ESBD_414967_1745963512651_RFP 0004656 Auctioneering Services Contract Template final.pdf

INSTRUCTIONS TO ALL RESPONDENTS FOR RFP NO. 0004656

SERVICES CONTRACT FOR INTERNET AUCTIONEER SERVICES

FOR

TEXAS FACILITIES COMMISSION STATE SURPLUS PROPERTY

PROGRAM

1. Respondents are required to review this Attachment 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 must be submitted with Respondent’s qualifications/proposals and on time.

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

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

Article 1, Statement of Work Article 2, Scope of Work for Internet Auctions Article 3, Term

Article 4, Consideration, Sections 4.02 through 4.03 Article 5, Contractor Personnel Article 6, State Funding Article 7, Records, Audit, Proprietary Information and Public Disclosure Article 8, Contractor’s Responsibilities and Warranties Article 9, Insurance, Indemnification and Legal Obligations Article 10, Contractor General Affirmations Article 11, Miscellaneous Provisions

Exhibit B. Sample Reports| Exhibit C. Criminal Background Check and Application Guidelines Exhibit D. Approved HUB Subcontracting Plan Exhibit E. HUB Subcontracting Plan Form Exhibit F. HSP Progress Assessment Report

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

6. Upon notice of award, awardee shall submit a final, negotiated version of Exhibit A, Compensation and Fees, to General Counsel Division and to the Project Manager for incorporation into the Services Contract.

Date:

Lia Edwards Assistant General Counsel

04/25/2025 | 11:23 AM CDT

RFP NO. 0004656

ATTACHMENT A

SERVICES CONTRACT

FOR

INTERNET AUCTIONEER SERVICES

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[INSERT CONTRACTOR NAME]

TFC CONTRACT NO. [INSERT]

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

RFP No. 0004656

SERVICES CONTRACT

FOR

INTERNET AUCTIONEER SERVICES

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[INSERT NAME]

The Texas Facilities Commission (hereinafter referred to as “TFC”), a state agency located at 1711 San Jacinto Boulevard, Austin, Texas 78701 and [Insert Name] (hereinafter referred to as “Contractor”), located at [Insert Address] enter into the following contract for internet auction services on an as-needed basis (hereinafter referred to as the “Contract”) pursuant to Tex. Gov’t Code Chapter 2175.

I. STATEMENT OF WORK

1.01. GENERAL DESCRIPTION OF SERVICES. Contractor agrees to provide internet auction services for the disposal of State surplus and salvage property on an as-needed basis during the term of this Contract. Surplus property may be in the possession of TFC or may be located with a State agency that has requested TFC to dispose of its salvage and surplus property (hereinafter referred to as “Client Agency”).

(a) TFC may, from time to time and upon the availability of certain surplus property such as heavy equipment, vehicles and other property deemed necessary, request Contractor to dispose of such property through 24/7 internet auction. TFC will provide Contractor with an e-mail outlining the items that are available for auction.

(b) Contractor understands and agrees that no guaranteed minimum number of auctions or amount of work will arise from this Contract. TFC cannot guarantee volume of sales items but Contractor should be prepared for high volume and dispersed locations for certain items.

1.02. CONTRACT ADMINISTRATOR. (a) TFC shall designate a “Contract Administrator” for this Contract who will serve as the point of contact between TFC and the Contractor. The instructions of the Contract Administrator or his/her designated representative (hereinafter collectively referred to as “Contract Administrator”) are to be strictly and promptly followed by Contractor at all times. The Contract Administrator is to have free access to the materials and the work at all times for measuring and inspecting the work, and Contractor is to afford the Contract Administrator all necessary facilities and assistance. The 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 Contract Administrator will determine the amount of work performed and materials furnished that are to be paid under the Contract. Failure of the Contract Administrator during the progress of the Contract to discover or reject unacceptable work or work not performed in accordance with the Contract, or to exercise any remedies shall not be deemed an acceptance or a waiver of TFC’s right to full performance of the Contract. However, the Contract Administrator does not have any express or implied authority to vary or amend the terms of the Contract or to waive strict performance of the terms or conditions of the Contract.

