans and specifications of the project, and other administrative tasks. In addition, respond to requests for information, clarification, or assistance from the “Contractor”, as defined in the Uniform General Conditions, and Supplemental General Conditions for Building Construction (“UGC”) incorporated as “Attachment H - UNIFORM GENERAL CONDITIONS, AND SUPPLEMENTAL GENERAL CONDITIONS” to this document. Any inspections of the Project conducted by TMD during the course of construction shall not diminish A/E’s responsibilities under this Section.

(c) Conduct contract administration activities making use of the TMD electronic project management control system as applicable, and in conformance with the timelines established in the UGC.

(d) Obtain the approval of TMD through Owner Designated Representative (ODR) for any contemplated construction change prior to preparing any change documents and prepare drawings and/or specifications for approved proposed changes and submit them to the Contractor for a price proposal. Thereafter, A/E shall review the contractor’s proposal and recommend approval or disapproval to TMD.

(e) Throughout the course of construction update all Contract Documents to reflect as-built conditions, regardless of the cause or source of changes to the approved documents.

(f) During construction, submit weekly reports to TMD describing overall job progress, contract and projected completion dates, percentage of completion, deficiencies, status of revisions, existing or potential problem areas and status of Contract Documents. Such reports shall be compiled and submitted in the format designated by TMD.

(g) Upon receipt of notification by the Contractor that work has been completed, A/E shall conduct an inspection, performed by the appropriate members of its staff and its professional and/or engineering affiliates. As a result of this inspection, A/E shall prepare a list of the items needing correction. After confirming that the Contractor has performed the required corrections, A/E shall notify TMD in writing that the contract has been performed according to the plans and specifications and is ready to conduct the “Final Inspection”, as defined in Article 12 of the UGC. A/E shall accompany TMD on the Final Inspection to ensure that the total work has been completed in accordance with the Contract Documents. A/E shall review all warranties, guarantees, bonds, equipment operating instructions and similar required material and documents to ensure that all such materials and documents are received and that they meet the requirements of the Contract Documents. Within forty-eight (48) hours of such confirmation, A/E shall transmit said materials and documents to TMD. After determining that the work was constructed in conformance with the Contract Documents, A/E shall authorize issuance of a “Notice of Substantial Completion” and approve the Contractor's application for final payment in accordance with the UGC and other Contract Documents.

(h) Upon completion of construction and prior to any request for final payment, A/E shall furnish to TMD record documents that reflect changes in the original construction drawings and final location of mechanical service lines and outlets and shall provide to TMD electronic data disks of all Contract Documents. Each disk shall be labeled including information of the Software and version used. CAD drawings shall be organized within a standardized layering system. Layer format and names shall be in accordance with the A/E and TMD Guidelines. It is expressly understood that the original disks remain the property of the A/E. If, subsequently, differences should appear between TMD copies and A/E's copies, A/E’s disks shall be deemed originals.

1.9. WARRANTY PHASE

If requested by TMD as an Additional Service, as defined in Section 3.2 of this Agreement, A/E shall perform the following warranty phase services for the Project:

(a) At least thirty (30) days before the completion of the warranty period for the Project, provide at least one on-site inspection performed by the appropriate members of A/E’s staff and its professional and/or engineering affiliates. If requested, A/E shall inspect all Project conditions to ensure that all equipment, materials and workmanship continue to meet the requirements and performance expectations of the Contract Documents. As a result of this inspection, A/E shall prepare a list of the items needing correction.

(b) Assist TMD in the resolution of warranty items and/or latent defects. A/E shall submit monthly reports to TMD until all warranty and/or latent defects are resolved to the satisfaction of TMD.

(c) A/E agrees that any fixed fees for services performed under Section 1.8 of this Agreement shall be based on the hourly rates set forth in “Attachment C- A/E HOURLY RATES A/E FEE BREAKDOWN,” attached hereto and incorporated herein for all purposes.

1.10. TMD'S RESPONSIBILITIES

TMD shall perform the following services for the Project:

(a) TMD shall provide A/E the following information for the Project:

(i.) Information as to the requirements for the Project and procedures to be followed.

