2-Exhibit B -Buyer Bexar County Hospital District dba University Healths State County Law Amendment.pdf

Buyer, Bexar County Hospital District dba University Health’s

State/County Law Amendment

Buyer, Bexar County Hospital District dba University Health’s

The provisions set forth in this Amendment are being added to the Agreement to comply with legislative and regulatory requirements of the State of Texas and requirements set forth by the legal department for Bexar County Hospital District d/b/a University Health (“Buyer” or “University Health”) in its status as a political subdivision of the State of Texas and County Hospital District. This Amendment shall apply and shall supersede any provisions in the Agreement (which includes any document referenced therein or subsequent agreements or subsequent amendments) to the contrary. For purposes of this Amendment, "Seller" shall mean any bidder, offeror, vendor, service provider or other person or entity responding to this procurement opportunity or who has entered into the Agreement with Buyer.

1. Governmental Immunity. The Parties acknowledge that Buyer is a political subdivision of the State of Texas and under the Constitution and laws of the State of Texas possesses certain rights and privileges, is subject to certain limitations and restrictions, and only has such authority as is granted to it under the Constitution and the laws of the State of Texas. Nothing in the Agreement is intended to be, nor will it be construed to be, a waiver of sovereign or governmental immunity or a prospective waiver of restriction of any of the rights, remedies, claims and privilege of the State of Texas or its political subdivisions. Notwithstanding the generality or specificity of any provision of this Agreement (including, without limitation, any provision pertaining to indemnification, a cap on liability, a limitation of damages, or a waiver or limitation of rights, remedies, representation or warranties), the provisions of this Agreement, as those provisions pertain to Buyer, are enforceable only to the extent authorized and required by the Constitution and laws of the State of Texas.

2. Appropriations. This Agreement is expressly made contingent upon the availability and appropriation of funds for each fiscal year during the term of this Agreement by the Buyer’s governing body. The Buyer shall have no obligation or liability under this Agreement for any payment for which funds have not been appropriated and funds are appropriated annually.

In the event the governing body of the Buyer does not appropriate sufficient funds for the payment of its obligations hereunder, Buyer may terminate the Agreement, without penalty or further payment, upon thirty (30) days written notice to Seller; provided, however, Buyer shall pay to Seller all fees and expenses due and owing to Seller up through the date of termination.

3. Program of Self-insurance. The parties acknowledge that Buyer is a political subdivision of the State of Texas and is subject to and shall comply with the applicable provisions of the Texas Tort Claims Act, as set for the in the Civil Practice and Remedies Code, Section 101.001, et seq. and the remedies authorized therein regarding claims or causes of action that may be asserted by third parties for accident, injury or death. In lieu of insurance requirements, Buyer shall at all times during the term of this Agreement maintain a self-insurance fund sufficient to meet its possible exposure under the Texas Tort Claims Act as follows: A maximum amount of $100,000.00 for each person and $300,000.00 for each single occurrence for bodily injury or death and $100,000.00 for each single occurrence for injury or destruction of property, or such higher amounts as may be required by law.

4. Disputes, Governing Law & Venue. This Agreement shall be governed by the laws of the State of Texas. Any dispute or action arising out of or relating to this Agreement shall be brought and maintained only in a state court located in Bexar County, Texas. Seller waives any right to bring action in Federal Court based on diversity of citizenship. The prevailing party in any such action shall be entitled to recover from the non-prevailing party the prevailing party's reasonable attorney's fees, unless prohibited by law.

