ESBD_528474_1781903684893_Attachment G - RFQ 0007110 CMR DPS Pierce contract template.pdf

(Rev. 4/29/2026)

CONSTRUCTION MANAGER–AT-RISK AGREEMENT

THE TEXAS FACILITIES COMMISSION

AND

[INSERT CMR NAME]

FOR

DPS PIERCE OFFICE NEW CONSTRUCTION

TFC CONTRACT NO. [INSERT]

RFQ NO. 0007110

PROJECT NO. 25-012-2570

TABLE OF CONTENTS

ARTICLE 1. DEFINITIONS

ARTICLE 2. CONTRACT DOCUMENTS

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

ARTICLE 4. PRECONSTRUCTION SERVICES PHASE AND COMPENSATION

ARTICLE 5. DEVELOPMENT OF THE GUARANTEED MAXIMUM PRICE

ARTICLE 6. CONSTRUCTION PHASE SERVICES

ARTICLE 7. CONTRACT SUM AND GUARANTEED MAXIMUM PRICE FOR

CONSTRUCTION SERVICES

ARTICLE 8. COST OF WORK

ARTICLE 9. PAYMENT

ARTICLE 10. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

ARTICLE 11. BONDS AND INSURANCE

ARTICLE 12. INDEMNITY

ARTICLE 13. DISPUTE RESOLUTION

ARTICLE 14. TERMINATION AND SUSPENSION

ARTICLE 15. SPECIAL PROVISIONS

ARTICLE 16. MISCELLANEOUS PROVISIONS

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

Exhibit A. 2025 Uniform General Conditions Exhibit B. |2025 Supplemental General Conditions Exhibit C. Special Conditions of this Agreement (if any) Exhibit D. Guaranteed Maximum Price Proposal Template Exhibit E. Guaranteed Maximum Price Amendment Template Exhibit F. Criminal Background Check and Application Guidelines Exhibit G. Approved HUB Subcontracting Plan Exhibit G-1. HUB Subcontracting Plan Form Exhibit G-2. Progress Assessment Reports Form Exhibit H. Project Insurance Requirements Exhibit I. Work Package Authorization Template Exhibit J-1. Form of Performance Bond Exhibit J-2. Form of Payment Bond Exhibit K. A/E Guidelines

TFC Contract No. XX-XXX-XXX Contractor Name

RFQ No.90007110 Project No. 25-012-2570

AGREEMENT BETWEEN

THE TEXAS FACILITIES COMMISSION AND

CONSTRUCTION MANAGER-AT-RISK

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

THE TEXAS FACILITIES COMMISSION (“TFC”), an agent of the State of Texas 1711 San Jacinto Boulevard Austin, Texas 78701 as “Owner” (as is defined in UGC Section 1.28), and the Construction Manager-at-Risk:

[Name] [Address] [City, State, Zip] [Phone:] [Fax:] for the following Project (the “Project”):

DPS Pierce Office

[LOCATION]

Architect/Engineer (the “A/E”):

[Name] [Address] [City, State, Zip] [Phone:] [Fax:]

TFC and the CMR agree as follows:

ARTICLE 1. DEFINITIONS

Unless specifically provided otherwise, all words and phrases in this Agreement in initial caps shall have the meanings set out in this Article 1. All undefined and capitalized terms used herein shall have the meaning given to them in the UGC. In the event of any conflict between the definitions in the UGC, the 2025 Supplemental General Conditions, and the Special Conditions, if any, or in any other document that is referenced herein and incorporated for all purposes, and the definitions in this Agreement, the definitions used in this Agreement shall control.

Agreement means this agreement between TFC and Construction Manager-at-Risk whereby CMR agrees to provide Preconstruction and Construction Services to the Project to fully complete the Scope of Work as set forth herein and in the Contract Documents, as modified by the parties and executed below, together with the Exhibits listed herein and attached hereto.

Applicable Law or Law(s) means any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders now in force or hereafter enacted by Authorities Having Jurisdiction, relating to or affecting the Project or arising from this Agreement, including those governing labor, equal employment opportunity, safety, and environmental protection, and further including (i) applicable building, fire, and life safety codes and zoning requirements of Authorities Having Jurisdiction; (ii) accessibility laws, codes, and ordinances including but not limited to the Texas Accessibility Standards of the Architectural Barriers Act, Tex. Gov’t. Code Ch. 469, Elimination of Architectural Barriers, and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12181);

(iii) occupational safety acts and requirements applicable to the Project, including United States Occupational Safety and Health Administration (“OSHA”) requirements and related federal and state regulations; (iv) requirements under Title VII of the Civil Rights Act of 1964, as amended;

(v) requirements of the Fair Labor Standards Act and applicable state wage and hour laws including Tex. Gov’t. Code § 2258.001 et seq.; (vi) Environmental Laws, including all storm water, street, utility and other related infrastructure requirements, (vii) all requirements related to the use, removal, storage, transportation, disposal and remediation of Hazardous Materials; and (viii) any other applicable local, state or federal laws respecting the Project.

