State Preservation Board P.O. Box Austin, TX REQUEST FOR QUALIFICATIONS For WATER PROOFING RESTORATION ENGINEERING SERVICES

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1 State Preservation Board P.O. Box Austin, TX REQUEST FOR QUALIFICATIONS For WATER PROOFING RESTORATION ENGINEERING SERVICES RFQ # Date Issued: August 31, 2015 Mandatory Pre Submission Conference: 10AM, September 15, 2015 RFQ Due Date: September 24, 2015

2 Table of Contents Section 1 GENERAL INFORMATION AND REQUIREMENTS 1.1 General Information 1.2 Contract Type 1.3 Clarifications and Interpretations 1.4 Submission of Qualifications 1.5 Schedule of Events 1.6 Evaluation of Qualifications 1.7 Owner's Reservation of Rights 1.8 No Reimbursement for Costs 1.9 Public Information Section 2 PROJECT DESCRIPTION 2.1 Project Scope 2.2 Project Budget 2.3 Project Schedule 2.4 Role of SPB Project Manager 2.5 Site Visits 2.6 Meetings 2.7 Project Phases Section 3 FORMAT & REQUIREMENTS FOR STATEMENT OF QUALIFICATIONS 3.1 Formal General Instructions 3.2 Page Size, Binding and Table of Contents 3.3 Requirements for Statement of Qualifications ATTACHMENTS TO THE RFQ Attachment A: Owner's Standard Agreement Attachment B: Execution of Submittal Form

3 REQUEST FOR QUALIFICATIONS FOR MECHANICAL ENGINEER PROFESSIONAL SERVICES TEXAS CAPITOL & CAPITOL EXTENSION Date Issued: August 31, 2015 Submittals Due: 2:00PM, CT, September 24, 2015 SECTION 1 GENERAL INFORMATION AND REQUIREMENTS Water Proofing Restoration Engineering Services 1.1 GENERAL INFORMATION: The State Preservation Board (SPB) is soliciting statements of qualifications ("Qualifications") from Remedial Waterproofing Engineering Firms ("Respondents") for selection of a firm to perform Professional Services for a project at the Texas Capitol (Remedial Waterproofing and Tile / Decking System Replacement of the building s East and West Entrance Decks). All services will be in accordance with the terms, conditions, and requirements set forth in this Request for Qualifications (RFQ). This RFQ provides Respondents with the information necessary to prepare and submit Qualifications for consideration by the SPB. 1.2 CONTRACT TYPE: It is the SPB's intent to award to one qualified firm. Any contract resulting from this solicitation will be in the form of the Owner's Standard Agreement, a sample copy of which is attached to this RFQ document. Respondents must review the contract terms and conditions and will be required to adhere to the terms if awarded the Contract. 1.3 CLARIFICATIONS AND INTERPRETATIONS: All respondents must attend a mandatory pre submission conference at the Texas Capitol Complex, on the date listed in Section 1.5, Schedule of Events. No qualifications submittals will be reviewed from any organization not represented at this conference. Interested firms will meet at the State Preservation Board offices located in the Sam Houston State Office Building, 201 E. 14th St., Ste. 950, Austin, TX Parking is available in the Capitol Visitors Parking Garage located at 1201 San Jacinto Blvd. Maps are available at the following link: All questions must be submitted in writing via to SPB.BIDS@tspb.state.tx.us by 5PM Central Time, on the date listed as the deadline for submission of questions in Section 1.5. Any clarifications or interpretations of this RFQ that materially affect or change its requirements will be issued formally by the Owner as a written addendum and will be posted to the Electronic State Business Daily (ESBD), available at It is the responsibility of interested parties to periodically check the ESBD for updates to the procurement prior to submitting a response. The Respondent s failure to periodically check the Electronic State Business Daily (ESBD) will in no way release the selected vendor from addenda or additional information resulting in additional costs to meet the requirements of the RFQ. All such addenda issued by SPB prior to the time proposals are received shall be considered part of the RFQ, and the Respondent shall consider and acknowledge receipt of such in their response. Only those SPB replies to inquiries which are made by formal written addenda shall be binding. Oral and other interpretations or clarifications shall be without legal effect. Upon issuance of this RFQ, besides written inquiries as described above, other employees and representatives of SPB will not answer questions or otherwise discuss the contents of the RFQ with any potential Respondent or their representatives. Failure to observe this restriction may result in disqualification of any subsequent response. This restriction does not preclude discussions between affected parties for the purpose of conducting business unrelated to this RFQ. 1.4 SUBMISSION OF QUALIFICATIONS: All proposals must be received at SPB no later than 2PM, Central Time, Austin, Texas on the date specified in 1