(ii.) A written or electronic copy of the UGC and sample copies of contract forms, bond forms, bidding information and instructions, minimum wage rates and VetHUB Subcontracting Plan documents for inclusion in the specifications.

(iii.) If available, maps showing site boundaries, easements, topography, utility locations, and such other site conditions or restrictions which may impact the design and/or construction of the Project.

(iv.) If available, soil reports as required by the A/E.

(v.) The Project Scope or equivalent thereof together with other information as needed to provide the A/E with a design Program including the following information:

(A) such standards of design which TMD may require for architectural and engineering disciplines in the design and construction of the Project;

(B) Project construction budget; and,

(C) Project schedule.

(vi.) A description of procedures to be followed in the interaction between TMD, its contractors, and A/E; such description to include training in the use of any electronic project management control systems employed by TMD on the Project.

(b) TMD shall provide A/E the following services for the Project:

(i.) Assist A/E in gaining entry to property as necessary for performance of A/E’s services under this Agreement.

(ii.) Designate a Project Representative(s) for the implementation of work under this Agreement who will serve as the point of contact between TMD, the user agency (if any), and A/E. TMD’s Project Representative shall supervise TMD’s review and approval of

A/E’s work product, deliverables, draft and final reports, payment requests, schedules, budget administration and similar matters. The Project Representative does not have any express or implied authority to vary the terms of the Agreement, amend the Agreement in any way, or waive strict performance of the terms of conditions or the Agreement.

(iii.) Provide, or cause to be provided, such additional professional services as may be necessary to complete the Project that are not provided under this Agreement.

(iv.) Provide intermediate reviews of the work product of the A/E as necessary to allow A/E to proceed with delivery of its services in a timely way.

(v.) If deemed necessary by TMD and utilizing its inspection staff, TMD may conduct different levels of inspection during construction of the Project. However, this activity shall not relieve A/E from its obligations under this Agreement.

1.11. A/E PERSONNEL

(a) A/E’s designated principal, project manager or lead designer, on-site representative, employees, and associated subcontractors to be utilized in the performance of these services under this Agreement are identified in “Attachment D - A/E PERSONNEL,” attached hereto and incorporated herein for all purposes. The persons identified in Attachment D shall not be changed except with TMD’s prior written acknowledgement and concurrence, which shall not be unreasonably withheld. TMD has the right to approve A/E’s project manager and replace if necessary during the course of the Project if not performing adequately.

A/E will commit the assigned and approved project manager or lead designer for the amount of time necessary to fully manage and oversee the responsibilities of A/E. TMD maintains the right to require the use of up to a full-time status, if deemed necessary, for the proper execution of A/E’s deliverables.

(b) All project design team members shall cooperate and assist all other contractors and design professionals retained by TMD during the Project. A/E’s agreements with its contractors and subcontractors shall contain a provision to preclude any contractor, subcontractor and/or principals and families, from having any financial interest in a firm, which bids or performs any part of the construction work. These agreements must be made available to TMD upon request.

1.12. MEETING ATTENDANCE

Unless otherwise addressed in this Agreement, attendance at all meetings necessary to the delivery of all services to be provided by A/E is an integral part of such services and included in the fees as set forth in Article III of this Agreement.

II. TERM

2.1. DURATION

This Agreement shall be effective as of the date executed by the last party and shall terminate on Month Day, Year, unless extended by the parties by amendment to this Agreement or terminated earlier, as provided in section 2.2.

2.2. EARLY TERMINATION

This Agreement may be terminated by either party by giving written notice specifying a termination date at least ten (10) days subsequent to the date of the notice. Upon receipt of any such notice, A/E will cease work and undertake to terminate any relevant subcontracts and will incur no further expense related to this Agreement. Such early termination shall be subject to the equitable settlement of the respective interests of the parties accrued up to the date of termination.

III. CONSIDERATION

3.1. CONTRACT LIMIT AND FEES AND EXPENSES

(a) As consideration for the services agreed to be provided under this Agreement, TMD agrees to pay a fixed fee of Spelled Out Amount 00/100 Dollars ($0.00) payable in accordance with Section 2.0 the breakdown in Attachment A attached hereto and incorporated herein for all purposes. This fee includes does not include optional C services, which may be exercised at a later time. TMD agrees to pay A/E in accordance with Chapter 2251 of the Texas Government Code, also known as the “Prompt Payment Act.”