(b) Contractor agrees to conduct all of its services under this Contract by and through appropriate communications with the Contract Administrator. No services shall be undertaken by Contractor except with the prior written direction of the Contract Administrator. Contractor understands and agrees that any service performed without the prior written direction of the Contract Administrator is work outside the scope of this Contract and shall be performed exclusively at Contractor's risk and own expense. Contractor agrees to employ competent personnel meeting the requirements outlined in the terms and conditions of this Contract, who shall be satisfactory to TFC. Personnel assigned to perform services under this Contract may not be reassigned without the prior written notification to, and approval from, the Contract Administrator.

1.03. TERMS AND CONDITIONS OF SALES. The sale by auction of all equipment through internet auction under this Contract shall be “as is” and “where is”. Neither Contractor nor TFC and the State of Texas shall be responsible for any representations or statements concerning any equipment, its prior use, condition, suitability for intended purpose, or suitability for the purpose to which it is customarily devoted. In addition, all purchases must be paid for on the day of the sale.

1.04. CONTRACTOR ACCESS. TFC will make all surplus property to be sold by Contractor available for review. When reviewing surplus property, 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 the 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 personnel, vehicles, or equipment enter or move upon any area not authorized by the Contract Administrator for access by Contractor.

1.05. SECURITY AND IDENTIFICATION. Contractor shall abide by all procedures and rules as conveyed by the Contract Administrator regarding security requirements of the property where work is to be performed.

II. SCOPE OF WORK FOR INTERNET AUCTIONS

2.01. INTERNET BASED AUCTION SERVICES. Contractor shall supply a fully functional internet auction service which includes the following:

(i) all necessary hardware and internet connections needed to provide the service;

(ii) operating software and applications needed for the auction site to function;

(iii) connectivity to the internet such that it is accessible to TFC and buyers through industry standard internet connections, web browsers, mobile devices, and email;

(iv) clearly displayed date and time to the end of bidding;

(v) capability to set a reserve price;

(vi) capability to set a minimum opening bid price and a minimum bid increment;

(vii) posting of standard sale closing requirements on the auction site;

(viii) an internal method of recording all bids and a method of identifying the winning bidder to TFC with the capability of identifying the second highest priced bidder if the winning bidder is unable to complete the sale;

(ix) a simple method for TFC to withdraw and cancel an auction without penalty;

(x) capability to manually award bid, update tax and mark auction as awarded;

(xi) a system on which it is simple to post an item for auction;

(xii) a record of bids that may be provided to TFC upon request; and

(xiii) a website that is optimized for mobile devices and desktop computers.

2.02. INDEPENDENT CONTRACTOR HOSTING OF THE AUCTION SYSTEM.

(a) The auction service shall not interact with any State computer hardware, software or database systems. Contractor is prohibited from utilizing or interfacing with any hardware, software, computer component, internet connection or database related to any State computer system. Contractor shall only provide internet connections and email that use industry standard web browsers and email systems.

(b) The system shall allow access from Windows, Android, Linux and Apple-based systems. The system provided may not require the installation of special software on the computer systems of TFC or buyers.

2.03. MAINTENANCE AND SUPPORT. (a) Contractor shall provide maintenance and support services which includes and meets the following requirements:

(i) email and telephone support needed to operate the auction site;

(ii) provide a Toll Free Number and Online presence to assist Bidders with registration and submitting bids.

(iii) live customer service support for TFC staff must be available Monday – Friday between the hours of 8:00 A.M. and 4:30 P.M; and,

(iv) maintenance and upgrades to the site servers and software over the term of the Contract shall be made at no cost to TFC.

(b) TFC will not pay the contractor for auction system upgrades over the term of the Contract.

(c) Contractor must be prepared to provide on-site training to selected State personnel on an as-needed basis.

(d) Unfavorable changes to the layout, form, function, or use of the site may be grounds for Contract termination.

2.04. USE REQUIREMENTS. The following is required of the system when conducting an auction under this Contract:

(i) simple and uniform methods for bidders to register, log-in, view photographs of bid items, view descriptions of bid items, and view technical specifications of bid items;

(ii) simple and uniform methods for bidders to submit bids and have the highest bid price to date posted on the bidding site for all bidders to see;

(iii) a method to notify a bidder if the bidder’s bid has been rejected and identify the reason for such rejection. Acceptable reasons for rejecting a bid shall include, but are not limited to, failure to submit a minimum bid or a minimum opening bid; and

(iv) capability to identify bidders that have defaulted on past auctions and prevent them from submitting bids on subsequent auctions.

