ESBD_429609_1750435695662_Attachment A - RFP 0004145 Doors Contract template FINAL.pdf

INSTRUCTIONS TO ALL RESPONDENTS

RFP PR-0004145

SERVICE CONTRACT FOR

DOORS, COILING GRILLES, TURNSTILES, VEHICLE BARRIERS, DOCK

LEVELERS AND LOCKSMITHING

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, Statement of Work Article 2, Term Article 3, Consideration Article 4, Contractor Personnel, Sections 4.02 through and including 4.05 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 A, Criminal Background Checks and Application Guidelines Exhibit C, TFC Building and Equipment List and Device Counts.

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 Service 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 versions of Exhibit B, Compensation and Fees, as necessary, to Procurement who will review and then forward them to General Counsel Division for incorporation into the service contract.

Lia Edwards Date Assistant General Counsel

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

RFP No. 0004145

SERVICE CONTRACT

FOR

DOORS, COILING GRILLES, TURNSTILES, VEHICLE BARRIERS, DOCK

LEVELERS AND LOCKSMITHING

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 Contract Name] (hereinafter referred to as “Contractor”), located at [Insert] enter into the following contract for door, gate, loading dock leveler installation, maintenance and repair services (hereinafter referred to as the “Contract”) pursuant to Tex. Gov’t Code Chapter 2165, Sections 2165.001 and 2156.121.

I. STATEMENT OF WORK.

1.01. GENERAL. (a) Contractor shall provide installation, repair and maintenance services for:

doors, including but not limited to wood, glass, metal, fire-rated; automatic and manual door closers; sliding, swinging, folding, and revolving doors; hatches; gate operators; parking toll equipment; coiling grilles; turnstiles; vehicle barriers; dock levelers; and locksmithing services in various facilities managed by TFC and located throughout Texas. Locksmithing services may include, but are not limited to, after-hours lockout services, re-coring of locks, replacement of cores, keys, audit reports of keys made, and key software. Locksmithing services shall adhere to TFC standard key codes. TFC reserves the option of purchasing either labor, or both labor and materials, from Contractor.

(b) TFC may, from time to time, initiate projects and identify door installation, repair and/or maintenance services to Contractor and document such services through a separate Purchase Order issued under this Contract (hereinafter referred to as a “Purchase Order,” or “PO”). Such Purchase Orders will be subject to the provisions, terms and conditions set forth in this Contract, and shall include a description of the project assignment, scope of services, schedule and term, and compensation specific to the Purchase Order which shall be negotiated at the time of such Purchase Order. Any work completed by Contractor without a such a Purchase Order will not be paid by TFC.

(c) Potentially required services shall include, but not be limited to, service of overhead doors, gate operators, loading dock levelers, automatic doors, door openers, sliding doors, rotating sectional doors, turnstiles, outdoor rolling gates, coiling grilles, vehicle barriers, hatches and locksmithing.

(d) Contractor shall be able to respond to emergency service requests twenty-four

(24) hours per day, seven (7) days per week including holidays.

(e) Emergency services are defined as a repair situation where a door or gate will not lock, open or close, either manually or electronically, to allow for entry and exit. The need for immediate repair will be determined and approved by the TFC Contract Administrator (hereinafter referred to as the “TFC Contract Administrator.” The term, TFC Contract Administrator, shall include her or his designated representative).

(f) Contractor understands and agrees that no guaranteed minimum number of

Purchase Orders, or amount(s) of work are guaranteed to be required under this Contract.

(g) Upon receipt of a Purchase Order, Contractor shall respond to the TFC Contract Administrator, as defined in Section 1.04 of this Contract, on-site with same or next day service.

Contractor shall perform all work under a Purchase Order within the timeframe agreed upon. In the event that repairs cannot be completed at time of service, the following information shall be provided to TFC Contract Administrator:

(i) the reason why repair cannot be completed; and,

(ii) the timeline for when repairs will be completed.