(b) Reasonable lodging and traveling expenses shall be considered a “Reimbursable Expense” under this Agreement when professional and technical personnel of A/E are away from the cities in which they are permanently assigned and are conducting authorized business directly connected with this Agreement. The limit for such reimbursements shall be the rates established by the Comptroller of the State of Texas, and outlined in Textravel, formerly known as the State of Texas Travel Allowance Guide for state employees. Materials in excess of that required under Article I of this Agreement, permit fees and associated costs, as well as rental of special equipment or tools required in connection with A/E’s services for the Project may be considered a “Reimbursable Expense” upon specific approval of TMD. Furthermore, certain other incidental direct expenses including, but not limited to, copying, telephone, data, and express mail services may be reimbursed upon specific approval of TMD as a Reimbursable Expense. Subject to the limitations hereinabove, all expenses under this Agreement shall not exceed actual cost and shall be approved under limited circumstances when such costs are not considered normal or customary basic services under this Agreement and are requested by TMD. Requests for payment must be supported by such documentation which, in the judgment of the TMD, allows for full substantiation of the costs incurred.

(c) Changes in the scope of services affecting the cost of services provided for in this

Agreement shall be approved by TMD by amendment to this Agreement. No compensation will be allowed for work performed without such amendment.

3.2. ADDITIONAL SERVICES

“Additional Services” are those services not included in Article I of this Agreement which may be requested by TMD at any time for the duration of this Agreement. Upon request by TMD for Additional Services, A/E shall prepare and submit to TMD a proposal for such services requested. Additional Services shall be performed at a rate negotiated between TMD and A/E and shall be approved by the parties by amendment to this Agreement.

3.3. PAYMENTS TO A/E

Payments to A/E shall be made in accordance to the services performed in Section 3.1.

3.4. PAYMENTS TO SUBCONTRACTORS

For all services rendered, A/E’s payment to subcontractors is due within ten (10) days after receipt of payment from the TMD.

IV. A/E’S REPRESENTATIONS, RESPONSIBILITY AND LIABILITY

4.1. PERFORMANCE REPRESENTATIONS

A/E represents that all services provided by A/E under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. A/E represents that any plans, drawings, photos, designs, studies, specifications, computer programs, technical reports, and other work which is specified to be delivered under this Agreement and which are to be paid for by TMD (collectively, the “Deliverables”) under this Agreement shall be:

(a) completed in a manner consistent with standards in the applicable trade, profession, or industry;

(b) conform to or exceed the specifications set forth in this Agreement; and,

(c) be fit for ordinary use, of good quality, and with no material defects.

If A/E fails to provide or satisfactorily perform any of the conditions, work, or Deliverables called for by this Agreement within the time requirements specified, then TMD may require A/E to:

(a) repair or replace, at A/E’s expense, any or all defective or damaged Deliverables;

(b) refund any payment received for any defective or damaged Deliverables and, in conjunction therewith, require A/E to accept the return of any defective or damaged Deliverables at A/E’s sole expense; and/or

(c) take necessary action to provide that future performance conforms to the Agreement requirements at A/E’s sole expense.

4.2. RESPONSIBILITY AND LIABILITY

(a) Acceptance and approval of a final Project Report or other documents or computer programs by TMD shall not constitute nor be deemed a release of A/E’s responsibilities and liability for the accuracy and competency of A/E’s work products, computer programs, or other documents and services prepared or performed under this Agreement. No approvals or acceptances by or on behalf of TMD shall be deemed to be an assumption of such responsibility by TMD for any defect, error or omission in said work products, computer programs or other documents and services as prepared or performed by A/E.

(b) A/E does not guarantee the performance of a construction contractor. A/E shall timely inform TMD of any observation of a construction contractor's failure to perform their work in accordance with the construction contract and current approved schedule and shall recommend to TMD measures to correct such failures.

V. A/E GENERAL AFFIRMATIONS

5.1. DEALINGS WITH PUBLIC SERVANTS AFFIRMATION

Pursuant to Section 2155.003 of the Texas Government Code, A/E represents and warrants that it has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this Agreement.

