ESBD_File_328827_Attachment F - Design-Build Services Contract Template.pdf

RFQ 303-3-04702

D-B Services for TBI Program

ATTACHMENT F – DESIGN-BUILD SERVICES FOR TBI CONTRACT

TEMPLATES

1 – Design-Build Services For TBI Construction Phase Contract Template --- Page 2

2 –Design-Build Services For TBI Pre-Construction Services Phase Contract Template (issued if required) ---- Page 110

DESIGN-BUILD SERVICES AGREEMENT

THE TEXAS FACILITIES COMMISSION

AND

D-B FIRM

FOR

DESIGN-BUILD SERVICES FOR TEXAS BORDER INFRASTRUCTURE –

CONSTRUCTION PHASE

(TBI)

TFC CONTRACT XXXX

RFQ NO. 303-3-04702

PROJECT NO. 22-003-2535

TABLE OF CONTENTS

ARTICLE 1.

ARTICLE 2.

ARTICLE 3.

ARTICLE 4.

ARTICLE 5.

ARTICLE 6.

ARTICLE 7.

ARTICLE 8.

ARTICLE 9.

ARTICLE 10.

ARTICLE 11.

ARTICLE 12.

ARTICLE 13.

ARTICLE 14.

ARTICLE 15.

ARTICLE 16.

DEFINITIONS

CONTRACT DOCUMENTS

TFC RESPONSIBILITIES, INFORMATION, AND APPROVALS

PRECONSTRUCTION PHASE

DEVELOPMENT OF THE DB’S PROPOSAL

CONTRACT SUM

GUIDELINES FOR DEVELOPING THE DB’S PROPOSAL AND TFC’S

EVALUATION………………………………………………………………………… 22

CONSTRUCTION PHASE SERVICES

PAYMENT

RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

BONDS AND INSURANCE

INDEMNITY

DISPUTE RESOLUTION

TERMINATION AND SUSPENSION

SPECIAL PROVISIONS

MISCELLANEOUS PROVISIONS

TFC TBI D-B Contract Template 15 May 2023

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

Exhibit A. 2015 Uniform General Conditions Exhibit B. 2018 Supplementary General Conditions Exhibit C. Special Conditions of this Agreement Exhibit D. Design-Build Proposal Exhibit E. Intentionally Omitted Exhibit F. Criminal Background Checks and Application Guidelines Exhibit G. Approved HUB Subcontracting Plan Exhibit G-1 HUB Subcontracting Plan Form Exhibit G-2 Progress Assessment Report Form Exhibit H. Project Insurance Requirements Exhibit I. Form Intentionally Omitted Exhibit J-1. Form of Performance Bond Exhibit J-2. Form of Payment Bond Exhibit K. Tactical Infrastructure Design Standards, Version 5, August 2020 Exhibit L. Intentionally Omitted Exhibit M. Design Criteria Package

AGREEMENT BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

DESIGN-BUILD FIRM

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

THE TEXAS FACILITIES COMMISSION (“TFC”), an agency of the State of Texas 1711 San Jacinto Boulevard Austin, Texas 78701 as “Owner” (as is defined in UGC Section 1.28), and the Design-Build Firm (the “DB” or “Design-Build Firm”):

For the following Project (the “Project”):

Design-Build Services for the Texas Border Infrastructure (TBI)

Project Architect/Engineer (the “A/E”)

TFC and DB 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 2018 Supplementary General Conditions (the “Supplementary General Conditions”), and the Special Conditions, 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 Design/Build Contractor whereby Design Build Contractor agrees to provide Preconstruction Services, Design Services, and Construction Services for the Project in order to fully complete the 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.

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

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

Baseline Schedule means the initial time schedule of Work for the entire Project prepared by the DB in accordance with the requirements set forth in UGC Section 1.6.

Basic Services means all responsibilities assigned to the A/E in this Agreement, excluding extra services and special cases, if any. The Basic Services include those services which are necessary or appropriate to fully design all aspects of the Project.