2.05. CONTRACTOR RESPONSIBILITIES.

(a) Contractor shall implement all necessary security and anti-virus systems to prevent unauthorized access to bidder information and prevent the distribution of viruses and malware.

(b) Contractor shall implement contingency plans to backup information and recover information.

(c) Contractor shall have a disaster recovery plan that covers internet failure, electricity failure or system failures. If any downtime reaches eight (8) hours in duration while an active TFC auction is occurring, the Contractor shall implement the Disaster Recovery Plan.

For any downtime, the Contractor shall provide 100% data recovery for TFC auction data.

(d) Contractor must maintain an electronic system for inventory, sales and related history to provide TFC with reporting and historical data. This information should be updated at least on a weekly basis and accessible to TFC at all times. TFC has the right to audit and inventory the electronic inventory systems at any time deemed necessary.

(e) Contractor must retain bid tabulations for a minimum of six (6) years.

(f) Contractor's system shall be accessible seven (7) days per week, twenty-four (24) hours a day, and three hundred sixty-five (365) days a year. Contractor shall take all reasonable measures to avoid any and all downtime, whether planned or unplanned. Downtime is defined as any period of time in which any or all of the State's presence on the Contractor's website is unavailable to a potential website user.

1. In the event that unplanned downtime occurs, the Contractor shall notify the Contract Administrator of this event within one (1) hour of detection. Cosmetic or design changes (planned downtime) to the Contractor's website by the Contractor, or on behalf of the Contractor, shall not interfere with or disrupt any State internet auction, or cause any disruption with any State web page(s), without prior consent of TFC.

2. Failure by the Contractor to maintain 98% uptime (2% or less downtime), whether due to planned or unplanned events, constitutes cause for TFC to terminate this Contract. Failure by the State to terminate the Contract for cause in this circumstance shall not be construed as a waiver or relinquishment of the State's right to do so.

2.06. RECEIPT OF INFORMATION AND POSTING OF ONLINE AUCTION ITEMS. (a) Client Agencies, through TFC, shall be responsible for photography and description of property in place.

The location of the property will be throughout the state of Texas. Client Agencies shall email photographs and accompanying descriptions to the Contractor through TFC.

(b) Contractor shall post the auction of surplus property items within three (3) calendar days after receipt of auction information.

(c) Contractor shall provide a draft copy of the online auction website depicting the items to be sold to Client Agencies and TFC for review a minimum of two (2) business days prior to start of the auction.

(d) Contractor shall post surplus property items for sale for a minimum of ten (10) calendar days.

(e) Contractor shall advertise the sale of the surplus property items to potential customers to maximize sale prices.

(f) Contractor shall be responsible for all edits to the webpage. The State shall request inventory to be added, removed, or revised.

2.07. PAYMENT COLLECTION AND DISTRIBUTION. (a) Contractor shall collect all payments, charges, and taxes from buyers and distribute as per Article IV. Consideration.

(b) Contractor shall pay TFC within five (5) business days from the closing of the auction.

(c) Contractor shall collect sales tax, Emissions Surcharge, and purchaser's fee, as applicable.

(d) Contractor is required to send paid receipts (proof of payment) electronically to the Client Agency and TFC on the same day customer pays for item(s) so that the Client Agency will release the item(s) to customer. All customer paid receipts and/or bill of sale must show the buyer’s main address. All vehicle sales receipts must also display the vehicle identification number clearly on the customers receipt.

(e) Contractor shall provide sales reports and a bidder's list along with a listing in electronic format Excel (.xlsx) format for all items that include the name and address of buyer, the equipment and lot number to TFC and the Client Agency within five (5) business days.

(f) TFC shall have the ability to customize reports as needed or request customized reports from Contractor.

2.08. PROPERTY REMOVAL / SHIPPING. Winning bidders must remove all property from designated locations within five business days of auction close or as detailed in the auction listing.

Shipping is the responsibility of the successful bidder. TFC shall not be responsible for shipping arrangements.