A/E shall have the meaning set forth in UGC Section 1.4.

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

Authority Having Jurisdiction shall have the meaning set forth in UGC Section 1.5.

Baseline Schedule shall have the meaning set forth in UGC Section 1.6.

Bid Bond has the same meaning as Security Bond as described in UGC Sections 5.1 and 5.1.2, and shall be in the form of an approved surety bond, cash, or other immediately available funds.

Budget means the construction budget for the Project, as set out in the RFQ, as defined below, as may be amended from time to time by TFC.

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

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

C&A means any and all clarifications and/or assumptions made by CMR in the preparation of its GMP Proposal, as defined below, to supplement the information provided by TFC as contained in the Drawings, as defined in UGC Section 1.22, and Specifications, as defined in UGC Section 1.41.

CAD means AutoCAD DWG format.

Certificate of Substantial Completion means the certificate as defined in UGC Section 1.8, signed by the CMR, A/E, and TFC establishing the date of Substantial Completion, as defined in UGC Section 1.44, for the applicable part of the Work and identifying responsibilities for security and maintenance as set out in UGC Section 12.1.1.2.

CMR Contingency means the amount approved by TFC and allocated by CMR as a component of the GMP to be used for the purpose of protecting the CMR’s GMP and Work Progress Schedule against unanticipated costs incurred and unplanned impacts which must be addressed in order to complete the Work in accordance with the Contract Documents and within the Budget.

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

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

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

Construction Services Fee or “CMR Fee” means, subject to the provisions of UGC Section 11.8, the total amount to be paid to CMR for its performance of the Work including profit, main office and other overhead and costs not allocated to the Cost of the Work or defined as General Conditions Costs. The Construction Services Fee is derived by multiplying the sum of (i) the Cost of Work plus (ii) any portion of the used TFC Controlled Contingency, by an agreed upon percentage set forth in Section 7.1.1. No Construction Services Fee will be applied to or paid on General Conditions Costs.

Construction Manager-at-Risk or “CMR” or “Contractor” means that entity designated on the cover page of this Agreement who shall, subject to the provisions of UGC Section 1.18, provide the Preconstruction and Construction Services as set forth in this Agreement. The terms “Construction Manager” and “CMR” are interchangeable with each other and with the terms “Contractor” and “General Contractor” or other similar terms used in the various parts of the Contract Documents, including the UGC.

Construction Services means the coordination, implementation and execution of the Work required by the Contract Documents and are fully described in Article 6.

Contract Documents are identified in Article 2.1.

Cost Estimate(s) means the cost estimate(s) prepared by CMR at various pre-construction phases of the Project.

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

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

Design Milestone (s) means each milestone, or phase, of design for the Project including (i) Initial Conceptual Drawings; (ii) Schematic Design; (iii) Design Development; (iv) 65% Construction Documents; (v) 95% Construction Documents; and (vi) 100% Construction Documents, such that, upon completion of all milestones, TFC will have a cohesive set of Drawings and Specifications upon which the CMR may construct the Project.

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

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

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

98-616, 98 Stat. 3221 (1984)), and regulations promulgated thereunder; (ii) the Comprehensive

Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. § 9601 et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub.

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

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

General Conditions Costs are those reimbursable expenses allowed pursuant to Tex. Gov’t Code § 2269.001(4), including CMR’s on-site management and administrative personnel, insurance, bonds, and incidental Work, including minor field labor and materials, as further described in Section 8.2. No Construction Services Fee will be allowed or paid on General Conditions Costs.

General Conditions Costs shall be a fixed, lump sum amount set forth in the GMP Proposal and GMP Amendment and shall be paid to Contractor based on the percentage of Work certified as complete each month as set forth in Section 9.1.3.3 herein.

Guaranteed Maximum Price or “GMP” means that certain amount, guaranteed by the CMR not to exceed the particular sum certain proposed by the CMR and accepted by TFC, for construction of the Project, subject only to additions and deductions by approved Change Order as provided in the Contract Documents. Any amounts incurred by CMR in excess of the GMP shall be the sole obligation of the CMR.