4 1.5 Schedule of Events. The official bid clock in the State Preservation Board reception area is the sole determiner of the time of day. Proposals received after the proposal deadline will not be considered. After receipt, only the names of Respondents will be made public Proposals must be placed in a separate envelope or package and correctly identified with the RFQ number and submittal deadline date and time. It is the Respondent's responsibility to appropriately mark and deliver the proposal to SPB by the specified date and time The Owner will not acknowledge or receive Qualifications that are delivered by telephone, facsimile or Receipt of all addenda to this RFQ should be acknowledged by returning a signed copy of each addendum with the submitted proposal DELIVERY OF PROPOSALS: Proposals must be submitted to SPB by one of the following methods: By US Mail: By Overnight/Express Mail: By Hand Delivery (8AM 5PM): State Preservation Board Attn: John Sneed, Executive Director P.O. Box Austin, TX State Preservation Board Attn: John Sneed, Executive Director 201 E. 14th St., Ste. 950 Austin, TX State Preservation Board Attn: John Sneed, Executive Director Sam Houston State Office Building 201 E. 14th St., 9th Floor, Ste. 950 Austin, TX Submit one (1) original and three (3) copies of Attachment B Execution of Offer Form and the Qualifications package. 1.5 SCHEDULE OF EVENTS: The solicitation process for this RFQ will proceed according to the following schedule: Event Date Issue RFQ August 31, 2015 Mandatory Pre Submission Conference 10:00AM, CT, September 15, 2015 Deadline for Submission of Questions 5:00PM, CT, September 16, 2015 Anticipated Release Date of Addendum September 18, 2015 Deadline for Submission of Qualifications 2:00 PM, CT, September 24, 2015 Contract execution October 2015 Revisions to the Schedule SPB reserves the right to change the dates in the Schedule of Events set forth above upon written notification to prospective Respondents through a posting of an Addendum on the Electronic State Business Daily. It is the responsibility of interested parties to periodically check the ESBD for updates to the 2

5 3 Water Proofing Restoration Engineering Services procurement prior to submitting a response. The Respondent s failure to periodically check the Electronic State Business Daily (ESBD) will in no way release the selected Contractor from addenda or additional information resulting in additional costs to meet the requirements of the RFQ. 1.6 EVALUATION OF QUALIFICATIONS: The evaluation of the Qualifications shall be based on the requirements described in this RFQ. All properly submitted Qualifications will be reviewed, evaluated, and ranked by the Owner. Statement of Qualifications packages shall not include any information regarding Respondent's fees or other compensation A committee will be established to evaluate the submitted qualifications. The evaluation committee will evaluate and score each Qualifications package based on the criteria stated in this RFQ. By submitting Qualifications in response to this RFQ, the Respondent accepts the evaluation process and acknowledges and accepts that determination of the "most qualified" firm will require subjective judgments by the evaluation committee. The evaluation committee will evaluate and score each Qualifications package based on the following criteria: Criteria Weight Relevant experience and qualifications working with historic surfaces and 25% waterproofing systems within and around a historic structure. Project team experience working with waterproofing / remedial design projects. 25% Project team experience and knowledge working with historical structures. 10% Methodology/Budget & Schedule Compliance 15% Overall approach to quality assurance and quality control on the project. 10% Ability to respond to concerns during project to maintain tight schedule. 5% Time commitment and availability to begin project. 5% References 5% In compliance with applicable provisions of Texas Government Code , , , , and , a Respondent's past performance will be also be reviewed on a pass/fail basis using the Texas Comptroller of Public Accounts (CPA) Vendor Performance Tracking System. Respondents may fail this selection criterion for any of the following conditions: a score of less than 90% in the Vendor Performance Tracking System; currently under a Corrective Action Plan through CPA; having repeated negative Vendor Performance Reports for the same reason; having purchase orders that have been cancelled in the previous 12 months for non performance. Contractor performance information is located on the CPA website at SPB will conduct reference checks with other entities regarding past performance, in addition to evaluating performance through the Vendor Performance Tracking System. SPB will examine other sources of vendor performance including, but not limited to, notices of termination, cure notices, assessments of liquated damages, litigation, audit reports, and non renewals of contracts. Any such investigations shall be at the sole discretion of SPB, and any negative findings, as determined by SPB, may result in non award to the Respondent. 1.7 OWNER'S RESERVATION OF RIGHTS: The Owner may evaluate the Qualifications based on the anticipated completion of all or any portion of the Project. The Owner reserves the right to divide the Project into multiple parts, to reject any and all Qualifications and re solicit for new Qualifications, or to reject any and all proposals and temporarily or permanently abandon the Project. Owner makes no representations, written or oral, that it will

6 enter into any form of agreement with any responded to this RFQ for any project and no such representation is intended or should be construed by the issuance of this RFQ. 1.8 NO REIMBURSEMENT FOR COSTS: Respondent acknowledges and accepts that any costs incurred form the Respondent's participation in the RFQ process shall be at the sole risk and responsibility of the Respondent. Respondents submit Qualifications at their own risk and expense. 1.9 PUBLIC INFORMATION: SPB will not consider any Proposal that bears a copyright. Proposals will be subject to the Texas Public Information Act (PIA), Tex. Government Code, Chapter 552, and may be disclosed to the public upon request. The Proposal and other submitted information shall be presumed to be subject to disclosure unless a specific exception to disclosure under the PIA applies. If it is necessary for the Respondent to include proprietary or otherwise confidential information in its Proposal or other submitted information, the Respondent must clearly label that proprietary or confidential information and identify the specific exception to disclosure in the PIA. Merely making a blanket claim the entire Proposal is protected from disclosure because it contains some proprietary information is not acceptable, and shall make the entire Proposal subject to release under the PIA. In order to initiate the process of seeking an Attorney General opinion on the release of proprietary or confidential information, the specific provisions of the Proposal that are considered by the Respondent to be proprietary or confidential must be clearly labeled as described below. Any information which is not clearly identified as proprietary or confidential shall be deemed to be subject to disclosure pursuant to the PIA. Subject to the Act, Respondents may protect trade and confidential information from public release. Trade secrets or other confidential information, submitted as part of a Proposal, shall be clearly marked at each page it appears. Such marking shall be in boldface type and at least 14 point font. SECTION 2 PROJECT DESCRIPTION 2.1 PROJECT SCOPE: The Awarded Firm shall provide engineering services for the two Projects at the Texas Capitol and Capitol Extension. Work includes the following: Design a Replacement Waterproofing System and Decking System to replace the existing systems in place directly over the East and West Ground level breezeway entrances. Design a restoration of the surfaces and sub structure of the ceilings and support joists of the East and West Breezeway areas. Preservation of historical structures and materials is extremely important for a successful project and every step should be taken. All intact historic material shall be left and preserved while matching color, size and style of all replacement stone, tile, and finishes. The Owner will procure reproduction tile for the Project during the design phase, to reduce construction lead times. The Owner will undertake restoration of the existing vertical stone surface after remediation work designed above is complete, stopping the flow of moisture and stabilizing ceiling surfaces. Preservation of historical structures and materials is extremely important for a successful project and the design must adhere to the Secretary of the Interior s Standards for Treatment of Historic Properties. All intact historic material shall be retained and preserved while appropriately matching color, size and style of all replacement stone, tile, and finishes. 4