(g) 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 “Normal Hours”). It is understood by TFC and Contractor that there may be instances in which work must be completed outside of Normal Hours (hereafter referred to as “Premium Hours”).

Such work shall be pre-authorized by TFC. Contractor will be on-call twenty-four (24) hours per day, 365 days per year and respond to TFC Contract Administrator.

(h) 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 by the next business day.

(B) Contractors should be available for the job site walkthrough within four business (4) days or at the discretion of the TFC Contract Administrator .

(ii) Emergency Request:

(A) Contractor shall respond to the initial request of the TFC Contract Administrator and arrive on site within two (2) hours.

(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) day of the initial call, followed by a fully approved Purchase Order.

1.02. INSTALLATION AND REPAIRS. All work shall be in strict accordance with federal, state, and local codes and ordinances and comply with the Occupational Safety and Health Administration (OSHA) requirements and the Americans with Disabilities Act Accessibility Guidelines.

1.03. MATERIALS. All equipment and materials installed by Contractor shall match and be comparable with existing equipment and materials. Equipment and materials utilized by Contractor shall be of equal or better quality than existing equipment and materials.

1.04. 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 the Contractor. 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 the materials and the work at all times for measuring and inspecting the work, and Contractor is to afford the TFC Contract Administrator all necessary facilities and assistance. 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 the Contract. Failure of the TFC 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. The TFC 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 TFC Contract Administrator. Contractor understands and agrees that work, installation or any other service performed without the prior written direction of the TFC Contract Administrator is work outside the scope of this Contract and shall be performed exclusively at Contractor's risk and own expense.

1.05. PERFORMANCE REQUIREMENTS. Contractor’s performance shall include, but not be limited to, the following when performing door services.

(i) All technicians shall be certified by the American Association of Automatic Door Manufacturers (AAADM) or equivalent certification. No manufacturer certifications are required. All locksmiths shall be licensed by the Texas Department of Public Safety’s Private Security Bureau.

(ii) Contractor must have a minimum of 3 (three) qualified technicians on staff in Austin area (see Paragraph iv).

(iii) Contractor must have a minimum of 3 (three) years’ experience performing services in populated office buildings.

(iv) Contractor must maintain a branch/office within the Texas Department of Transportation’s Highway District 14 (includes Bastrop, Blanco, Burnet, Caldwell, Gillespie, Hays, Lee, Llano, Mason, Travis and Williamson counties).

1.06. SECURITY AND IDENTIFICATION. Contractor shall abide by all procedures and rules as conveyed by the TFC Contract Administrator regarding security requirements of the property where work is to be performed. Contractor employees must wear either uniforms or appropriate clothing identifying them as employees of the Contractor at all times when working in TFC facilities. Shorts and/or muscle shirts shall not be worn at any time. Contractor personnel must each have a TFC supplied identification badge visible at all times when working in TFC facilities. Contractor personnel cannot share TFC supplied identification badges.

1.07. 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 A, Criminal Background Checks and Application Guidelines, attached hereto and incorporated herein for all purposes. At the discretion of the TFC Contract Administrator, fingerprinting and criminal background checks may be completed through the TFC Badging Office.

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 the 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 employees, vehicles, or equipment enter or move upon any area not authorized by the TFC Contract Administrator for access by Contractor.

1.09. 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.

1.10 DAMAGE TO EXISTING STRUCTURES AND UTILITIES. (a) Contractor shall be responsible for all damage to existing facility, utilities, or previously completed work resulting from the acts or omissions of its staff or subcontractors. Contractor shall protect the work, TFC’s property, utilities, 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

1.11. WASTE REMOVAL. Contractor shall keep the premises clean on a continual basis, and no trash or debris will be permitted to accumulate in work areas. Contractor shall be responsible for removal and disposal of all debris and waste materials associated with this Contract.

1.12. SMOKING. All TFC facilities where work is to be performed are nonsmoking buildings.

Contractor’s employees are prohibited from smoking or vaping in all areas except in areas designated for smoking.