5.2. FORMER AGENCY EMPLOYEES

In accordance with Section 2252.901 of the Texas Government Code, A/E represents and warrants that for professional services contracts as described by Chapter 2254 of the Texas Government Code, if a former employee of TMD was employed by A/E within one year of the employee’s leaving TMD, then such employee will not perform services on projects with A/E that the employee worked on while employed by TMD.

5.3. DISCLOSURE OF PRIOR STATE EMPLOYMENT

In accordance with Section 2254.033 of the Texas Government Code, relating to consulting services, A/E certifies that it does not employ an individual who has been employed by TMD or another agency at any time during the two years preceding the submission of the Agreement or, in the alternative, A/E has disclosed in its Agreement the following: (i) the nature of the previous employment with TMD or the other agency; (ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination.

5.4. FINANCIAL PARTICIPATION PROHIBITED AFFIRMATION

Under Section 2155.004(b) of the Texas Government Code, A/E certifies that the individual or business entity named in this Agreement is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate.

5.5. SUSPENSION AND DEBARMENT

A/E certifies that the offering entity and its principals are eligible to participate in this transaction and have not been subjected to suspension, debarment, or similar ineligibility determined by any federal, state, or local governmental entity. Entities ineligible for federal procurement are listed at http://www.sam.gov.

5.6. CHILD SUPPORT OBLIGATION AFFIRMATION

Under Section 231.006(d) of the Texas Family Code, regarding child support, A/E certifies that the individual or business entity named in this Agreement is not ineligible to receive the specified payment and acknowledges that the contract may be terminated and payment may be withheld if this certification is inaccurate. Furthermore, any A/E subject to Section 231.006 of the Texas Family Code, must include in the Agreement the names and social security numbers of each person with at least 25% ownership of the business entity submitting the Agreement.

5.7. DEBTS OR DELINQUENCIES AFFIRMATION

A/E agrees that any payments due under the contract shall be directly applied towards eliminating any debt or delinquency it has to the State of Texas including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support. Texas Government Code § 2252.903.

5.8. BUY TEXAS AFFIRMATION

In accordance with Section 2155.4441 of the Texas Government Code, A/E agrees that during the performance of a contract for services it shall purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside this state.

5.9. EQUAL OPPORTUNITY

A/E shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, or national origin. A/E shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, sex, religion, age, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation;

and selection for training, including apprenticeship. A/E agrees to post in conspicuous places, available to employees or applicants for employment, notices to be provided setting forth the provisions of this non-discrimination article. A/E shall include the above provisions in all subcontracts pertaining to the work.

5.10. DECEPTIVE TRADE PRACTICE; UNFAIR BUSINESS PRACTICES

A/E represents and warrants that it has not been found liable of Deceptive Trade Practices violations under Tex. Bus. & Comm. Code, Chapter 17, or of any unfair business practice in any administrative hearing or court suit. A/E further certifies that it has no officers who have served as officers of other entities who have been found liable of Deceptive Trade Practices violations or of any unfair business practices in an administrative hearing or court suit. In the event that allegations of Deceptive Trade Practices violations under Tex. Bus. & Comm. Code, Chapter 17, or of any unfair business practices against either A/E or any of A/E’s officers are currently pending in an administrative proceeding or in a lawsuit filed with any court, then A/E shall disclose all such pending matters to TMD and provide a brief description of each allegation, information regarding the administrative body or court before which the matter is pending, and the current status of the matter.

5.11. GENERAL AND CRIMINAL BACKGROUND CHECKS

(a) A/E represents and warrants that A/E and A/E’s employees have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, A/E has fully advised TMD as to the facts and circumstances surrounding the conviction.

(b) A/E’s employees and subcontractors that will complete any work on-site at a state-owned property may be subject to a criminal background check. Any expense associated with such criminal background check shall be borne by A/E. If requested by TMD, a complete criminal background check shall be completed before any employee performs services at the site and may be requested at any time thereafter. Criminal background checks must be accomplished by the Texas Department of Public Safety (“DPS”), which includes fingerprint processing by an independent third-party company selected by DPS. Upon receipt of the fingerprints of A/E’s employees and/or subcontractors, DPS, or TMD, will adjudicate the results of the criminal background searches in accordance with the criteria set forth in “Attachment E - Criminal Background Check Criteria and Information” attached hereto and incorporated herein for all purposes.

