ESBD_533556_1782861607645_Attachment D - Professional Services Agreement.pdf

INSTRUCTIONS TO ALL RESPONDENTS FOR RFQ NO. 0008571

PROFESSIONAL SERVICES AGREEMENT FOR EXTERNAL

CONSTRUCTION AUDIT SERVICES

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

2. Other than for typographical or scrivener’s errors, TFC will not consider any exceptions and/or requests for modification submitted after the date and time for submission of questions.

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

Article 1, Definitions Article 3, Term Article 4, Consideration Article 5, PSP’s Representations, Responsibility and Liability Article 6, PSP General Affirmations Article 7, State Funding Article 8, Copyrights and Rights in Data Article 9, Records, Audit, Proprietary Information and Public Disclosure Article 10, Insurance and Legal Obligations Article 11, Miscellaneous Provisions

Exhibit B. SAO Audit Delegation Request 303-2026-001 Exhibit C. Approved HUB Subcontracting Plan Exhibit D. HUB Subcontracting Plan Form Exhibit E. HUB Subcontracting Plan Progress Assessment Report Form

4. The Professional Services Agreement 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.

5. Upon notice of award, awardee shall submit final, negotiated version of Exhibit A, PSP’s Approved Proposal, to the General Counsel Division and to the Project Manager for incorporation into the Professional Services Agreement.

Lia Edwards Date: June 30, 2026 Lia Edwards Assistant General Counsel

PROFESSIONAL SERVICES AGREEMENT FOR

EXTERNAL CONSTRUCTION AUDIT SERVICES

BY AND BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[CONTRACTOR NAME]

TFC Contract XX-XXX

RFQ No. 0008571

TFC Contract No. [XX-XXX] [Contractor Name]

PROFESSIONAL SERVICES AGREEMENT FOR

EXTERNAL CONSTRUCTION AUDIT SERVICES

BETWEEN

THE TEXAS FACILITIES COMMISSION

AND

[CONTRACTOR NAME]

The Texas Facilities Commission (hereinafter referred to as “TFC”), a state agency located at 1711 San Jacinto Boulevard, Austin, Texas 78701 and [Contractor Name](hereinafter referred to as “Professional Services Provider,” or “PSP”), located at[Address, State, City, Zip Code], enter into the following Agreement for professional external construction audit services (hereinafter referred to as the “Agreement”) pursuant to Texas Government Code, Chapter 2254, Subchapter B.

I. DEFINITIONS.

1.01. DEFINITIONS. Unless specifically provided otherwise, all words and phrases in this Agreement in initial caps shall have the meanings set out in this Section 1.01.

Supplementary General Conditions means the Supplementary General Conditions to the State of Texas 2015 Edition of the Uniform General Conditions for Construction Contracts, published on TFC’s website at https://web.tfc.texas.gov/home/showpublisheddocument/112/638693388683130000

2018 Architectural/Engineering Guidelines means the 2018 A/E Guidelines publish edit date March 9, 2018, a copy of which is published on TFC’s website at:

https://web.tfc.texas.gov/home/showpublisheddocument/140/638693389393400000.

2018 Supplementary General Conditions means the Supplementary General Conditions issued the State of Texas, published date of 2018, a copy of which is published on TFC’s website at: https://web.tfc.texas.gov/home/showpublisheddocument/174/638693390476870000

2025 Supplemental General Conditions means the 2025 Supplemental General Conditions to the State of Texas 2025 Edition of the Uniform General Conditions for Contracts, as may be amended from time to time, a copy of which is published on TFC’s website at:

https://web.tfc.texas.gov/home/showpublisheddocument/1136/638978455823530000.

A/E means the architect and/or engineer with whom TFC has entered into a professional services agreement to perform design services for a construction project.

Agreement means this Agreement, or the agreement or contract between TFC and a PSP, whereby the PSP agrees to provide professional external audit services, as those terms are defined in an audited contract, to fully complete a Scope of Work as set forth in the contract.. In this Professional External Construction Audit Services Agreement, when not referring to this Agreement, the terms agreement and contract, are interchangeable and do not appear in initial caps.

https://web.tfc.texas.gov/home/showpublisheddocument/112/638693388683130000 https://web.tfc.texas.gov/home/showpublisheddocument/140/638693389393400000 https://web.tfc.texas.gov/home/showpublisheddocument/174/638693390476870000 https://web.tfc.texas.gov/home/showpublisheddocument/1136/638978455823530000

Contract has the meaning assigned in Agreement, above and will not appear with initial caps.

