ESBD_377739_1727372777504_303-2-01738 Attachment A - Service Contract.pdf

INSTRUCTIONS TO ALL RESPONDENTS

RFP 303-2-01738

SERVICE CONTRACT FOR REFRIGERATION REPAIRS AND SERVICES

1. Respondents are required to review this Attachment A prior to submission of proposals.

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

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

4. The following Articles, Sections and Exhibits of this Attachment A are not negotiable:

Article 1, Service and Performance Requirements Article 2, Term and Termination Article 3, Section 3.02 and 3.03 Article 4, Contractor Personnel Article 5, State Funding Article 6, Records, Audit, Proprietary Information and Public Disclosure Article 7, Contractor’s Responsibilities and Warranties Article 8, Bonds, Insurance, Indemnification and Legal Obligations Article 9, Contractor General Affirmations Article 10, Miscellaneous Provisions

Exhibit C, Criminal Background Checks and Application Guidelines Exhibit D, TFC Bond Forms Exhibit E, HUB Subcontracting Plan Form Exhibit F, Approved HUB Subcontracting Plan Exhibit G, HSP Progress Assessment Report Form

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

6. Upon notice of award, awardee shall submit final, negotiated version of Exhibit B, Compensation and Fees, as necessary, to Procurement who will review and then forward them to the General Counsel Division.

Lia Edwards Date Assistant General Counsel

TFC Contract No. XX-XXX-XXX Contractor Name

RFP No. 303-2-01738

SERVICE CONTRACT FOR

REFRIGERATION REPAIRS AND SERVICES

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 for Refrigeration repairs and services (hereinafter referred to as the “Contract”) pursuant to Texas Government Code Section 2165.001.

1. STATEMENT OF WORK.

1.01. SERVICE AND PERFORMANCE REQUIREMENTS.

(a) Contractor shall provide refrigeration repairs and maintenance services for TFC on ice machines, walk-in coolers, walk-in freezers, hot boxes, refrigerators, other commercial appliances, and associated equipment located in various facilities throughout Texas, with most services performed in Austin, Texas as further described in Exhibit A – TFC Building List, attached hereto and incorporated herein for all purposes. Exhibit A may or may not be all inclusive; however, Contractor may provide services in each facility in which TFC provides services whether listed or not. Contractor shall provide all labor, materials, equipment, tools, and transportation required to perform these services. Service requirements shall include, but not be limited to:

(i) Provide all major and minor repairs, diagnostic troubleshooting, inspecting, testing, cleaning, parts replacements, rebuilds, overhauls, teardowns, required programming, and maintenance.

(ii) All requested work shall follow manufacturer’s recommendations.

(iii) For each requested service under this Contract, the TFC Contract Administrator as defined in Section 1.2 will contact the Contractor for an estimate. Upon request by TFC for services, Contractor shall prepare and submit to TFC a quote for such services requested formatted to match pricing as awarded and identified on Exhibit B – Compensation and Fees (hereinafter referred to as Exhibit B). Exhibit B is attached hereto and incorporated herein for all purposes. Contractor shall proceed with the work only after the quote is approved by TFC through the issuance of 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. TFC will not pay Contractor for any work completed by Contractor without an approved Purchase Order provided, however, that in the event of an emergency, Contractor may begin service upon verbal direction from the TFC Contract Administrator, as per Section 1.01(h)(ii)(B).

(A) The following shall be included on a submitted quote:

(1) breakdown of material and labor (flat fees are not acceptable);

(2) the hourly rate with an estimated number of hours;

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

(4) markups over cost;

(5) labor type/description: and

(6) third party (subcontractor/supplier) quotes, if applicable.

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

(C) The TFC Contract Administrator purchasing products and services under this

Contract may negotiate more advantageous pricing or participate in special promotional offers. In such event, a copy of such offerings shall be documented on project quotes.

(b) Contractor understands and agrees that no minimum amount of work or a minimum number of Purchase Orders are guaranteed by this Contract.

(c) Contractor shall report completed tasks to the TFC Contract Administrator on a Contractor supplied form approved by the TFC Contract Administrator via e-mail.

(d) All reports shall be given to the TFC Contract Administrator.

(e) Contractor shall record and report to the TFC Contract Administrator any abnormal conditions, equipment deficiencies, and taken measurements within twenty-four (24) hours.

(f) Unless previously authorized by the TFC Contract Administrator, when billing for Purchase Orders, each invoice shall contain the information for one (1) job only.

(g) Contractor shall match service ticket with approved Purchase Orders. Prior to performing onsite services, Contractor must contact the TFC Contract Administrator, as defined below, before any equipment is taken out of service. Once services are complete, the equipment shall be put back into service.

(h) RESPONSE TIME Contractor’s required response time to an initial request from TFC Contract Administrator:

(i) Non-emergency Request.

(A) Contractor shall respond to the initial request of the TFC Contract Administrator within one (1) business day, unless otherwise agreed to by the TFC Contract Administrator. Contractor shall have a technician on site the next business day or in the time frame agreed to by the TFC Contract Administrator at the time of the Contractor’s initial response.

(ii) Emergency Request.

(A) Contractor shall respond to the initial request of the TFC Contract Administrator within thirty (30) minutes, unless otherwise agreed to by the TFC Contract Administrator and arrive on site within two (2) hours, unless otherwise agreed to by the TFC Contract Administrator at the time of the Contractor’s initial response.

(B) In the event of an emergency, Contractor may begin service upon verbal direction from the TFC Contract Administrator. Written confirmation in the form of an e-mail with a Purchase Order Number will be sent within one (1) business day of the initial call, followed by a fully approved Purchase Order.

(i) WORKING HOURS.

Contractor shall be available to provide service between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, excluding national holidays (hereafter referred to as “Regular Hours”). It is understood by TFC and Contractor that there may be instances in which work must be completed outside of Regular Hours. Such work shall be pre-authorized by TFC.

(j) MATERIALS, PROGRAMMING, AND SOFTWARE

(i) Contractor shall purchase and provide all manufacturers replacement parts for each specified equipment. After-market parts are not to be used unless approved by the TFC Contract Administrator.

(ii) Contractor shall provide replacement parts within seventy-two (72) hours from the date and time of notification by TFC. Exceptions to this must be approved by the TFC Contract Administrator.

(k) REQUIRED PERSONNEL.

(i) During projects that require sub-contracting or multiple trades supervisor oversight and coordination will be required until repair is complete.

(ii) Apprentice Helper service work must be performed under the direct supervision of a licensed Journeyman Technician.

(iii) Reference Articles 4 and 7 for additional personnel requirements.

(l) TRAVEL TIME AND SERVICE TICKET.

Travel time to and from a job site, including work covered under warranty, is not reimbursable under this Contract. Contractor shall check in and out with the TFC Contract Administrator to ensure that the TFC Contract Administrator logs the start and completion times on the service ticket for the service performed. Contractor shall provide the following information on the service ticket:

(i) building name;

(ii) TFC work order number and/or Purchase Order number;

(iii) date and time of the request for services;

(iv) name of the technician performing work;

(v) date and time of the technician’s arrival on site;

(vi) description of the service, including itemized labor hours and parts;

(vii) date and time of completion of the repair; and,

(viii) the signature of the TFC and Contractor representatives

(m) FREIGHT AND SHIPPING CHARGES

Freight and shipping charges are not an allowable expense under this contract. Expedited shipping charges, with prior approval from the TFC Contract Administrator, may be allowed.

(n) LICENSING AND CODES.

(i) Contractor shall ensure service and maintenance technicians are properly trained, certified and licensed, to perform the assigned work. TFC reserves the right to verify that the certification or license is current for the individual working on each piece of equipment or system under the Contract. Contractor is responsible for providing training, certification, or license renewals for their employees, if applicable.

(ii) All Contractors and subcontractors conducing work such as, but not limited to, maintenance, repair and alteration work for TFC shall abide by must comply with the applicable rules and regulations of 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.

(iii) Contractor shall be responsible for code compliance assessment and for ensuring that all services performed under this Contract will be accomplished in accordance with the most current codes.

(o) 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.

(p) BUSINESS OFFICE.

Contractor shall have a local physical office with local telephone service. Contractor shall provide the TFC Contract Administrator an emergency twenty-four (24) hour response number to allow immediate contact of the authorized Job Manager.

1.02. 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, installation 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, installation, 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.

1.03. EXAMINATION OF PREMISES.

Contractor shall be held to have examined all properties 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.

1.04. 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.

1.05. 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.

1.06. STORAGE/WASTE REMOVAL.

Contractor will be allowed to temporarily store materials and equipment in performance of this Contract only if space is available in each building. Storage space will be arranged through the TFC Contract Administrator. 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 and oil from floors 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 stored materials and equipment. TFC encourages the use of gang boxes for tool storage and securing the site when unoccupied by Contractor. 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.

1.07. 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.

1.08. 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. Contractor shall notify Contract Administrator if any staff is no longer employed with the company within (24) hrs.

1.09. 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.

1.10. 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.

1.11. DISPOSAL OF SALVAGEABLE ITEMS.

(a) The TFC Contract Administrator shall mark and/or otherwise inform Contractor of any material that will be salvaged by TFC. Disposal may include depositing in a central location for salvage by TFC or delivery to TFC’s warehouse, located at 6506 Bolm Road, Austin, Texas, or other locations as determined by the TFC Contract Administrator.

(b) TFC may elect to offer any salvageable material to Contractor, as a trade-in on new property of the same general type, in accordance with Texas Government Code Section

2175.903. Contractor is not obligated to accept the salvageable material.

1.12. CHEMICALS.

Contractors and subcontractors shall provide TFC Risk Management and the TFC Contract Administrator a legible Material Safety Data Sheet (hereinafter referred to as “MSDS”) for all chemicals to be used or brought onto TFC controlled property for each project. MSDSs shall be submitted prior to the start of work.

1.13. CALLBACK.

For the purpose of evaluating performance under this Contract, a “Callback” is defined as a service call that requires Contractor to return to complete or repair a previously performed service due to Contractor’s inability, negligence, or lack of knowledge to perform services. Contractor is to perform Callback Service at no additional cost to TFC, regardless of whether the work is performed during normal working hours or overtime hours. Contractor shall maintain a complete, orderly written report of all Callbacks. These “Callback Reports” shall indicate the time, date, name of personnel, problems reported, and corrective measures taken to complete or repair all problems.

A consolidated Callback Report is to be furnished to TFC as soon as the service is provided.

1.14. CALLBACK RESPONSE.

Failure by Contractor to successfully complete a service will result in a Callback. The TFC Contract Administrator will contact the Contractor and notify them of the Callback. Contractor will respond to the Callback no later than the next business day with a technician possessing the technical expertise, knowledge, and any required material to correct the problem. Contractor shall check in and out with the TFC Contract Administrator to ensure that the TFC Contract Administrator logs the commencement and completion times for the “Callback Service Ticket,” or summary list, for the services performed to correct the problem. Contractor shall provide the following information on the Callback Service Ticket:

(a) building name;

(b) asset name and number;

(c) TFC work order number;

(d) name of Contractor personnel performing the work;

(e) trade category of person performing the work;

(f) number of hours worked;

(g) itemized list of parts/material used/replaced; and

(h) narrative description of what the technician found that was causing the problem and what was done to correct it.

2. TERM AND TERMINATION

2.01. CONTRACT AWARD.

(a) This Contract shall be effective as of last signature below, and shall expire on August 31, 2026, 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. TFC may request an extension not to exceed three (3) months for purposes of re-solicitation. 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 a Contractor's performance is unsatisfactory. An unsatisfactory performance determination may be based upon but is not limited to the following:

(a) Failure to timely complete and document required inspections and services;

(b) Failure to provide the tools necessary to complete the inspection, test or required service;

(c) Failure by Contractor, upon completion of testing, inspection or service, to place the serviced unit back into service or to leave it in other than it's normal state;

(d) Failure by Contractor to submit a complete and accurate invoice to the Contract

Administrator no later than the fifth (5th) business day of the month following the month in which the services being invoiced were completed;

(e) Failure by Contractor to respond to an emergency call within the required timeframe;

(f) The incorrect use, unsafe staging of equipment and/or inappropriate safety procedures;

(g) Failure by Contractor to provide suitable supervision;

(h) Failure by Contractor to maintain a safe work environment;

(i) Improper or inaccurate reporting of job progress; and

(j) Failure by Contractor to leave worksite in a clean and orderly manner.

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) TFC’s imposition of liquidated damages on any delayed project;

(ii) TFC’s cancellation and re-award of any ongoing Purchase Orders. Any additional cost associated with reassignment will be charged to Contractor; and

(iii) 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) TFC’s removal of one or more facilities from the scope of this Contract;

(ii) TFC’s imposition of liquidated damages on Contractor otherwise payable by TFC to Contractor under this Contract for work performed during the three (3) month period preceding the date the most recently submitted Corrective Action Plan was approved by the Contract Administrator; and/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 Insert Amount. Pricing fees shall be invoiced in accordance with Exhibit B. Any changes to the not to exceed amount of this Contract or pricing fees set forth in Exhibit B shall be submitted to TFC for review and shall be approved by amendment to this Contract.

(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.

Inspections shall not be considered to be complete and payable unless the completed, signed inspection form along with copies of service tickets have been submitted to and received by TFC.

(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 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.

Contractor material invoices shall be attached to final invoice.

3.03. ADDITIONAL SERVICES AND ADJUSTMENTS.

mailto:accountspayable@tfc.texas.gov

(a) TFC may, at any time during the term of this Contract, request the addition of Additional Services not included in Article 1 of this Contract.

(b) Upon request by TFC for Additional Services, Contractor shall submit to TFC a quote for adjustments requested. Prices for any Additional Services shall be calculated by comparing pricing to similar services included in Exhibit B. The addition of services shall be documented by amendment to this Contract. Contractor shall provide requested services within thirty (30) days of execution of the amendment or as otherwise agreed by the parties.

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.

(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 C, 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) Contractor and subcontractors shall inform the TFC Contract Administrator of their Hazardous Electrical Energy Control, Lockout/Tagout Procedure. Contractor’s procedure must meet or exceed TFC’s procedure as determined by the TFC Contract Administrator.

(c) 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 its 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), 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…