5. Disputes, Mediation. The Parties will use their best efforts to settle any dispute, claim, question or disagreement between them, negotiating with each other in good faith and, recognizing their mutual interest, attempting to reach an equitable solution satisfactory to both Parties. Before instituting any lawsuit or arbitration the parties must first participate in a mediation as described in the Alternative Dispute Resolution Procedures of the Texas Civil Practice and Remedies Code before a mutually agreeable mediator. If the Parties cannot agree on a mediator, either Party may apply to any court of competent jurisdiction for appointment of a mediator and an Order to Mediate. The Party seeking mediation (the “Plaintiff”) shall notify, in writing, the Party against who such mediation is sought (the “Defendant”), describe the nature of such claims and provide detailed information supporting the claims and specify the provision of this Agreement which has been violated by the Defendant (this written notice is notice of an “intent to mediate”). The costs and expenses associated with mediation shall be borne equally by the Parties. The mediation must take place within 30 days of agreement to or appointment of a mediator. The mediation shall be held in San Antonio, Texas, unless another location is mutually agreed upon. If resolution is not reached within 90 days after beginning mediation, then the mediation shall terminate and the Parties may initiate adversarial proceedings. The applicable statutes of limitations will be tolled from the date of the Party providing its notice of an intent to mediate. There is no requirement of exhaustion of administrative remedies. There is no mandatory arbitration, but the parties may decide to arbitrate their dispute only upon mutual written consent.

There are no limitations or waivers of the legal rights or remedies of Buyer as the County Hospital.

6. Adherence to Policies & Procedures. Seller shall ensure that all of their actions, services and items provided in connection with the Agreement at all times comply with Buyer's policies and procedures.

7. Seller Liability. No liability limitation, waiver, release or other provision in the Agreement or any subsequent Amendment will limit, reduce, or eliminate (i) Seller's liability for direct damages to any person or property resulting from any conduct, act, or omission of Seller or Seller's employees, officers, directors, agents, or affiliates; (ii) Seller's liability pursuant to any indemnification obligation under this Agreement or any subsequent Amendment; or (iii) Seller's liability for any breach or violation of a business associate agreement or any security or privacy requirements relating to individually identifiable health information.

8. Privileged Information. Buyer shall not be required to disclose or to allow access to any information or documents if such disclosure or access would violate any law or may operate to waive any applicable privilege, including peer review privilege and work product privilege.

9. Confidentiality. Buyer is governed by the Texas Public Information Act (“TPIA”), Chapter 552, Texas Government Code. The Parties acknowledge and agree that Buyer shall only be obligated to perform its duties under the Agreement in compliance with the TPIA. To the extent to which some duties hereunder are not in conformity with the requirements of the TPIA, Buyer shall be relieved of said duties without penalty or further liability. In the event either Party receives a request under the TPIA for information the Parties have agreed to be confidential either under the Agreement or otherwise excepted from disclosure under the TPIA, the Party shall immediately notify the other Party and confer on whether disclosure should be opposed. The Parties expressly agree that Buyer may request a determination from the Texas Office of the Attorney General (“OAG”) in regard to the application of the TPIA to the requested information and whether the information is to be made available to the public. Buyer, its officers and employees shall have the right to rely on the determinations of the OAG, and Buyer, its officers and employees shall have no liability to Seller for disclosure to the public in reliance on a decision by the OAG. Further, in the event that Texas Government Code Section 552.371 applies to the Agreement, the Parties agree to the following statement: “The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract [Agreement] and the contractor or vendor agrees that the contract [Agreement] can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter.” Nothing in the Agreement shall require the Parties to violate the terms of the TPIA. Buyer shall not be restricted in any way from sharing the Agreement or any pricing information with its group purchasing organization, agents, consultants, and employees.

10. Exemption from Taxes. Buyer is exempt from payment of taxes under Chapter 151, Texas Tax Code for the purchase of tangible personal property. Seller agrees to satisfy any and all tax obligations on property, fixtures or equipment provided under the Agreement and assessed by any jurisdiction and shall indemnify and hold harmless Buyer for any assessments thereof.

11. Contract Damages. The parties acknowledge and agree that this Agreement is subject to Subchapter I, Chapter 271, Texas Local Government Code. In accordance with Section

271.153 of the Texas Local Government Code, any and all monetary damages recoverable against the Hospital District for a breach of this Agreement are limited to the following: (i) the balance due and owed by Buyer under the Agreement at the time of termination for work performed, including amounts for additional work properly performed in accordance with the Agreement; (ii) those reasonable and necessary attorney’s fees actually incurred that are equitable and just; and

(iii) interest as allowed by law. The Hospital District shall not be liable for consequential damages, exemplary damages, damages for unabsorbed home office overhead, lost or anticipated profits (other than profits earned on work performed), or any other category of damages not expressly authorized by Section 271.153.

