ESBD_367806_1720730211780_Attachment A - Services Contract Template.pdf

TFC Contract No. [Insert Number] Contractor Name [Insert Number]

RFP No. 303-3-0002646 Project No.

GENERAL SERVICES CONTRACT

FOR

TFC AS-CONSTRUCTED SCAN PROGRAM

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[INSERT CONTRACTOR NAME]

The Texas Facilities Commission (hereinafter referred to as “TFC”), a state agency located at 1711 San Jacinto Boulevard, Austin, Texas 78701, and Insert Contractor Name (hereinafter referred to as “Contractor”), located at [Insert Principal Place of Business Address], enter into the following contract to develop comprehensive and accurate three dimensional models of all buildings in TFC’s inventory (hereinafter referred to as the “Contract”) pursuant to Texas Government Code Sections 2156.121 and 2165.001.

1. STATEMENT OF WORK.

1.01. SERVICE REQUIREMENTS.

(a) TFC desires to obtain three-dimensional (“3D”) models of all building components, elements, systems, finishes, equipment, and furnishings for all buildings in TFC’s inventory (“TFC Facilities”). These models shall be used: for the operation and maintenance of the buildings throughout their entire lifecycle; to facilitate efficient facility management, maintenance and operations; to provide a reliable reference for future renovations and operations; and to enhance communication and collaboration among stakeholders.

(b) Contractor shall provide the labor, materials, equipment, tools, and supervision required to:

(i) Develop comprehensive and accurate 3D models of TFC Facilities;

(ii) Ensure the models are compatible with TFC's existing systems and software, including Autodesk Construction Cloud (“ACC”) and Autodesk Tandem;

(iii) Ensure the models adhere to TFC’s Building Information Modeling (“BIM”)

Standards as further described in Section 1.05(b) below.

(c) Contractor shall provide services to TFC at one or more facilities managed by TFC and located throughout Texas with most services taking place in Austin, Texas. Most services will take place in one or more of the facilities listed in Exhibit A- TFC Building List (hereinafter referred to as Exhibit A), attached hereto and incorporated herein for all purposes.

Exhibit A is representative of the known facilities and may or may not be all inclusive; however, Contractor may provide services in any TFC Facilities, whether listed or not.

(d) Contractor understands and agrees that there is no guaranteed minimum amount of work under this Contract.

1.02 BASE SERVICES.

(a) The work to be performed by Contractor under this Contract shall, at a minimum, include the following.

(i) Existing Records Evaluation: Contractor shall assess existing documentation, including design drawings, construction documents, and any available as-built information. Contractor shall identify any discrepancies or missing information and develop a plan to address them during its 3D scanning and model development process.

(ii) Scheduling and Access Procedures: Contractor shall coordinate with TFC to establish a project schedule and secure access to TFC Facilities for data collection. Contractor shall provide sufficient specificity in the schedule so that TFC can arrange removal of any confidential TFC or tenant materials from the area to be scanned.

(iii) Site Preparation. Contractor shall prepare the site for scanning, including clearing obstacles, ensuring adequate lighting, and confirming the removal of any confidential tenant or TFC materials.

(iv) Document Production Planning: Contractor shall develop a detailed plan for the creation and delivery of the as-built models and associated documentation.

(v) 3D Scanning and Data Registration: Contractor shall conduct comprehensive 3D laser scanning of the TFC Facilities to capture accurate spatial data from all necessary areas of the TFC Facilities. Following scanning, Contractor shall be responsible for data registration, which involves combining individual scans into a unified point cloud, to ensure the creation of a cohesive and accurate representation of TFC Facilities.

(vi) Model Development: Contractor shall create detailed 3D models based on the scanned data and existing documentation.

(vii) Data Integration: Contractor shall integrate relevant asset data, including equipment information, maintenance records, operations manuals, warranties and other relevant data into the models.

(viii) Quality Assurance/Quality Control (“QA/QC”): Contractor shall implement rigorous QA/QC procedures to verify the accuracy and completeness of the models and to remove any noise or artifacts.

(ix) Submittals and Approvals: Contractor shall submit the models and associated documentation to TFC for review and approval.

(x) Training and Support: Contractor shall provide training to TFC staff on the use and maintenance of the models.

(xi) Closeout and Completion: Contractor shall deliver the final approved models and documentation to TFC.

1.03 ASSIGNED SERVICES.

(a) TFC may request Contractor to complete scanning services on an assignment basis. Upon request by TFC for scanning services, Contractor shall prepare and submit to TFC a quote for such services requested. Contractor shall provide all labor, materials, equipment, tools, and transportation required to perform these services. Services shall be documented by a Purchase Order (hereinafter referred to as a “Purchase Order”). Such Purchase Order shall be subject to the terms and conditions set forth in this Contract, and shall include a description of the scope of services, schedule and term, and compensation specific to the Purchase Order which shall be negotiated at the time of such Purchase Order. Any work completed by Contractor without a Purchase Order will not be paid for by TFC.

(i) The following shall be included on Contractor’s submitted quote:

(A) a breakdown of charges as per Exhibit B – Compensation and Fees;

(B) a statement as to whether the work to be performed will be scheduled for regular or overtime hours or a combination of both;

(C) any markups over cost; and

(D) labor type/description.

(ii) Quotes shall not include taxes. TFC is tax-exempt.

(iii) Contractor shall match assigned services with issued Purchase Orders.

1.04 WORKING HOURS. Contractor’s work in TFC Facilities shall be performed primarily during regular business hours of 8:00 a.m. - 5:00 p.m., Monday through Friday, excluding holidays. Contract work may also be performed at hours other than regular business hours at the direction of the TFC Contract Administrator in order to meet required schedules.

1.05 TFC-PROVIDED INFORMATION.

(a) TFC shall provide Contractor necessary information regarding the TFC Facilities for its use and evaluation in preparing the required deliverables, such as:

(i) Design drawings;

(ii) Construction documents;

(iii) Shop drawings;

(iv) Maintenance records;

(v) Submittals;

(vi) Operation and maintenance manuals; and

(vii) Any other relevant documentation.

(b) Contractor shall adhere to the BIM Standards set forth in the TFC Architectural/Engineering Guidelines, attached hereto and incorporated herein for all purposes as Exhibit C- TFC 2018 Architectural/Engineering Guidelines, Edit Date: 3/19/18.

(c) Contractor’s deliverables must include the details described in TFC’s Deliverable

Guidelines, attached hereto and incorporated herein for all purposes as Exhibit D- Deliverable Guidelines.

1.06 CONTRACTOR DELIVERABLES.

(a) Contractor shall deliver the following to TFC:

(i) Building Level Models

A. Structural Revit Level Model B. Architectural Revit Level Model C. Space Planning Revit Level Model D. Plumbing Revit Level Model E. Electrical Revit Level Model F. HVAC Revit Level Model G. Fire Revit Level Model H. Security Revit Level Model I. IT Revit Level Model

(ii) Whole Building Models A. Structural

B. HVAC

C. Electrical D. Plumbing E. Security

(b) Contractor shall also deliver supporting record documents, including

(i) Scanning files;

(ii) Modeling files;

(iii) Meta-data content; and

(iv) Administrative documentation.

(c) Contractor shall submit all deliverables to TFC Autodesk ACC. TFC shall provide a Project File with template, licensing access and permission access for Contractor employees.

Contractor employees shall provide TFC an active Autodesk email login ID to obtain access.

(d) Modeling Standards. Contractor must follow the modeling conventions and standards and Level of Development (“LOD”) set forth in Exhibit E- BIM to FM Categories for Data Collection, attached hereto and incorporated herein for all purposes.

(e) Data Integration. Contractor and TFC shall determine the specific data to be integrated into the models and develop a plan for how the data will be linked to the model. Such data will include relevant asset data, including equipment information, such as make, model, serial number, maintenance records, operations manuals, and other relevant data.

(f) QA/QC. Contractor shall implement rigorous QA/QC procedures to verify the accuracy and completeness of the models and to remove any noise or artifacts. The QA/QC process shall include submission of the model and documentation to TFC for review and approval; and field verification of the model against the actual conditions of the TFC Facilities to verify accuracy of the model.

(g) Training and Ongoing Support.

(i) Contractor shall provide comprehensive training to TFC as to the use and maintenance of the model. Contractor shall offer training through in person sessions, webinars, and videos to allow for flexibility and accommodation of different learning styles.

(ii) Ongoing Support. Contractor shall provide ongoing technical support and consultation to TFC for a period of ninety (90) days after project completion.

1.07 DATA STANDARDS AND PROTOCOLS.

(a) Data format. Contractor shall deliver all 3D point cloud and associated data in standard data formats compatible across different software platforms such as Autodesk Construction Cloud, BIM Collaborate Pro, and Revit. This includes support for Autodesk Recap files (.rcp), Leica Geosystems formats (.LGS), and .e57, for optimal flexibility.

(b) Metadata Standards. Contractor shall establish and enforce comprehensive metadata standards, ensuring accurate and consistent information is attached to each 3D model.

This metadata shall include, at a minimum:

(i) Project name;

(ii) Location (building name, floor, suite, room, etc.);

(iii) Scanning date and time;

(iv) Scanner type and settings; and

(v) Relevant contact information.

(c) Data Security. Contractor shall implement robust data security measures to protect confidential information captured through the scanning process. Such security measures shall include:

(i) Role-Based Access Controls. Access to sensitive 3D models and data shall be restricted based on user roles and project needs within both SharePoint and external drive storage.

(ii) Encryption of data at rest (on drives) and in transit (when transferred between systems) to safeguard sensitive information.

(iii) Secure Transfer Protocols. Utilizing secure file transfer methods (e.g., SFTP) when sharing data with TFC or external stakeholders.

(iv) Data Retention Policies: Define clear data retention periods and protocols for securely deleting obsolete scan data.

(v) Data Backup: The Contractor shall implement a robust data backup strategy to prevent data loss and ensure business continuity.

1.08 TECHNOLOGY AND EQUIPMENT. (a) Contractor shall utilize medium (6mm@10m, max range 130m) to high-resolution (3mm@10m, max range 65m), accurate 3D laser scanners capable of capturing the necessary detail of TFC Facilities. The scanner should be compatible with both Autodesk and Leica software for seamless data transfer and processing. The Leica RTC360 3D laser scanner is an example of a scanner that meets these requirements, but any scanner of the same or better resolution and accuracy that is compatible with both Autodesk and Leica software is acceptable.

(b) BIM software. Contractor shall select utilize the Autodesk Revit BIM software platform for integrating and managing the 3D models.

(c) Data processing software. Contractor shall utilize Autodesk Build, Autodesk

Docs, Autodesk Tandem, or Register 360/Register 360+ software to process and store the scanned data, generate the 3D models, and ensure data quality and review. TFC shall provide licenses to Contractor for such software.

(d) Hardware. Contractor shall have adequate enterprise level workstation hardware infrastructure available for data storage, data transfer, processing, and visualization.

1.09 SCHEDULE. Contractor shall coordinate with TFC Contract Administrator to establish a detailed project schedule outlining the timeframe for each phase of the work, including site visits, 3D scanning, model development, data integration, QA/QC, submittals and approvals, and training and support.

1.10 SERVICE COMPLETION TIME. Contractor must perform work within timeframe agreed upon by Contractor and TFC prior to beginning work. If Contractor cannot perform work within timeframe stated, Contractor may be subject to liquidated damages.

1.11 SUBMISSION AND APPROVAL OF MODELS. (a) Contractor shall submit models and associated documentation to TFC for review and approval in accordance with the project schedule. Submissions shall include (i) 3D model in Revit format; (ii) 2D drawings in PDF format; and (iii) associated documentation, such as specifications, submittals and manuals.

(b) TFC shall review and provide feedback to Contractor within thirty (30) days of submission. Contractor shall address any comments or revision requests by TFC and resubmit the deliverables for approval within ten (10) days of receipt.

1.12 TFC CONTRACT ADMINISTRATOR.

(a) TFC shall designate a TFC Contract Administrator for this Contract who will serve as the point of contact between TFC and Contractor. For all purposes, the TFC Contract Administrator includes the TFC Contract Administrator’s designated representative (hereinafter collectively referred to as “TFC Contract Administrator”). The instructions of the TFC Contract Administrator are to be strictly and promptly followed by Contractor at all times. The TFC Contract Administrator is to have free access to Contractor’s supplies, equipment, and work product at all times for inspection and audit. Contractor is to afford the TFC Contract Administrator all necessary assistance during those inspections and/or audits. The TFC Contract Administrator will decide any and all questions that may arise as to the quality and acceptability of work performed, and as to the manner of performance and rate of progress of the work. The TFC Contract Administrator will determine the amount of work performed and materials furnished which are to be paid under this Contract. Failure of the TFC Contract Administrator during the progress of the Contract to: (i) discover or reject unacceptable work; (ii) discover work not in accordance with the Contract; or (iii) fail to exercise any remedies in connection therewith, shall not be deemed an acceptance thereof or a waiver of TFC’s right to full performance of the Contract.

(b) Contractor agrees to conduct all of its services under this Contract by and through appropriate communications with the TFC Contract Administrator. No work or other services shall be undertaken by Contractor except with the prior written direction of the TFC Contract Administrator. Contractor understands and agrees that work or any other service performed without the prior written direction of TFC Contract Administrator is work outside the scope of this Contract and shall be performed exclusively at Contractor’s risk and own expense.

1.13 EXAMINATION OF PREMISES.

Contractor shall be held to have examined all TFC Facilities at which the work will take place and to be familiar with the conditions under which the work will be accomplished. Contractor shall inspect existing conditions prior to commencing work, including elements subject to damage or movement during the performance of services under this Contract.

1.14 DAMAGE TO EXISTING STRUCTURES.

(a) Contractor shall be responsible for all damage to existing building or previously completed work resulting from the acts or omissions of its staff or subcontractors. Contractor shall protect the work, adjacent property and the public from damage and debris. It is the intent of this Contract that any item affected by the work shall be restored to a state equal to or better than its original condition.

(b) In the event of damage as a result of Contractor’s or its subcontractor’s operations, Contractor shall notify the TFC Contract Administrator as described below:

(i) if the damage poses a threat to health or safety or if further damage will result if immediate action is not taken, Contractor will report the damage to the TFC Contract Administrator as soon as Contractor is aware of the damage. If the Contractor is not able to reach the TFC Contract Administrator immediately, Contractor may call TFC’s emergency hotline at

(512) 463-3600. Contractor shall take any available steps to mitigate further damage.; or

(ii) all other damage must be reported to the TFC Contract Administrator within three (3) calendar days of Contractor becoming aware of the damage.

(c) Contractor shall repair or restore all damage resulting from the acts or omissions of its staff or subcontractors to the satisfactory approval of the TFC Contract Administrator, such approval not to be unreasonably withheld. Contractor shall present its intended plan of action for the repair or restoration to the TFC Contract Administrator. Contractor shall engage any additional outside services which may be necessary to facilitate repairs until services and facilities are restored. Contractor shall be responsible for all costs to repair and restore disrupted facilities and services, including but not limited to direct and consequential costs resulting from the aforesaid damage. If the TFC Contract Administrator is not satisfied with Contractor’s plan of action, the TFC Contract Administrator may elect to perform such repairs and deduct the cost of such repairs, replacements, and outside services from amounts due to Contractor.

1.15 UTILITIES.

Upon the approval of the TFC Contract Administrator, Contractor shall have the right to utilize air, water, gas, steam, electricity, and similar items of expense from existing outlets at TFC property.

1.16 STORAGE/WASTE REMOVAL.

Contractor shall not store materials and equipment in TFC Facilities during performance of this Contract. Contractor shall keep premises clean on a continual basis and no trash or debris will be permitted to accumulate in work areas. Use of a dust barrier may be required and will be communicated to Contractor by the TFC Contract Administrator on a per project basis.

Contractor will remove and dispose of all trash when job is complete for the day. Contractor shall be responsible for removal and disposal of all debris, waste materials, waste packaging material, and excess materials purchased by Contractor associated with this contract which may include, if applicable, the rental of a waste receptacle. If needed, site placement of the waste receptacle shall be approved by the TFC Contract Administrator. TFC is not responsible for the security of Contractor’s materials and equipment at any time. Contractor shall maintain at all times clear access to fire lanes and emergency and utility control facilities such as fire hydrants, fire alarm boxes, utility valves, manholes, junction boxes, fire extinguishers, and emergency exits.

1.17 SECURITY AND IDENTIFICATION.

Contractor shall abide by all procedures and rules as conveyed by the TFC Contract Administrator regarding security requirements of the building where work is to be performed.

All Contractor’s and subcontractor’s personnel must wear either uniforms or appropriate clothing identifying them as employees of the Contractor or subcontractors at all times when working in TFC facilities. Contractor personnel must have a TFC supplied identification badge visible at all times when working in TFC facilities.

1.18 CONTRACTOR ACCESS.

Access routes, entrance gates or doors, parking and storage areas, and other necessary Contactor access, along with any imposed time limitations shall be designated by TFC Contract Administrator. Contractor shall conduct operations in strict observation of the access routes and other areas established. Under no circumstances shall any of Contractor’s employee, vehicles, or equipment enter or move upon any area not authorized by TFC Contract Administrator for access by Contractor.

1.19 CONTRACTOR PARKING.

Parking, for Contractor vehicles when performing work, must be coordinated through the TFC Contract Administrator. The TFC Contract Administrator will arrange parking according to parking availability at the job site. Parking in close proximity to the project may not be possible.

Contractors may be required to utilize remote parking and carpooling when space is not available. TFC will not reimburse Contractor for any cost incurred for parking fees or fines.

1.20 SMOKING.

All facilities where work is to be performed are nonsmoking buildings. Contractor’s employees are prohibited from smoking in all areas except in areas designated for smoking.

2. TERM AND TERMINATION

2.01 CONTRACT AWARD.

(a) This Contract shall be effective as of the date of last signature, and shall expire on

August 31, 2025, unless extended by the parties by amendment to this Contract or terminated earlier, as provided in Section 2.02. This Contract may be renewed for two (2) additional two (2) year periods. Any extension or renewal of this Contract shall be implemented by an amendment to the Contract signed by both parties and shall be subject to the provisions, terms and conditions of this Contract to include any TFC approved changes.

(b) Notwithstanding the termination or expiration of this Contract, the provisions of this Contract regarding confidentiality, indemnification, transition, records, right to audit and independent audit, property rights, dispute resolution, invoice and fees verification, and default shall survive the termination or expiration dates of this Contract.

2.02 TERMINATION.

(a) Termination with Default. TFC may terminate this Contract immediately for default by providing written notice to Contractor of such termination if the Contractor fails to execute the work properly, performs work in an unsatisfactory manner, or fails to perform any provision of the Contract. In the event of abandonment or default, Contractor will be responsible for paying damages to TFC, including but not limited to, the cost to re-solicit this Contract and any consequential damages to the State of Texas or TFC resulting from Contractor’s non-performance. The defaulting Contractor will not be considered in the re-solicitation and may not be considered in future solicitations for the same type of work, unless the scope of work is significantly changed.

(b) Termination without Default. TFC may, at its sole option and discretion, terminate this Contract at any time, for any reason whatsoever, in whole or in part, by giving written notice (the “Notice of Termination”) to Contractor at least thirty (30) days prior to the effective date of termination or reduction in the scope of work. In the event of termination by TFC under this subsection, Contractor shall be governed by the terms and conditions, and shall perform the acts outlined in the following Section 2.02(c) below.

(c) Implementation of Termination. Contractor shall terminate all work under the Contract to the extent and on the date specified in the Notice of Termination and until such date shall, to the extent stated in the Notice of Termination, do such work as may be necessary and be compensated only for such work as may be necessary as determined by TFC Contract Administrator to preserve the work in progress and to protect materials, properties, and equipment. In the event of termination by TFC, TFC shall pay Contractor for all work satisfactorily performed up to the effective date of termination or reduction in the scope of work in accordance with the prices included in the scope of work.

(d) Termination by Contractor. Contractor may terminate the Contract upon providing sixty (60) days’ written notice to TFC. In the event of termination by Contractor, Contractor shall be governed by the terms and conditions of this Contract, and shall perform the acts outlined in Section 2.02(c) above. Contractor will be held responsible for additional cost incurred from the termination of this Contract.

2.03 UNSATISFACTORY PERFORMANCE.

In its sole and absolute discretion, TFC may determine that Contractor's performance is unsatisfactory. An unsatisfactory performance determination may be based upon, but is not limited to, the following:

(a) more than one (1) instance within one (1) calendar year of Contractor personnel assigned to a project not having the skill, knowledge, qualifications, and/or license to perform the service;

(b) failure to provide proper or adequate supervision;

(c) failure to revise a submitted model in accordance with TFC’s feedback;

(d) failure to adhere to the standards set forth by TFC in developing the models;

(e) failure to complete a project within the agreed upon schedule; or

(f) more than three (3) instances, within one (1) calendar year of invoices not being submitted accurately within the required time after project completion.

2.04 CORRECTIVE ACTION PLAN.

(a) If TFC identifies one or more instances of Contractor’s unsatisfactory performance based on the actions or inactions set forth in Section 2.03 above or otherwise based on Contractor’s obligations under this Contract, the TFC Contract Administrator may request a corrective action plan (hereinafter referred to as “Corrective Action Plan”) from Contractor by notifying Contractor in writing of the issue(s) which constitute unsatisfactory performance, and direct Contractor to provide a written Corrective Action Plan. Contractor shall deliver a Corrective Action Plan within ten (10) business days of TFC Contract Administrator’s notification, and such plan shall be subject to written approval by the TFC Contract Administrator. The Corrective Action Plan shall address how Contractor will correct the instances of unsatisfactory performance identified by TFC, and provide that Contractor shall, unless otherwise approved in advance by the TFC Contract Administrator, complete all actions set forth in the Corrective Action Plan no later than thirty (30) calendar days following Contractor Administrator’s approval of the Plan. Failure to correct specific instances of unsatisfactory performance included in the notice requesting the Corrective Action Plan, within the time as set forth in this paragraph, shall entitle TFC to avail itself of one or more of the following remedies at TFC’s sole and absolute discretion:

(i) Suspension of contract for a term of three (3) months; or

(ii) TFC’s termination of this Contract.

(b) In addition, if Contractor is required to deliver and perform under more than one

(1) Corrective Action Plan within any period of twelve (12) consecutive calendar months during the term of this Contract, and regardless of whether or not Contractor successfully completes such Corrective Action Plans, TFC may consider such conduct to amount to Contractor’s continuing material nonperformance of services under this Contract. In such an event, TFC may invoke one or more of the following remedies at TFC’s sole and absolute discretion:

(i) Suspension of the Contract for a term of six (6) calendar months;

(ii) TFC’s imposition of liquidated damages on Contractor in an amount equal to ten percent (10%) of the amount of compensation otherwise payable by TFC to Contractor under this Contract for work performed during the three

(3) calendar month period preceding the date the most recently submitted Corrective Action Plan was approved by the TFC Contract Administrator; or

(iii) TFC’s termination of this Contract.

2.05 NO LIABILITY UPON TERMINATION.

If this Contract is terminated in accordance with the terms of this Contract or as otherwise provided by law, TFC and the State of Texas shall not be liable to Contractor for any damages, claims, losses, or any other amounts arising from or related to any such termination absent an award of damages pursuant to Texas Government Code, Chapter 2260.

2.06 CHANGE IN FEDERAL OR STATE REQUIREMENTS.

If federal or state laws, rules, regulations or requirements applicable to this Contract are amended, performance under this Contract will be subject to the laws, rules, regulations or requirements applicable at the time of performance under the Contract. If federal or state laws or regulations or other federal or state requirements are amended or judicially interpreted so that either TFC or Contractor cannot reasonably fulfill the Contract and if the parties cannot agree to an amendment that would enable substantial continuation of the contract, the parties shall be discharged from any further obligations under the Contract.

2.07 RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT.

In the event that the Contract is terminated for any reason, or upon its expiration, TFC shall retain ownership of all associated work products and documentation obtained from the Contractor under this Contract.

3. CONSIDERATION.

3.01. CONTRACT LIMIT AND FEES AND EXPENSES.

(a) The total amount of this Contract shall not exceed the sum of $XXX.XX.

(b) If, at any time during the term of this Contract, Contractor reduces the comparable price of any article or service covered by the Contract to customers other than TFC, the prices charged to TFC for such articles or services shall also be reduced proportionately. Such reduction shall be effective at the same time and in the same manner as the reduction in price to customers other than TFC. In addition to invoicing at the reduced prices, Contractor shall furnish promptly to TFC complete information regarding the reduction.

3.02. PAYMENTS TO CONTRACTOR.

(a) Payments to Contractor will be made within thirty (30) days from receipt of a correct invoice or billing statement in accordance with the Texas Government Code, Chapter 2251, known as the Texas Prompt Payment Act. An invoice is considered received on the date it is date stamped by TFC Accounts Payable. Contractor will be paid for completion of work accepted and approved by TFC Contract Administrator. For large projects, partial payment may be allowed once per month on completed work with acceptance and approval of the TFC Contract Administrator.

(b) Contractor will be paid for work performed to the end of the preceding month, provided that the work required to be performed under the Contract shall have been fully and satisfactorily completed, accepted, and approved by TFC Contract Administrator.

(c) Contractor shall invoice TFC for work performed by vendor identification number, building, and purchase order number. Invoices must be submitted in compliance with 34 Texas Administrative Code, Part 1, Section 20.487(a) and must include the purchase order number, the number of employees that worked on the job, the number of hours, and a copy of the project service ticket. Additionally, invoices for any materials purchased for each project must be provided. Address for submission is: Texas Facilities Commission, Accounts Payable, P.O. Box 13047, Austin, Texas 78711-3047 or accountspayable@tfc.texas.gov.

(d) Contractor shall list any costs for required payment or performance bonds, if applicable, as a separate line item on the invoice accompanied by receipt from surety company.

(e) Contractor shall invoice TFC within two (2) weeks of service/project completion for Assigned Services. Contractor material invoices shall be attached to final invoice. Invoices received more than one (1) year past service completion date will not be accepted or paid.

4. CONTRACTOR PERSONNEL.

4.01. REQUIRED QUALIFICATIONS.

At all times during the term of the Contract, Contractor shall have available, under direct employment and supervision, the necessary qualified and licensed personnel, organization and facility to properly fulfill all the terms and conditions of this Contract.

4.02. GENERAL AND CRIMINAL BACKGROUND CHECKS.

mailto:accountspayable@tfc.texas.gov

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

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

4.03. REMOVAL OF PERSONNEL.

(a) TFC may request that the Contractor replace unsatisfactory personnel, which request shall not be unreasonably denied.

(b) TFC may request that Contractor remove any employee for cause, including but not limited to, poor or unacceptable performance of work; theft, abusive language or behavior, or improper attire. Repeat occurrences of this type may be cause for termination of the Contract.

4.04. CONTRACTOR SAFETY.

(a) All Contractors and subcontractors conducting work for TFC shall abide by all

Occupational Safety and Health Administration (hereinafter referred to as “OSHA”) rules and regulations provided by the Department of Labor, OSHA, and Code of Federal Regulations, Chapter 29. Employees of Contractor and subcontractors shall be trained in accordance with Chapter 29, Occupational Safety and Health Regulations.

(b) Work shall not be done on energized electrical circuits, components or equipment.

When de-energizing is impractical due to possible harm to personnel, equipment, or facility damage, negative on-site or off-site environmental impact, or business interruption Contractor must follow OSHA requirements as detailed in OSHA Regulations 1910.331 – 1910.399.

4.05. CONTRACTOR COOPERATION.

Contractor agrees to cooperate and coordinate its work with that of other contractors retained by TFC. Upon discovery of an apparent conflict in the sequencing of work with another contractor, Contractor shall report the concern to TFC Contract Administrator who will resolve the conflict.