5.12. AGENCY EXECUTIVE HEAD

Under Texas Government Code § 669.003 relating to contracting with an executive head of a state agency, A/E represents that no person who, in the past four (4) years served as an executive of TMD or any other State agency, was involved with or has any interest in this Agreement or any contract resulting from this Agreement. If A/E employs or has used the services of a former executive head of TMD or any other State agency, then A/E shall provide the following information: The Name of the former executive, the name of the State agency, the date of separation from State agency, the position held with A/E, and the date of employment with A/E.

5.14. CRITICAL INFRASTRUCTURE AFFIRMATION

Pursuant to Government Code Section 2274.0102, A/E certifies that neither it nor its parent company, nor any affiliate of A/E or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Government Code Section 2274.0103, or (2) headquartered in any of those countries.

VI. INSURANCE AND LEGAL OBLIGATIONS

6.1. INSURANCE

Prior to the commencement of work under this Agreement, A/E shall maintain all required insurance without interruption for the full term of the Agreement, and furnish certificates of insurance utilizing the form in “Attachment F - A/E CERTIFICATE OF INSURANCE

FORM,” attached hereto and incorporated herein for all purposes, and make available copies of policy declaration pages and policy endorsements as evidence thereof:

(a) Workers’ Compensation and Employers’ Liability Insurance.

A/E shall maintain Workers’ Compensation Insurance providing statutory benefits as required by the Texas Workers’ Compensation Act and Texas Labor Code §406.096, together with Employers’ Liability Insurance with minimum limits of $1,000,000 bodily injury per accident, $1,000,000 bodily injury by disease per employee, and $1,000,000 bodily injury by disease policy limit.

Workers’ Compensation coverage shall comply with all applicable rules of the Texas Department of Insurance, Division of Workers’ Compensation, including 28 TAC §§110.101– 110.110.

(b) Commercial General Liability Insurance.

A/E shall maintain Commercial General Liability insurance with minimum limits of $2,000,000 per occurrence and $4,000,000 general aggregate, including coverage for bodily injury, property damage, products/completed operations, and personal and advertising injury.

Coverage shall apply on an occurrence basis. The policy shall contain the following provisions:

(i) Name TMD and the State of Texas as additional insureds with respect to the operations and services performed under this Agreement;

(ii) Include a waiver of subrogation in favor of TMD and the State of Texas;

(iii) Provide primary and non-contributory coverage;

(iv) Contain severability of interest and cross-liability provisions;

(v) Include independent contractors coverage and contractual liability coverage insuring the indemnification obligations assumed by A/E under this Agreement;

(vi) Provide thirty (30) day Notice of Cancellation in favor of TMD; and,

(vii) Maintain a separate project aggregate applicable to this Agreement, not less than $2,000,000.

(c) Business Automobile Liability Insurance.

A/E shall maintain Business Automobile Liability insurance for all owned, non-owned, and hired vehicles used in the performance of this Agreement, with a minimum combined single limit of $1,000,000 per occurrence for bodily injury and property damage. Coverage shall include liability arising out of the use of any automobile, including autos owned, hired, or non-owned by the A/E or its employees. The policy shall contain the following provisions in favor of TMD:

(i) TMD and the State of Texas named as additional insureds with respect to automobile liability;

(ii) Waiver of subrogation in favor of TMD and the State of Texas;

(iii) Provide thirty (30) day Notice of Cancellation endorsement;

(iv) Coverage designated as primary and non-contributory to any insurance maintained by TMD; and

(v) Compliance with all applicable laws governing the operation and licensing of motor vehicles.

(d) Architect/Engineer Professional Liability Insurance.

A/E shall maintain Professional Liability (Errors and Omissions) insurance with minimum limits of $2,000,000 per claim and $2,000,000 aggregate, covering liability arising out of any negligent act, error, or omission in connection with the professional services performed under this Agreement, including but not limited to the preparation of plans, maps, drawings, analyses, reports, surveys, change orders, designs, and specifications.