GMP Amendment means the document based on the GMP Proposal and signed by CMR and TFC that establishes (i) the Guaranteed Maximum Price and its basis and (ii) all other requirements set forth in Section 5.3 of this Agreement. The executed GMP Amendment shall form the basis of the Contract Sum as set forth in Article 7 of this Agreement.

GMP Proposal is that certain price proposal by the CMR to TFC that includes necessary cost and pricing and basis information as required in Section 5.2 herein and recommends a Guaranteed Maximum Price for the construction of the Project.

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

HUB Compliance Reporting System means the Texas Facilities Commission Historically Underutilized Business (“HUB”) online reporting system located at https://tfc.gob2g.com. The HUB Compliance Reporting System is used to maintain business records documenting compliance with the HUB Subcontracting Plan (“HSP”) by submission of monthly Progress Assessment Reports (“PARs”).

Initial Concept Drawings means initial concept drawings and block diagrams that, in TFC’s sole opinion, are of such quality and detail to enable TFC to establish design direction.

Master Schedule means the Critical Path Method schedule, if any, developed and maintained by the PMF incorporating all items of administrative process, procurement, Owner approvals, permitting, Professional Services Schedule for providing deliverables, and the construction Baseline Schedule as updated with CMR’s Work Progress Schedule.

Notice to Proceed or “NTP” means the written notice to be issued to CMR by TFC, which shall inform CMR of, among other things, the date on which CMR shall commence a particular phase or the particular services for the Project.

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

Preconstruction Services are those certain services and deliverables to be performed by CMR in accordance with Article 4 herein.

Preconstruction Services Fee means the fixed, lump sum fee for Preconstruction services to be performed by CMR as set forth in Section 4.2.1 herein.

Professional Services Schedule means the schedule/timeline set out in the A/E Agreement which provides the deadlines in terms of a fixed number of days after a preceding deadline for completion and delivery of discrete portions of the Professional Services performed by A/E.

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

Project Team means TFC, Using Agency, CMR or Contractor, A/E and its consultants, TFC Project Manager, PMF (if any), any separate contractors employed by TFC, and other consultants employed for the purpose of programming, design, and construction of the Project. The members of the Project Team will be designated by TFC and may be modified from time to time by TFC.

Request for Proposal or “RFP” means a solicitation requesting submittal of a proposal in response to the required scope of services.

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

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

Specifications is defined in UGC Section 1.41.

Statement of the GMP means that certain component of information in the GMP Proposal setting forth the proposed total, not to exceed, amount to construct the Project which shall not be exceeded by CMR, and includes at least the following information which may be supplemented: (i) the Preconstruction Services Fee; (ii) the itemized General Conditions Costs, labor rates, and total lump sum amount; (iii) the Cost of Work enumerated, at a minimum, in categories by CSI specification number and which includes rental rates for Contractor-owned equipment to be used on the Project;

(iv) TFC allowances in accordance with Section 7.2.2 herein; (v) any accepted alternates; (vi) the CMR Fee; (vii) the CMR Contingency; and (viii) the TFC Controlled Contingency (if any), as defined below.

Subcontract means any agreement between CMR and a Subcontractor.

Subcontractor is defined in UGC Section 1.42.

Substantial Completion shall have the meaning as set forth in UGC, except as otherwise provided in the Special Conditions, if any. References to “Substantial Completion of the Work” in the Contract Documents shall mean the Substantial Completion of the entire Work required under this Agreement, except as otherwise expressly provided therein.

TFC Controlled Contingency means that portion of the GMP that will be designated by TFC in the GMP Amendment for TFC’s exclusive use and benefit for the Project.

TFC Project Manager means the individual designated by TFC as the contact person for TFC with the direct responsibility to properly supervise the design and construction of the Project, and the services being provided pursuant to this Agreement on behalf of TFC, including, but not limited to, serving as the point of contact between TFC, the Using Agency, as defined below, (if any), A/E, and CMR, and supervising TFC’s review and approval of the Construction Management Services.

For the avoidance of confusion, the TFC Project Manager shall be same person as the Owner’s Designated Representative (or ODR) as defined in UGC Section 1.29.

Uniform General Conditions or “UGC” shall mean the Uniform General Conditions for Construction Contracts issued by the State of Texas, published date of 2025, as may be amended from time to time, a copy of which is published on TFC’s website and as may be modified by this Agreement and the Special Conditions.