7 5 Water Proofing Restoration Engineering Services 2.2 PROJECT BUDGET: The budget for the Breezeway Remedial Waterproofing and restoration project is approximately $300, In addition, there are estimating and design contingencies to be managed by the SPB. 2.3 PROJECT SCHEDULE: The project will be implemented on an aggressive schedule with a goal of completion of construction by October 1, ROLE OF THE SPB DESIGNATED PROJECT MANAGER: The State Preservation Board is responsible for the preservation and maintenance of the Texas Capitol and will manage the Project. The SPB Project Manager will manage the Project for the State. This will involve decision making and issue resolution on the Project. The SPB may engage other consultants as required. The Successful Respondent will be required to provide timely responses to issues related to the design and attend meetings when the most timely means of resolution is to convene all the parties to an issue on site. Generally, the SPB project management team will gather information, and the Project Manager will make decisions after input has been received. There is no expectation that the Engineer will be required to manage the project beyond their design or make final decisions on design or construction issues. The Engineer will be required to support the project as needed to meet the established goals for time, cost and quality 2.5 SITE VISITS: The Water Proofing Restoration Engineer will be required to walk the site weekly and provide a written observation report. Additional visits are not required except those related to submittal and RFI reviews that are part of Construction Administration. 2.6 MEETINGS: During the Design Phase it is anticipated that meetings will occur weekly with a duration of two to three hours. The time, location, and agenda of the meetings will be set by the SPB in consultation with the Water Proofing Restoration Engineer. Construction Phase meeting will be held onsite bi weekly (every two weeks). Meeting minutes will be maintained by SPB project managers. 2.7 PROJECT PHASES Design: The Water Proofing Restoration Engineer will be responsible for providing design services and two complete packages of sealed construction documents for to allow for separate bidding of the deck and ceiling work scopes, with one addendum for each bid package as required to incorporate lessons learned after completion of the west side, before proceeding with the east. There will be sufficient language in the general notes and specification to insure that all existing surfaces are protected at all times during the construction process. Cutting of existing surfaces in public areas is prohibited, unless specifically approved by the owner in writing prior to the beginning of the work. There will be a section on cutting, patching and painting required in the specifications. The Secretary of the Interior s Standards for Treatment of Historic Properties must be considered in every design decision Bidding: The Water Proofing Restoration Engineer will assist the SPB and its Project Manager in evaluating contractor and subcontractor bids and making recommendations during the procurement phase of each Project Construction: The Water Proofing Restoration Engineer will provide comprehensive Contract Administration services, including but not limited to regular meeting attendance, prompt response to RFI s, generating supplemental documentation as needed, reviewing and approving submittals, performing site reviews, issuing changes as required, and performing substantial and final punch list inspections for closeout of each Project. Providing a cost estimate at Design Development, and production of detailed asbuilts, may be incorporated into the contract as additional services

8 3.1 FORMAT GENERAL INSTRUCTIONS: SECTION 3 FORMAT & REQUIREMENTS FOR STATEMENT OF QUALIFICATIONS Water Proofing Restoration Engineering Services Qualifications shall be prepared simply and economically, providing a straightforward, concise description of the Respondent's ability to meet the requirements of this RFQ. Emphasis shall be on the quality, completeness, clarity of content, responsiveness to the requirements, and an understanding of the Owner's needs Respondents shall carefully read the information contained in this RFQ and submit a complete response to all requirements and questions as directed. Incomplete Qualifications will be considered non responsive and subject to rejection Qualifications and any other information submitted by Respondents in response to this RFQ shall become the property of the Owner Qualifications that are qualified with conditional clauses, alterations, items not called for in the RFQ documents, or irregularities of any kind are subject to rejection by the Owner, at its option Failure to comply with all requirements contained in this RFQ may result in the rejection of the Qualifications. 3.2 PAGE SIZE, BINDING, AND TABLE OF CONTENTS: Qualifications shall be printed on letter size (8 1/2" x 11") paper and assembled with spiral type or metal ring binders Submittals shall include a "Table of Contents" with page numbers for each page of the submittal. 3.3 REQUIREMENTS FOR STATEMENT OF QUALIFICATIONS: PART ONE: STATEMENT OF INTEREST 1. Provide a Statement of Interest for the project including a narrative describing the firm's unique qualifications. Include in this statement certification that the Professional Engineer is licensed by the Texas Board of Professional Engineers and is in compliance with the Rules and Regulations for Licensing as set forth by this State of Texas professional registration entity. 2. Provide a history and important statistics about the firm including its size, principal location, ownership, contact person and contact information, and disciplines of staff members. 3. Provide a statement about the availability and commitment of the firm and its principal(s) and key professionals to undertake the project. 4. Provide a statement of acceptance of the terms and conditions of the sample contract in Section 5.1, or, indicate any objections to such terms and conditions. 6