Contractor may include a general contractor, Construction Manager at Risk (“CMR”), Design-Build Firm (“DBF”), Job Order Contractor (“JOC”), Project Management Firm (“PMF”) or any other vendor performing construction services.

Construction Manager-at-Risk or CMR or Contractor means that entity designated by TFC to provide preconstruction and construction services set forth in CMR’s contract.

Construction Management Services means the comprehensive construction and management services to be provided to TFC by CMR as specified in CMR’s contract.

Design-Build (“D-B”) means the construction delivery method authorized by Texas Government Code, Chapter 2269, Subchapter G.

Design-Build Firm or DBF or Contractor means the entity designated by TFC to provide design build services as set for the in DBF’s contract.

General Conditions means those items and related costs that are defined in General Conditions Costs, below.

General Conditions Costs are those reimbursable expenses allowed pursuant to Texas Government Code, Section 2269.001(4), including CMR’s on-site management and administrative personnel, insurance, bonds, and incidental Work, including minor field labor and materials.

Job Order Contracting is the procurement method authorized by Texas Government Code Chapter 2269, Subchapter I, for maintenance, repair, alteration, renovation, remediation, or minor construction of a facility when the work is of a recurring nature, but the delivery times, type, and quantities of work required are indefinite.

Job Order Contractor (“JOC”) means an entity designated by TFC to provide services under a Job Order contract.

Owner as defined in UGC Section 1.28 means TFC.

Professional Services means services provided pursuant to Texas Government Code Section 2265.002 within the scope of accounting and auditing and which are conducted and overseen by a person licensed as a certified public accountant (“CPA”).

Professional Services Provider (“PSP”) means the Party to this Agreement providing Professional Services as defined immediately above, licensed and practicing as a CPA in Texas pursuant to Chapter 901 of the Texas Occupations Code.

Project Management Firm or “PMF” means the service provider with whom TFC enters into a Project Management Firm Professional agreement for Professional Services (the “Project Management Firm Professional Agreement”) for the purpose of the PMF providing certain professional project management services for a Project, as those terms are defined in an audited contract, which may include, among other services, general Project management, strategic Project planning, Project Site planning, operational planning, capital expenditure planning, budgetary impact analysis, and/or Project controls.

Subcontract means any agreement between a Contractor and a Subcontractor.

Subcontractor is defined in UGC Section 1.42.

Uniform General Conditions or “UGC” means either the 2015 Uniform General Conditions issued by the State of Texas, published date of 2015, as may be amended from time to time, a copy of which is published on TFC’s website at:

https://web.tfc.texas.gov/home/showpublisheddocument/110/638693388679670000; or the 2025 Uniform General Conditions issued by the State of Texas, published date of 2025, as may be amended from time to time, a copy of which is published on TFC’s website at:

https://web.tfc.texas.gov/home/showpublisheddocument/1042/638961416912130000.

II. SCOPE OF SERVICES.

2.01. SCOPE OF SERVICES. (a) In accordance with the provisions of Texas Government Code, Chapter 2254, Subchapter A, Professional Services, and Rules and Procedures adopted by TFC, PSP shall:

(i) provide construction auditing services for Project Management Firms (PMF), Architects and Engineers (A/E), design-build (D-B) ,Construction Manager-at-Risk (CMR), Job Order Contracting,(JOC), general contractor (GC), or any other contracts involving construction from cradle to grave in accordance with the terms, conditions and requirements set forth herein.

(a) Specific requirements include, but are not limited to performing a review of billings for compliance with the following: contract, amendments to the contract, procurement, response to procurement and terms of contracts.

1. Provide input to TFC and monitor implementation of guidelines for cost tracking on the project:

2. Provide input and guidance to TFC regarding consistent project accounting and tracking methodologies.

3. Provide input and guidance to TFC regarding the establishment of acceptable schedule of values for the construction project.

(ii) validate appropriate general conditions payments as part of the monthly application for payment process:

1. Review monthly billings for compliance with terms of contract.

https://web.tfc.texas.gov/home/showpublisheddocument/110/638693388679670000 https://web.tfc.texas.gov/home/showpublisheddocument/1042/638961416912130000

2. Review monthly payment applications for payment requests as needed and review the underlying documentation to determine whether amounts are reimbursable and reasonable in accordance with the terms of the contract.

3. Periodic review of vendor records to ensure A/Es, Contractors or subcontractors and purchase amounts align with the approved milestones and schedule of values.

4. Review and confirm appropriate support for all general conditions and reimbursable payments.

5. Periodic review of vendor records to ensure HUB expenditures are accurate.

6. Review the Contractor or subcontractor’s current schedule of values and compare to what is billed on the Owner payment application.

7. Reconcile the final Contractor application and certificate for payment for selected line items to the Contractor cost reports and schedule of construction costs incurred to date as submitted by the Contractor.

(iii) Review and provide analysis of change proposals and change orders, including but not limited to:

1. Confirm that proposed changes are appropriate in terms of original scope of project.

2. Review of subcontractor status reports to determine change order activity by subcontractor.

3. Review a sample of change order requests submitted by the Contractor and determine whether amounts are reimbursable in accordance with the terms of the contract. Review a sample of subcontract change orders for compliance with the contract.

4. Verification of appropriate markup per contract.

5. Confirmation of reasonableness of change proposal/order pricing.

6. Review of change orders and ensure that any planned specifications and/or quantities are reconciled.

(iv) Monitor and track project expenditures:

1. Review and provide recommendations to Owner regarding efficient and effective project expenditure monitoring.

2. Monitor payments for compliance with contractual terms and Owner policy and procedures.

3. Review documentation of determination and review of “best value” subcontract selections by Contractor.

4. Review cost and contingency tracking, allowances, buyout savings, and identified cost recoveries.

(v) Provide reviews to confirm the reasonableness of Contractor(s) and consultant(s) estimates. Such reviews might include but not be limited to:

1. Analyze the Contractor accounting for “allowance” and “contingency” items and verify that they have been incurred in accordance with the terms of the contract. Review of subcontracts for allowances and back charges.

2. Determine whether the Contractor charges for labor and labor burden, materials and equipment are in accordance with the terms of the contract.

3. Review the Contractor method for computation of any construction cost to be reimbursed requiring prior approval by TFC if required by the contract.

4. Select a sample of costs incurred by Contractor and determine if there are any credits due from the Contractor related to discounts, rebates, sales of surplus material, dividends, and refunds of any nature and determine whether the credits have been properly applied for the benefit of TFC.

5. Review calculations of shared savings, when applicable.

6. Verify that all specified bonds and insurance are actually purchased by the Contractor for the specified amount as stated in the contract.

7. Obtain from the Contractor copies of subcontractor agreements between the Contractor and its respective subcontractors.

8. Assess documentation for status of lien waivers and final lien waivers.

9. Review for any job-owned equipment to ensure that appropriate credit is received for all equipment purchased and charged to the job.

(vi) Attend various meetings at the Owner’s request, including but not limited to:

1. Monthly pay application meetings.

2. Meetings to resolve issues and payment concerns with Contractor, subcontractor, design professional, or consultant.

(vii) Provide written reports as needed of activities and results of expenditure reviews, monitoring activities, and project cost tracking:

1. Written report summarizing the results of the reviews, any potential cost recovery items, recommendations, and conclusions related to the objectives of the construction audit services.

2. Documentation such as project expenditure progress report, analysis worksheets, document exhibits, and any other work performed to support conclusions, as requested.

(viii) Provide report of benchmarks, best practices, and recommendations with training to TFC regarding topics of the report.

(ix) Other services as requested by the Owner including, but not limited to, contract language effectiveness reviews during contract development, cost avoidance evaluations, GMP reasonableness and compliance reviews, during pre-construction, and providing training to Owner process stakeholders.

(x) State Auditor’s Office (SAO) Requirements. TFC will coordinate with PSP to fulfill the following related to SAO’s Delegation of Authority 303-2026-001, attached hereto and incorporated herein for all purposes as Exhibit B:

1. SAO will receive a copy of the contract between TFC and PSP.

2. SAO will receive a copy of PSP’s final report.

3. SAO will have access to working documentation related to procured services.

4. SAO will have access to all draft and final reports and memoranda of discussions with TFC management.

5. SAO will receive reports resulting from a peer review that PSP receives after entering into a written agreement resulting from the delegation.

(xi) In accordance with records retention requirements, PSP will maintain all evidence and work products in the performance of this Agreement.

(b) In performing Professional Services PSP shall be bound by, and comply with, PSP’s Proposal approved by TFC and dated [insert proposal date], attached hereto and incorporated herein by reference for all purposes as Exhibit A.

III. TERM.

3.01. TERM. This Agreement shall be effective as of the date executed by the last party to sign it, and shall continue for a period of three (3) years, unless terminated earlier, as provided below. The parties by written amendment may exercise an option to renew the Agreement for one period of three

(3) years executed prior to the termination date. By mutual consent of the parties evidenced by an amendment to the Agreement, individual assignments may continue after the expiration of the underlying Agreement.

3.02. RIGHTS UPON TERMINATION OR EXPIRATION OF AGREEMENT. In the event that the Agreement is terminated for any reason, or upon its expiration, TFC shall retain ownership of all associated work products and documentation obtained from the PSP under this Agreement.

3.03. NO LIABILITY UPON TERMINATION. If this Agreement is terminated for any reason, TFC and the State of Texas shall not be liable to PSP 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.

3.04. EARLY TERMINATION. This Agreement may be terminated by either party by giving written notice specifying a termination date at least thirty (30) days subsequent to the date of the notice. Upon receipt of any such notice, PSP shall immediately cease work and undertake to terminate any relevant subcontracts and shall incur no further expense related to this Agreement.

Such early termination shall be subject to the equitable settlement of the respective interests of the parties accrued up to the date of termination.

IV. CONSIDERATION.

4.01. CONTRACT LIMIT AND FEES AND EXPENSES. (a) The total amount of this Agreement shall not exceed the sum of [___________] ($____), inclusive of reimbursable expenses, for each term of the Agreement. All fees and expenses that may be payable pursuant to this Agreement shall be as set forth in this Agreement, and will be determined as a result of negotiations between the parties based upon the services to be rendered.

(b) Reasonable lodging and traveling expenses shall be considered a Reimbursable Expense under this Agreement when professional and technical personnel of PSP are away from the cities in which they are permanently assigned and are conducting authorized business directly connected with this Agreement. 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 PSP, except for overnight stays, which require prior approval of the TFC Internal Auditor. 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.

In addition to those items specifically identified above as a Reimbursable Expense, permit fees and associated costs, certain other incidental direct expenses including, but not limited to, copying, telephone, data, and express mail services, and rental of special equipment or tools required in connection with provision of the Professional Services, may constitute a Reimbursable Expense;

provided however, PSP must obtain the written approval of the TFC Internal Auditor prior to incurring the expense. Approval may be granted only under those limited circumstances wherein such costs are not considered normal or customary basic services under this Agreement. All requests for reimbursement must be accompanied by such documentation which, in the judgment of TFC, allows for complete substantiation of the costs incurred.

(c) Changes in the Scope of Services affecting the cost of services provided shall be approved by an Amendment to this Agreement executed by the parties. No compensation will be allowed for work performed without such Amendment.

4.02. PROMPT PAYMENT. PSP shall be paid in accordance with Chapter 2251 of the Texas Government Code, also known as the “Prompt Payment Act”. Any professional services performed or delivered by PSP prior to the effective date of this Agreement or after the termination of this Agreement cannot be compensated.

4.03. PAYMENTS TO SUBCONSULTANTS. For all services rendered, PSP’s payment to subconsultants is due within ten (10) days after receipt of payment from TFC and, when appropriate, TFC shall issue joint checks to the PSP and subcontractors.

https://fmx.cpa.state.tx.us/fmx/travel/textravel/index.php

V. PSP’S REPRESENTATIONS, RESPONSIBILITY AND LIABILITY.

5.01. PERFORMANCE REPRESENTATIONS. (a) PSP represents that all services provided by PSP under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. PSP represents that any work which is specified to be delivered under this Agreement and which are to be paid for by TFC (collectively, the “Deliverables”) under this Agreement shall be:

(i) completed in a manner consistent with standards in the applicable trade, profession, or industry; and

(ii.) conform to or exceed the specifications set forth in this Agreement.

(b) If PSP fails to provide or satisfactorily perform any of the conditions, work, or

Deliverables called for by this Agreement within the time requirements specified, then TFC may require PSP to:

(i) repair or replace, at PSP’s expense, any or all defective or damaged Deliverables;

(ii) refund any payment received for any defective or damaged Deliverables and, in conjunction therewith, require PSP to accept the return of any defective or damaged Deliverables at PSP’s sole expense; and/or

(iii) take necessary action to provide that future performance conforms to the Agreement requirements at PSP’s sole expense.

VI. PSP GENERAL AFFIRMATIONS.

6.01. FINANCIAL INTERESTS/GIFTS. (a) Pursuant to Texas Government Code Sections

572.051 and 2255.001 and Texas Penal Code, Section 36.09, PSP has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this Agreement.

(b) Pursuant to Texas Government Code, Chapter 573 and Section 2254.032, if applicable, PSP certifies that PSP knows of no officer or employee of TFC, nor any relative within the second degree of consanguinity or affinity of an officer or employee of TFC, that has a financial interest in PSP’s company or corporation. PSP further certifies that no partner, corporation, or unincorporated association which employs, retains or contracts with, or which may employ, retain, or contract with any of the above, has a financial interest in any entity with which PSP will be dealing on behalf of TFC.

6.02. ELIGIBILITY. PSP certifies that the individual or business entity named in this Agreement is not ineligible to receive the specified Agreement and acknowledges that this

Agreement may be terminated and payment withheld if this certification is inaccurate pursuant to Texas Government Code, Section 2155.004(b).

6.03. FAMILY CODE. Pursuant to the requirements of the Texas Family Code, Section 231.006, regarding delinquent child support, the individual or business entity named in this Agreement is not ineligible to receive payment under this Agreement and, if applicable, PSP has provided, prior to its execution of this Agreement, shall provide the name and social security number of each such person (sole proprietors, firm owners, partners, or shareholders) holding at least twenty-five percent (25%) ownership of the business entity entering into this Agreement. PSP acknowledges that this Agreement may be terminated and payment may be withheld if this certification is inaccurate.

6.04. DEBTS OR DELINQUENCIES TO STATE. PSP understands and agrees that any payment due under this Agreement may be applied toward payment of any debt that is owed to the State of Texas including, but not limited to, delinquent taxes and child support pursuant to Texas Government Code, Section 403.055.

6.05. GENERAL AND CRIMINAL BACKGROUND CHECKS. (a) PSP shall conduct, or has conducted, a criminal background check at its own expense on each of its employees engaged in providing services under this Agreement prior to the commencement of such services. PSP’s employee shall be eligible to perform services for the Company if he or she, to such PSP's knowledge: (i) has not been convicted of or was placed in a pre-trial diversion program for any crime involving dishonesty or breach of trust including, but not limited to, check kiting or passing bad checks; embezzlement, drug trafficking, forgery, burglary, robbery, theft, perjury;

possession of stolen property, identity theft, fraud, money laundering, shoplifting, larceny, falsification of documents; and/or (ii) has not been convicted of any sex, weapons or violent crime including but not limited to homicide, attempted homicide, rape, child molestation, extortion, terrorism or terrorist threats, kidnapping, assault, battery, and illegal weapon possession, sale or use.

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

6.06. E-VERIFY. By entering into this Agreement, PSP certifies and ensures that it utilizes and will continue to utilize, for the term of this Agreement, 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: all persons employed to perform duties within the State of Texas, during the term of the Agreement; and all persons, including subcontractors, assigned by the PSP to perform work pursuant to the Agreement, within the United States of America. PSP 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 PSP, and PSP’s subcontractors, as proof that this provision is being followed. If this certification is falsely made, the Agreement may be immediately terminated, at the discretion of

TFC, and at no fault to TFC, with no prior notification. PSP shall also be responsible for the costs of any re-solicitation that TFC must undertake to replace the terminated Agreement.

6.07. BUY TEXAS. If PSP is authorized to make purchases under this Agreement, PSP certifies that PSP will buy Texas products, services, and materials when available at a comparable price and in a comparable period of time pursuant to Texas Government Code, Chapter 2155.

6.08. EQUAL OPPORTUNITY. PSP shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, or national origin. PSP shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, sex, religion, age, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer;

recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. PSP agrees to post in conspicuous places, available to employees or applicants for employment, notices to be provided setting forth the provisions of this non-discrimination article. PSP shall include the above provisions in all subcontracts pertaining to the work.

6.9. DECEPTIVE TRADE PRACTICE; UNFAIR BUSINESS PRACTICES. PSP represents and warrants that it has not been found liable of Deceptive Trade Practices violations under Texas Business and Commerce Code, Chapter 17, or of any unfair business practice in any administrative hearing or court suit. PSP further certifies that it has no officers who have served as officers of other entities who have been found liable of Deceptive Trade Practices violations or of any unfair business practices in an administrative hearing or court suit. In the event that allegations of Deceptive Trade Practices violations under Texas Business and Commerce Code, Chapter 17, or of any unfair business practices against either PSP or any of PSP’s officers are currently pending in an administrative proceeding or in a lawsuit filed with any court, then PSP shall disclose all such pending matters to TFC and provide a brief description of each allegation, information regarding the administrative body or court before which the matter is pending, and the current status of the matter.

6.10. AGENCY EXECUTIVE HEAD. Under Texas Government Code, Section 669.003 relating to contracting with an executive of a state agency, PSP represents that no person who, in the past four (4) years served as an executive of TFC or any other State agency, was involved with or has any interest in this Agreement or any contract resulting from this Agreement. If PSP employs or has used the services of a former executive head of TFC or any other State agency, then PSP shall provide the following information: the Name of the former executive, the name of the State agency, the date of separation from State agency, the position held with PSP and the date of employment with PSP.

6.11. ENTITIES THAT BOYCOTT ISRAEL. Pursuant to Section 2271.002 of the Texas Government Code, PSP certifies that either (i) it meets an exemption criteria under Section 2271.002; or (ii) it does not boycott Israel and will not boycott Israel during the term of this Agreement. PSP shall state any facts that make it exempt from the boycott certification.

6.12. ENTITIES THAT BOYCOTT ENERGY COMPANIES. PSP represents and warrants that: (1) it does not, and will not for the duration of the Agreement, boycott energy companies or (2) the verification required by Section 2276.002 of the Texas Government Code does not apply to the Agreement. If circumstances relevant to this provision change during the course of the Agreement, PSP shall promptly notify TFC.

6.13. ENTITIES THAT BOYCOTT FIREARM ENTITIES OR FIREARM TRADE ASSOCIATIONS. PSP

verifies that: (1) it does not, and will not for the duration of the Agreement, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the Agreement. If circumstances relevant to this provision change during the course of the Agreement, PSP shall promptly notify TFC.

6.14. COVID-19 VACCINE PASSPORT PROHIBITION. Under Section 161.0085 of the Texas Health and Safety Code, PSP certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the PSP’s business. PSP acknowledges that such a vaccine or recovery requirement would make PSP ineligible for a state-funded contract.

6.15. PROHIBITION AGAINST CONTRACTING WITH COMPANIES ENGAGED IN BUSINESS WITH

IRAN, SUDAN, OR FOREIGN TERRORIST ORGANIZATIONS. In accordance with Section 2251.152 of the Texas Government Code, TFC is prohibited from entering into a governmental contract (as defined in Texas Government Code, Section 2252.151(3)) with a company that is identified on a list prepared and maintained under Texas Government Code, Section 806.051, 807.051, or

2252.153. If PSP is on the above-referenced list the Agreement will be considered void or voidable and TFC will not be responsible to pay PSP for any work performed.

6.16. CERTIFICATION CONCERNING RESTRICTED EMPLOYMENT FOR FORMER STATE

OFFICERS OR EMPLOYEES UNDER GOVERNMENT CODE § 572.069. PSP certifies that it has not employed and will not employ a former TFC or state officer who participated in a procurement or contract negotiation for TFC involving PSP within two (2) years after the state officer or employee left state agency employment or service. This certification only applies to former state officers or employees whose service or employment ceased on or after September 1, 2015.

6.17. DISASTER RELIEF CONTRACT VIOLATION. Under Sections 2155.006 and 2261.053 of the Texas Government Code, PSP certifies that the individual or business entity named in the response or contract is not ineligible to receive the specified contract and acknowledges that this Agreement may be terminated and payment withheld if this certification is inaccurate.

6.18. NO CONFLICTS. PSP represents and warrants that PSP has no actual or potential conflicts of interest in providing services to the State of Texas under this Agreement and that PSP’s provision of services under this Agreement would not reasonably create an appearance of impropriety.

6.19. EXCLUDED PARTIES. PSP certifies that it is not listed on the federal government's terrorism watch list as described in Executive Order 13224.

6.20. SUSPENSION AND DEBARMENT. PSP certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

6.21. HUMAN TRAFFICKING PROHIBITION. Pursuant to Section 2155.0061 of the Texas Government Code, PSP certifies that it is not ineligible to receive this Agreement and acknowledges that this Agreement may be terminated and payment withheld if PSP’s certification in this matter is inaccurate. TFC may not award a contract or agreement, including a contract or agreement for which purchasing authority is delegated to a state agency, that includes proposed financial participation by a person who, during the five-year (5) period preceding the date of the award, has been convicted of any offense related to the direct support or promotion of human trafficking.

6.22. USE OF STATE PROPERTY. PSP is prohibited from using State Property for any purpose other than performing services authorized under the Agreement. State Property includes, but is not limited to: TFC’s office space, identification badges, TFC information technology equipment and networks (e.g., laptops, portable printers, cell phones, iPads, external hard drives, data storage devices, any TFC issued software, and the TFC Virtual Private Network (VPN client), and any other resources of TFC. PSP shall not remove State Property from the continental United States. In addition, PSP may not use any computing device to access TFC’s network or e-mail while outside of the continental United States. PSP shall not perform any maintenance services on State Property unless the Agreement expressly authorizes such services. During the time that State Property is in the possession of PSP, PSP shall be responsible for (i) all repair and replacement charges incurred by TFC that are associated with loss of State Property or damage beyond normal wear and tear; and (ii) all charges attributable to PSP’s use of State Property that exceeds the scope of the Agreement. PSP shall fully reimburse such charges to TFC within ten

(10) calendar days of PSP’s receipt of TFC’s notice of amount due. Use of State Property for a purpose not authorized by agreement shall constitute breach of contract and may result in termination of the Agreement and the pursuit of other remedies available to TFC under contract, at law, or in equity.

6.23. HARDENING OF STATE GOVERNMENT. PSP certifies that neither it, nor its holding companies or subsidiaries, is: (i) listed in Section 889 of the 2019 National Defense Authorization Act; (ii) listed in Section 1260H of the 2021 National Defense Authorization Act; (iii) owned by the government of a country on the U.S. Department of Commerce’s foreign adversaries list under 15 C.F.R Section 791.4; or (iv) controlled by any governing or regulatory body located in a country on the U.S. Department of Commerce’s foreign adversaries list under 15 C.F.R Section 791.4.

VII. STATE FUNDING.

7.01. STATE FUNDING. This Agreement shall not be construed as creating any debt on behalf of the State of Texas and/or TFC in violation of the Texas Constitution, art. III, § 49. In compliance with Texas Constitution, 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 Agreement 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. Further, any damages due under this Agreement should not exceed the amount of funds appropriated for payment under this Agreement but not yet paid to PSP, for the fiscal year budget in existence at the time of the breach.

VIII. COPYRIGHTS AND RIGHTS IN DATA.

8.01. COPYRIGHTS. PSP agrees that all Deliverables provided pursuant to this Agreement are subject to the rights of TFC in effect on the date of execution of this Agreement. These rights include the right to use, duplicate and disclose such subject matter and data, in whole or in part, in any manner for alterations, additions, remodels or maintenance; and to have others do so including production of Deliverables in response to a public information request pursuant to Texas Government Code, Chapter 552. If the Deliverables produced by PSP are subject to copyright protection, PSP hereby grants to TFC a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, and use such and to authorize others to do so. PSP shall include appropriate provisions to achieve the purpose of this condition in all Subcontracts entered into that produce information subject to copyright protection.

8.02. DISCLAIMERS. All such Deliverables furnished by PSP pursuant to this Agreement shall be considered instruments of its services in respect to the respective project. It is understood that PSP does not represent such Deliverables to be suitable for reuse on any other study or for any other purpose(s).

8.03. DELIVERY TO TFC. PSP shall promptly provide copies of the Deliverables to TFC upon completion, termination, or cancellation of this Agreement for any reason, including all copies of the Deliverables in any form or medium specified by TFC in this Agreement, whether written, digital, or electronic.

8.04. TFC RIGHT TO USE. Any provision herein to the contrary notwithstanding, TFC shall be authorized to make subsequent use of the Deliverables for any and all future projects.

8.05. NO USE OF NAME OR TRADEMARK. PSP agrees not to make any written use of or reference to TFC’s name or registered or unregistered trademarks for any marketing, public relations, advertising, display or other business purpose or make any use of TFC’s facilities for any activity related to the express business purposes and interests of TFC pursuant to this Agreement, without the prior written consent of TFC, which consent may be withheld or granted in TFC’s sole discretion.

IX. RECORDS, AUDIT, PROPRIETARY INFORMATION AND PUBLIC DISCLOSURE.

9.01. BOOKS AND RECORDS. PSP shall keep and maintain under generally accepted accounting principles full, true and complete records, as are necessary to fully disclose to TFC or United States Government, or their authorized representatives, , upon audits or reviews, sufficient information to determine compliance with the terms and conditions of this Agreement and all state and federal regulations and statutes.

9.02. INSPECTION & AUDIT. PSP agrees that all relevant records related to this Agreement or any work product under this Agreement, including practices of its subcontractors, shall be subject, at any reasonable time, to inspection, examination, review, audit, and copying at any office or location of PSP where such records may be found, with or without notice by the Texas State Auditor’s Office, the contracting agency or its contracted examiners, or the Texas Attorney General's Office, and with regard to any federal funding, the relevant federal agency, the Comptroller General, the General Accounting Office, the Office of the Inspector General, or any of their authorized representatives. All subcontracts shall reflect the requirements of this section. In addition, pursuant to Texas Government Code, Section 2262.154, the State Auditor’s Office may conduct an audit or investigation of any entity receiving funds under this Agreement, including direct payments to the PSP and indirect payments under a subcontract to this Agreement;

acceptance of such monies acts as acceptance of the State Auditor’s authority, under legislative audit committee direction, to audit and investigate related to those funds and the entity subject to the audit or investigation must provide State Auditor’s Office with access to any information the State Auditor’s Office considers relevant to the scope of the audit or investigation.

9.03. PERIOD OF RETENTION. All records relevant to this Agreement shall be retained a minimum seven (7) years. The retention period runs from the date of payment for the relevant goods or services by TFC, or from the date of termination of the Agreement, whichever is later.

Retention time shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any administrative proceeding or litigation which may ensue.

9.04. CONFIDENTIALITY PROVISIONS APPLICABLE TO PSP.

(a) Protection of Confidential Information. PSP hereby acknowledges, understands and agrees: (i) that in the course of providing services to TFC, certain Confidential Information (as defined below) will be disclosed to PSP; and (ii) 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 PSP in accordance with this Agreement. Failure to mark any information “Confidential” shall not affect the confidential nature of such information.

(b) Definition of Confidential Information. “Confidential Information” shall mean all information, whether or not originated by TFC, which is used in, or a part of, TFC’s business and operations and is: (i) proprietary to, about, or created by TFC; (ii) gives TFC some competitive advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of TFC; (iii) designated as “Confidential Information” by TFC, or from all the relevant circumstances should reasonably be assumed by PSP to be confidential and proprietary to TFC; or (iv) not generally known by PSP. “Confidential Information” shall not include information that: (i) is or becomes available to the public generally, other than as a result of disclosure by PSP in breach of the terms of this Agreement;

(ii) becomes available to PSP from a source (other than TFC) which source is not, to the best of PSP’s knowledge, subject to any legally binding obligation to keep the same confidential; or (iii) has been independently acquired or developed by PSP. 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 to, 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 PSP and/or for actual and potential Using Agencies that are related to the business and/or operations of TFC, including but not limited to, drawings, 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 § 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 TAC § 6.94(a)(9), PSP 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 § 441.180(13).

(c) Covenants. As a consequence of PSP’s acquisition or anticipated acquisition of Confidential Information, PSP will occupy a position of trust and confidence to TFC with respect to TFC’s affairs and business. In view of the foregoing and of the mutual consideration to be provided to each party, PSP agrees that it is reasonable and necessary that it make the following covenants.

(i) Both during and forever after the performance of its due diligence investigation, PSP will not disclose Confidential Information to any Person or entity other than as necessary in carrying out its duties on behalf of TFC and/or due diligence investigation, without first obtaining TFC’s prior, written consent, and PSP will take all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. This prohibition against PSP’s disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any similarity exists between the Confidential Information and information independently developed by another Person or entity, and PSP understands that such similarity does not excuse PSP from abiding by its covenant or other obligations pursuant to this Agreement.

(ii) Both during and after the conduct of its due diligence investigation, PSP will not use, copy, or transfer Confidential Information other than as necessary in carrying out its duties on behalf of TFC and/or due diligence investigation, without first obtaining prior written consent of TFC, and will take all reasonable precautions to prevent inadvertent use, copying, or transfer of such Confidential Information. This prohibition against PSP’s use, copying, or transfer of Confidential Information includes, but is not limited to, selling, licensing, or otherwise exploiting, directly or indirectly, any products or services, including software in any form, that embody or are derived from Confidential Information.

(III) PSP agrees not to make any written use of or reference to TFC’s name or registered or unregistered trademarks (or any names under which TFC conducts business or operations) for any marketing, public relations, advertising, display or other business purpose or make any use of TFC’s facilities for any activity related to the express business purposes and interests of TFC pursuant to this Agreement, without the prior written consent of TFC, which consent may be withheld or granted in TFC’s sole and absolute discretion.

(iv) PSP agrees not to utilize, either directly or indirectly, any Confidential Information in order to facilitate or create direct business relationships with Business Customers of TFC.

(d) Open Records Request or Similar Requests for Information. In the event that PSP 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, PSP shall: (i) notify TFC of the existence, terms, and circumstances surrounding such a request within one (1) business day of the receipt of the request; (ii) notify the entity requesting the information that such a request for information should be submitted to TFC, not PSP; (iii) provide the entity requesting the information the contact information of TFC’s public information coordinator; and (iv) forward all responsive information to TFC within two (2) business days of the receipt of the request.

9.05. CONFIDENTIALITY PROVISIONS APPLICABLE TO TFC.