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

Work means, in addition to those items set forth in UGC Section 1.48, the provision of all, labor, materials, supplies, and equipment that are required of the Construction Manager to manage, implement, and fully construct the Project in accordance with the requirements of this Agreement and the Contract Documents. The Work includes the Preconstruction and Construction Services described in Articles 4 and 6 and all additional work required by any Change Orders, and any other work reasonably inferable from the Contract Documents. The term “reasonably inferable” includes the understanding of the parties that some minor details of the Work may not be shown on the Drawings or included in the Specifications, but they are included in the Work if they are usual and customary components of the Work for a project of the type depicted in the Contract Documents and they are needed to produce a complete and useable facility.

Work Progress Schedule means the schedule prepared and maintained in accordance with the Critical Path Method and the requirements of the Special Conditions, if any, and the UGC, for design and construction of the Project, reflecting the CMR’s actual progress of the construction of the Work and the scheduled activities and current plans for completing the Work. The Work Progress Schedule may subsequently modified by mutual agreement between TFC and CMR to reflect any refinement in its requirements.

ARTICLE 2. CONTRACT DOCUMENTS

2.1 Contract Documents. The Contract Documents consist of:

2.1.1 This Agreement and all exhibits and attachments listed, contained or referenced in this Agreement and expressly incorporated herein;

2.1.2 The Uniform General Conditions, as modified by this Agreement;

2.1.3 The 2025 Supplemental General Conditions;

2.1.4 The Special Conditions (the “Special Conditions”), if any;

2.1.5 The Drawings, Specifications, details, and other documents developed by the design team and issued for construction with TFC’s approval;

2.1.6 The BIM Execution Plan;

2.1.7 All Addenda issued prior to the Effective Date;

2.1.8 The GMP Amendment, signed by both parties when finalized and incorporated into this Agreement;

2.1.9 All Change Orders issued after the Effective Date; and

2.1.10 The HSP as approved by TFC.

2.2 The Contract / Integration. These Contract Documents form the entire and integrated Contract between TFC and CMR and supersede all prior negotiations, representations, or agreements, written or oral.

Neither this Agreement nor any of its provisions can be waived, modified, amended or altered except by a written document signed by CMR and TFC.

2.3 Conflict between Contract Documents. If, and to the extent of, any inconsistency, ambiguity, or discrepancy in the Contract Documents, precedence shall be given to the Contract Documents in the following order of priority: (1) written amendments to this Agreement entered into in accordance with the requirements hereof after execution of this Agreement with the amendment bearing the latest date taking precedence; (2) this Agreement, including the exhibits attached hereto and incorporated fully herein; (3) the UGC; (4) the final Drawings and Specifications developed by the A/E and such other TFC consultants incorporated into the Contract Documents; (5) the C&A; (6) the Preliminary Drawings and Specifications incorporated into the Contract Documents, with those bearing the latest date taking precedence; (7) and any proposals submitted by the CMR in the procurement for the Project and other documents identified in the Agreement as Contract Documents which have not been incorporated into the Agreement. To clarify the foregoing, the terms of the Agreement (and its Exhibits) shall control over the UGC and the terms of the Agreement (and its Exhibits) and the UGC shall control over any terms in the Drawings or Specifications developed by the A/E and such other TFC consultants inconsistent therewith.

2.4 In General. CMR shall perform all Preconstruction and Construction Services as defined herein by providing all labor, materials, equipment, tools, transportation and supplies necessary to complete the Work described in and reasonably inferable from the Contract Documents for the Project. The CMR accepts the relationship of trust and confidence established between it and TFC by this Agreement and agrees to furnish its best skill, attention and judgment to, and cooperate with TFC in furthering the interests of the Project.

The CMR shall furnish design reviews, estimating, scheduling, all other Preconstruction Services, bidding, self-performed work, construction management, and administration services and all other Construction Services as may be required and use its best efforts to perform the Work in the most expeditious, economical and thorough manner consistent with the interests of the TFC and the Project.

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

3.1 Information and Documents to be Provided by TFC. TFC shall, with reasonable promptness, provide CMR a copy of, or reasonable access to, the following information and documentation regarding the Project:

3.1.1 The Contract Documents;

3.1.2 Sample copies of the Agreement and payment and performance bond forms;

3.1.3 Bidding information and instructions;

3.1.4 Minimum wage rates;

3.1.5 The PAR for inclusion in the Specifications;

3.1.6 Any maps, surveys, and Drawings in the possession of TFC that reflect or depict Site boundaries, recorded easements, topography, utility locations, and such other documents in the possession of TFC that reflect Site conditions and/or restrictions which may impact the design and/or construction of the Project;

3.1.7 Any soil reports or traffic impact studies in the possession of TFC;

3.1.8 The Budget;

3.1.9 The Master Schedule, if any;

3.1.10 The Communication Protocol, which includes the communication and tracking procedure to be utilized for interaction and reporting for the Project;