9 PART TWO FIRM 1. Provide resumes giving the experience and expertise of the principals and key professional members of the firm that will be involved in the project, including their experience with similar projects and the number of years with the firm. Identify the individuals who will be responsible for the various phases of the project and provide qualifications data on each, including any experience with historic buildings. 2. Describe the proposed project assignments and lines of authority and communication for principals and key professional members of the firm who will be involved in the project. Indicate the estimated percent of time these individuals will be involved in the project. Include organization charts. 3. For each project listed in Part Three, list the members of the proposed team for this project who worked on each listed project and describe their roles in those projects. 4. Provide information regarding the firm's experience with public projects in Texas, including experience working with a public owner with multiple stakeholders, participants, and interested parties. Describe the firm's experience working on a diverse project team and on projects managed by a Project Manager for the Owner. PART THREE REPRESENTATIVE PROJECTS 1. List a minimum of five projects for which the firm provided or is providing professional services which are most related to this project and have occurred within the last ten (10) years. Identify any personnel proposed for this project who were actively involved or responsible for each representative project listed below. List the projects in priority order, with the most related project listed first. Provide the following information for each project listed: Project name and location; Project owner; Project construction contractor; Project description, including a discussion of how this project is similar; Project square footage; Firm's specific role in the project; Owner's original budget and schedule; Construction contract initial cost and schedule; Completed construction cost and duration at final completion; Illustrative material of projects (up to 10 pages as optional attachments). 2. Highlight experience in the following areas: Design of waterproofing systems for historical facilities and facilities with below ground structures. Demonstrated engineering success in specifying remedial waterproof systems in facilities that require minimally invasive techniques that can be installed in a short time frame with as little modifications to the structure and finishes as possible. Demonstrated engineering success in specifying remedial waterproofing systems that are designed for 25+ years of successful service handling humid conditions without degradation. Demonstrated ability to balance project scope and quality to meet budget constraints. 7

10 Success in preparing bid documents that consider construction logistics (environments where on going client operations may not be interrupted or impacted by dust and noise) in a limited site area and that clearly communicate conditions of construction to bidders. Success in construction administration and coordination with client's on going operations. PART FOUR REFERENCES: Provide references for the projects listed in response to Part Three, Representative Projects. The references shall include: Owner's name, owner's representative who served as the day to day liaison during planning, design and construction of the project, and the owner representative's telephone number and address. Construction contractor's firm name, contractor's representative who served as the day to day project liaison, and the contractor representative's telephone number and address. PART FIVE PROJECT APPROACH: 1. Describe the firm's approach to this project, including the specific approach to waterproofing systems and decking systems replacement in an historic building, while respecting building preservation and historic surfaces, and to meeting budgets and schedules. Explain the ways in which the firm's experience has prepared the firm to be successful on this project. Describe the decision making process to be used to successfully replace an old system with a new one with as little alteration of the buildings and down time as possible. 2. Describe the firm's approach to estimating costs. What estimating guides are used? Is the cost for adjustment for individual cities taken into account? What experience does the firm have in review of AIA Document G702 3 Contractor Request for Payment? PART SIX ADDITIONAL INFORMATION Provide any additional information that the firm believes may better describe its qualifications and/or be of benefit to the SPB. PART SEVEN EXECUTION OF SUBMITTAL Attachment B Execution of Submittal form. Failure to sign and return the Execution of Submittal with the submitted Qualifications will result in rejection of the qualifications submittal. 8

11 ATTACHMENT A OWNER'S STANDARD AGREEMENT Water Proofing Restoration Engineering Services (SAMPLE AGREEMENT NOT FOR EXECUTION) SERVICES CONTRACT STATE OF TEXAS AGREEMENT COUNTY OF TRAVIS PROFESSIONAL SERVICES Engineering Services Contract #2016 XX This Agreement is entered into by and between the State Preservation Board ("SPB"), an agency of the State of Texas, located at 201 E. 14th Ste., Ste. 950, Austin, TX 78701, and, (Engineer) for engineering services. ARTICLE 1 SCOPE OF PROJECT This contract engages the Engineer for completion of the Project as outlined in SPB Request for Qualifications # The Contract Documents consist of: [A more detailed scope will be determined upon selection of Engineer] ARTICLE 2 CONTRACT DOCUMENTS This Agreement and all exhibits and attachments listed, contained or referenced in this Agreement; SPB Project Manual; The Uniform General Conditions for the State of Texas, 2010; SPB Request for Qualifications (RFQ) # Engineer s Response to the RFQ if incorporated into the Project. To the extent of any conflict between Engineer s Response to the RFQ and any other Contract Document, the Contact Document shall govern.

12 2.2 All of the above are attached to and incorporated as part of this Contract for all purposes. In the case of conflicts between this document and any of the above attachments, they shall follow in priority in the order presented above. ARTICLE 3 BASIC SERVICES Engineer agrees to provide the services ( Basic Services ) as outlined in the RFQ for the benefit of the Project and the SPB. Basic Services shall include, but shall not be limited to the following: [TBD See RFQ for additional information] ARTICLE 4 ADDITIONAL SERVICES 4.1 The following Additional Services are not included in Basic Services but may be required for the Project: [TBD] Additional Services beyond Basic Services must be approved in advance and in writing by the SPB. The SPB shall not be responsible for payment for Additional Services not approved in advance and in writing. 4.3 To the extent that the SPB requests that the Engineer perform Additional Services, Engineer shall complete and forward to the SPB an Additional Services Request in a form acceptable to the SPB which shall describe the nature or scope of the Additional Services to be provided and which shall include the set Not to Exceed fee for which Engineer shall perform such Additional Services. Additional Services provided in accordance with this Section 4.3, shall entitle Engineer to compensation pursuant to [TBD]. Engineer shall proceed only upon written approval from the SPB to proceed Upon SPB s written approval of the Engineer s Additional Service request, such Additional Services shall become part of this Agreement and shall be subject to all the terms and conditions of this Agreement. ARTICLE 5 ENGINEER'S RESPONSIBILITIES 5.1 The Engineer shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting the performance of this Contract, including, if applicable, workers compensation laws, compensation statutes and regulations, and licensing laws and regulations. When required, the Engineer shall furnish the SPB with satisfactory proof of its compliance. 5.2 The Engineer shall perform its services consistent with the professional skill and care ordinarily provided by Engineer practicing in the same or similar locality under the same or similar circumstances. The Engineer shall perform its

13 services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. 5.3 The Engineer shall coordinate its services with those services provided by the SPB and the SPB's consultants. The Engineer shall be entitled to rely on the accuracy and completeness of services and information furnished by the SPB and the SPB's consultants. The Engineer shall provide prompt written notice to the SPB if the Engineer becomes aware of any error, omission or inconsistency in such services or information. 5.4 The Engineer shall be responsible for any and all damage to the SPB's equipment, and/or workplace and its contents, by its, or its contractor's services, negligence in work, personnel, and equipment. 5.5 The Engineer shall be responsible and liable for the safety, injury and health of its employees and contractors while they are performing services for the SPB under this Contract. 5.6 The Engineer shall provide all labor and equipment necessary to furnish the goods or perform the service. 5.7 All employees of the Engineer shall be a minimum of 17 years of age and experienced in the type of work to be performed. No visitors or relatives of the Engineer's employees will be allowed on state property unless they are bona fide employees of the Engineer performing services under this Contract. 5.8 Except with the SPB's knowledge and consent, the Engineer shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Engineer's professional judgment with respect to this Project. 5.9 Engineer agrees that all information related to the Project is strictly confidential and shall not be shared or released at any time except at the SPB s direction and with the SPB s prior approval Due to security concerns related to the Project, certain aspects of the Instruments of Service shall remain in the possession of the SPB and the Engineer hereby relinquishes all rights to release such information and hereby agrees to maintain confidentiality for all aspects of the Project even if the Agreement is prematurely terminated by either Party The Capitol and Extension are secured sites. Engineer shall be prepared to submit security clearance information for all employees working on site, and ensuring that security clearance requirements do not impact their ability to perform the Work defined in this Contract In the event the SPB uses the Instruments of Services without retaining the author of the Instruments of Service, the SPB releases the Engineer and Engineer's consultant(s) from all claims and causes of action arising from such uses. Any unauthorized use of the Instruments of Service shall be at the SPB's sole risk and without liability to the Engineer and the Engineer's consultants The Engineer shall include the SPB and Project Manager in all communications with the Contractor. The SPB shall issue to the Contractor all Change Orders and other directives from the Engineer The Engineer shall obtain approval from the SPB prior any interaction with the City of Austin. ARTICLE 6 SPB RESPONSIBILITIES 6.1 SPB shall provide information and decisions to Engineer in a timely manner and shall clearly convey the SPB s

14 expectations to Engineer. 6.2 The SPB s representative shall be. 6.3 SPB shall provide project milestones, budget goals, and access to Project. 6.4 SPB shall assist in coordination with facility occupants. 6.4 SPB shall convene meetings with the Project Manager and Engineer for the purpose of coordination of documents and overall planning. 6.5 SPB reserves the right to change its designated representation and/or project manager for convenience by written notification from the Executive Director of the State Preservation Board. 6.6 The SPB reserves the right, at its sole discretion, to unilaterally amend this Contract throughout the term of the Contract to incorporate any modifications necessary for the SPB's or the Engineer's compliance with all applicable state and federal laws, regulations, requirements and guidelines Compensation for Basic Services [TBD] ARTICLE 7 COMPENSATION 7.2 SPB shall be relieved of any obligation to permit performance or to pay for services performed after any termination of this Agreement. 7.3 Payments to Contractor will be made within thirty (30) days from latter of services performed or receipt of a valid, uncontested invoice in accordance with the Texas Government Code, Chapter 2251, Texas Prompt Payment Act. SPB shall timely notify Engineer within 14 days of receipt of an invoice if the SPB questions, disagrees with, or desires additional information regarding an invoice. 7.4 [Payment and compensation specifics TBD] 8.1 [See RFQ for schedule] ARTICLE 8 PROJECT SCHEDULE AND TERM OF AGREEMENT 8.3 This Agreement shall be effective as of the date executed by the last party and shall terminate on, unless extended by the parties or terminated earlier as provided in the Contract. ARTICLE 9 CLAIMS AND DISPUTES