2.09. REPORTS REQUIRED AFTER AUCTION. Within seven (7) business days after completion of an online auction under this Article II, Contractor shall provide TFC with copies of the following reports:

(a) a weekly “Reconciliation Report” of sold auctions including sold amount, tax, bidder charge, auction number, lot number, agency asset number, auction end date, and complete lot descriptions separated by agency and, if Texas Department of Transportation (TxDOT) property, with each TxDOT highway district listed separately;

(b) a weekly “Unsold Lot Sales Report” including auction number, lot number, auction end date, and first line of description; and

(c) any other reports or documentation that may be determined by TFC.

Reports shall be provided in a format approved by TFC. TFC shall have the ability to customize reports as needed or request customized reports from Contractor. Examples of required reports are attached as Exhibit B- Sample Reports.

2.10. SALE OF GAMBLING EQUIPMENT. Contractor shall conduct online auctions for gambling equipment restricted only to bidders that hold a current Texas Coin Operated Machine License issued by the Texas Comptroller of Public Accounts office. Contractor must have a process to ensure that buyers have appropriate license or certification required to conduct the sale of coin-operated gaming machines. Contractor must retain evidence of buyer licensure.

2.11. SALE OF FIREARMS. Contractor must possess a current Federal Firearms License (FFL) and have ability to sell, store, appraise, and transfer firearms according to all federal, state, and local laws and requirements.

III. TERM.

3.01. CONTRACT AWARD. (a) This Contract shall be effective as of the date of the last party to sign and shall expire on August 31, 2027. The Contract may be renewed for two (2) additional two (2) year periods provided that renewal is executed prior to the expiration of the then current contract term. Any extension or renewal of this Contract shall be subject to the provisions, terms and conditions of this Contract, plus any 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.

(c) This Contract is contingent upon continued availability of funding. If funds become unavailable through lack of legislative appropriation, legislative budget cuts, amendment(s) of the Appropriations Act(s), state agency consolidations, or any other disruption of current appropriations, relevant provisions of Section 3.02, Termination, shall apply.

3.02. TERMINATION. (a) Termination with Default. TFC may terminate this Contract immediately for default by providing written notice to Contractor of such termination if 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 (hereinafter referred to as "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 3.02(c).

(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 Notice of Termination, do such work as may be necessary and be compensated only for such work as may be necessary as determined by the Contract Administrator to preserve the work in progress and to protect materials, properties, and equipment. 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 3.02(c) above. Contractor will be held responsible for additional cost incurred from the termination of this Contract.

3.03. UNSATISFACTORY PERFORMANCE. (a) If Contractor fails to maintain an acceptable level of service, or if in the judgment of the Contract Administrator, Contractor's methods are not adequate to ensure completion of all required services per the allotted schedules, the Contract Administrator may direct Contractor, at no additional cost to TFC, to revise work schedules or manpower/man-hours to ensure completion of the services. Failure to perform any of the obligations in this Contract shall be considered nonperformance of services and may result in informal corrective actions, formal corrective action plans, withholding of payment, and/or termination of this Contract.

(b) TFC may consider the following levels of performance by Contractor as unsatisfactory. An unsatisfactory performance determination includes, but is not limited to the following:

(i) repeated poor or unacceptable performance of work;

(ii) theft, abusive language or behavior, or improper attire on behalf of Contractor’s employees;

(iii) not providing the minimum required equipment, tools, supplies, materials, to employees as set forth in this Contract;

(iv) not correcting deficiencies forwarded by the Contract Administrator within forty-eight (48) hours;

(v) failure to cover costs associated with chargebacks;

(vi) failure to take corrective action within timelines identified in section 2.05, Contractor Responsibilities;

(vii) failure to collect and distribute payments, fees, taxes, and surcharges according to the time frame and specifications outlined in Section 2.07, Payment Collection and Distribution;

(viii) failure to maintain support as referenced in Section 2.03, Maintenance and

Support;

(ix) failure to maintain required documentation associated with a sale such as, but not limited to, buyer information and any required permits, licenses, certifications, credentials relating to restricted auctions such as those for gambling machine sales and firearms sales; and

(x) failure to maintain an active federal firearms license.

3.04. 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.

3.05. RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT. In the even 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.

3.06. NO LIABILITY UPON TERMINATION. If this Contract is terminated for any reason, 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.