3.1.11 Information regarding requirements for, and limitations of, the Project including a written program which shall set forth TFC’s objectives, constraints, and criteria including schedule, space requirements and relationships, flexibility and expandability, special equipment, systems sustainability and site requirements;

3.1.12 When such services are necessary for Project implementation, and upon request of the CMR, the services of geotechnical engineers which may include, but are not limited to, test borings, soils and geological formation analysis with written reports and appropriate recommendations for foundation and other necessary site-related subsurface construction; and

3.1.13 Any other information or services provided under UGC Section 3.1 and under TFC’s control that are relevant to the CMR’s performance of the Work, upon receipt of CMR’s reasonable written request.

3.2 No Warranties by TFC. CMR ACKNOWLEDGES THAT ANY AND ALL TESTS, MAPS, REPORTS, AND DRAWINGS IN THE POSSESSION OF TFC THAT REFLECT OR DEPICT

SITE BOUNDARIES, RECORDED EASEMENTS, TOPOGRAPHY, UTILITY LOCATIONS, AND

OTHER SITE CONDITIONS AND/OR RESTRICTIONS WHICH MAY IMPACT THE DESIGN

AND/OR CONSTRUCTION OF THE PROJECT WERE PREPARED SOLELY FOR TFC’S

BENEFIT AND FOR INFORMATION ONLY PURPOSES, AND THAT CMR SHALL HAVE NO

RIGHT TO RELY UPON SUCH AND THAT ANY RELIANCE THEREON SHALL BE AT CMR’S

OWN RISK.

3.3 A/E. TFC has retained an A/E to provide: (i) professional architectural services and/or (ii) professional engineering services as defined in Tex. Gov’t. Code Ch. 2254, Subchapter A, the scope of both of which is set out in a separate architectural/engineering professional services agreement (the “A/E Agreement”) for this Project.

3.3.1 The scope of said A/E Agreement includes the provision of certain services and the assumption of certain duties and responsibilities by A/E, including, but not necessarily limited to, those set forth in Section 3.2 of UGC and includes the following:

3.3.1.1 The translation of a Using Agency’s program requirements into design and contract documents that meet all applicable codes and regulatory requirements customary for the execution of the Project;

3.3.1.2 the issuance of design and contract documentation in predetermined phases of completion; and

3.3.1.3 the requirement for collaboration and cooperation with CMR in evaluating the construction assembly, components, materials, systems, constructability, costs and schedules pursuant to the successful implementation of the Project construction.

3.3.2 A/E’s Site visits and observations are subject to all the limitations on A/E’s authority and responsibility, including but not necessarily limited to, the following:

3.3.2.1 A/E shall have no authority to supervise, direct, control, or have authority over, or be responsible for CMR’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto; and

3.3.2.2 Neither A/E’s authority or responsibility under the A/E Agreement or under any other provision of the Contract Documents, nor any decision made by A/E in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by A/E shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by A/E to CMR, any Subcontractor, to any surety for or employee or agent of any of them.

3.3.3 CMR’s deadlines for delivery of certain products and/or services shall be coordinated, at all times, with the A/E deadlines set out in the A/E Agreement.

3.4 PMF. TFC may designate a PMF for the Project to provide certain Project management services in addition to those provided by TFC Project Manager. The PMF will provide management of overall Project which scope is further defined in the PMF definition above and in the PMF Agreement, but whose scope may include, but shall not be limited to, the following deliverables:

3.4.1 Planning, management, and coordination of the Project as further defined in the PMF Agreement, a copy of which shall be provided upon request to CMR;

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

3.4.3 Review of solicitation documents and other contractual templates and provide recommendations;

3.4.4 Development and management of the Project cost control system;

3.4.5 Development of the Master Schedule and coordinating and monitoring of Work Progress Schedule within the Master Schedule including integration with Project cost control system;

3.4.6 Development of quality control plan;

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

3.4.8 MEP Project planning services;

3.4.9 Functional and space programming services;

3.4.10 Estimating services;

3.4.11 Peer review of designed systems, including MEP, building envelope, roofing, weatherproofing, elevators, architectural and structural systems and utilities and civil site development;

3.4.12 Reporting on Project progress and conformance with the Project program scope; and

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

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

3.5 TFC Approvals. Any provisions in this Agreement to the contrary notwithstanding, all consents and/or approvals by TFC shall be in its sole and absolute discretion, and must be in writing.

3.5.1 No changes to the scope of the Construction Services or Compensation shall be valid or enforceable unless evidenced by a fully executed written amendment to this Agreement.

