1-3. Terms and Conditions-Campus Work Order System.pdf

REQUEST FOR PROPOSAL

26RFP025

Campus Work Order System:

Terms and Conditions

Erica Smith, Director of Contracts & Procurement Smith60@southwestern.edu mailto:Smith60@southwestern.edu

Terms and Conditions

Venue and Governing Law: The Respondent hereby agrees and acknowledges that venue and jurisdiction of any suit, right, or cause of action arising out of or in connection with this RFP, the Contract, and any Ensuing Agreement(s), shall lie exclusively in either Williamson County, Texas or in the Austin Division of the Western Federal District of Texas, and the parties hereto expressly consent and submit to such jurisdiction. Furthermore, except to the extent that this RFP, the Contract and any Ensuing Agreement(s) is governed by the laws of the United States, this RFP, the Contract and any Ensuing Agreement(s) shall be governed by and construed in accordance with the laws of the State of Texas, excluding, however, its choice of law rules.

Incorporation by Reference and Precedence: The Contract shall be derived from the RFP and its Addenda (if applicable), and the Respondent's Proposal. In the event of a dispute under the Contract, applicable documents will be referred to for the purpose of clarification or for additional detail in the following order of precedence:

-The RFP and its Addenda (if applicable); and

-The Respondent's Proposal

In the event Southwestern University requires that an Ensuing Agreement be executed following award and a dispute arises between the terms and conditions of the Ensuing Agreement, the RFP and its Addenda (if applicable), and the Respondent's Proposal, applicable documents will be referred to for the purpose of clarification or for additional detail in the following order of precedence:

-The terms and conditions of the Ensuing Agreement;

-The RFP and its Addenda; and

-The Respondent's Proposal.

Disqualification of Respondent: Upon signing and submittal of the Proposal, a Respondent offering to sell supplies, materials, services, or equipment to Southwestern University, certifies that the Respondent has not violated the antitrust laws of the State of Texas codified in Business & Commerce Code, Section 15.01, or the Federal Antitrust Laws, and has not communicated directly or indirectly the offer made to any competitor or any other person engaged in such line of business. Any or all Proposals may be rejected if the University believes that collusion exists among the Respondents.

Funding: The University intends to budget and make sufficient funds available and authorize funds for expenditure to finance the costs of the Contract. All Respondents understand and agree that the University's payment of amounts under the Contract shall be contingent on the University receiving appropriations or other expenditure authority sufficient to allow the University, in the exercise of reasonable administrative discretion, to make payments under this Contract.

Assignment: The Successful Respondent may not assign, sell, or otherwise transfer the Contract or any other rights or interests obtained under the Contract without written permission of Southwestern University. The Contract and any Ensuing Agreement(s) shall be binding upon and inure to the benefit of the contracting parties hereto and their respective successors and permitted assigns.

Implied Requirements: Products or services not specifically described or required in the RFP, but are necessary to provide the functional capabilities described by the Respondent, shall be implied and deemed to be included in the Proposal.

Termination for Cause: Southwestern University reserves the right to terminate the Contract and/or any Ensuing Agreement(s) for default if the Successful Respondent breaches any of the Proposal specifications, terms and conditions, including warranties of the Respondent, if any, or if the Successful Respondent becomes insolvent or commits acts of bankruptcy. Such right of termination is in addition to and not in lieu of any other remedies the University may have at law or in equity or as may otherwise be provided hereunder. Default may be construed as, but not limited to, failure to deliver the proper goods and/or services within the proper amount of time, and/or to properly perform any and all other requirements to the University's satisfaction, and/or to meet all other obligations and requirements.

Termination for Convenience: The University may terminate the Contract and/or any Ensuing Agreement(s) for convenience and without cause or further liability, upon no less than thirty (30) calendar days written notice to the Successful Respondent. The

University reserves the right to extend this period if it is in the best interest of the University. In the event the University exercises its right to terminate without cause, it is understood and agreed that only the amounts due to the Successful Respondent for goods, commodities and/or services provided, and expenses incurred to and including the date of termination, will be due and payable. No penalty will be assessed for the University's termination for convenience.

Non-Performance: It is the objective of the University to obtain complete and satisfactory performance of the requirements set forth herein. In addition to any other remedies available at law, in equity or that may be set out herein, failure to perform may result in a deduction of payment equal to the amount of the goods and/or services that were not provided and/or performed to the University's satisfaction. In the event of such non-performance, the University shall have the right, but shall not be obligated, to complete the services itself or by others and/or purchase the goods from other sources. If the University elects to acquire the goods or perform the services itself or by others, pursuant to the foregoing, the Successful Respondent shall reimburse the University, within ten (10) calendar days of demand, for all costs incurred by the University (including, without limitation, applicable, general, and administrative expenses, and field overhead, and the cost of necessary equipment, materials, and field labor) in correcting the nonperformance which the Successful Respondent fails to meet pursuant to the requirements set out herein. In the event the Successful Respondent refuses to reimburse the University as set out in this provision, the University shall have the right to deduct such reimbursement amounts from any amounts that may be then owing or that may become owing in the future to the Successful Respondent.

