ESBD_File_354520_0001418 Attachment D - TAB Services Contrac Template.pdf

INSTRUCTIONS TO ALL RESPONDENTS FOR RFQ NO. 0001418

PROFESSIONAL SERVICES AGREEMENT FOR TESTING, ADJUSTING,

AND BALANCING SERVICES

FOR

CAPITOL COMPLEX PHASE TWO IN AUSTIN, TEXAS

1. Respondents are required to review this Instruction and Contract Template prior to submission of qualifications.

2. Other than for typographical or scrivener’s errors, all exceptions to, and/or requests for modification of, this Contract Template must be submitted with Respondent’s qualifications/proposals and on time.

3. TFC will not consider any exceptions and/or requests for modification submitted after the date and time for submission of qualifications/proposals.

4. The following Articles, Sections and Exhibits of this Contract Template are not negotiable:

Article 1, Definitions

Article 3, TFC Responsibilities, Information and Approvals- Sections 3.2, Actions of TFC, 3.3 (no title), and 3.4, No Warranties by TFC

Article 4, Compensation and Payment- Sections 4.3 through and including 4.7 Article 5, Copyrights/Trademarks/Instruments of Service Article 6, Records, Audit, Proprietary Information and Public Disclosure Article 7, Insurance and Indemnity Article 8, Dispute Resolution Article 9, Term, Suspension, and Termination Article 10, Special Provisions Article 11, Miscellaneous Provisions

Exhibit A. 2015 Uniform General Conditions Exhibit B. 2018 Supplementary General Conditions| Exhibit C. TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 Exhibit D. Professional Services Schedule Exhibit E. List of TAB Key Personnel Exhibit F. Criminal Background Check and Application Guidelines Exhibit G. TAB Scope of Services Detail Exhibit H. Approved HUB Subcontracting Plan Exhibit H-1. HUB Subcontracting Plan Form Exhibit H-2. Progress Assessment Report Form Exhibit I. TAB Insurance Requirements

Exhibit J Owner’s Project Requirements dated June 22, 2012

5. The Professional Services Agreement shall be fully negotiated between TFC and the Successful Respondent PRIOR TO award, whether award is made by TFC Procurement, or by the TFC Commission.

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

Stephen M. Foster TFC General Counsel

PROFESSIONAL SERVICES AGREEMENT

BY AND BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[INSERT TAB NAME]

FOR

TESTING, ADJUSTING, AND BALANCING SERVICES FOR

CAPITOL COMPLEX PHASE TWO IN AUSTIN, TEXAS

TFC CONTRACT NO. [INSERT]

RFQ NO. 0001418 – ATTACHMENT D

PROJECT NO. 20-028-8011

i

TABLE OF CONTENTS

Page

ARTICLE 1. DEFINITIONS

ARTICLE 2. TAB RESPONSIBILITIES AND SCOPE OF SERVICES

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION AND APPROVALS

ARTICLE 4. COMPENSATION AND PAYMENT

ARTICLE 5. COPYRIGHTS/TRADEMARKS/INSTRUMENTS OF SERVICE

ARTICLE 6. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

ARTICLE 7. INSURANCE AND INDEMNITY

ARTICLE 8. DISPUTE RESOLUTION

ARTICLE 9. TERM, SUSPENSION, AND TERMINATION

ARTICLE 10. SPECIAL PROVISIONS

ARTICLE 11. MISCELLANEOUS PROVISIONS

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. TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18 Exhibit D. Professional Services Schedule Exhibit E. List of TAB Key Personnel Exhibit F. Criminal Background Check and Application Guidelines Exhibit G. TAB Scope of Services Detail Exhibit H. Approved HUB Subcontracting Plan Exhibit H-1. HUB Subcontracting Plan Form Exhibit H-2. Progress Assessment Report Form Exhibit I. TAB Insurance Requirements Exhibit J Owner’s Project Requirements dated June 22, 2021

AGREEMENT BETWEEN

THE TEXAS FACILITIES COMMISSION AND

TESTING, ADJUSTING, AND BALANCING SERVICES PROVIDER

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

THE TEXAS FACILITIES COMMISSION (“TFC”), a state agency 1711 San Jacinto Boulevard Austin, Texas 78701 as “Owner” (as is defined in UGC Section 1.28), and the Testing, Adjusting, and Balancing Services Provider(the “TAB):

[Name] [Address] [City, State, Zip] [Phone:] [Fax:] wherein TAB agrees to provide Professional Services for the following Project (the “Project”):

Capitol Complex Phase Two [Location] [City, State, Zip]

TFC and the TAB 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 TFC 2018 Architectural/Engineering Guidelines, Edit Date:

3/19/18 or in any other document that is referenced herein and incorporated for all purposes, and the definitions in this Agreement, the definitions used in this Agreement shall control.

Additional Services means those Professional Services not included in Sections 2.1 to 2.2 of this Agreement which may be requested by TFC at any time for the duration of this Agreement, as discussed in Sections 2.3 and 4.4 below.

A/E means the architect and/or engineer with whom TFC has entered into a separate Agreement for the provision of Professional Architectural and Engineering Services and to exercise overall responsibility for the design of the Project.

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

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

Agreement means this Agreement between TFC and TAB whereby TAB agrees to provide Professional Services for the Project identified on the cover page of this document, all as outlined herein.

Applicable Law or Law(s) means any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders now in force or hereafter enacted by Authorities Having Jurisdiction (the “Authorities Having Jurisdiction”), relating to or affecting the Project or arising from this Agreement, including those governing labor, equal employment opportunity, safety, and environmental protection, and further including (i) applicable building, fire, and life safety codes and zoning requirements of Authorities Having Jurisdiction; (ii) accessibility laws, codes, and ordinances including but not limited to the Texas Accessibility Standards of the Architectural Barriers Act, Tex. Gov’t. Code Ch. 469, Elimination of Architectural Barriers, and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12181); (iii) occupational safety acts and requirements applicable to the Project, including United States Occupational Safety and Health Administration (“OSHA”) requirements and related federal and state regulations; (iv) requirements under Title VII of the Civil Rights Act of 1964, as amended; (v) requirements of the Fair Labor Standards Act and applicable state wage and hour laws including Tex. Gov’t. Code § 2258.001 et seq.; (vi) Environmental Laws, including all storm water, street, utility and other related infrastructure requirements, (vii) all requirements related to the use, removal, storage, transportation, disposal and remediation of Hazardous Materials; and (viii) any other applicable local, state or federal laws respecting the Project.

Basic Services means those Professional Services set forth in Article 2 below. Such Basic Services may include, without limitation, architectural design, interior design, furniture, fixtures and equipment layout and consultation, design management, structural engineering, engineering for all

MEP Systems, civil engineering, lighting, acoustics, compliance with Title III of the Americans with Disability Act of 1990, 42 U.S. Code (“ADA”), wayfinding, survey, geotechnical engineering, preparation of Drawings, Specifications, and all Construction Documents, construction observation, and construction administration, all as further indicated in Article 2 of this Agreement.

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

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

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

CAD means AutoCAD DWG format.

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

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

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

Compensation means the funds paid to TAB for the Professional Services provided by TAB as set forth in Article 4 of this Agreement.

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

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

Consultant means any person or entity that enters into an agreement with A/E or TAB to perform any part of the Professional Services described in this Agreement. The term Consultant excludes Consulting service and Consultant as defined in Chapter 2254.021, Texas Government Code.

Consulting Agreement means any agreement between TAB and a Consultant.

Cost Estimate(s) means the cost estimate(s) prepared by the appropriate Project Team member during various pre-construction phases of a Project based on the review of Drawings, Specifications and other Deliverables provided by A/E in the design process.

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

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

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

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

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

98-616, 98 Stat. 3221 (1984)), and regulations promulgated thereunder; (ii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. § 9601 et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub.

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

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

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

Final Inspection Deadline means the date that is thirty (30) Days after the Substantial Completion Inspection and the date by which A/E must conduct a Final Inspection, unless such deadline is amended by TFC.

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

HUB Compliance Reporting System means the Texas Facilities Commission Historically Underutilized Business (“HUB”) online reporting system located at https://tfc.gob2.com. The HUB Compliance Reporting System is used to maintain business records documenting compliance with the HUB Subcontracting Plan (“HSP”) by submission of monthly Progress Assessment Reports (“PARs”).

Invoice means the invoice for payment for Professional Services provided by TAB as submitted in conformance with Article 4 below.

MEP Systems means mechanical, electrical, and plumbing systems.

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

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

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

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

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

Professional Services Schedule or “Schedule” means the schedule/timeline set out in “Exhibit D”, and which schedule/timeline sets out the deadlines in terms of a fixed number of days after a preceding deadline for completion and delivery of discrete portions of the Professional Services.

At the discretion of the TFC Project Manager and as mutually agreed upon with TAB, the Schedule may be revised and defined with more detail as the Project develops.

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

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

Project Management Professional or “PMP” means the service provider, if any, with whom TFC enters into a Project Management Professional Agreement for Professional Services (the “Project Management Professional Agreement”) for the purpose of the PMP 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. TAB acknowledges and agrees that the PMP shall have no authority to act for or on behalf of TFC or the State of Texas except as expressly provided for in the Project Management Professional Agreement, a copy of which TFC will provide to TAB upon TAB’s request.

Project Team are those entities who may be involved in the design and/or design assist procedures on the particular Project. Project team members include TFC, A/E and its Consultants, PMP (if any), the CMR or Contractor, any separate contractors employed by TFC, and other consultants employed for the purpose of programming, design, and construction of a project. The members of the Project Team will be designated by TFC for any particular project and may be modified from time to time by TFC.

Reimbursable Expenses means those reasonable and necessary out-of-pocket costs and expenses incurred by TAB for the provision of the Professional Services approved by TFC.

RFI means a request for information as defined in UGC Section 1.35.

RFI Response means a written clarification, instruction, and/or interpretation, including, but not necessarily limited to, an architect’s supplemental instructions issued in response to an RFI, which response must be consistent with the intent of the Construction Documents.

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

Schematic Design Package means the combination of: (i) Schematic Design Drawings; (ii) an outline summary of the areas within the proposed Project such summary corresponding to the general categories in the space allocation outlined in the Design Program; (iii) a description of the building and general Site development that shall include an overview of proposed exterior architectural materials and structural systems together with the mechanical, electrical and plumbing systems and services contemplated; and (iv) an Opinion of Probable Construction Cost that demonstrates conformity with the Budget, all that, in TFC’s sole opinion, must be in satisfactory quality and detail.

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

Specifications is defined in UGC Section 1.41.

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

Substantial Completion Inspection means the process and procedure described in UGC Section 12.1.1.

Substantial Completion Inspection Deadline means the date that is a fixed number of days after proper written notification is delivered to TFC and A/E by Contractor that Contractor has fully satisfied the requirements set out in UGC Section 12.1.1.1, and by which date A/E must conduct a Substantial Completion Inspection.

TAB means the testing, adjusting and balancing services provider identified on the cover page of this Agreement with whom TFC has entered into this Agreement for the provision of Professional.

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

TDLR means the Texas Department of Licensing and Regulations.

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 Agreement on behalf of TFC, including, but not limited to, serving as the point of contact between TFC, as defined below, (if any), TAB, and Contractor, and supervising TFC’s review and approval of the Professional Services. For the avoidance of doubt, the TFC Project Manager shall be the same person as the Owner’s Designated Representative (or “ODR”) as defined in UGC Section 1.29.

Uniform General Conditions or “UGC” shall mean the Uniform General Conditions for Construction Contracts issued by the State of Texas, published date of 2015, as may be amended from time to time, a copy of which is published on TFC’s website and as may be modified by this Agreement and the Special Conditions.

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

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

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

Warranty Report means the comprehensive report of the findings of TAB pursuant to the inspections, and which must include, but not be necessarily limited to, a list of the items needing replacement, correction, or repair.