3.5.2 To the extent that TFC approval is required to authorize incurring any costs, such approval must be acquired prior to incurring any such costs. The parties shall exercise good faith efforts to identify all such costs prior to execution of the GMP Amendment.

3.5.3 CMR is not authorized to commence providing any Preconstruction Services or Construction Services to TFC or any Using Agency with respect to the Project unless and until the appropriate Notice to Proceed is delivered by TFC. TFC may, should it find it necessary, extend any of the deadlines set out in this Agreement through written approval executed by the TFC Project Manager.

3.5.4 No inspections of the Project conducted by TFC or A/E during the course of construction, either singularly or in the aggregate, shall reduce the level or extent of CMR’s responsibilities arising pursuant to this Agreement. Neither the approval and/or final acceptance of the Project or any documents prepared by CMR, the payment of any pay application, or the issuance of any Certificates of Final or Substantial Completion by TFC shall constitute, nor be deemed, a release of CMR’s obligation to perform and deliver the Construction Services in a manner consistent with: (i) industry standards; and (ii) as required by the Contract Documents. No approvals or acceptances by, or on behalf of, TFC shall be deemed to be an assumption of any responsibility by TFC for any defect, error, or omission in any documents prepared by CMR or in any of the Construction Services provided by

CMR.

ARTICLE 4. PRECONSTRUCTION SERVICES PHASE AND COMPENSATION

The Preconstruction Services Phase (the “Preconstruction Services Phase”) shall commence on the date specified in a NTP with Preconstruction Services issued by TFC. CMR is not entitled to reimbursement for any costs incurred for Preconstruction Services performed before issuance of the Notice to Proceed.

Preconstruction Services may overlap with Construction Phase Services. Compensation for Preconstruction Services is set forth in Section 4.2.1 below.

4.1 Preconstruction Services. The CMR shall perform and complete the following tasks as a part of the Preconstruction Services:

4.1.1 General Coordination.

4.1.1.1 Attend and actively participate in Project Team meetings at regularly scheduled intervals throughout the Preconstruction Services Phase. Frequent Project Team meetings are anticipated prior to TFC’s acceptance of the GMP Proposal and during completion of the Construction Documents phase of the design.

4.1.1.2 Visit the site and inspect the existing facilities, systems and conditions and become thoroughly familiar with the existing conditions to ensure an accurate understanding of how the Project can proceed. CMR’s investigation and understanding of these conditions is instrumental in preparing its GMP Proposal for the Work. CMR shall not make or be entitled to any claim for any adjustment to the Contract Time or to Preconstruction Services Fees or for Construction Services costs or Fees arising from Project conditions that CMR discovered or, in the exercise of reasonable care, should have discovered in CMR’s obligatory investigations.

4.1.1.3 Consult with TFC staff, any representatives of the Using Agency and A/E as may be directed by TFC, and provide information and recommendations to the Project Team on the following issues and on all other issues not listed that are in the normal and customary province of the a construction contractor for a Project of similar size and scope:

4.1.1.3.1 suitability of the Site and proposed improvements;

4.1.1.3.2 building equipment, systems and construction feasibility;

4.1.1.3.3 time requirements for procurement, installation, and construction scheduling issues, including phased construction and potential accelerated or fast-track scheduling;

4.1.1.3.4 availability and selection of materials and labor;

4.1.1.3.5 time requirements for construction and equipment installation;

4.1.1.3.6 safety issues and available precautions related to work under consideration;

4.1.1.3.7 selection and installation of temporary Project facilities, equipment, materials and services needed for common use of the CMR and TFC separate contractors (if any);

4.1.1.3.8 cost factors, including costs of alternative materials, construction methods, life-cycle data, and design;

4.1.1.3.9 conceptual budgets and possible cost savings available in alternative approaches or designs;

4.1.1.3.10 identification and resolution of conflicts in the proposed Drawings and Specifications as they evolve;

4.1.1.3.11 identification of appropriate CMR staff to receive instruction regarding the use of the EPMCS to be utilized by TFC;

4.1.1.3.12 methods of delivering and handling materials, systems, and equipment;

4.1.1.3.13 traffic, parking and materials and equipment storage in and around the site;

and

4.1.1.3.14 at TFC’s request, attend public meetings and hearings concerning the development and scheduling of the Project.

4.1.2 Participation in Design Milestone Reviews. CMR shall participate in review of design milestone deliverables submitted by the A/E in the sequential order as follows: (i) Initial Conceptual Drawings/Schematic Design; (ii) Design Development; (iii) 65% Construction Documents; (iv) 95% Construction Documents; and (v) 100% Construction Documents.