Right to Audit: The Successful Respondent agrees that the University or its duly authorized representatives shall, until the expiration of three (3) years after termination or expiration of the services to be performed, have access to and the right to examine and photocopy any and all books, documents, papers and records of the Successful Respondent, which are directly pertinent to the services to be performed or goods to be delivered for the purposes of making audits, examinations, excerpts and transcriptions. The Successful Respondent agrees that the University shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The University shall give the Successful Respondent reasonable advance notice of intended audits.

Indemnification: The Successful Respondent shall indemnify, defend and save harmless, the University, its officials, employees, agents and agent's employees from, and against, all claims, liability, and expenses including reasonable attorneys' fees, arising from activities of the Respondent, its agents, servants or employees, performed hereunder that result from the negligent act, error, or omission of the Respondent or any of the Respondent's agents, servants or employees, as well as all claims of loss or damage to the Respondent's and the University's property, equipment, and/or supplies.

Furthermore, the University, its officials, employees, agents and agents' employees shall not be liable for damages to the Successful Respondent arising from any act of any third party, including, but not limited to, theft. The Successful Respondent further agrees to indemnify, defend and save harmless, the University from its officials, employee, agents and agents' employees against all claims of whatever nature arising from any accident, injury, or damage whatsoever, caused to any person, or the property of any person, occurring in relation to the Successful Respondent's performance of any services requested hereunder during the term of the Contract and/or any Ensuing Agreement(s).

The Successful Respondent shall timely report all claims, demands, suits, actions, proceedings, liens or judgements to the University and shall, upon the receipt of any claim, demand, suit, action, proceeding, lien or judgement, not later than the fifteenth (15th) day of each month; provide the University with a written report on each such matter, setting forth the status of each matter, the schedule or planned proceedings with respect to each matter and the cooperation or assistance, if any, of the University required by the Successful Respondent in the defense of each matter. The Successful Respondent's duty to defend, indemnify and hold the University harmless shall be absolute. It shall not abate or end by reason of the expiration or termination of the Contract and/or any Ensuing Agreement(s), unless otherwise agreed by the University in writing. The provisions of this section shall survive the termination of the Contract and shall remain in full force and effect with respect to all such matters no matter when they arise. In the event of any dispute between the parties, as to whether a claim, demand, suit, action, proceeding, lien or judgement, that appears to have been caused by or appears to have arisen out of or in connection with acts or omissions of the University, the Respondent shall nevertheless fully defend such claim, demand, suit or action, proceeding, lien or judgement, until and unless there is a determination by a court of competent jurisdiction that the acts and omissions of the Respondent are not an issue in the matter.

The Successful Respondent's indemnification shall cover, and the Successful Respondent agrees to, indemnify the University, in the event the University is found to have been negligent for having selected the Successful Respondent to perform the work described in this request. The provision by the Successful Respondent of insurance shall not limit the liability of the Successful Respondent under the Contract and/or any Ensuing Agreement(s).

Relationship of the Parties: The Successful Respondent shall be an independent contractor and shall assume all of the rights, obligations, and liabilities, applicable to it as such independent contractor hereunder and any provisions herein which may appear to give the University the right to direct the Successful Respondent as to details of doing work herein covered, or to exercise a measure of control over the work, shall be deemed to mean that the Successful Respondent shall follow the desires of the University in the results of the work only. The University shall not retain or have the right to control the Successful Respondent's means, methods or details pertaining to the Successful Respondent's performance of the work. The University and the Successful Respondent hereby agree and declare that the Successful Respondent is an independent contractor and as such meets the qualifications of an "Independent Contractor" under Texas Workers Compensation Act, Texas Labor Code, Section 406.141, that the Successful Respondent is not an employee of the University, and that the Successful Respondent and its employees, agents and subcontractors shall not be entitled to workers compensation coverage or any other type of insurance coverage held by the University.

Sole Provider: The Successful Respondent agrees and acknowledges that it shall not be considered a sole provider of the goods and/or services described herein and that the University may contract with other providers of such goods and/or services if the University deems, at its sole discretion, that multiple providers of the same goods and/or services will serve the best interest of the University.

Force Majeure: If the party obligated to perform is prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of said party, the other party shall grant such party relief from the performance. The burden of proof for the need of such relief shall rest upon the party obligated to perform. To obtain release based on force majeure, the party obligated to perform shall file a written request with the other party.