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 preconstruction, design, and construction budget for the Project as set out in the RFQ, and as may be amended from time to time by TFC.

Bridging Documents means documents that consist of procurement and contracting requirements, planning criteria (technical services and functional requirements), specifications, performance requirements, standards, and preliminary drawings organized in accordance with a standard classification system that convey design and construction requirements and convey the scope, quality and intent of the project to Design-Build teams bidding the project. The Bridging Documents for this Agreement are entitled, Webb County Laredo 7-1.

C&A means any and all clarifications and/or assumptions made by DB in the preparation of its DB’s 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 DB, PMF, A/E, and TFC establishing the date of Substantial Completion, as defined in UGC Section 1.44, for the applicable part of the Work and identifying responsibilities for security and maintenance as set out in UGC Section 12.1.1.2.

Close-Out Documents has the same meaning as defined in UGC Section 1.10 and includes the DB’s marked-up “as-builts” and Record Drawings.

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

Consultant means a person or entity providing professional services for the DB directly, or by or through the A/E, for all or a portion of the Work. “Consultant” is referred to throughout the Contract Documents as if singular in number. To the extent required by the relevant jurisdiction, the Consultant shall be lawfully licensed to provide the required professional services.

Construction Administration Services are those certain services provided by A/E pursuant to its agreement with DB and upon issuance of the Design-Build Proposal, if any, to assist in the administration of the Work under the Design-Build Proposal as further described in Section 8.3and as otherwise expressly provided in the Contract Documents.

Construction Documents means, collectively, the Drawings, Specifications, details, and other documents prepared by the DB or its Consultants, by or through the A/E or 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 the Work that are acceptable to TFC.

Construction Services means the coordination, implementation and execution of the construction of the Work for the Project required by the Contract Documents, and as further described in Article 8.

Contract Documents are identified in Article 2.1.

Contract Sum means the total of the Stipulated Sum and the Controlled Allowance.

Contract Time is defined in UGC Section 1.20 and includes the plural "Days".

Day is defined in UGC Section 1.15 and includes the plural, “Days”.

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

DB Proposal is the certain price proposal(s) by the DB to TFC that includes necessary pricing and basis information as required in Section 5.2 herein for agreed upon scopes of work.

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

Design Criteria Package, if applicable, is set out in the Bridging Documents.

Design-Build Firm or “DB” means that entity designated on the cover page of this Agreement who shall, subject to the provisions of UGC Section 1.21, provide the Preconstruction, Design, and Construction Services as set forth in this Agreement. The terms “Design-Build Firm” or “DB” are interchangeable with each other and with the term “Design-Build firm” other similar terms used in the various parts of the Contract Documents, including the UGC.

Design Services means all (i) professional architectural services and/or (ii) professional engineering services as defined in Tex. Gov’t. Code § 2254.002 necessary or required to be performed in order for the DB to fully perform the Work under this Agreement. DB is responsible for Design Services;

however, they will be performed by or through the A/E or such other separate design professional consultants retained by the DB with TFC’s prior written consent.

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 and shall include the A/E Design Guidelines.

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-d1d, 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 (75 U.S.C. § 2d01 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, “Projectmates”.

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

Good Faith Efforts are steps taken to achieve a Contract Goal which, by their scope, intensity and usefulness, demonstrates the bidder’s responsiveness to fulfill the business opportunity objective when bidding on a contract as well as the contractor’s responsibility to put forth measures to meet or exceed Contract Goal throughout the duration of the contract.

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://www.tfc.texas.gov/divisions/commissionadmin/prog/hub/. 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”).

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, and the construction Baseline Schedule as updated with DB’s Work Progress Schedule.

Notice to Proceed or “NTP” means the written notice to be issued to DB by TFC, which shall inform DB of, among other things, the date on which DB 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 Phase Services means the collective Preconstruction Services and Design Services.

Preconstruction Services are those certain services and deliverables to be performed by DB in accordance with Article 4 herein, other than Design Services.

Program Management Firm or “PMF” means the service provider, if any, with whom TFC enters into a Program Management Agreement (the “PMF Agreement”) for the purpose of the PMF providing certain 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. DB 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 this Agreement and the PMF Agreement, a copy of which TFC will provide to DB upon the DB’s request. The PMF will serve as the Owner’s Designated Representative (ODR) for this Agreement.

Project Manual, if applicable, is set out in the Bridging Documents.

http://www.tfc.texas.gov/divisions/commissionadmin/prog/hub/

Project Team means TFC, Using Agency, DB, 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.

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

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

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 DB.

Specifications is defined in UGC Section 1.41.

Standard of Care means that certain standard by which all Design Services hereunder shall be performed to, as prescribed by Tex. Gov’t. Code § 2254.0031 (incorporating Tex. Local Gov’t. Code § 271.904(d)), to oil: (i) with the professional skill and care ordinarily provided by competent architects or engineers (as applicable) practicing under the same or similar circumstances and professional license, and (ii) as expeditiously as is prudent considering the ordinary professional skill and care of a competent architect or engineer.

Stipulated Sum means the lump sum, fixed price compensation to which TFC and the DB agrees for timely delivery of all services, labor, materials and the Work, described in the Agreement.

Subcontract means any agreement between DB 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.

Tactical Infrastructure and Design Guidelines means Version 5, August 2020, attached hereto and incorporated herein for all purposes as “Exhibit K”.

Term of this Agreement means the Effective Date of this Agreement terminating on December 31, 2024 or thirty (30) Days after expiration of the Contractor’s Warranty Period set forth in UGC Article 13, whichever comes later, unless otherwise provided by mutual written agreement of the parties.

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), PMF, and DB, 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 2015, as may be amended from time to time, a copy of which is published on TFC’s website and as may be modified by this Agreement and the Special Conditions.

Using Agency has the same meaning as defined in Tex. Gov’t. Code § 166.001(10).

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

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

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 DB to design, manage, implement, and fully construct the Project in accordance with the requirements of this Agreement and the Contract Documents. The Work includes, without limitation, the Preconstruction, Design, 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 is defined in UGC Section 1.49, and shall include all Preconstruction Phase Services, including the deadlines in terms of a fixed number of Days after a preceding deadline for completion and delivery of discrete portions of the Design Services, and Construction Services for the Project. The Work Progress Schedule may subsequently be modified by mutual agreement between TFC and DB 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 Supplementary General Conditions;

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

2.1.5 Bridging documents, if any, provided by the PMF, comprised of specifications, drawings, sketches, narratives, studies, reports, analyses and other information, that generally describe the scope and quality of the Project.

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

2.1.7 All Addenda issued prior to the Effective Date;

2.1.8 The Design-Build Amendment, if any, signed by both parties when finalized and incorporated into this Agreement;

2.1.9 All Change Orders issued after the Effective Date;

2.1.10 The HSP as approved by TFC; and

2.1.11 DB Proposal including all C&A and Prebid questions and answers.

2.2 The Contract / Integration. These Contract Documents form the entire and integrated Agreement between TFC and DB 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 TFC and DB.

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) the DB’s proposal which includes the C&As, (3) this Agreement, including the exhibits attached hereto and incorporated fully herein; (4) the UGC; (5) the final Drawings and Specifications developed by the DB and such other TFC consultants incorporated into the Contract Documents; (6) the Bridging Documents incorporated into the Contract Documents, with those bearing the latest date taking precedence; 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. DB shall perform all Preconstruction, Design, 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 DB 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 DB shall 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 DB 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, environmental reports, flood plain analyses, or traffic impact studies in the possession of TFC which may impact the design and/or construction of the Project;

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 Bridging Documents. 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, site access, and site requirements;

3.1.12 Intentionally deleted; 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 DB’s performance of the Work, upon receipt of DB’s reasonable written request.

3.2 No Warranties by TFC. DB 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 DB SHALL HAVE THE RIGHT TO REASONABLY RELY UPON

SUCH INFORMATION. DB SHALL VERIFY SUCH INFORMATION AND WILL NOTIFY

TFC OF ANY CHANGE IF DB DISCOVERS THAT ANY OF THE TESTS, MAPS,

REPORTS, OR DRAWINGS CONTAIN ERRORS THAT MAY IMPACT THE DESIGN OR

CONSTRUCTION OF THE PROJECT.

3.3 A/E. DB has retained the A/E to provide certain Design Services for the Project, including: (i) professional architectural services and/or (ii) professional engineering services as defined in Tex. Gov’t. Code Ch. 2254, Subchapter A.

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 DB;

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 Functional programming services;

3.4.9 Estimating services;

3.4.10 Peer review of designed systems, including MEP, architectural and structural systems and utilities and civil site development;

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

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

DB shall, at all times, work collaboratively with PMF and the TFC Project Manager as well as other members of the Project Team, and shall work to help integrate its Services with those of the 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, written 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 Design-Build Proposal.

3.5.3 DB 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 DB’s responsibilities arising pursuant to this Agreement. Neither the approval and/or final acceptance of the Project or any documents prepared by DB, 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 DB’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 DB or in any of the Construction Services provided by DB.

ARTICLE 4. PRECONSTRUCTION PHASE

The “Preconstruction Phase” shall commence on the date specified in a NTP with Preconstruction Services and/or Design Services issued by TFC. DB is not entitled to reimbursement for any costs incurred for

Preconstruction or Design Services performed before issuance of the Notice to Proceed. Preconstruction Phase Services may overlap with Construction Phase Services. Compensation for Preconstruction Phase Services is set forth in Section 4.3, below.

4.1 Preconstruction Services. In addition to the Work defined in that certain Design-Build Services Agreement dated XXX, TFC Contract No. XX-XX-XXX (IF ISSUED), the DB shall perform and complete the following tasks as a part of the Preconstruction Services:

4.1.1 Limited Pre-Construction Services.

4.1.1.1 Upon receipt of TFC’s limited Notice to Proceed, DB shall commence the performance of the services set forth in “Exhibit D”.

4.1.1.2 DB’s compensation for the limited pre-construction services shall be as set for in Section 4.3 of this Agreement. DB shall have no further performance obligations under this Agreement beyond expending the amount set forth in Section 4.3 of this Agreement.

4.1.1.3 Upon commencement of the limited Notice to Proceed, DB and TFC shall begin negotiations of an amended Agreement for additional scope.

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

4.1.1.5 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. DB’s visual investigation and understanding of these conditions is instrumental in preparing DB’s Proposal for the Work. If any portion of the site cannot be accessed prior to contract execution, DB shall access site once allowed. After inspection, DB will be given the opportunity to resolve, price, and adjust contract time, if needed, for any potential impacts that were not shown on the contract documents.

4.1.1.6 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 a construction contractor for a Project of similar size and scope:

4.1.1.6.1 suitability of the Site and proposed improvements;

4.1.1.6.2 building equipment, systems, and construction feasibility;

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

4.1.1.6.4 availability and selection of materials and labor;

4.1.1.6.5 time requirements for construction and equipment installation;

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

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

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

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

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

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

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

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

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

4.1.2 Schedules.

4.1.2.1 Baseline Schedule and Work Progress Schedule. As part of DB’s Preconstruction Services, DB 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 Preconstruction Services, Design Services, Construction 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 DB’s performance of Preconstruction Services, DB 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 DB’s Proposal.

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

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

4.1.4.1 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.

4.1.4.2 Advise TFC 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.

4.1.3.3 For Work the DB plans to subcontract 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.

4.1.3.4 Provide Construction Documents without areas of conflict and overlap in the work to be self-performed, performed by the various Subcontractors or TFC’s separate contractors.

4.1.3.5 Develop bidder’s interest in the Project. DB will develop and refine a bid/proposal package strategy that addresses scopes of Work for which DB plans to subcontract and for each phase and stage of the Project. Identify all bid/proposal packages on which the DB intends to submit a self-performance bid/proposal. The overall bid/proposal packaging strategy shall be reviewed and approved by the TFC Project Manager and PMF, if one is retained with the acceptance of a Stipulated Sum proposal.

4.1.3.6 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.

4.1.3.7 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. HUB requirements are a goal of the project and good faith efforts are required to meet this goal. If the goal cannot be met, provide reasonable evidence showing why the HUB requirements cannot be met.

4.1.3.8 The DB contractor is responsible for all testing required by the contract to ensure all work incorporated into the project meets the quality and contract requirements. In addition to the above that the DB contractor performs, the contractor must also provide TFC with a totally separate Third (3 d) Party recommended testing consultant and testing laboratory including their certifications and qualifications. Upon TFC approval, DB contractor shall retain the approved consultant and approved laboratory and include their itemized services in the DB Schedule of Values. Payment applications of the consultant and laboratory should be included in the DB payment applications to TFC. The consultant and laboratory are to submit their test reports and laboratory results directly to the PMF and TFC. The Third-Party Testing Lab and Consultant is required to perform 25% additional testing to ensure contract verification.

4.1.3.9 Provide Construction Documents that 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.

4.1.3.10 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.

4.1.3.11 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.

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

4.1.4 Safety.

4.1.4.1 DB 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 DB’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 DB shall be solely responsible for on-site safety. Neither TFC 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.

4.1.4.2 DB shall provide recommendations and information to TFC regarding the assignment of responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials, and services for common use of the Subcontractors. The DB shall verify that appropriate safety considerations and provisions are included in the Construction Documents and that the Work envisioned does not include any unnecessary safety risks.

4.2 Design Services.

4.2.1 Evaluation of Design Program. The DB shall schedule and conduct meetings with TFC and any other necessary members of the Project Team to discuss and review the Design Program and other information provided by TFC pursuant to Section 3.1, above. The DB shall thereafter again meet with TFC to discuss a preliminary evaluation of Design Program. The preliminary evaluation shall address possible alternative approaches to design and construction of the Project and include the DB’s recommendations, if any, with regard to accelerated or fast-track scheduling, procurement, or phased construction. The preliminary evaluation shall consider cost information, constructability, and procurement and construction scheduling issues.

4.2.1.1 After the DB meets with TFC and presents the preliminary evaluation, the DB shall provide a written report to TFC, summarizing the DB’s evaluation of Design Program. The report shall also include:

4.2.1.1.1 allocations of program alignments, detailing each alignment and their location, linear mileage and acreage;

4.2.1.1.2 a preliminary schedule, which shall include proposed design milestones; dates for receiving additional information from, or for work to be completed by, TFC; including easements and Authorities having Jurisdiction, and dates of periodic design review sessions with TFC; and

4.2.1.1.3 List developed by TFC and DB of all regulatory permits, clearances, authorities with jurisdiction and other administrative procedures necessary to proceed with construction of the program. These activities shall be included in the preliminary schedule and updated on no less than a monthly basis.

4.2.1.2 TFC shall review the DB’s written report and, if acceptable, provide the DB with written consent to proceed within five (5) business days, to the development of the Construction Documents as described in Section 4.2.5. The consent to proceed shall not be understood to modify Design Program unless TFC and DB execute a Change Order.

4.2.2 Construction Documents.

4.2.2.1 Based on the Bridging Documents and any further adjustments in the scope and quality of the Project or in the Budget, DB shall prepare Construction Documents for approval by TFC. Construction Documents shall consist of Drawings and Specifications setting forth in detail the quality levels of materials and systems to be incorporated into the construction of the Project, including a full fixture and equipment schedule, where requested and procurement package. Such details shall comply with TFC written requirements and in accordance with Exhibit K, Tactical Infrastructure Design Standards, Version 5, August 2020, the most recent TI standards at time of award, excluding GFM. In accordance with the Work Progress Schedule, updated Construction Documents will be submitted to TFC, reviewed, and any comments incorporated in accordance with the below.

4.2.2.1.1 Sixty-five percent (65%) completion of the Construction Documents;

4.2.2.1.2 Ninety percent (90%) completion of the Construction Documents;

and

4.2.2.1.3 One hundred percent (100%) completion of the Construction Documents.

4.2.2.2 The Construction Documents shall be consistent with the Contract Documents and shall be in compliance with all Applicable Laws, including but not limited to applicable building codes, mechanical, electrical, life safety, accessibility and zoning codes, and standards promulgated by ADA/TAS and ANSI. All electronic data shall include an organized indexing system and/or a table of contents sufficiently detailed as to each discrete subject matter so as to allow for easy identification and location of each file or page of information. In conjunction with the most current TI Standard at time of contract award, Construction Document Drawings shall be produced on a CAD system as part of Basic Services. TFC will define the CAD drawing requirements and the final media for the CAD data. Any drawing revisions shall be investigated and coordinated with other design documents Any redesign required as a result of conflict and/or comparison with other design documents, shall be provided by DB. DB shall incorporate the design requirements of Governmental Authorities into the Construction Documents.

4.2.2.2.1 DB shall provide with each review submittal a coordination document set. The DB shall provide all designs and shall not use design performance documents, unless approved by TFC.

4.2.2.2.2 All Drawings and Specifications must, in conspicuous text, expressly prohibit any electrical systems or equipment from being energized or otherwise activated without a minimum of twenty-four (24) hour advance notice to TFC. All Drawings and Specifications shall be appropriately signed, sealed, and dated by the responsible architect(s) and engineer(s).

4.2.2.2.3 Each Deliverable shall be submitted via disk (unless another media is directed or authorized by the TFC Project Manager) and shall be appropriately labeled to include identification of the software program (and version thereof) utilized. All Drawings shall be organized within the layering system (including format and names) in accordance with industry standards.

4.2.2.2.4 All electronic data shall include an organized indexing system and/or a table of contents sufficiently detailed as to each discrete subject matter so as to allow for easy identification and location of each file or page of information.

4.2.2.2.5 Design Development Documents shall be based upon reliable and accurate calculations that appropriately determine all architectural and engineering components of the Project, and shall include, but not be limited to the following:

4.2.2.2.5.1 Design criteria for clearing and grubbing, on-site and off-site drainage and erosion control, and for any other grade and subgrade Site preparation and erosion control required by any Authorities Having Jurisdiction;

4.2.2.2.5.2 Design criteria for connection to all proposed

temporary and permanent on-site and off-site Utilities;

4.2.2.2.5.3 Design criteria for the proposed structural

system, including the rationale for all determinations, all applicable structural loads;

4.2.2.2.5.4 Design criteria for the proposed electrical

system including reserve capacity;

4.2.2.2.5.5 Copies of all manufacturers’ documentation

that illustrates the proposed materials, equipment and warranties to be specified for the Project.

4.2.2.3 DB shall submit all documents required to secure approval of all Authorities Having Jurisdiction. All direct costs associated with storm water permits, air permits, spill permits and fees shall be included in the Stipulated Sum.

4.2.2.4 Prior to releasing the Construction Documents “For Construction”, the DB shall provide a document that summarizes all design code requirements and provide written certification that the Construction Documents meet all Applicable Laws and the Tactical Infrastructure and Design Guidelines, Exhibit K, DB shall further certify in writing that no asbestos or lead containing materials have been specified or approved by DB for installation into the Project.

4.2.2.5 Only in the instance DB is no longer performing work for TFC and upon written request by TFC, DB shall prepare, as an Additional Service, the Construction Documents so as to enable such that the various phases of the Work, may, to at the discretion of TFC, be awarded pursuant to separate contracts to construct that particular phase, which shall constitute an Additional Service.