12. Limitation on Third Party Damages. Buyer is governed by the Texas Tort Claims Act, Chapter 101, Civil Practice and Remedies Code. Buyer is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death.

13. Interested Parties Disclosures. If applicable, pursuant to Texas Government Code Chapter 2252 and 1 Texas Administrative Code Section 46.1, Seller acknowledges that, as a condition precedent to execution by Buyer, Seller must disclose appropriate interested parties on Texas Ethics Commission Form 1295, which can be accessed at https://www.ethics.state.tx.us/filinginfo/1295/.

14. Exclusion from Federal Health Care Programs; Health Law Compliance.

Seller represents and warrants that neither Seller, nor to its knowledge, its employees, agents, subcontractors or assigns, have been (a) convicted of a criminal offense related to healthcare (unless such person or entity has implemented a compliance program as part of an agreement with the federal government); or (b) listed by a federal agency as debarred, excluded or otherwise ineligible for federal program participation under 42 U.S.C. 1320a-7, the OIG List of Excluded Individuals/Entities and/or the General Services Administration (“GSA”) list of debarred contractors. Seller shall notify Buyer within three (3) days of the time Seller receives notice of any action being taken against Seller or its employees, agents, subcontractors or assigns which could result in its exclusion from participating in the federal health care programs. Seller acknowledges that Buyer may terminate the Agreement without penalty or further payment upon the resolution of a pending criminal charge or proposed disbarment or exclusion which results in a conviction, disbarment or exclusion of Seller or its employees, agents, subcontractors or assigns.

15. Minimum Retention. Pursuant to Public Law 96-499, see. 952 (Sec. 1861 (v)(1) of the Social Security Act), the Parties agree that: Seller shall, until the expiration of four (4) years after the furnishing of the services under the Agreement, retain and make available, under written request by the secretary of the U.S. Department of Health and Human Services, or upon written request, by the U.S. Comptroller General, or any of their duly authorized representatives, the contract and books, documents, and records of Contractor that are necessary to verify the nature and extent of the cost of the services under the Agreement.

16. Minimum Retention (Subcontractor). If Seller carries out any of the duties of the Agreement through a subcontract, with a value or cost of ten thousand dollars ($10,000.00) or more over a twelve (12) month period with a related organization, such subcontract shall contain a clause to the effect that, until the expiration of four (4) years after the furnishing of such services pursuant to such subcontract, the related organization shall retain and make available, upon written request by the Secretary of the U.S. Department of Health and Human Services, or upon written request by the U.S. Comptroller General, or any of their duly authorized representatives, the subcontract and books, documents or records of such organization that are necessary to verify the nature and extent of such costs of the subcontracted services. In the event of a request for access, Seller agrees to notify Buyer what response will be made to that request.

https://www.ethics.state.tx.us/filinginfo/1295/

17. No Boycotting Israel. In accordance with Texas Government Code § 2271, Seller does not boycott Israel, and will not boycott Israel during the term of the Agreement.

18. Contracts with Companies engaged in Business with Iran, Sudan, or Foreign Terrorist Organization Prohibited. In accordance with Texas Government Code § 2252, Seller is not entered on the list prepared pursuant to Section 2252.152 of the Texas Government Code.

19. Seller Does Not Discriminate Against Firearm. In accordance with Texas Government Code § 2274, Seller does not have a practice, policy, guidance or directive that discriminates against a firearm entity or firearm trade association, and will not discriminate during the term of the agreement against a firearm entity or firearm trade association; and

20. No Boycotting Energy Companies. In accordance with Texas Government Code § 2274, Seller does not boycott energy companies and will not boycott energy companies during the term of the agreement.

Seller Signature Horacio Vasquez Date Executive Director, Supply Chain Management University Health

Procurement State/County Law Amendment