1-00338-2 Exhibit 2 Sample Contract.docx

PROFESSIONAL SERVICES AGREEMENT

FOR

Enter Type of Service

Contract Number Enter contract number

With

Enter name of Company

Enter contract number

AGREEMENT

This Agreement is entered into and executed on the Effective Date by and between the San Antonio River Authority, a conservation and reclamation district and political subdivision of the State of Texas domiciled in Bexar County, Texas, hereinafter called "River Authority," and Enter name of Company, with its office at [Company Address], hereinafter called "Consultant". River Authority and Consultant are individually referred to as a “Party” and are collectively referred to as the “Parties” in this Agreement.

1. Services Consultant shall provide the services for the Project as included in Exhibit X of this Agreement which are hereafter referred to as “Services.” Services covered by this Agreement will be performed in accordance with the terms and conditions of this Agreement, its executed amendments and its attachments, Exhibits, schedules and applicable Federal, state, local laws, ordinances, statutes, codes, regulations, permits, orders, judgements, injunctions, guidance, policies, rules, restrictions including but not limited to those resulting from any initiatives or referendum process or any other requirements of a governmental or quasi-governmental entity having jurisdiction over the Project, which shall herein be collectively referred to as Laws. Consultant’s Services are defined solely by the Agreement Documents and not by any other contract or agreement that may be associated with the Project. Consultant shall be responsible for negligent acts and errors of omission in performing the Services and shall bear all costs for remedying the same. All Services shall be performed in accordance with the schedule in Exhibit X of this Agreement.

2. Authorization to Proceed After execution of the Agreement, River Authority will issue a notice to proceed to Consultant. Upon the issuance of a Notice to Proceed, Consultant shall commence Services for the Enter Type of Service Project; hereafter, referred to as the “Project” in this Agreement. No Services may be performed by Consultant under this Agreement for the Project prior to the issuance of the notice to proceed.

If NTP will not be issued, use this section instead:

Upon the execution of this Agreement by the Parties, Consultant shall commence the Services in accordance with the Agreement as directed by the River Authority

3. Term of Agreement:

(For Construction Project) The Agreement shall commence on the Effective Date and shall terminate no later than sixty (60) calendar days after the final completion of the construction of the Project, (“Term”), unless sooner terminated by either Party in accordance with the Agreement. The Agreement may be extended in writing upon the mutual consent of the Parties.

If services are not associated with construction administration, use this section instead:

The Agreement shall commence on the Effective Date and shall terminate no later than Insert expiration date , (“Term”), thereafter unless extended in writing upon the mutual consent of the Parties or terminated earlier by the Parties.

4. Compensation For firm-fixed lump sum Agreements:

For completed Services that are accepted by the River Authority, Consultant shall be paid a firm-fixed lump sum of (Insert Agreement Price) US Dollars (“Agreement Price”) in accordance with the Agreement. The Agreement Price includes all costs and expenses including but not limited to direct costs, indirect costs, and expenses to perform the Services in accordance with the Agreement and applicable Laws.

For time/material or unit rate Agreements:

The River Authority shall pay to Consultant for completed and accepted Services a sum of money computed at the rates set forth in EXHIBIT X of this Agreement up to the not-to-exceed amount of (Insert Not-to-Exceed Amount) US Dollars ($XXXX.XX), (“Agreement Price”). Consultant shall notify River Authority in writing when actual invoices for completed and accepted Services total 80% of the Agreement Price and shall advise its projected total billings to complete the Services.

Reserve this Section 5 if firm fixed amount

5. Reimbursable Expenses: Reimbursable Expenses mean the actual expenses incurred directly in connection with the Project for transportation and subsistence incidental thereto; telephone expenses; reproduction of reports and drawings, specifications and similar Project related items. Reimbursable expenses shall be considered at cost. River Authority will not pay any indirect charges over the subcontractor’s and/or subconsultant’s bill. A copy of all subcontractor’s and/or subconsultant’s invoices must be included with request for reimbursement. Travel Expenses with prior approval from River Authority shall be reimbursed per the U.S. General Services Administration (GSA) published per diem rates in San Antonio for hotel, meal, incidentals, and mileage. Notwithstanding anything to the contrary herein, Consultant shall not be reimbursed for mileage to and from the field or meetings. The River Authority strictly prohibits expenses for entertainment or alcohol.

6. Standard of Care

(a) Consultant certifies that it has the skills and resources to perform the Services required by the Agreement in accordance with all applicable Laws as well as policies and technical standards of the River Authority and Consultant has employees and subcontractors that are duly licensed and registered in the State of Texas with the professional ability to provide the Services.