IV. CONSIDERATION.

4.01. CONTRACT LIMIT AND FEES AND EXPENSES. The total amount of fees to be paid under this Contract shall be in accordance with Exhibit A – Compensation and Fees, attached hereto and incorporated herein for all purposes. Any changes to the fees set forth in Exhibit A – Compensation and Fees shall be submitted to TFC for review and shall be approved by amendment to this Contract.

4.02 PAYMENTS.

(a) For internet auctions, Contractor shall collect and account for all payments from auction buyers and buyers shall make payment to the Contractor. Contractor shall be responsible for all payments returned or rejected for any reason, including insufficient funds. Shortages in funds due to entry or collection errors will be the responsibility of Contractor. Any overages due to these errors will be refunded to Contractor by TFC.

(b) Contractor shall calculate and assess a Buyer's Premium from successful auctions as per Exhibit A - Compensation and Fees.

(c) Contractor shall identify taxable items and shall collect Federal, State and local taxes, where applicable and submit to TFC. Contractor shall collect sales tax on the buyer's premium unless the item is tax exempt or the buyer claims a valid tax exemption. Contractor will not collect a tax if an item is tax exempt or if the buyer claims a valid tax exemption.

(d) Contractor shall accept credit cards as an acceptable form of payment. At a minimum, Contractor shall accept Visa and MasterCard credit card payments. Contractor is responsible for all fees and costs associated with accepting credit card payments from auction buyers, including any buyer chargebacks on credit card.

(e) For sales made through internet auction, Contractor shall submit proceeds to TFC no later than five (5) business days after a sale. Contractor shall be responsible for collecting the emissions reduction surcharge for off-road, heavy-duty diesel construction equipment and all sales tax and remitting it to the appropriate taxing authority. Contractor shall retain its compensation and fees portion as specified in Exhibit A – Compensation and Fees.

4.03. REIMBURSABLE TRAVEL EXPENSES. Reasonable lodging and traveling expenses shall be considered a Reimbursable Expense under this Contract when Contractor personnel are away from the cities in which they are permanently assigned and are conducting authorized business directly connected with this Contract; provided however, Contractor must obtain the written approval of TFC prior to incurring the expense. For the purposes of this Agreement, no travel reimbursement shall be made for travel within 100 miles of the location identified as the principal place of business or branch office of Contractor, except for overnight stays, which require prior TFC Contract Manager approval. The maximum amount for each Reimbursable Expense for travel and lodging shall be the rates established by the Texas Comptroller of Public Accounts, and outlined in Textravel, https://fmx.cpa.state.tx.us/fmx/travel/textravel/index.php, formerly known as the State of Texas Travel Allowance Guide for state employees. No Reimbursable Expenses shall exceed actual cost.

V. CONTRACTOR PERSONNEL.

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

5.02. 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.

5.03. REMOVAL OF PERSONNEL. TFC may request that the Contractor replace unsatisfactory personnel, which request shall not be unreasonably denied.

5.04. CONTRACTOR COOPERATION. (a) Contractor agrees to conduct all of its services under this Contract by and through appropriate communications with the Contract Administrator. No work or other services shall be undertaken by Contractor except with the prior written direction of the Contract Administrator.

(b) Contractor agrees to employ competent personnel meeting the requirements outlined in the specifications, who shall be satisfactory to TFC. Personnel assigned to perform services under this Contract may not be reassigned without the prior written approval by the Contract Administrator. TFC may request that Contractor replace unsatisfactory personnel, which request shall not be unreasonably denied.

5.05. 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.

VI. STATE FUNDING.

6.01. 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.

VI. RECORDS, AUDIT, PROPRIETARY INFORMATION, AND PUBLIC

DISCLOSURE.

7.01. SUPPORTING DOCUMENTS, RETENTION; RIGHT 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.

7.02. 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.

7.03. 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).

7.04. 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.

7.05. 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.

7.06. 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.

7.07. 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.

7.08. CONFIDENTIALITY PROVISIONS APPLICABLE TO TFC.

Subject to the provisions of Section 7.09 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.

7.09. 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. Furthermore, Contractor is required to make any information created or exchanged with the State pursuant to this Contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public as specified by TFC at no additional charge to the State.

7.10. PUBLIC DISCLOSURE. No public disclosures or news releases pertaining to this Contract shall be made without prior written approval of TFC.

7.11. CYBERSECURITY TRAINING REQUIRED. If Contractor has “access,” as that term is defined in 1 Tex. Admin. Code § 202.1, to any state computer system or database, then, pursuant to Tex. Gov’t Code § 2054.5192, Contractor and its subcontractors, officers, and employees shall complete a cybersecurity training program certified under Tex. Gov’t Code §2054.519. The cybersecurity training program must be completed by the Contractor and its subcontractors, officers and employees during the term and any renewal period of the Contract. Contractor shall verify completion of the training program to TFC pursuant to, and in accordance with, Tex.

Gov’t Code § 2054.5192.

VIII. CONTRACTOR’S RESPONSIBILITIES AND WARRANTIES.

8.01 CONTRACTOR RESPONSIBILITIES. Contractor shall be responsible for damage to TFC’s equipment and or the workplace and its contents, by its works, its negligence in work, its personnel, or its equipment by Contractor’s staff or subcontractors. Contractor shall be responsible and liable for the safety, injury, and health of its working personnel while its employees are performing work for TFC.

8.02. PERFORMANCE STANDARDS. All work performed under this Contract shall be in accordance with applicable terms and conditions of this Contract and shall comply with all federal, state, and local laws.

8.03. WARRANTY ON SAFETY AND HEALTH REQUIREMENTS. Contractor shall procure, at Contractor’s expense, all necessary and required licenses and permits necessary for the performance of this Contract. Contractor represents and warrants that the services provided under this Contract comply with all applicable federal health and safety standards, including but not limited to, the Occupational Safety and Health Administration (OSHA), and all Texas health and safety standards.

8.04. NO LITIGATION WARRANTY. Contractor represents and warrants that it is not a party to or otherwise substantively involved in any matter involving litigation, or any administrative or regulatory proceeding, which, if decided adversely to Contractor’s interests, could be reasonably expected to adversely affect Contractor’s ability to fully and timely perform all of its obligations under this contract. Contractor agrees that in the event any action, event or circumstance occurs, that could be reasonably expected to adversely affect Contractor’s ability to fully and timely perform all of its obligations under this Contract, Contractor shall provide written notice to TFC of such action, event or circumstance, and shall continue to update TFC in writing every thirty

(30) days thereafter of the status of the action, event or circumstance, until otherwise directed by

TFC.

IX. INSURANCE, INDEMNIFICATION AND LEGAL OBLIGATIONS.

9.01. INSURANCE. (a) Prior to the commencement of work under this Contract, Contractor agrees to carry and maintain insurance in the following types and amounts for the duration of this Contract, to furnish certificates of insurance including corresponding policy endorsements, and make available, at no cost to TFC, copies of policy declaration pages and policy endorsements as evidence thereof:

(b) Workers’ Compensation and Employers’ Liability coverage with minimum policy limits for employers’ liability of $100,000.00 bodily injury per accident, $500,000.00 bodily injury disease policy limit and $100,000.00 per disease, per employee. Workers’ compensation insurance coverage must meet the statutory requirements of Texas Labor Code, Section 401.011(46). In accordance with Tex. Lab. Code §406.096, Contractor shall submit written certification of workers’ compensation and employers’ liability coverage with limits provided in this Section 8.02(b) and, in accordance with Tex. Lab. Code §406.096(b) Contractor shall require each Subcontractor to certify in writing to the Contractor that said Subcontractor provides workers’ compensation and employers’ liability for all of Subcontractor’s employees employed on this public project. Owner shall be entitled, upon request and without expense, to receive copies of these Certifications.

(c) Commercial General Liability with a combined single limit of $1,000,000.00 per occurrence for coverage A and B including products/completed operations, where appropriate, with a separate aggregate of $1,000,000.00 for bodily injury and for property damages. The general aggregate limit shall apply on a per project basis. The policy shall contain the following provisions:

(i) blanket contractual liability coverage for liability assumed under the Contract;

(ii) independent contractors’ coverage;

(iii) State of Texas, TFC, its officials, directors, employees, representatives and volunteers must be listed as additional insureds;

(iv) thirty (30) day Notice of Cancellation in favor of TFC; and

(v) Waiver of Transfer Right of Recovery Against Others in favor of TFC.

(d) Business Automobile Liability Insurance for all owned, non-owned and hired vehicles with a minimum combined single limit of $500,000.00 per accident for bodily injury and property damage.