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 Hours or Premium 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) facility 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.

II. TERM.

2.01 CONTRACT AWARD. (a) This Contract shall be effective as of the date signed by the last party and shall expire on August 31, 2027, unless extended by the parties by amendment to this Contract or terminated earlier, as provided in Section 2.02. The Contract may be renewed for one

(1) additional two (2) year period, provided the renewal is signed by the parties prior to the expiration of the then-current Contract term. TFC may request an extension not to exceed three

(3) months for purposes of re-solicitation and for no other purpose. 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 resolicit 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).

(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 the 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). Contractor will be held responsible for additional cost incurred from the termination of this Contract.

2.03. 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.

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

(a) Failure by Contractor to keep HSP compliant.

(b) two (2) or more Callbacks to correct a problem within thirty (30) calendar days or three (3) or more Callbacks in a six month period;

(c) two (2) or more instances within one (1) calendar year of Contractor personnel assigned to an authorized service call not having the skill or knowledge to diagnose the problem and/or perform the inspection/repair;

(d) two (2) or more instances within one (1) calendar year of exceeding the response time as defined in Section 1.01 (d); three (3) or more instances within one (1) calendar year of not arriving at job site at agreed upon schedule;

(e) one (1) or more complaints of inappropriate language or behavior within one (1) month;

(f) three (3) or more instances within one (1) calendar year of invoices not being submitted accurately and within the required time after service completion; or

(g) two (2) or more instances within a three (3) month period of not provided corrected quotes when requested.

2.05. 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

2.04 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 set forth in this paragraph, shall entitle TFC to avail itself of one or more of the following remedies at TFC’s sole and absolute discretion:

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

(ii) TFC’s termination of this Contract.

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

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

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

(ii) TFC’s imposition of liquidated damages on Contractor in an amount equal to ten percent (10%) of the amount of compensation otherwise payable by TFC to

Contractor under this Contract for work performed during the three (3) calendar month period preceding the date the most recently submitted Corrective Action Plan was approved by the TFC Contract Administrator; or

(iii) TFC’s termination of this Contract.

2.06. 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.

III. CONSIDERATION.

3.01. CONTRACT LIMIT AND FEES AND EXPENSES. The total amount of this Contract shall not exceed the sum of [enter amount]. Pricing fees will be invoiced in accordance with Exhibit B, Compensation and Fees, attached to this Contract and incorporated for all purposes. Any changes to the not-to-exceed amount or pricing fees set forth in Exhibit B shall be submitted to TFC for review and shall be approved by amendment to this Contract.

3.02. PAYMENTS TO CONTRACTOR. (a) Payments to Contractor will be made on a monthly basis and within thirty (30) days from receipt of a correct invoice or billing statement in accordance with the Texas Government Code, Chapter 2251, Texas Prompt Payment Act. An invoice is considered received on the date it is date stamped by TFC. Contractor will be paid for completion of work accepted and approved by 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 the TFC Contract Administrator.

(c) Contractor shall invoice TFC for work performed by Contractor identification number, building, and purchase order number. Invoices 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.

IV. 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 personnel, organization and facility to properly fulfill all the terms and conditions of this Contract. In addition, Contractor’s personnel shall demonstrate that they meet or exceed the following qualifications:

(a) Contractor principals and employees shall have five (5) years of experience performing door services similar in size and scope in buildings similar to those listed in Exhibit C, TFC Building and Equipment List. Contractor shall also have experience within the past five

(5) years of managing a contract with the scope and size of this Contract, and

(b) Field technicians and subcontractors who will be performing the services required under this Contract shall hold a valid American Association of Automatic Door Manufacturers (AAADM) or equivalent certification throughout the life 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 A, Criminal Background Checks and Application Guidelines.

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

4.04. 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 the TFC Contract Administrator who will resolve the conflict.

4.05. 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, 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.

V. 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.

VI. RECORDS, AUDIT, PROPRIETARY INFORMATION,

AND PUBLIC DISCLOSURE.

6.01. 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.

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, including technological system plans (e.g., information technology systems, security systems, fire controls and building automated systems) in any format including, but not limited, CAD files (dwg, dxf), building information management and modeling (BIM) files (rvt, rfa).

(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 or any part of the Confidential Information under the terms of the Texas Public Information Act, a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, Contractor shall, as appropriate:

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

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

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

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

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

6.09. PUBLIC RECORDS. Notwithstanding any provisions of this Contract to the contrary, Contractor understands that TFC will comply with the Texas Public Information Act, Texas Government Code, Chapter 552. If contacted by TFC, Contractor will cooperate with TFC in the production of documents responsive to the request. Contractor agrees to provide the documents responsive to the request in the format and within the time frame specified by TFC. Contractor may request that TFC seek an opinion from the Office of the Texas Attorney General. However, the final decision whether to seek a ruling from the Office of the Texas Attorney General will be made by TFC in its sole discretion to comply with the legal requirements of the Texas Public Information Act. Additionally, Contractor will notify TFC’s General Counsel within twenty-four (24) hours of receipt of any third-party requests for information written, produced, collected, assembled, or maintained in connection with this Contract and/or any amendment to this Contract. This Contract and/or any amendment to this Contract and all data and other information generated or otherwise obtained in its performance is subject to the Texas Public Information Act. Contractor agrees to maintain the confidentiality of information received from the State of Texas during the performance of this Contract, including information which discloses confidential personal information particularly, but not limited to, social security numbers. 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.

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

6.11. CYBER DATA 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.

VII. CONTRACTOR’S RESPONSIBILITIES AND WARRANTIES.

7.01. 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.

7.02. PERFORMANCE STANDARDS. (a) 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, rules, codes and ordinances and comply with OSHA rules and regulations.

(b) All Contractors shall be licensed and qualified in accordance with the requirements of this Contract.

(c) Appropriate dress is required for all personnel. Prohibited attire includes, but is not limited to, the following:

(i) athletic clothing and lounge attire of any type;

(ii) clothing that displays offensive messages (picture or print);

(iii) clothing that is see-through, low cut, or bares the midriff;

(iv) shorts; and

(v) flip-flop sandals.

(d) Eating is prohibited on job sites except in designated cafeterias.

(e) All facilities where work is to be performed are professional environments.

Contractor employees using inappropriate language or behaving in an inappropriate manner will be asked to leave the premises and documented by the TFC Contract Administrator.

(f) Contractor shall provide temporary restrooms or portable toilets unless otherwise designated. It is recommended that a separate woman’s toilet be provided. Use of only these facilities will be enforced by Contractor. Toilets will be located with consideration of adjacent property and maintained on a scheduled basis.

(g) All Contractor employees on job site will:

(i) wear clean uniforms in good repair daily;

(ii) keep shirttail tucked in during business hours;

(iii) bathe daily and be clean at the start of the work day;

(iv) wash hair daily, comb or brush before starting work and keep trimmed;

and

(v) be clean shaven or if facial hair is present, keep trimmed.

(h) Contractor shall use marked company vehicles when performing services under this Contract.

7.03. 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, OSHA, and all Texas health and safety standards.

7.04. PERFORMANCE WARRANTY. All work performed under this Contract shall be in accordance with applicable terms and conditions of this Contract and of local codes and ordinances and any other authority having lawful jurisdiction. Work performed under this Contract shall meet all applicable requirements of the latest revision of the NFPA codes.

Contractor shall guarantee all work included in the Contract against any defects in workmanship and shall satisfactorily correct, at no cost to TFC, any such defect that may become apparent within a period of one (1) year after completion of work. The warranty period shall commence upon the date of acceptance by TFC.

7.05. MATERIAL WARRANTY. All material and equipment furnished under this Contract is guaranteed by Contractor to be in compliance with this Contract, fit and sufficient for the purpose…