(b) Consultant agrees and acknowledges that River Authority is entering into this Agreement in reliance on Consultant’s represented professional abilities with respect to performing the Services, duties, and obligations under this Agreement. Consultant shall perform its Services (i) with the professional skill and care ordinarily provided by consultants practicing in the same or similar locality and under the same or similar circumstances and professional license and certifications; and (ii) as expeditiously as is prudent considering the ordinary professional skill and care of a competent consultant. Consultant shall provide only qualified personnel necessary to accomplish Consultant Services within the time limits set forth herein. Consultant shall re-perform any Services not meeting this standard without additional compensation.

(c) Key Personnel. The personnel named below will be defined as Key Personnel and will be dedicated to the Project and shall only be substituted with the River Authority’s prior approval.

(1) Key Personnel and Role: (insert name, title, and Project Role)

(d) By signing this Agreement, Consultant certifies that it has disclosed all conflicts or potential conflicts of interest for itself and its subcontractors and subconsultants and understands that it must further disclose such conflicts or potential conflicts as they arise throughout the duration of the Agreement, its extensions and renewals.

7. Suspension/Termination

(a) River Authority shall have the right to suspend Services upon written notice to Consultant. If the Project is suspended or abandoned in whole or in part for more than six (6) months, for reasons other than the fault of the Consultant or its subconsultants, the Consultant shall be compensated for all Services performed and accepted by the River Authority prior to receipt of written notice from the River Authority of such suspension or abandonment, together with authorized Reimbursable Expenses under this Agreement then due. The Consultant shall deliver to the River Authority all documents, including drafts, pertaining to the Services performed under this Agreement, to include but not limited to all receipts, papers, logs, registers, matrixes, presentations, GIS data, other data obtained or compiled as a result of Services, surveys, narratives, checklists, analysis, drafts, models, maps, photographs, booklets, notes including field notes, memos, meeting minutes, correspondences, emails, calculations, reports, specifications, plans, drawings, and other records, including payment records, regardless of format, completed and in progress up to the date of abandonment or suspension.

(b) This Agreement may be terminated by either Party upon thirty (30) days written notice should the other Party fail substantially to perform in accordance with the Agreement and/or applicable Laws through no fault of the Party initiating the termination or within sixty (60) calendar days written notice for any reason. In the event of termination which is not the fault of the Consultant or anyone for which Consultant is legally liable, the Consultant shall be compensated for all Services performed and accepted by River Authority up to the termination date. Upon termination of Consultant’s Services, all documents, including drafts, relating to the Services provided under this Agreement to include but not limited to papers, GIS data, logs, registers, matrixes, presentations, narratives, checklists, analysis, specifications, drawings, plans, details, drafts, models, maps, photographs, booklets, field notes, memos, meeting minutes, correspondences, emails, calculations, and reports prepared up to the date of termination shall be delivered to the River Authority. If Consultant fails to deliver the required documents to the River Authority within fifteen (15) calendar days of any suspension or termination of this Agreement, River Authority may withhold payment.

8. Payments to the Consultant (Include if firm-fixed lump sum payment with milestones)

8.1 River Authority shall make payment for Services rendered and accepted by the River Authority within thirty (30) calendar days of River Authority’s receipt of a properly submitted invoice from Consultant and the achievement of the following milestones:

Modify these milestones

8.1.1 Milestone 1 in the amount of $XXXX.XX: River Authority’s receipt and acceptance of Consultant’s construction documents which have progressed to 50% of completion and shall at a minimum include the following items: plans and specifications for structural and mechanical repairs for the Project;

8.1.2 Milestone 2 in the amount of $XXXX.XX: River Authority’s receipt and acceptance of Consultant’s final construction documents which shall at a minimum include the following items: final plans and specifications for structural and mechanical repairs for the Project which may be used to bid the work on the Project;

8.1.3 Milestone 3 in the amount of $XXXX.XX: completion of the bid phase and River Authority’s award of the construction Project, and

8.1.4 Milestone 4 in the amount of $XXXX.XX: River Authority’s receipt and acceptance of the as-built construction documents for the Project from Consultant Include if lump sum without milestone payments (one payment):

8.1 River Authority shall make full payment for Services rendered and accepted by the River Authority within thirty (30) calendar days of River Authority’s receipt of a properly submitted invoice from Consultant.