Coverage shall be written on a claims-made basis. A/E shall maintain such coverage for the duration of this Agreement and for a period of not less than thirty-six (36) months following completion of the Project, whichever is longer.

Any deductible or self-insured retention applicable to the Professional Liability coverage shall be commercially reasonable and appropriate to the risk, and shall not exceed $100,000 per claim, unless otherwise approved in writing by TMD. The A/E shall be responsible for all deductibles and self-insured retentions.

6.2. GENERAL REQUIREMENTS FOR INSURANCE

(a) A/E shall be responsible for deductibles and self-insured retention, if any, stated in policies. All deductibles or self-insured retention shall be disclosed on the certificate of insurance required above. If coverage is underwritten on a claims-made basis, the retroactive date shall be coincident with the date of this Agreement and the certificate of insurance shall state that the coverage is claims made and shall state the retroactive date.

(b) A/E shall maintain coverage for the duration of this Agreement and shall maintain coverage for the professional liability insurance for not less than thirty-six (36) months following completion of the Project. Coverage, including any renewals, shall have the same retroactive date as the original policy applicable to the Project. A/E shall, on at least an annual basis, provide TMD with an insurance certificate as evidence of such insurance. The premium for this extended reporting period shall be paid by A/E.

(c) A/E shall not commence work under this Agreement until they have obtained the required insurance and until such insurance has been reviewed by TMD. Approval will be communicated to A/E by TMD. A/E shall not allow any sub-consultants to commence work until the required insurance has been obtained and approved. Approval of insurance by TMD shall not relieve or decrease the liability of A/E hereunder.

(d) Insurance shall be written by a company licensed to do business in the State of

Texas at the time the policy is issued and shall be written by a company with an A.M. Best rating of A- or better.

(e) TMD shall be an additional insured as its interests may apply on the commercial general liability and business automobile liability policies, and such coverage shall be primary and non-contributory to any insurance maintained by TMD.

(f) A/E shall produce endorsements upon TMD's request to each affected policy:

(i) Naming TMD, 2200 West 35th Street, Austin, Texas 78703 as additional insured (except workers' compensation and engineers professional liability insurance).

(ii) That obligates the insurance company to notify the Contract Department of

TMD, 2200 West 35th Street, Austin, Texas 78703, of any non-renewal, cancellations or material changes at least thirty (30) days prior to change or cancellation.

(iii) That the "other" insurance clause shall not apply to the State where TMD is an additional insured shown on the policy. It is intended that policies required in this Agreement, covering both TMD and A/E, shall be considered primary coverage as applicable.

TMD shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies and if such request for deletions, revisions, or modifications are commercially available.

(g) A/E shall not cause any insurance required under this Agreement to cancel nor permit any insurance to lapse during the term of this Agreement.

(h) TMD reserves the right to review the insurance requirements of this section during the effective period of the Agreement and to make reasonable adjustments to insurance coverage and their limits when deemed necessary and prudent by TMD based upon changes in statutory law, court decisions or the claims history of the industry as well as A/E (such adjustments shall be commercially available to A/E).

(i) A/E shall provide TMD thirty (30) days written notice of erosion of the aggregate limit.

(j) Actual losses not covered by insurance as required by this Agreement shall be paid by A/E.

(k) A/E’s insurance shall include a waiver of subrogation to TMD for the workers’ compensation and employers’ liability, commercial general liability, and business automobile liability policies.

6.3. LEGAL OBLIGATIONS

A/E shall procure and maintain for the duration of this Agreement any state, county, city, or federal license, authorization, insurance, waiver, permit, qualification or certification required by statute, ordinance, law, or regulation to be held by A/E to provide the goods or services required by this Agreement. A/E will be responsible to pay all taxes, assessments, fees, premiums, permits, and licenses required by law. A/E agrees to be responsible for payment of any such government obligations not paid by its subcontractors during performance of this Agreement.

VII. MISCELLANEOUS PROVISIONS

7.1. INDEMNIFICATION

A/E SHALL INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND TMD,

AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,

CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL

LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED

DAMAGES, COSTS, ATTORNEY FEES, AND…