Work means, in addition to those items set forth in UGC Section 1.49, the provision of all labor, materials, supplies, and equipment that are required of the CMR to manage, implement, and fully construct a Project in accordance with the requirements of this Agreement and the Contract Documents for that Project. The Work may include the Preconstruction and Construction Services described in a Construction Manager-at-Risk Agreement 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.

ARTICLE 2. TAB RESPONSIBILITIES AND SCOPE OF SERVICES

2.1 Scope of Services. TAB agrees to timely deliver the testing, adjusting, and balancing services described below, in accordance with the Agreement, the National Environmental Balancing Bureau (NEBB) Procedural Standards and the Associated Air Balance Council (AABC) National Standards, and in keeping with the Owner’s Project Requirements dated June 22, 2021, attached hereto and incorporated herein for all purposes as “Exhibit J.”

2.1.1 Review Phase. No later than the Deadline dictated by the Project Master Plan Schedule, which will be provided to TAB, or as directed by the PMP, TAB shall timely deliver the following Design Tasks to TFC.

2.1.1.1. Consult with TFC staff and become thoroughly familiar with the project documentation.

2.1.1.2 Inspect and timely become thoroughly familiar with the Project Site.

2.1.1.3 Identify all codes, rules, regulations, other Site-related requirements, and coordination, that may affect the timely TAB services of the Project.

2.1.1.4 Receive and become familiar with requirements of the technical standards of TFC.

2.1.1.5 Conduct review of Construction Documents and provide comments at the agreed upon milestone submission schedule, coordinating with TFC, A/Es, CxA and CMR and collaborating with any consultant(s) throughout the Project.

2.1.1.6 Determine and identify to TFC which additional Subcontractor(s), if any, that are not engaged, or to be engaged, by TAB pursuant to this Agreement, will be necessary to complement the Professional Services in order to fulfill requirements of this Agreement.

2.1.1.7 Coordinate with TFC for the utilization of the EPMCS. If requested, assign appropriate TAB staff to receive instruction regarding the use of EPMCS.

2.1.2 Development of TAB Plan. TAB shall develop a TAB plan that will form the basis of the process to be followed throughout the construction and post-construction phases of the Project. The

TAB plan will identify all related TAB activities and include roles and responsibilities for each team member (TFC, TAB, CxA, A/E, CMR) including Owner’s Representatives, contractors and vendors.

TAB activities will include tests, procedures, meetings, documentation, scheduling, and sequencing of tasks and will be performed in accordance with NEBB Procedural Standards. The TAB plan will identify all systems and equipment to be examined. The TAB plan will be updated throughout project and incorporated into final TAB report.

2.1.3 Construction Phase Services. TAB shall deliver the following management and administration of services to TFC during the construction phase of the Project as it specified in the UGC and as follows:

2.1.3.1 TAB shall have primary responsibility for execution of TAB plan and shall perform the following TAB construction related activities.

2.1.3.2 TAB shall plan and conduct a TAB kick-off meeting at the project site with all members of the Project Team. TAB shall also attend all project coordination meetings reasonably requested by TFC regarding the Work in order to facilitate the scheduling of the Work.

2.1.3.3 Prepare and maintain all forms and plans for field procedures and data to be recorded and incorporated into TAB reports.

2.1.3.4 Perform adequate preliminary site visits to determine Project readiness for TAB of the systems and perform all other actions reasonably necessary to fulfill the requirements of this Agreement.

2.1.3.5 Examine all contract documents and submittals for the equipment, systems, and controls within the TAB scope of TAB.

2.1.3.6 Coordinate all TAB activities with the CMR, CxA, Contractor’s subcontractors, and any other design professionals involved with the design and/or construction of the HVAC systems and equipment.

2.1.3.7 Upon notification that the HVAC systems and equipment have been started-up, TAB shall perform TAB activities in accordance with NEBB Procedural Standards and the TAB specifications.

2.1.3.8 TAB services provided shall be phased, as all buildings in scope of work will be delivered at potentially different dates.

2.1.3.9 TAB activities shall include initial and final balancing of the Chilled Water System, as well as testing & balancing of the Smoke Evacuation System, Smoke Control, and Smoke Exhaust Systems.

2.1.3.10 Perform all controls verification including calibration and set points as indicated and proper control device and sensor settings, operation, installation, and arrangement.

2.1.3.11 Perform Smoke/Fire Damper testing.

2.1.3.12 Witness, observe, and document all Duct Pressure testing.

2.1.3.13 Identify all deficiencies and issues encountered and deliver to Project Team written report. Upon written notification that all reported deficiencies have been remedied and corrected, TAB shall retest all parts of the HVAC systems that had been reported as being deficient.

If items previously reported to TAB are determined not to be remedied or corrected, TAB shall itemize each remaining deficiency in the final TAB report.

2.1.3.14 Deliver a periodic report to TFC for each site visit observation and review of the TAB work. Such periodic reports must describe in reasonable detail the current status of the following:

The completed Work in relation to Work Progress Schedule;

Project completion dates;

Percentage of completion of each discrete subpart of the Work; and

Any existing or potential deficiencies and/or discrepancies.

2.1.3.15 Develop a Final TAB Report.

2.1.3.16 Subject to the provisions of UGC, Subsection 12.1.1, no later than the Substantial Completion Inspection Deadline, TAB shall participate in a Substantial Completion Inspection of the CMR Work with the A/E, while accompanied by the TFC Project Manager(s), to determine whether said portion of the CMR Work has achieved Substantial Completion. In the event TFC and TAB conclude that the CMR Work, or any portion of the TAB scope thereof, has not performed or completed in accordance with the construction documents and contract, TAB shall prepare and deliver, no later than the Pre-Final Inspection Punchlist Deadline, a Pre-Final Inspection Punchlist to Contractor with a copy to TFC.

2.1.4 Warranty Phase Services. During the Warranty phase, TAB shall perform the following activities:

2.1.4.1 Conduct ninety (90) day follow-up and an opposite season follow-up to verify systems are operating as intended.

2.1.4.2 Prepare and submit a final TAB report to TFC that shall include all applicable TAB reports, checklists, test results, and associated drawings with Bluebeam notations.

2.1.5 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.

2.1.5.1 No changes to: (i) the scope of the Professional Services or (ii) the Consideration shall be valid or enforceable unless evidenced by a fully executed written amendment to this Agreement.

2.1.5.2 TAB is not authorized to commence providing any Professional Services to TFC or any Using Agency with respect to the Project unless and until an appropriate Notice to Proceed is delivered by TFC.

2.1.5.3 TFC, including by and through the TFC Project Manager(s), reserves the right to extend any of the deadlines set out above.

2.1.6 Inspections. TFC hereby reserves the right, if deemed appropriate by TFC in its sole discretion, to conduct reviews or inspections during the course of design and construction of the Project. However, TAB shall not be relieved of any of its obligations arising pursuant to this Agreement. No inspections of the Project conducted by TFC shall reduce the level or extent of TAB’s responsibilities arising pursuant to this Agreement. Neither the approval and/or final acceptance of the Project or any Deliverables, the payment of any Pay Application of TFC shall constitute, nor be deemed, a release of TAB’s obligation to perform and timely deliver the Professional Services and any Additional Services (i) in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances; or (ii) as required under this Agreement.

ARTICLE 3. TFC RESPONSIBILITIES, INFORMATION AND APPROVALS

3.1 Information and Documents to be Provided by TFC. TFC shall, with reasonable promptness, provide information and documents to TAB:

3.1.1 TFC Documents to TAB. When available and applicable, TFC will furnish to TAB copies of or reasonable access to, the following information and documentation regarding the Project:

3.1.1.1 The UGC, Supplementary General Conditions, any Special Conditions, and the A/E Guidelines.

3.1.1.2 Contract forms, bond forms, bidding information and instructions, minimum wage rates for inclusion in the Specifications, and design and construction standards.