4.06. E-VERIFY.

(a) By entering into this Contract, Contractor certifies and ensures that it utilizes and will continue to utilize, for the term of this Contract, the U.S. Department of Homeland Security’s E-Verify system, in accordance with the U.S. Department of Homeland Security’s rules, to determine the eligibility of:

(i) all persons employed to perform duties within the State of Texas, during the term of the Contract; and

(ii) all persons (including subcontractors) assigned by the Contractor to perform work pursuant to the Contract, within the United States of America.

(b) Contractor shall provide, upon request of TFC and if available, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E- Verify case verification number for attachment to the Form I-9 for the three (3) most recent hires that match the criteria above, by the Contractor, and Contractor’s subcontractors, as proof that this provision is being followed. If this certification is falsely made, the Contract may be immediately terminated, at the discretion of TFC, and at no fault to TFC, with no prior notification. Contractor shall also be responsible for the costs of any re-solicitation that TFC must undertake to replace the terminated Contract.

(c) For persons not eligible for E-Verify screening, Contractor (including subcontractors) shall provide, upon request by TFC, another form of documentation of proof of eligibility to work in the United States of America.

5. STATE FUNDING.

5.01. STATE FUNDING.

(a) This Contract shall not be construed as creating any debt on behalf of the State of Texas and/or TFC in violation of 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 Contract 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.

(b) Furthermore, any damages due under this Contract should not exceed the amount of funds appropriated for payment under this Contract, but not yet paid to Contractor, for the fiscal year budget in existence at the time of the breach; provided, however, the foregoing shall not be construed as a waiver of sovereign immunity.

6. RECORDS, AUDIT, PROPRIETARY INFORMATION, AND PUBLIC

DISCLOSURE

6.01. SUPPORTING DOCUMENTS, RETENTION; RIGHTY TO AUDIT; INDEPENDENT AUDITS.

(a) Contractor shall maintain and retain supporting fiscal and any other documents relevant to showing that any payments under this Contract 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. Contractor shall maintain all such documents and other records relating to this Contract and the State’s property for a period of seven (7) years after the date of submission of the final invoices or until a resolution of all billing questions, whichever is later. Contractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the

Contract. Contractor and any subcontractors shall provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit. Contractor must retain all work and other supporting documents pertaining to this Contract, for purposes of inspecting, monitoring, auditing, or evaluating by TFC and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor.

(b) Contractor 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. The acceptance of funds by Contractor 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. Contractor 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.

Contractor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractors through Contractor 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.

6.02. PROTECTION OF CONFIDENTIAL INFORMATION.

Contractor hereby acknowledges, understands and agrees:

(a) that in the course of Contractor’s performance under the Contract, certain Confidential Information (as defined below) will be disclosed to Contractor; and

(b) that whether developed by TFC or others employed by or associated with TFC, all Confidential Information is, and shall remain, the exclusive and confidential property of TFC, and shall be at all times regarded, treated and protected as such by Contractor in accordance with this Contract. Failure to mark any information “Confidential” shall not affect the confidential nature of such information.

6.03. DEFINITION OF CONFIDENTIAL INFORMATION.

“Confidential Information” shall mean any and all information, whether or not originated by TFC, revealed by or through TFC in connection with the Contract, which the Contractor either knows or reasonably should know to be proprietary, sensitive or confidential in nature, including without limitation:

(a) information either expressly or implicitly identified as originating with or belonging to TFC or marked or disclosed as confidential;

(b) information traditionally recognized as proprietary or as critical infrastructure information of TFC and

(c) information deemed confidential or otherwise protected from disclosure under Texas law. Such Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing or designated as “Confidential”):

(i) Architectural and engineering drawings and specifications in any format including, but not limited to, CAD files, building information management and modeling (BIM) systems and technological system plans (e.g., information technology systems, security systems, fire controls and building automated systems).

(ii) Work product resulting from, or related to, work, projects, or services performed or to be performed by TFC for Contractor that are related to the business and/or operations of TFC, including but not limited to, methods, processes, procedures, analysis, techniques, and audits used in connection therewith.

(iii) Computer software of any type or form in any stage of actual or anticipated research and development, including, but not limited to, programs and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes, annotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program patches, and system designs.

(iv) Information relating to TFC’s proprietary rights prior to any public disclosure thereof, including but not limited to, the nature of the proprietary rights, production data, technical and engineering data, test data and test results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights, and trade secrets).

(v) Internal personnel and financial information, vendor names and other vendor information (including vendor characteristics, services, and agreements), customer lists and contacts, business plan(s), purchasing and internal cost information, internal services and operational manuals, pricing, marketing, and all other manner and methods of conducting TFC’s business.

(vi) Marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of TFC which have been or are being discussed.