15 9.1 If the Engineer has a request for additional fees or additional time, Engineer shall put that request in writing and deliver to the SPB within fourteen (14) days of the cause or basis of the request. Engineer shall provide all supporting documentation related to the claim. Within thirty (30) days, or earlier if timeliness is important to the Project, the SPB shall arrange a meeting to discuss and resolve the issue. If no resolution is agreed upon in writing, the following shall apply under this agreement. 9.2 The dispute resolution process provided for in Chapter 2260 shall be used, as further described herein, to attempt to resolve a claim for breach of contract asserted by the Contractor under the Contract. If the Contractor s claim for breach of Contract cannot be resolved by the Parties in the ordinary course of business, it shall be submitted to the negotiation process provided in Chapter To initiate the process, the Contractor shall submit written notice, as required by Chapter 2260, to the Executive Director of the SPB or his or her designee. The notice shall also be given to the individual identified in the Contract for receipt of notices. Compliance by the Contractor with Chapter 2260 is a condition precedent to the filing of a contested case proceeding under Chapter The contested case process provided in Chapter 2260 is the Contractor s sole and exclusive process for seeking a remedy for an alleged breach of Contract by the SPB if the Parties are unable to resolve their disputes as described above. Compliance with the contested case process provided in Chapter 2260 is a condition precedent to seeking consent to sue from the Legislature under Chapter 107, Civil Practices and Remedies Code. Neither the execution of the Contract by the SPB nor any other conduct of any representative of the SPB relating to the Contract shall be considered a waiver of sovereign immunity to suit. Notwithstanding any other provision of the Contract to the contrary, unless otherwise requested or approved in writing by the SPB the Contractor shall continue performance and shall not be excused from performance during the period any breach of contract claim or dispute is pending under the above process; however, the Contractor may suspend performance during the pendency of such claim or dispute if the Contractor has complied with all provisions of , Gov t Code, and such suspension of performance is expressly applicable and authorized under that law. ARTICLE 10 TERMINATION, SUSPENSION, OR ABANDONMENT Either party may terminate this Agreement, in whole or in part, for failure of the not terminating Party to substantially perform. The performing Party shall deliver seven (7) days written notice of intent to terminate to the non performing Party (delivered by certified mail, return receipt request). Such notice shall specify the basis for the claim of non performance. The non performing Party shall have the opportunity for consultation with the performing Party prior to termination Upon receipt of written notice to terminate by the SPB, the Engineer shall promptly discontinue all services affected (unless the notice directs otherwise) and shall deliver or otherwise make available to the SPB all data, drawings, specifications reports, estimates, summaries, and such other information and materials as may have been accumulated by the Engineer in performing this Agreement, whether completed or in process SPB may terminate this Agreement for the SPB s convenience. Such notice shall be effective upon

16 delivery and, unless otherwise mutually agreed upon in writing, the Engineer shall cease all work immediately upon the effective date of termination Engineer shall be compensated for the portion of work authorized by the SPB in writing and completed prior to the effective date of termination, provided that the SPB shall not be liable for any work performed that is not acceptable to the SPB and/or does not meet the terms of this Agreement. All work products produced by the Engineer and paid for by the SPB shall become the property of the SPB and shall be tendered upon request If this Agreement is terminated for any reason, the SPB and the State of Texas shall not be liable to the Engineer for any damages, claims, losses, or any other amounts arising from or related to any such termination. ARTICLE 11: MISCELLANEOUS PROVISIONS 11.1 The Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State of Texas, except its provisions regarding conflict of laws The venue for any suit brought for any breach of this Agreement is fixed in any court of competent jurisdiction of Travis County, Texas Terms in this Agreement shall have the same meaning as those in Uniform General Conditions of the State of Texas The SPB and Engineer, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. The Engineer may not assign this Agreement, in whole or in part, and may not assign any right or duty required under it, without the prior written consent of the SPB Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the SPB or Engineer Unless otherwise required in this Agreement, the Engineer shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site The Engineer may include photographs of the Project among the Engineer's promotional and professional materials only with SPB written approval. Engineer shall make a formal request including any photos or graphics Engineer proposed to use. The Engineer shall consider all materials to be the SPB's confidential or proprietary information even if the SPB has not previously advised the Engineer that specific information is considered by the SPB to be confidential or proprietary When Engineer receives information, the receiving Party shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, or (3) its consultants and contractors who need to know the content of such information in order to perform services or construction solely and exclusively for the Project and whose contracts include similar restrictions on the use of confidential information. Engineer shall contractually require its consultants, if any, be bound by this confidentiality requirement.

17 ARTICLE 12 SPECIAL TERMS AND CONDITIONS Water Proofing Restoration Engineering Services 12.1 Independent Contractor: For the purposes of the Agreement, the Engineer shall be considered an independent professional and is not to be considered an employee of the State Preservation Board (SPB) or the State of Texas. The Engineer may not enter into any agreement or make any representation on behalf of the SPB or the State of Texas Indemnification: The Engineer shall indemnify and hold harmless the SPB, the State of Texas, all of its officers, agents, and employees from and against all claims, actions, suits, demands, proceedings, costs, damages, and liabilities including without limitation the costs of defense including reasonable attorneys' fees and court costs, arising out of, connected with, or resulting from any acts or omissions of the Engineer or any agent, employee, subcontractor, or supplier of the Engineer in the execution or performance of the Agreement. The Engineer shall coordinate its defense with the Texas Attorney General as required by the SPB. This paragraph is not intended to and shall not be construed to require the Engineer to indemnify or hold harmless the State or the SPB for any claims or liabilities resulting from the negligent acts or omissions of the SPB or its employees Intellectual Property Indemnification: The Engineer shall indemnify and hold harmless the SPB, the State of Texas, all of its officers, agents, and employees from and against all actions and claims, including costs of defense, involving infringement of patents or copyrights or incorporated misappropriated trade secrets arising out of, connected with, or resulting from the Engineer's execution or performance of the Contract. The Engineer shall pay any damages attributable to such claim that are awarded against the State of Texas and/or the SPB in a judgment or settlement No Waiver of Sovereign Immunity: The SPB and the Engineer agree that no provision of this Contract is in any way intended to constitute a waiver by the SPB or the State of Texas of any immunities from suit or from liability that the SPB or the State of Texas may have by operation of law Funding: This Contract is subject to cancellation, without penalty to the SPB, either in whole or in part, if funds are not appropriated by the Texas Legislature. The SPB is a state agency whose authority and appropriations are subject to actions of the Texas Legislature and whose availability of funds may be subject to governmental action. If the SPB becomes subject to a legislative change, revocation of statutory authority, lack of appropriate funds, or unavailability of funds which would render contractor's delivery or performance under this Contract impossible or unnecessary, this Contract will be terminated, either in whole or in part. In the event of a termination under this section, the SPB will not be liable to the Engineer or any other person or entity for any payments, damages or any other amounts which were otherwise due, except for services rendered and unpaid at the time of termination, or which may be caused or associated with such termination and the SPB will not be required to give prior notice Amendment: The contracting parties, if agreed, may amend the Contract at any time during the Contract's duration. To be valid and binding, such amendments must be in writing and executed by both the SPB and the Engineer. No agent, servant, or employee of the SPB has authority to modify the Contract except by written amendment signed by the Project Manager and the Executive Director. Any other attempted changes, including oral modifications, written notices that have not been agreed to by both Parties, or other modifications of any type, shall be invalid Notice of Administrative Changes: The Engineer shall provide written notification of administrative changes, including changes to company name, address, telephone number, and billing instructions, to the SPB as

18 soon as possible, but not later than ten (10) days from the date of the change. Water Proofing Restoration Engineering Services 12.8 Confidentiality and Public Information: Notwithstanding any provisions of this Contract to the contrary, Engineer understands that the SPB will comply with the Texas Public Information Act, Texas Government Code, Chapter 552 as interpreted by judicial opinions and opinions of the Attorney General of the State of Texas. The SPB agrees to notify Engineer in writing within a reasonable time from receipt of a request for information related to Engineer s work under this contract. Engineer will cooperate with the SPB in the production of documents responsive to the request. The SPB will make a determination whether to submit a Public Information Act request to the Attorney General. Engineer will notify the SPB within twenty four (24) hours of receipt of any third party requests for information that was provided by the State of Texas for use in performing the Contract. This Contract and all data and other information generated or otherwise obtained in its performance may be subject to the Texas Public Information Act. Engineer agrees to maintain the confidentiality of information received from the State of Texas during the performance of this Contract, including information which discloses confidential personal information particularly, but not limited to, social security numbers. Engineer is required to make any information created or exchanged with the state pursuant to this contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the state Proprietary or Confidential Information: Engineer will not disclose any information to which it is privy under this Contract without the prior written consent of the SPB. Engineer will indemnify and hold harmless the State of Texas, its officers and employees, and the SPB, its officers and employees for any claims or damages that arise from the disclosure by Engineer or its contractors of information related to the Project or held by the State of Texas Antitrust and Assignment of Claims: Pursuant to 15 U.S.C. 1, et seq., and Texas Business & Commerce Code 15.01, et seq., the Engineer affirms that to the best of its information, knowledge and belief it has not violated the Texas antitrust laws or federal antitrust laws and has not communicated its Proposal for the Contract directly or indirectly to any competitor or any other person engaged in such line of business. The Engineer hereby assigns to the SPB any claims for overcharges associated with the Contract under 15 U.S.C. 1, et seq., and Texas Business & Commerce Code 15.01, et seq Affirmation Clauses: A. The Engineer affirms that it has not given, offered to give, or intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract. Any instances of unethical conduct, undisclosed conflicts of interest and/or potential conflicts of interest, and other improprieties by the Engineer are grounds for termination of the Contract. B. Engineer certifies that the individual or business entity named in the Contract is in compliance with Texas Government Code, Section , relating to contracting with executive head of a State agency. C. Pursuant to Texas Government Code, Section , Engineer certifies that the individual or business entity named in the Contract is not ineligible to receive the specified Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate. D. Pursuant to Texas Family Code, Section (relating to child support), Engineer certifies that the

19 individual or business entity named in the Contract is not ineligible to receive the specified payment and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate. E. Engineer represents and warrants that Engineer has no actual or potential conflicts of interest in providing services to the State of Texas under this Contract and that Engineer s provision of services under this Contract would not reasonably create an appearance of impropriety. F. The Engineer agrees that payments due under the Contract will be applied to any debt that is owed to the State of Texas, including but not limited to delinquent taxes and child support, that have arisen prior to or arise after execution of this Agreement. G. Engineer certifies that the individual or business entity named in the Contract is eligible to participate in this transaction and that it has not been subjected to suspension, debarment, or similar ineligibility determined by any federal, state or local governmental entity and that the Engineer is in compliance with the State of Texas statutes and rules relating to procurement and that the Engineer is not listed on the federal government's terrorism watch list as described in Executive Order Entities ineligible for federal procurement are listed at H. Engineer represents and warrants that neither Engineer nor any person or entity that will participate financially in this Contract has received compensation from the SPB or any agency of the State of Texas for participation in preparation of specifications for this Contract. Engineer represents and warrants that it has not given, offered to give, and does not intend to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor or service to any public servant or employee in connection with this Contract Buy Texas: Engineer represents and warrants that it will buy Texas products and materials for use in providing the services authorized herein when such products and materials are available at a price and time comparable to products and materials produced outside the state Taxes: Purchases made for state uses are exempt from Texas State Sales Tax and Federal Excise Tax. An Excise Tax Exemption Certificate will be furnished upon written request to the SPB Supporting Documents, Retention; Right to Audit; Independent Audits: Engineer shall maintain and retain supporting fiscal and any other documents relevant to showing that any payments under this Contract funds were expended in accordance with the laws and regulations of the State of Texas, including but not limited to, requirements of the Comptroller of the State of Texas and the State Auditor. Engineer shall maintain all such documents and other records relating to this Contract and the State s property for a period of four (4) years after the date of submission of the final invoices or until a resolution of all billing questions, whichever is later. Engineer shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the Work as defined in this Contract. Engineer and the subcontractors shall provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit. Engineer must retain all work and other supporting documents pertaining to this Contract, for purposes of inspecting, monitoring, auditing, or evaluating by the SPB and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor. Engineer shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of such State s work as requested. Engineer s failure to comply with this Section shall constitute a

20 material breach of this Contract and shall authorize the SPB and the State of Texas to immediately assess appropriate damages for such failure. Pursuant to Texas Government Code, Section the acceptance of funds by Engineer or any other entity or person directly under this Contract, or indirectly through a subcontract under this Contract, shall constitute acceptance of the authority of the State Auditor to conduct an audit or investigation in connection with those funds. Engineer acknowledges and understands that the acceptance of funds under this Contract shall constitute consent to an audit by the State Auditor, Comptroller or other agency of the State of Texas. Engineer shall ensure that this paragraph concerning the State s authority to audit funds received indirectly by subcontractors through Engineer and the requirement to cooperate is included in any subcontract it awards. Furthermore, under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the State Auditor must provide the State Auditor with access to any information the State Auditor considers relevant to the investigation or audit Force Majeure: The SPB may grant relief from performance of the Contract if the vendor is prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the Engineer. The burden of proof for the need for such relief shall rest upon the Engineer. To obtain release based on force majeure, the Engineer shall file a written request with the SPB No Waiver: This Contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the SPB as an agency of the State of Texas or otherwise available to the SPB. The failure to enforce or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities available to the SPB under this Agreement or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. The SPB does not waive any privileges, rights, defenses, remedies, or immunities available to the SPB as an agency of the State of Texas, or otherwise available to the SPB, by entering into this Agreement or by its conduct prior to or subsequent to entering into this Agreement. The modification of any privileges, rights, defenses, remedies, or immunities available to the SPB must be in writing, must reference this Section, and must be signed by the SPB to be effective, and such modification of any privileges, rights, defenses, remedies, or immunities available to the SPB shall not constitute waiver of any subsequent privileges, rights, defenses, or immunities under this Agreement or under applicable law Limitation of Liability: The SPB shall not be liable for any direct or consequential damages to the Engineer or any third party for any act or omission of the Engineer in the performance of this Agreement. The SPB shall not indemnify nor guarantee any obligation of the Engineer Federal, State, and Local Requirements: The Engineer shall demonstrate on site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W 2's to common law employees. The Engineer is responsible for both Federal and State Unemployment insurance coverage and standard Workers' Compensation Insurance coverage. The Engineer shall comply with all Federal and State tax laws and withholding requirements. The SPB shall not be liable to the Engineer or its employees for any Unemployment or Workers' Compensation coverage, or Federal or State withholding requirements. The Engineer shall indemnify the SPB and pay to the SPB all costs, penalties, or losses resulting from the Engineer's omission or breach of this Section Assignment: The Engineer may not assign or subcontract this Agreement, in whole or in part, without the SPB's prior written consent. The Agreement is void if sold or assigned to another company without the written approval of the SPB DTPA: The Engineer represents and warrants that it has not been the subject of a Deceptive Trade Practices Act or any unfair business practice administrative hearing or court suit and that the Engineer has not been found to