3.1.1.3 The PAR for inclusion in the Specifications.

3.1.1.4 Any existing as-built and other Drawings that may impact the design and/or construction of the Project. When required for the Project, TFC shall furnish to TAB existing boundary surveys and topographic maps giving, as applicable, grades and lines of streets and other physical features, both on and adjoining site, boundaries and contours of land, rights-of-way, restriction, easements, deed restrictions, locations, dimensions and complete data pertaining to existing buildings, location of trees, and full information concerning available Utilities, public and private. TFC shall provide any additional boundary and topographical surveys that are found to be needed during design.

3.1.1.5 Any geotechnical surveys, reports, soil borings and laboratory testing services, including required test interpretations, test data and reports, and traffic impact studies in the possession of TFC.

3.1.1.6 The Project Analysis or equivalent thereof.

3.1.1.7 2020 Texas Capitol Complex Master Plan Update;

3.1.1.8 The Budget and any required delivery schedules.

3.1.1.9 Information concerning the Communication Protocol and EPMCS.

3.1.1.10 TFC’s Project Requirements.

3.1.2 TFC Services to TAB. TFC may further assist TAB as follows:

3.1.2.1 Upon TAB’s receipt of general and criminal background check clearance, TFC may provide assistance to TAB to obtain access to the Site as is reasonably necessary to enable TAB to provide the Professional Services.

3.1.2.2 TFC shall designate the TFC Project Manager who will provide supervision the design and construction of the Project and the Professional Services.

3.1.2.3 TFC may designate a PMP for the Project to provide certain Project management services in addition to those provided by TFC Project Manager. The PMP will provide overall management of the Project, with a scope of services as further defined in the PMP definition above and in the Project Management Professional Agreement, but which shall include, but shall not be limited to, the following Deliverables:

Planning, management, and coordination of the Project as further defined in the Project Management Professional Agreement, a copy of which shall be provided upon request to TAB;

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

Review of solicitation documents and other contractual templates and provide recommendations on same;

Development and management of the Project cost control system;

Development and monitoring of a master schedule and integration with Project cost control system;

Development of quality control plan;

Management of EPMCS;

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

MEP project planning services;

Functional and space programming services;

Reporting; and

Such other Deliverables as may be developed or assigned to PMP by TFC.

TAB shall, at all times, work collaboratively with PMP, CMR, 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 PMP and TFC Project Manager throughout the Project.

3.1.2.4 TFC may review and comment on Deliverables submitted by the TAB in such a manner as to avoid unreasonable delay in the progress of the TAB’s work. No approvals, comments, decisions or acceptances by, or on behalf of, TFC shall be deemed to be an assumption of responsibility by TFC for any defect, error, or omission in said Deliverables or in TAB’s performance of Professional Services.

3.2 Actions of TFC. No inspections of the Project or review of Deliverables by TFC shall reduce the level or extent of TAB’s responsibilities arising pursuant to this Agreement. Neither the approval and/or final acceptance of a Project or any Deliverables, nor the payment of any Invoice by TFC shall constitute or be deemed, a release of TAB’s obligation to perform and timely deliver the Professional Services and any Additional Services in accordance with the Standard of Care and this Agreement.

3.3 Any provisions in this Agreement to the contrary notwithstanding, all consents, revisions, and/or approvals by TFC shall be in its sole and absolute discretion and shall not be valid or enforceable unless evidenced by a fully executed written amendment to this Agreement. TAB acknowledges that the TFC Project Manager shall not have any express or implied authority to vary or otherwise amend or waive compliance with the terms of this Agreement in any way, except for identified deadlines in Section 2.1 herein, and then only as evidenced in writing, signed by TFC Project Manager.

3.4 No Warranties by TFC. TAB 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 TAB shall have no right to rely upon such and that any reliance thereon shall be at TAB’s own risk. TFC HEREBY

DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE ACCURACY OR

COMPLETENESS OF THE ABOVE-MENTIONED REPORTS, , M]APS AND DRAWINGS.

ARTICLE 4. COMPENSATION AND PAYMENT

4.1 Contract Limit—Fees and Expenses.

4.1.1 Fixed Fee. In exchange for the timely delivery of Professional Services as specified by this Agreement, TAB shall be paid a fixed fee of [_____________________] ($___________). Any Professional Services performed or delivered by TAB prior to the Effective Date of this Agreement or after its termination cannot be compensated.

4.1.2 Submission of Pay Applications or Invoices. No more frequently than once per month, TAB shall submit a Pay Application to TFC for services performed and reasonable and necessary costs and expenses incurred through the last day of the previous month. TFC agrees to pay TAB in accordance with Chapter 2251 of the Texas Government Code, also known as the “Prompt Payment Act.”

4.2 Proportional Payments. Payments shall be made to TAB monthly in proportion to the services performed. The compensation for services shall be at the following cumulative percentages at the completion and acceptance of each of the following phases of the Professional Services.

4.2.1. Document Review Phase: ten percent (10%)

4.2.2. TAB plan development: fifteen percent (15%)

4.2.3. Construction Phase Service: ninety percent (90%)

4.2.4. TAB Report: ninety-five percent (95%)

4.2.5. Warranty Services: one hundred percent (100%)

4.3. Maximum Reimbursable Expenses. Reasonable lodging and traveling expenses shall be considered a Reimbursable Expense under this Agreement when professional and technical personnel of TAB are away from the cities in which they are permanently assigned and are conducting authorized business directly connected with this Agreement. For the purposes of this Agreement, no travel reimbursement shall be made for travel within 100 miles of the location identified as the principal place of business or branch office of TAB, except for overnight stays, which require prior TFC project manager approval. The maximum amount for each Reimbursable Expense for travel and lodging shall be the rates established by the Texas Comptroller of Public Accounts, and outlined in Textravel, https://fmx.cpa.state.tx.us/fmx/travel/textravel/index.php, formerly known as the State of Texas Travel Allowance Guide for state employees. No Reimbursable Expense shall exceed actual cost. In addition to those items specifically identified above as a Reimbursable Expense, permit fees and associated costs, certain other incidental direct expenses including, but not limited to, copying, telephone, data, and express mail services, and rental of special equipment or tools required in connection with provision of the Professional Services for the Project, may constitute a Reimbursable Expense; provided however, TAB must obtain the written approval of TFC prior to incurring the expense.

Approval may be granted only under those limited circumstances wherein such costs are not considered normal or customary basic services under this Agreement. All requests for reimbursement must be accompanied by such documentation which, in the judgment of the TFC, allows for complete substantiation of the costs incurred.

4.4. Notice of Depletion. Within seven (7) days of when the accumulated amount of Fees and Reimbursable Expenses reaches eighty percent (80%) of the maximum not-to-exceed contract amount(s), TAB shall deliver written notice thereof to TFC. Nothing herein shall be construed to require TFC to increase the approved maximum not-to-exceed contract amount(s) established pursuant to this Agreement.

4.5. Additional Services. Upon request by TFC for Additional Services, TAB shall prepare and submit a proposal for such Additional Services to TFC for approval. Additional Services shall be performed at a rate negotiated between TFC and TAB and must be approved by the parties by amendment to this Agreement.

Any Additional Services performed or delivered by TAB prior to execution of the Agreement or amendment thereto, as applicable, cannot be compensated.

4.6. Payments to Subcontractors. For all services rendered, TAB’s payment to Subcontractors is due within ten (10) days after receipt of payment from TFC and, when appropriate in the sole discretion of TFC, TFC may issue joint checks to TAB and Subcontractors.

4.7 State Funding. This Agreement shall not be construed as creating any debt on behalf of the State of Texas and/or TFC in violation of the TEX. CONST. art. III, § 49. In compliance with TEX. CONST. art.

VIII, § 6, it is understood that all obligations of TFC hereunder are subject to the availability of state funds.

If such funds are not appropriated or become unavailable, this Agreement may be terminated. In that event, the parties shall be discharged from further obligations, subject to the equitable settlement of their respective interests accrued up to the date of termination. Further, any damages due under this Agreement should not

Rule of thumb percentages.

Percentages to be negotiated for each contract.

https://fmx.cpa.state.tx.us/fmx/travel/textravel/index.php exceed the amount of funds appropriated for payment under this Agreement but not yet paid to TAB, for the fiscal year budget in existence at the time of the breach.

ARTICLE 5. COPYRIGHTS/TRADEMARKS/INSTRUMENTS OF SERVICE

5.1 Copyrights. TAB agrees that all Deliverables provided pursuant to this Agreement are subject to the rights of TFC in effect on the date of execution of this Agreement. These rights include the right to use, duplicate and disclose such subject matter and data, in whole or in part, in any manner for alterations, additions, remodels or maintenance; and to have others do so including production of Deliverables in response to a public information request pursuant to Tex. Gov’t. Code Ch. 552. If the Deliverables produced by TAB are subject to copyright protection, TAB hereby grants to TFC a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, and use such and to authorize others to do so. TAB shall include appropriate provisions to achieve the purpose of this condition in all subcontracts entered into that produce information subject to copyright protection.

5.1.1 Disclaimers. All such Deliverables furnished by TAB pursuant to this Agreement shall be considered instruments of its services in respect to the Project. It is understood that TAB does not represent such Deliverables to be suitable for reuse on any other study or for any other purpose(s).

If TAB, at TFC’s request and authorization, verifies or adapts TAB’s Deliverables for TFC’s use on another study, TAB shall be compensated for redesign or new design, bidding, and construction administration services.

5.1.2 Delivery to TFC. TAB shall promptly provide copies of the Deliverables to TFC upon completion, suspension, termination, or cancellation of this Agreement for any reason, including all copies of the Deliverables in any form or medium specified by TFC in this Agreement, whether written, digital, or electronic.

5.1.3 TFC Right to Use. Any provision herein to the contrary notwithstanding, TFC shall be authorized to make subsequent use of the Deliverables for any and all future renovations, modifications, alterations, maintenance, repairs, and the like of the Project.

5.2 No Use of TFC’s Name or Trademark. TAB agrees not to make any written use of or reference to TFC or the Using Agency names or registered or unregistered trademarks for any marketing, public relations, advertising, display or other business purpose or make any use of TFC’s or Using Agency’s facilities for any activity related to the express business purposes and interests of TFC/Using Agency pursuant to this Agreement, without the prior written consent of TFC/Using Agency which consent may be withheld or granted in TFC and/or Using Agency’s sole discretion.

ARTICLE 6. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC

DISCLOSURE

6.1 Books and Records. TAB shall keep and maintain under generally accepted accounting principles full, true and complete records, as are necessary to fully disclose to TFC or the United States Government, or their authorized representatives, upon audits or reviews, sufficient information to determine compliance with the terms and conditions of this Agreement and all Applicable Laws.

6.2 Inspections and Audits. TAB agrees that all relevant records related to this Agreement or any work product under this Agreement, including practices of its Subcontractors, shall be subject, at any reasonable time, to inspection, examination, review, audit, and copying at any office or location of TAB where such records may be found, with or without notice by the Texas State Auditor’s Office (“SAO”), the contracting agency or its contracted examiners, or the Office of the Attorney General of Texas, and with regard to any federal funding, the relevant federal agency, the Comptroller General, the General Accounting Office, the Office of the Inspector General, or any of their authorized representatives. All Subcontracts shall reflect the requirements of this section. In addition, pursuant to Tex. Gov’t. Code § 2262.154, the SAO may conduct an audit or investigation of any entity receiving funds under this Agreement, including direct payments to TAB and indirect payments under a Subcontract to this Agreement; acceptance of such monies acts as acceptance of SAO authority, under legislative audit committee direction, to audit and investigate related to those funds and the entity subject to the audit or investigation must provide SAO with access to any information SAO considers relevant to the scope of the audit or investigation.

6.3 Records Retention. All records relevant to this Agreement shall be retained for a minimum of seven

(7) years. This retention period runs from the date of full and final payment for the relevant goods or services by TFC, or from the date of termination of this Agreement, whichever is later. Retention time shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any administrative proceeding or litigation which may ensue.

6.4 Confidentiality Provisions Applicable to TAB

6.4.1 Protection of Confidential Information. TAB hereby acknowledges, understands and agrees: (i) that in the course its performance under the Agreement, certain Confidential Information (as defined below) will be…