Include if lump sum and progress payments:

8.1 River Authority shall make progress payments monthly based upon the Consultant’s progress towards completion of the Services as solely determined by the River Authority up to the Agreement Price within thirty (30) days of Consultant’s submittal of an approved invoice detailing the Services performed for the current billing period, number of hours billed and hourly labor rates and other supporting documentation in accordance with the Agreement.

8.2 Consultant shall provide monthly status reports as required by the River Authority to inform the River Authority of the status of the Project.

8.3 Consultant shall email all invoices, statements and supporting documentation to accountspayable@sariverauthority.org. Invoices shall include all supporting documentation, including but not limited to receipts, statements, and subcontractor’s invoices, to substantiate the invoice. River Authority will not pay any indirect charges over a subcontractor’s or subconsultant’s bill.

8.4 Payment for additional, excluded, or special services not included herein or which exceed the Agreement Price cannot be made until a request to change the Agreement Price is made in writing prior to Contractor’s performance of the Services and an amendment to this Agreement is executed by the Parties. Failure to comply with this section can be justification for River Authority’s rejection of invoiced amounts above the Agreement Price.

8.5 If the River Authority objects to any invoice submitted by the Consultant, the River Authority shall so advise the Consultant verbally or in writing, giving its reasons within twenty-one (21) calendar days of receipt of such invoice. Notwithstanding anything to the contrary, River Authority is under no obligation to issue payment if Consultant is in default under this Agreement. No interest accrual shall be permitted on any invoice under dispute.

8.6 Invoices received by River Authority from Consultant more than ninety (90) calendar days after the completion of Services rendered or good delivered will be deemed delinquent. The River Authority will have no obligation to pay such delinquent invoices and Consultant shall be deemed to have waived its right to payment for the respective Services rendered or good received.

9. Liability Insurance

9.1 Consultant shall purchase and maintain in full force and effect during the entire period of this Agreement, including any maintenance and/or warranty periods thereof, insurance of the types and in amounts not less than the amounts stated below. Such insurance shall protect Consultant from any and all claims and damages, which may arise out of or result from Consultant’s operations or completed operations whether such operations are performed by Consultant or by its subcontractor or by anyone else for whose acts the Consultant may be liable. All costs associated with these insurance coverages are the sole responsibility of the Consultant. It is the specific intent of the Parties to the Agreement that all insurance required herein shall be primary to and shall seek no contribution from any insurance (primary, umbrella, contingent or excess) maintained by River Authority, and/or its elected officials, employees, officers, directors, volunteers and representatives with the insurance maintained by the River Authority and/or its officials, agents, elected representatives, employees and volunteers’ being excess, secondary and noncontributing. The limits of liability required herein may be provided by a single policy of insurance or by a combination of primary, excess or umbrella policies; but, in no event shall the total limits of liability available for any one occurrence or accident be less than the amounts required.

9.2 Prior to the commencement of any Services under this Agreement, the Consultant shall furnish an original completed certificate(s) of insurance to River Authority which shall be clearly labeled Enter Type of Service Enter contract number in the Description of Operations block of the certificate of insurance. The original certificate(s) of insurance shall be completed by an agent authorized to bind the named underwriter(s) and its company to the coverage, limits and termination provisions shown thereon, containing all required information referenced or indicated thereon. The original certificate(s) of insurance or form must have the agent’s original signature, including the signer’s company affiliation, title, and phone number. The River Authority shall have no duty to pay or perform under this Agreement until such certificate(s) of insurance with copies of all endorsement shall have been delivered to River Authority.

Check solicitation:

9.3 Insurance requirements include the following:

1. Premises/Operations

2. Independent Contractors

3. Products/Completed Operations

4. Personal Injury

5. Contractual Liability

6. Explosion/Collapse/Underground Property Damage (where applicable)

7. Pollution Liability (where applicable)

8. Endorsement for Unmanned Aircraft (Drones) (where applicable to Services)

9. Endorsement for watercraft (where applicable to Services)

$2,000,000 General Aggregate $2,000,000 Products/Completed Operations Aggregate $1,000,000 Personal Injury per occurrence $1,000,000 Each Occurrence

General Liability requires a per project aggregate limit or aggregate limits by Location endorsement.

$500,000 each accident, $500,000 policy limit for Disease $500,000 each employee for Disease

$1,000,000 Combined Single Limit

Non-owned vehicles include the use of an employee’s personal vehicle in the Contractor’s business.

$1,000,000 Per Claim $2,000,000 Annual Aggregate

a) Coverage shall be continuous (by renewal or extended reporting period) for no less than 60 months following completion of the Agreement and acceptance of the work by River Authority.

b) Coverage, including renewals, shall have the same retroactive date as the original policy applicable to this Agreement.

$2,000,000 per claim $4,000,000 Aggregate

Including the following Insuring Agreements: 1) Privacy Liability; 2) Network Security Liability; 3) Internet Media Liability; and 4) Network Extortion. Data Breach Fund & Regulatory Proceeding coverage is required and can be provided with a Sub-Limit of Liability with limits no less than $100,000 and $500,000, respectively.

a) Coverage shall be continuous (by renewal or extended reporting period) for no less than 60 months following completion of the Agreement and acceptance of the Services by River Authority.

b) Coverage, including renewals, shall have the same retroactive date as the original policy applicable to this Agreement.

9.4 The Commercial General Liability, Drone Liability and Watercraft Liability shall be endorsed to name San Antonio River Authority and its elected officials, employees, officers, directors, volunteers, and representatives as additional insureds for liability arising out of Consultant’s ongoing operations as well as completed operations in performance of this Agreement. Commercial General Liability shall be primary and non-contributing with any other valid and collectible insurance available to the River Authority and/or its elected officials, employees, officers, directors, representatives, and volunteers.

9.5 Consultant agrees to waive its rights of claim or recovery from River Authority, its elected officials, employees, officers, directors, volunteers and representatives for all claims (i) that are covered by any insurance maintained by Consultant, (ii) would have been covered by any insurance required to be maintained by Consultant under this Agreement, or (iii) that constitute any retained, self-insured, or uninsured risk of Consultant. Commercial General Liability, Umbrella/Excess, Drone Liability, Watercraft Liability, Commercial Automobile Liability, Worker’s Compensation and Employer’s Liability shall include a waiver of subrogation and any other rights of recovery by the insurer in favor of River Authority and its elected officials, employees, officers, directors, representatives and volunteers. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

9.6 Commercial Auto Liability shall be provided to cover damages because of bodily injury or property damage caused by an accident or resulting from the ownership, maintenance or use of (1) any auto, including owned, leased, hired and non-owned autos, and (2) any mobile equipment subject to compulsory insurance or financial responsibility laws or other motor vehicle insurance laws. Additional insured status shall be provided in favor of River Authority and its elected officials, employees, officers, directors, volunteers and representatives and Consultant’s Commercial Auto Liability shall be primary to and shall seek no contribution from any other insurance maintained by additional insureds, with additional insureds insurance being excess, secondary, and noncontributing.

9.7 Umbrella/Excess insurance shall follow form of, be excess over and be no less broad than all required general liability, auto liability, and employer’s liability coverages including but not limited to the required additional insured status, primary and noncontributory status, and waiver of subrogation.

9.8 All insurance policies require a thirty (30) day’s advance written notice of cancellation, material change or nonrenewal if insurance is cancelled, materially changed, or not renewed for any reason. Regardless of notice by insurance carrier, Consultant shall provide such notice to the River Authority.

9.9 All insurance policies required herein shall be carried with financially responsible insurance companies, licensed in the State of Texas, with an A.M. Best Rating of A (-) VII or greater.

9.10 If the Consultant, any its subcontractors or anyone for whose acts the Consultant may be liable fail to maintain the aforementioned insurance, or fail to secure and maintain the aforementioned endorsements, the River Authority may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; however, procuring of said insurance by the River Authority is an alternative to other remedies the River Authority may have and is not the exclusive remedy for failure of Consultant to maintain said insurance or secure such endorsement. In addition to any other remedies the River Authority may have upon Consultant’s, its subcontractor’s, or anyone else for whose acts the Consultant may be liable, failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the River Authority shall have the right to order Consultant to stop Services under the Agreement and/or withhold any payment(s) which become due to Consultant thereunder until Consultant demonstrates compliance with the requirements hereof.

9.11 The River Authority reserves the right to review these insurance requirements during the effective period of the Agreement and any extension or renewal thereof and to modify insurance coverage and their limits when deemed necessary and prudent by the River Authority, based upon changes in Laws, court decisions or circumstances surrounding the Agreement, but in no instance will the River Authority allow modification whereupon the River Authority may incur increased risk.

9.12 The River Authority shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits and coverages required by the River Authority, and may require the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by Laws or regulation binding upon either of the Parties hereto or the underwriter of any such policies.

9.13 Consultant agrees to require, by written contract, that all subcontractors and/or subconsultants providing goods, equipment, or Services hereunder, purchase and maintain, during the term of the Agreement, the same minimum levels of applicable insurance coverages and with the same terms as required of Consultant that are necessary and appropriate for the Services performed. Prior to the commencement of any Services by any subcontractor and/or subconsultant, Consultant shall provide to River Authority certificates of insurance with copies of endorsements from its subcontractor(s) and subconsultants.

9.14 All insurance notices shall be given to the River Authority at the following address:

San Antonio River Authority Attn: Contracting Department Enter contract number 100 E. Guenther Street San Antonio, TX 78204 Contracts@sariverauthority.org

9.15 Regardless of insurance coverage, Consultant is liable for all damages that River Authority may incur arising out of or resulting from the negligent acts or omissions of Consultant and/or anyone for whose acts the Consultant may be liable, including but not limited to agents, officers, directors, representatives, employees, contractors, subconsultants or subcontractors of Consultant. Acceptance of Services by the River Authority shall not constitute a release of the responsibility, obligations, or liability of the Consultant for any defect in the design, drawings, specifications, construction documents or other Services performed by the Consultant.

9.16 Consultant and anyone for whose acts the Consultant is liable including but not limited to its subcontractors and subconsultants of any tier shall be responsible for all damage, regardless of the cause, to its or their own, borrowed, rented, or leased equipment and/or property. Any required rework of Services due to the failure of Consultant’s, its subcontractor’s or subconsultant’s equipment for any reason shall be the sole responsibility and at the sole cost of Consultant.

10. Indemnity

(For architects, engineers, appraisers and land surveyors) (Insert others to whom River Authority has a contractual relationship such as funding sources and property owners)

Use for all others:

10.1 CONSULTANT COVENANTS AND AGREES TO FULLY INDEMNIFY, DEFEND AND HOLD HARMLESS, THE RIVER AUTHORITY AND THE ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, VOLUNTEERS AND REPRESENTATIVES OF THE RIVER AUTHORITY, INDIVIDUALLY OR COLLECTIVELY, FROM AND AGAINST ANY AND ALL COSTS, CLAIMS, LIENS, DAMAGES, LOSSES, EXPENSES, FEES, FINES, PENALTIES, PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY AND SUITS OF ANY KIND AND NATURE, INCLUDING BUT NOT LIMITED TO, PERSONAL OR BODILY INJURY, DEATH AND PROPERTY DAMAGE, MADE UPON THE RIVER AUTHORITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO CONSULTANT ACTIVITIES UNDER THIS AGREEMENT, INCLUDING ANY ACTS OR OMISSIONS OR NEGLIGENCE OF CONSULTANT, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, SUB-CONSULTANT OR SUBCONTRACTOR OF CONSULTANT, AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS AND REPRESENTATIVES WHILE IN THE EXERCISE OF PERFORMANCE OF THE RIGHTS OR DUTIES UNDER THIS AGREEMENT, ALL WITHOUT HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE RIVER AUTHORITY UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS INDEMNITY ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. CONSULTANT SHALL ADVISE THE RIVER AUTHORITY IN WRITING WITHIN 24 HOURS OF ANY CLAIM OR DEMAND AGAINST THE RIVER AUTHORITY OR CONSULTANT KNOWN TO CONSULTANT RELATED TO OR ARISING OUT OF CONSULTANT ACTIVITIES UNDER THIS AGREEMENT AND SHALL SEE TO THE INVESTIGATION AND DEFENSE OF SUCH CLAIM OR DEMAND AT CONSULTANT COST. THE RIVER AUTHORITY SHALL HAVE THE RIGHT, AT ITS OPTION AND AT ITS OWN EXPENSE, TO PARTICIPATE IN SUCH DEFENSE WITHOUT RELIEVING CONSULTANT OF ANY OF ITS OBLIGATIONS UNDER THIS PARAGRAPH. CONSULTANT FURTHER AGREES TO DEFEND, AT ITS OWN EXPENSE AND OWN BEHALF OF AND IN THE NAME OF THE RIVER AUTHORITY, ANY CLAIM OR LITIGATION BROUGHT AGAINST THE RIVER AUTHORITY AND ITS ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, VOLUNTEERS AND REPRESENTATIVES, IN CONNECTION WITH ANY SUCH INJURY, DEATH OR DAMAGE FOR WHICH THIS INDEMNITY SHALL APPLY, AS SET FORTH ABOVE. CONSULTANT'S DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT WILL NOT BE IN ANY WAY DIMINISHED BY REASON OF ANY APPROVAL BY RIVER AUTHORITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CONSULTANT IS NOT OBLIGATED TO INDEMNIFY THE RIVER AUTHORITY IN ANY MANNER WHATSOEVER FOR THE RIVER AUTHORITY’S OWN NEGLIGENCE.

10.2 These indemnities will apply whether Consultant’s liability arises under breach of contract or warranty; tort, including negligence; strict liability; statutory liability; or any other cause of action resulting from Consultant’s Services under this Agreement or from its breach thereof, and shall apply to Consultant’s officers, affiliated corporations, employees, and subcontractor’s and subconsultants.

11. Force Majeure Neither Party shall be responsible for any delay in the performance or progress of the Services, or liable for any costs or damages sustained resulting from such delay beyond its reasonable control, caused by any act or neglect by any federal, state or municipal government authority, or by acts of declared or undeclared war, public disorder, riot or civil commotion, or by fire, flood, natural disaster or any other similar cause(s) beyond the control and without the fault or negligence of the Party claiming Force Majeure. The Party subject to the Force Majeure shall use its best efforts to eliminate and mitigate the consequences thereof. In the event of any such delay, the Consultant is required to promptly notify River Authority in writing and shall proceed with due diligence to alleviate such delay and continue the performance of all obligations under this Agreement. All additional costs or damages resulting from any delay in the performance or progress of the Services caused solely by any act or neglect of the River Authority, shall be borne entirely by the River Authority. If an excusable delay exceeds a total period of thirty (30) days, River Authority may terminate this Agreement.

12. No Third-Party Beneficiaries (Insert others to whom River Authority is contractually obligated) The Agreement gives no rights or benefits to anyone other than the River Authority and Consultant and has no third-party beneficiaries.

13. Ownership and Use of Documents (Use this language if Consultant’s Scope is design or developing specifications and plans) Remember to include others to whom River Authority has contractual obligations

13.1 All documents prepared by the Consultant on the Project are instruments of Service and shall remain the property of the Consultant. River Authority shall be permitted to retain copies, including reproducible copies, of all documents prepared by the Consultant for information and reference in connection with the River Authority’s use and occupancy of the Project. River Authority shall have an irrevocable, assignable, fully paid-up, sublicensable royalty-free, world-wide, perpetual license and right, which shall survive the termination of this Agreement, to use the documents, including the originals thereof, and the ideas and designs contained therein, for any purpose, regardless of the Consultant’s involvement. The Consultant and its subconsultants shall not be liable for any re-use of, or changes made by the River Authority to the documents (including drawings or specifications provided in CADD or other electronic format) or for claims or actions arising from any such re-use or changes on projects in which the Consultant is not involved. Consultant shall also obtain nonexclusive, fully paid-up perpetual licenses for the River Authority from all of its subconsultants consistent with this Agreement.

13.2 River Authority’s submission or distribution of such documents to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Consultant’s rights.

Otherwise use this language: Remember to include others to whom River Authority has contractual obligations

13.1 The River Authority shall own the Consultant’s draft and final Documents prepared pursuant to this Agreement. All title and interest in all work will vest in River Authority and will be deemed to be work made for hire and made in the course of services rendered under the Agreement. To the extent that title to any Work may not, by operation of law, vest in River Authority or work may not be considered works made for hire, Consultant and its subconsultants irrevocably assign, convey and transfer to River Authority and its successors, licensees and assigns, all rights, title and interest worldwide in and to the work and all proprietary rights therein, including all copyrights, trademarks, service marks, patents, trade secrets, moral rights, all contract and licensing rights and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become known. If Consultant and/or its subconsultants have any rights in work which cannot be assigned, Consultant and its subconsultants agree to waive enforcement worldwide of the rights against River Authority, its successors, licensees, assigns, distributors, and customers or, if necessary, to exclusively license the rights, worldwide to River Authority with the right to sublicense. These rights are assignable by River Authority.

13.2 Consultant’s submission or distribution of such documents to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the River Authority’s rights.

13.3 Documents provided in electronic media form shall not have inaccuracies and anomalies including but not limited to errors due to electronic translation, formatting, or interpretation. The Consultant is responsible for errors and omissions because of these conditions and not for those resulting from conversion, modification, misinterpretation, misuse, or reuse by others after electronic media is released by Consultant to River Authority. If there are any inconsistency between the electronic media and hard copies provided by the Consultant, the hard copy shall govern.

13.4 Consultant shall use reasonable efforts to verify the accuracy and suitability of any documents, drawings, plans, sketches, instructions, information, requirements, procedures, requests for action, and other data supplied to Consultant by River Authority, or any other party, which is used for the Project. River Authority makes no warranties or representations as to the accuracy or suitability of information provided to the Consultant by the River Authority or by others.

13.5 Consultant warrants that it is the sole owner of the intellectual property used on and for the Project and/or has the rights necessary to utilize such intellectual property for the Project and to grant the required rights to the intellectual property to River Authority.

13.6 Consultant shall retain any and all documents produced as a result of Services provided hereunder for a period of four (4) years (“retention period”) from the date of expiration or termination of the Agreement whichever is earlier. If, at the end of the retention period, there is litigation or other questions arising from, involving, or concerning this documentation or the Services provided, Consultant shall retain the records until the resolution of such litigation or other such questions. Consultant acknowledges and agrees that the River Authority shall have access to any and all such documents at any and all times, as deemed necessary by the River Authority, during said retention period. The River Authority may, at its election, require Consultant to return said documents to the River Authority prior to or at the conclusion of said retention. Notwithstanding the above, Consultant shall be entitled to retain one copy of said documents in accordance with general systems archiving or backup policies or required for preservation by Laws, regulation, audit, data retention or corporate archival purposes or per regulatory, judicial, or governmental order. Comment by Stacy Padgett: Reduced to lower caps.

13.7 Consultant understands that in performance of Services under this Agreement, it may have access to River Authority’s Materials to include but not limited to documents, data including but not limited to CAD files and GIS data, know-how, methodologies, software, other materials, derivative works, and intellectual property, (“River Authority Materials”), provided to Consultant by River Authority. River Authority remains the sole and exclusive owner of all rights, title, and interest in and to River Authority Materials, including all Intellectual Property Rights, including but not limited to patents, patent disclosures, inventions (whether patentable or not), trademarks, service marks, trade dress, trade names, logos, corporate names, domain names, together with all of the goodwill associated therewith, copyrights, copyrightable works (including computer programs), rights in data and databases, trade secrets, and know-how. Consultant shall have no right or license to use any River Authority Materials except solely during the Term of this Agreement to the extent necessary to provide the Services herein to River Authority. All other rights in and to River Authority Materials are expressly reserved by River Authority and Consultant shall use all commercially reasonable efforts to maintain the confidentiality of River Authority Materials. The River Authority may, at its election, require Consultant to return River Authority Materials to the River Authority prior to or at the expiration or termination of the Agreement. Comment by Stacy Padgett: Added this on next update.

14. Severability

Should any term or provision of this Agreement be held invalid or unenforceable in any respect, the remaining terms and provisions shall not be affected, and this Agreement shall be construed as if the invalid or unenforceable term or provision had never been included and the remaining portion of this Agreement shall remain in full force and effect.

15. Successors and Assigns

It is mutually understood and agreed that this Agreement shall be binding upon the River Authority and its successors and assigns and upon the Consultant, its successors, and assigns. Neither Party shall assign nor transfer its interest in this Agreement, the Agreement itself, or any part thereof including but not limited to claims arising under the Agreement without the written consent of the other Party.

16. Non-Terrorist/Iran/Sudan Certifications:

Pursuant to Subchapter F, Chapter 2252, Texas Government Code, Consultant certifies Consultant is not engaged in business with Iran, Sudan, or a foreign terrorist organization. Consultant certifies that Consultant is not a Listed Company by the Comptroller of the State of Texas and further certifies that it is not listed on the prohibited vendors list authorized by Executive Order No. 13224, Blocking Property and Prohibiting Transactions with Persons who commit, threaten to commit, or support terrorism, published by the United States Department of the Treasury, Office of Foreign Assets Control. Consultant acknowledges this Agreement may be terminated and payment withheld if these certifications are inaccurate. Should Consultant engage in business with a Listed Company, or an entity listed on the prohibited vendor list authorized by Executive Order No. 13224, Consultant will immediately notify the River Authority.

Include if Agreement Price is $100,000 and 10 employees; otherwise Reserve:

17. Pursuant to the Texas Government Code §2271, Consultant certifies that it does not boycott Israel and will not do so during the Term of this Agreement and all renewals and extensions. Consultant acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

18. Pursuant to Chapter 2274, Texas Government Code, Consultant certifies Consultant (1) does not currently have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement and all renewals and extensions. Consultant acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

19. Pursuant to Section 2276 of the Texas Government Code, Consultant certifies that Consultant: (i) does not boycott energy companies; and (ii) will not boycott energy companies during the term of the Agreement and all its renewals and extensions.

20. Prohibition on Discrimination

Consultant and anyone for whom Consultant is legally liable shall not discriminate on the basis of race, color, religion, sex, age, disability or national origin, or other protected categories or participate in other unlawful forms of discrimination nor shall the Consultant or anyone for whom Consultant is legally liable retaliate against any person for reporting instances of such discrimination. Consultant understands and agrees that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Consultant from participating in future contracts, or other sanctions.

21. Independent Contractor

This Agreement executed by the Parties is not intended to and does not create or establish between the Parties any relationship as partners, joint venturers, employer and employee, master and servant or principal and agent. Consultant is an independent contractor and shall not be deemed to be, an agent of River Authority and as such, shall be free from the control of River Authority as to the manner in which it shall performs its obligations, or cause same to be performed, under this Agreement. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as Social Security, Income Tax Withholding, Unemployment Compensation, Workers' Compensation, and similar matters.

22. Dispute Resolution

River Authority and Consultant will negotiate in good faith to resolve any dispute that may arise from or be related to the Agreement or Services performed hereunder. The Parties commit to first try to settle any dispute arising out of or related to this Agreement or Services performed through direct discussions with the River Authority’s designee and its counterpart for Consultant. If such discussions are unsuccessful in resolving the dispute, the Parties shall escalate the claim to their management representatives and then to executive officers for direct discussions prior to preceding to mediation. If the Parties’ executive officers cannot resolve the dispute within thirty (30) calendar days after the dispute is escalated to them, then the Parties may proceed with mediation. All disputes must be submitted to mediation before proceeding with other legal remedies. In the event mediation is necessary, River Authority and Consultant shall choose a mutually agreeable mediator and share the cost of mediation equally. If mediation is not successful, either Party may proceed with other legal remedies to include but not limited to litigation in a court of competent jurisdiction. Regardless of which Party or entity may bring the suit or claim, Consultant is expected to participate in resolving the dispute and/or claim. Nothing herein constitutes a waiver of River Authority’s sovereign immunity.

23. Governing Law This Agreement and all the rights, remedies and obligations of the Parties shall be construed, interpreted, and applied in accordance with and governed by and enforced under the laws of the State of Texas without reference to its conflict of law provisions. Any dispute arising out of or relating to this Agreement, or the breach thereof, which cannot be settled through negotiation, shall be subject to mediation and litigation in Bexar County, Texas which shall be the sole place of venue for any legal action arising from or related to this Agreement or the Project in which the River Authority is a party.

24. Public Information Consultant is required to make any information created or exchanged with the River Authority pursuant to this Agreement, and not otherwise subject to exception from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the River Authority. Consultant agrees that the Agreement may be terminated if the Consultant knowingly or intentionally fails to comply with this requirement. In addition, Consultant may be placed on the River Authority’s debarred vendor list for noncompliance.

22. Small, Minority, Women-Owned, Disadvantaged Business Enterprises and HUB Businesses

Check funding source requirements

22.1 The River Authority encourages the utilization of certified Small, Minority, Women Owned Business Enterprises (S/M/WBE), Disadvantaged Business Enterprises (DBE), and Historically Under-Utilized Businesses (HUB) as certified through the State of Texas. If subcontracting opportunities are available, Consultant must provide documentation suitable to the River Authority documenting its good faith efforts to utilize such enterprises for Services under this Agreement. In order to qualify as a M/WBE designation, businesses must be certified by a state or acceptable agency and be at least 51% minority-owned, and/or woman-owned. To qualify as an SBE, businesses must meet the requirements of the Small Business Administration (SBA) excluding personal net worth and also be certified by acceptable agency or state.

22.2 Consultant and its first-tier subcontractors and subconsultants are to identify if they are M/WBE, SBE, DBE or HUB entities and provide proof of certification to the River Authority. Contractor shall provide monthly reports to the River Authority in the form requested by the River Authority as to the utilization of certified SBE, M/WBE, DBE or HUB entities for the Services under this Agreement. If Contractor’s diversity subcontracting utilization plan (“Plan”) changes for the Services, Contractor shall promptly provide an updated Plan to River Authority in the format required by River Authority and update the River Authority’s Supplier Diversity Management System (“SDMS”) at https://sariverauthority.diversitycompliance.com.

22.3 In addition to submitting all required monthly reports and other utilization forms required by the River Authority, Consultant must within five (5) Calendar Days of awarding a contract to first-tier subcontractor, manufacturer, supplier, vendor or subconsultant enter all required data for its first-tier subcontractor or subconsultant electronically into SDMS and shall ensure such data remains current throughout the term of the Agreement.