Severability: If any provision of this RFP, the Contract or any Ensuing Agreement(s) shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision thereof, but rather the entire RFP, Contract or any Ensuing Agreement(s) will be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligation of the parties shall be construed and enforced in accordance therewith. The parties acknowledge that if any provision of this RFP, the Contract or any Ensuing Agreement(s) is determined to be invalid or unenforceable, it is the desire and intention of each that such provision be reformed and construed in such a manner that it will, to the maximum extent practicable, give effect to the intent of this RFP, the Contract or any Ensuing Agreement(s) and be deemed to be validated and enforceable.

Equal Opportunity: Neither party shall discriminate against any employee or applicant for employment because of race, color, sex, religion or national origin.

Notice: Any notice to be given shall be in writing and may be distributed by personal delivery, or by registered or certified mail, return receipt requested, addressed to the proper party, at the following address:

Southwestern University Finance & Administration 1001 East University Avenue Georgetown, Texas 78626

Sales and Tax Use Exemption: The University is tax-exempt.

Compliance with Laws: The University and the Successful Respondent shall comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of the Contract and any Ensuing Agreement(s), including, without limitation, Workers' Compensation laws, salary and wage statutes and regulations, licensing laws and regulations. When required, the Successful Respondent shall furnish the University with certification of compliance with said laws, statutes, ordinances, rules, regulations, orders, and decrees above specified.

No Waiver of Immunities: Nothing herein shall be deemed to waive, modify, or amend any legal defense available at law or in equity to the University, its past or present officers, employees, or agents, nor to create any legal rights or claim on behalf of any third party.

The University does not waive, modify, or alter to any extent whatsoever the availability of the defense of immunity under the laws of the State of Texas and of the United States.

No Waiver: The failure or delay of any party to enforce at any time or any period of time any of the provisions of this RFP, the Contract or any Ensuing Agreement(s) shall not constitute a present or future waiver of such provisions nor the right of either party to enforce each and every provision. Furthermore, no term or provision hereof shall be deemed waived, and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of or excuse for any other, different or subsequent breach.

Insurance Requirements: By signing the submittal, the Respondent agrees to maintain at all times during any term of the Contract and any ensuing Agreement, at the Respondent 's cost, insurance in accordance with this provision. The Respondent will be required to submit Certificates of Insurance immediately following contract award and prior to issuance of a Purchase Order.

All certificates of insurance coverage as specified below must be provided to the following Location and should include the RFP number and description:

Southwestern University Finance and Administration 1001 East University Avenue Georgetown, Texas 78626

Failure to comply with these Insurance Requirements may result in the termination of the Contract and any ensuing Agreement(s) between the Successful Respondent and the University.

Successful Respondent must comply with the following insurance requirements at all times during this Contract:

A. Coverage Limits. Except as specified otherwise in the Contract and any ensuing Agreement(s), Successful Respondent, at Successful Respondent's sole cost, shall purchase and maintain during the entire term while the Contract and any ensuing Agreement(s)is in effect the following insurance:

Technology Errors and Omissions, including Cyber Risk $5 Mil per occurrence/aggregate

B. Additional Insureds; Waiver of Subrogation. University, its directors, officers and employees shall be added as additional insureds under policies listed under (2) and (3) above, and on those policies where University, its directors, officers and employees are additional insureds, such insurance shall be primary, and any insurance maintained by University shall be excess and not contribute with it. Such policies shall also include waivers of subrogation in favor of the University.

C. Premiums and Deductible. Successful Respondent shall be responsible for payment of premiums for all of the insurance coverages required under this section. Successful Respondent further agrees that for each claim, suit or action made against insurance provided hereunder, with respect to all matters for which the Successful Respondent is responsible, Successful Respondent shall be solely responsible for all deductibles and self-- insured retentions. Except as specified otherwise in the Contract and any ensuing Agreement(s), any deductibles or self-insured retentions over $50,000 in the Successful Respondent's insurance must be declared and approved in writing by University in advance.

D. Commencement of Work. Successful Respondent shall not commence any field work under this Contract until he/she/it has obtained all required insurance and such insurance has been approved by University. As further set out below, Successful Respondent shall not allow any subcontractor/subconsultant(s) to commence work to be performed in connection with this Contract untilall required insurance has been obtained and approved and such approval shall not be unreasonably withheld. Approval of the insurance by University shall not relieve or decrease the liability of Successful Respondent hereunder.

E. Insurance Company Rating. The required insurance must be written by a company approved to do business in the State or Texas with a financial standing of at least an A- rating, as reflected in Best's insurance ratings or by a similar rating system recognized within the insurance industry at the time the policy is issued.