4.1.2.1 CMR shall provide reviews in accordance with the A/E’s Professional Services Schedule for delivery of the milestone review deliverables. CMR shall accommodate, at TFC’s discretion, adjustments to the A/E’s Professional Services Schedule for delivery of design milestone deliverables.

4.1.2.2 Each review shall include initial review by CMR concurrent with Project Team, review meeting with A/E to receive and discuss review comments, provide CMR comments to A/E for compilation into a comprehensive list of comments, provide Cost Estimate, review A/E’s responses to comments, receive A/E’s certification to TFC that all comments have been reviewed and resolved.

4.1.2.3 Following TFC’s acceptance of the A/E Resolution of Comments document, TFC shall issue a formal notice of authorization to A/E with a copy to CMR such that the A/E may proceed to the next Design Milestone within three (3) Days of the certification, or the first weekday thereafter.

4.1.2.4 CMR shall attend and actively participate in all meeting(s) between A/E and TFC wherein any and all documents developed during each Design Phase are reviewed and in the development of the final version of the Initial Conceptual Drawings, the Design Development Documents, and the approved Construction Documents. Such participation must be sufficient to enable CMR to understand the intended project scope, construction and phasing needs, impacts to facility (ies) operation, and therefrom to accurately estimate construction costs at each Design Phase.

4.1.2.5 If alternative materials and systems are suggested by TFC, A/E, or CMR at any stage, CMR shall provide cost evaluations of those alternative materials and systems within the deadline for formal review comments to each Project Team member.

4.1.2.6 CMR will provide value engineering analysis on construction systems and major construction components, including but not limited to the mechanical systems, exterior envelopes, structural systems, roofing systems, lighting and power services. CMR will summarize value analysis in a detailed report and distribute it to TFC and A/E within the time periods to meet the A/E Professional Services Schedule.

Participation in review of design milestone deliverables is instrumental in preparing the GMP Proposal for the Work. Before submitting its GMP Proposal, the CMR shall have reviewed the Drawings, Specifications, and Construction Documents, and shall have notified TFC and A/E of any errors, omissions or discrepancies in the documents of which it is aware. CMR shall not make or be entitled to any claim for any adjustment to the Contract Time or the Contract Sum for errors or omissions in the Construction Documents that CMR discovered or, in the exercise of its standard of care as a contractor and not as a design professional, should have discovered in this design review process that CMR did not bring to the attention of TFC and the A/E in a timely manner.

4.1.3 Cost Estimates/Cost Consultation. Following the review meeting for each Design Milestone, CMR will prepare a Cost Estimate based on that particular phase of submittal. CMR will transmit each Cost Estimate to TFC and A/E within seven (7) Days of the review meeting along with any comments such that the Cost Estimate and comments are received by TFC and A/E timely and in a manner that contributes to A/E’s prompt resolution of all comments, including conforming such comments and the scope of Work to the then current Budget. Each Cost Estimate will be updated with increasing detail and refinement through the review of the 100% Construction Documents. Cost Estimates for reviews through Design Development phase shall be provided in ASTM UNIFORMAT

II. Cost Estimates for reviews in the Construction Document phase shall be provided using the Construction Specifications Institute MasterFormat™.

4.1.3.1 If, during the design phases, the Cost Estimate for that design phase exceeds the Budget by the percentage set forth below for each phase, CMR shall consult with TFC and A/E to identify potential design and/or Specification modifications to bring the Cost Estimate into compliance with the Budget.

Design Phase Percentage

Initial Conceptual Drawings Schematic Design

20%

Design Development 15%

65% Construction Documents 10%

95% Construction Documents 5%

100% Construction Documents 0%

4.1.3.2 All Cost Estimates to be prepared and delivered by CMR to TFC shall be relied upon by TFC as the predominant means of budget control as the overall design of the Project progresses. To the extent Cost Estimates are provided by A/E, the CMR shall collaborate with TFC and A/E to reconcile significant differences in the Cost Estimates, and a single, reconciled Cost Estimate shall then be provided to TFC. The parties acknowledge and agree that subsequent changes in Design Program or scope of the Project may be cause to modify and/or amend the Budget. Any such modification or amendment to the Budget must be authorized by TFC in writing.

4.1.4 Schedules.

4.1.4.1 Baseline Schedule and Work Progress Schedule. As part of CMR’s Preconstruction Services, CMR shall prepare the Baseline Schedule for TFC’s approval. In addition to the requirements in the UGC, the Baseline Schedule shall (i) coordinate and integrate activities on the Project, including the CMR's services, the A/E’s design services, and the work of other consultants and suppliers, and (ii) shall include other detailed schedule activities such as TFC-managed work under separate contracts such as equipment, furniture and furnishings, telephones, project security, property protection, life-safety systems, integration with central campus monitoring systems, information and instructional technology data-transmission systems, and computer technology systems. Further, throughout the CMR’s performance of Preconstruction Services, CMR shall manage and timely update the Baseline Schedule pursuant to UGC Article 9 and in preparation of submitting the Work Progress Schedule as part of the GMP Proposal.

4.1.4.2 Procurement Schedule. CMR will prepare, for A/E’s review and TFC’s review and acceptance, a procurement schedule for items that must be ordered in advance of commencement of construction. Throughout Preconstruction Services, CMR shall timely update this schedule with information necessary to expedite and coordinate the ordering and delivery of products and materials in advance of construction.

4.1.5 Construction Planning and Bid Package Strategy. During this phase of Preconstruction Services, CMR shall:

4.1.5.1 Identify equipment or materials requiring extended delivery times and advise TFC on means and methods for expedited procurement of those items. Update the procurement schedule timely to track this information.

4.1.5.2 Advise TFC and A/E on the preparation of performance specifications and requests for technical proposals for the procurement and installation of systems and components and for the procurement of long lead items.

4.1.5.3 Make recommendations to the Project Team regarding organization of the Construction Documents to facilitate the bidding and awarding of subcontracts in a manner that promotes the interests of the Project and TFC. These recommendations shall take into consideration such factors as time and duration of performance, type and scope of work, availability of labor and materials, overlapping trade jurisdictions, provisions for temporary facilities, comparisons of factory and on-site production costs, shipping costs, code restrictions, TFC’s goals for HUB subcontractor participation, and other related issues. These recommendations may include ideas for phased or staged construction or multiple separate contracts.

4.1.5.4 Review the Construction Documents with the Project Team to eliminate areas of conflict and overlap in the work to be performed by the various Subcontractors or TFC’s separate contractors.

4.1.5.5 Develop bidder’s interest in the Project. CMR will develop and refine a bid/proposal package strategy in coordination with the A/E that addresses the entire scope of Work for each phase and stage of the Project. Identify all bid/proposal packages on which the CMR intends to submit a self-performance bid/proposal. To the extent CMR seeks to self-perform work, it must comply with Tex. Gov’t. Code § 2269.255. The overall bid/proposal packaging strategy shall be reviewed and approved by the TFC Project Manager and PMF, if one is retained. It may be revised throughout the buyout of the Project to further the interests of TFC and the Project.

4.1.5.6 Assist all members of the Project Team in obtaining all applicable risk management, building and design code, and regulatory agency reviews and approvals for the Project.

4.1.5.7 Refine, implement and monitor required HUB Subcontracting Plans to promote equal employment opportunity in the provision of goods and services to TFC for the Project. Improve upon the target goals where possible.

4.1.5.8 Advise TFC of any tests to be performed, and assist TFC in selecting testing laboratories and consultants. Develop with TFC a clear understanding of who will assume direct responsibility for the work of such laboratories and consultants and their compensation.

4.1.5.9 Review the Construction Documents to ensure that they contain adequate provisions for all temporary facilities necessary for performance of the Work, and provisions for all of the job site facilities necessary to manage, inspect, and supervise construction of the Work, even when these services involve third parties.

4.1.5.10 Provide an analysis of the types and quantities of labor required for the Project and review the appropriate categories of labor required in critical phases or stages. Make recommendations that minimize the adverse effects of labor shortages.

4.1.5.11 Provide analysis of the different types and quantities of materials required for the Project and review and monitor the cost of such materials on an ongoing basis. Make recommendations that minimize the adverse effects of material shortages and price volatility of materials.

4.1.5.12 Consult with and make recommendations to TFC on the acquisition and delivery schedules for fixtures, furniture and equipment. Include such activities on the Work Progress Schedule to ensure that they do not delay timely completion of the Project.

4.1.6 Safety.

4.1.6.1 CMR shall plan, initiate, maintain, and supervise all safety precautions and programs in connection with the Work of the Project prior the start of construction. The CMR’s safety program shall comply with all applicable requirements of the UGC, OSHA, and all other applicable federal, state and local laws and regulations. The CMR shall be solely responsible for on-site safety. Neither TFC, nor A/E, nor any other member of the Project Team shall have responsibilities for on-site safety except for safety issues arising solely from their own negligent acts or omissions.

4.1.6.2 CMR shall provide recommendations and information to TFC and A/E regarding the assignment of responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials, and services for common use of the Subcontractors.