(vii) Any information obtained from TFC regarding its pursuit or negotiation of agreements with any potential “Contracting Person” regarding a potential “Qualifying Project” as those terms are defined in the Tex. Gov’t. Code Ann. § 2267.001, as the same may be amended from time to time, including, but not necessarily limited to: (i) the names of the Contracting Person, including their representatives (collectively referred to as “Business Customers”); (ii) the parties to and substance of any agreements between TFC and said Business Customers; (iii) services and data provided, or to be provided, by or to said Business Customers; and (iv) the type, quantity and specifications of products and services purchased, leased, licensed or received, or to be purchased, leased, licensed or received, by Business Customers.

(viii) In accordance with 13 Tex. Admin. Code § 6.94(a)(9), upon request Contractor shall provide to TFC the descriptions of its business continuity and disaster recovery plan as it regards TFC’s vital state records as defined in Tex. Gov’t. Code Ann. § 441.180(13).

6.04. EXCLUSIONS FROM CONFIDENTIAL INFORMATION.

Confidential Information shall not be deemed to include information that the Contractor can demonstrate by competent written proof:

(a) is now, or hereafter becomes, publicly known or available through no act or failure to act on the part of the Contractor;

(b) was known by the Contractor at the time of receipt of such information as evidenced by its records;

(c) is hereafter furnished to the Contractor by a third party as a matter of right and without violating any confidentiality obligation to the TFC; or

(d) was independently developed by employees of the Contractor without use or knowledge of the Confidential Information of TFC.

6.05. USE OF CONFIDENTIAL INFORMATION.

Contractor agrees it will use the Confidential Information solely pursuant to the Contract, and for no other purpose whatsoever. The Confidential Information, including any documents, drawings, sketches, designs, materials, or samples supplied hereunder, shall remain the property of the TFC and no rights or licenses are granted to the Contractor in the same, whether patented or not, except the limited right to use the Confidential Information as set forth above.

6.06. CONFIDENTIAL OBLIGATIONS.

(a) Contractor agrees to exert all necessary and reasonable efforts to maintain the Confidential Information in confidence and to take all necessary and reasonable precautions to prevent its unauthorized disclosure and to ensure it does not fall into the public domain or the possession of unauthorized third parties.

(b) Contractor shall restrict access to the Confidential Information to those officers, employees, contractors, subcontractors, consultants, and agents, of the Contractor having a need to know the Confidential Information to fulfill the Contract, provided that, Contractor shall ensure that any individual having access to the Confidential Information is made expressly aware of the obligation of confidence according to the terms hereof prior to gaining access to the Confidential Information.

(c) To the extent that Contractor perceives a need for disclosure of the Confidential Information it receives from TFC to any third party, such third party shall first be identified to TFC and written permission to disclose shall be obtained from TFC. A written non-disclosure agreement shall be obtained from the third party and a copy shall be promptly provided to TFC.

(d) Contractor agrees to notify TFC immediately if a security violation of this Contract is detected, or if Contractor suspects that the security or integrity of TFC’s Confidential Information has been, or may be, compromised in any way.

6.07. PUBLIC INFORMATION ACT REQUEST OR SIMILAR REQUESTS FOR INFORMATION.

In the event that Contractor receives a request to disclose all or any part of the Confidential Information under the terms of the Texas Public Information Act, a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, Contractor shall, as appropriate:

(a) notify TFC of the existence, terms, and circumstances surrounding such a request within one (1) business day of the receipt of the request;

(b) notify the entity requesting the information that such a request for information should be submitted to TFC, not Contractor;

(c) provide the entity requesting the information the contact information of TFC’s public information coordinator; and

(d) forward all responsive information to TFC within two (2) business days of the receipt of the request.

6.08. CONFIDENTIALITY PROVISIONS APPLICABLE TO TFC

Subject to the provisions of Section 6.09 below, TFC shall keep confidential all information, in whatever form, produced, prepared, or received from Contractor to the extent that such information is confidential by law.

6.09. PUBLIC RECORDS.

Notwithstanding any provisions of this Contract to the contrary, Contractor understands that TFC will comply with the Texas Public Information Act, Texas Government Code, Chapter 552. If contacted by TFC, Contractor will cooperate with TFC in the production of documents responsive to the request. Contractor agrees to provide the documents responsive to the request in the format and within the time frame specified by TFC. Contractor may request that TFC seek an opinion from the Office of the Texas Attorney General. However, the final decision whether to seek a ruling from the Office of the Texas Attorney General will be made by TFC in its sole discretion to comply with the legal requirements of the Texas Public Information Act.

Additionally, Contractor will notify TFC's general counsel within twenty-four (24) hours of receipt of any third-party requests for information written, produced, collected, assembled, or maintained in connection with this Contract and/or any amendment to this Contract. This Contract and/or any amendment to this Contract and all data and other information generated or otherwise obtained in its performance is subject to the Texas Public Information Act. Contractor 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.