F. Certification of Coverage. Successful Respondent shall furnish the University with a certification of coverage issued by the insurer. Successful Respondent shall not cause any insurance to be canceled nor permit any insurance to lapse. In addition to any other notification requires set forth hereunder, Successful Respondent shall also notify the University, within twenty-four (24) hours of receipt of any notices of expiration, cancellation, non- renewal, or material change in coverage it receives from its insurer.

G. No Arbitration. It is the intention of the University and agreed to and hereby acknowledged by the Successful Respondent, that no provision of this Contract shall be construed to require the University to submit to mandatory arbitration in the settlement of any claim, cause of action or dispute, except as specifically required in direct connection with an insurance claim or threat of claim under an insurance policy required hereunder or as may be required by law or a court of law with jurisdiction over the provisions of this Contract.

H. Subcontractor/Subconsultant's Insurance. Without limiting any of the other obligations or liabilities of Successful Respondent, Successful Respondent shall require each subcontractor/subconsultant performing work under the Contractor and any ensuing Agreement(s) (to the extent a subcontractor/subconsultant is allowed by the University) to maintain during the term of the Contract and any ensuing Agreement(s), at the subcontractor/subconsultant's own expense, the same stipulated minimum insurance required in this section above, including the required provisions and additional policy conditions as shown below in this section.

Successful Respondent shall obtain and monitor the certificates of insurance from each subcontractor/subconsultant in order to assure compliance with the insurance requirements. Successful Respondent must retain the certificates of insurance for the duration of the Contract and any ensuing Agreement(s) and shall have the responsibility of enforcing these insurance requirements among its subcontractor/subconsultants. The University shall be entitled, upon request and without expense, to receive copies of these certificates of insurance.

I. Insurance Policy Endorsements. Each insurance policy shall include the following conditions by endorsement to the policy:

1. The University shall be notified thirty (30) days prior to the expiration, cancellation, non-renewal or any material change in coverage.

2. The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by the University, to any such future coverage, or to the University's Self-Insured Retentions of whatever nature.

J. Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Successful Respondent shall be borne solely by Successful Respondent, with certificates of insurance evidencing such minimum coverage in force to be filed with the University.

General Obligations and Reliance: The Successful Respondent shall perform all services and/or provide all goods, as well as those reasonably inferable and necessary for completion and provision of services and/or goods required hereunder. The Successful Respondent shall keep the University informed of the progress and quality of the services. The Successful Respondent agrees and acknowledges that the University is relying on the Successful Respondent's represented expertise and ability to provide the goods and/or services described herein. The Successful Respondent agrees to use its best efforts, skill, judgment, and abilities to perform its obligations in accordance with the highest standards used in the profession and to further the interests of the University in accordance with the University's requirements and procedures. The Successful Respondent's duties, as set forth herein, shall at no time be in any way diminished by reason of any approval by the University, nor shall the Successful Respondent be released from any liability by reason of such approval by the University, it being understood that the University at all times is ultimately relying upon the Successful Respondent's skill and knowledge in performing the services and providing any goods required hereunder.

Survivability: All applicable agreements that were entered into between the Successful Respondent and the University, under the terms and conditions of the Contract and/or any Ensuing Agreement(s), shall survive the expiration or termination thereof for ninety

(90) days unless a new contract has been awarded. The University may exercise, by written notice to the Successful Respondent no later than ten (10) calendar days of the Contract expiration, this clause for emergency cases only.

Contract Extensions: If applicable, at the end of the Initial Contract Term, the University reserves the right to extend the Initial Contract Term, by mutual agreement of both parties, as it deems to be in the best interest of the University. The extension may be negotiated if renewal indications are provided within the University's timeframe which reflects renewal terms for the forthcoming policy year that are deemed by the University to be competitive with current market conditions. However, the University may terminate the contract at any time if funds are restricted, withdrawn, not approved, or if service is unsatisfactory. Any extension will be in twelve (12) month increments, with the terms and conditions remaining the same.

Payment: As a minimum, invoices shall include:

1. Name, address, and telephone number of the Successful Respondent and similar information in the event the payment is to be made to a different address.

2. The University Contract, Purchase Order.

3. Identification of items or services as outlined in the Contract.

4. Quantity or quantities, applicable unit prices, total prices, and total amount.

5. Any additional payment information which may be called for by the Contract.

Payment inquiries should be directed to the following address:

Southwestern University, Accounts Payable Department Email:

vendor@southwestern.edu

Purchase Orders: If required by the Southwestern University, a purchase order(s) may be generated to the Successful Respondent for goods and/or services. If a purchase order is issued, the purchase order number must appear on all itemized invoices and/or requests for payment.

Exceptions: Any exceptions to or additional terms and conditions attached to the response will only be considered if the respondent specifically and clearly references them in their proposal as its own section. WARNING: Exception to or additional terms and conditions may result in disqualification of the response.

Successful Respondent must comply with the following insurance requirements at all times during this Contract: