2-Sample Agreement - 720-2515 - Helicopter Aerial Survey Services.pdf

APPENDIX 2

SAMPLE AGREEMENT

AGREEMENT BETWEEN UNIVERSITY AND CONTRACTOR

This Agreement between University and Contractor (Agreement) is made and entered into effective as of _________________, 20____ (Effective Date), by and between The University of Texas , an agency and institution of higher education established under the laws of the State of Texas (University), and , a (Contractor), Federal Tax Identification Number

University and Contractor hereby agree as follows:

1. Scope of Work.

1.1 Contractor will perform the scope of the work (Work) in Exhibit A, Scope of Work, to the satisfaction of University and in accordance with the schedule (Schedule) for Work in Exhibit B, Schedule. Time is of the essence in connection with this Agreement. University will have no obligation to accept late performance or waive timely performance by Contractor.

1.2 Contractor will obtain, at its own cost, any and all approvals, licenses, filings, registrations and permits required by federal, state or local, laws, statutes, regulations and ordinances (collectively, Applicable Laws), for the performance of Work.

2. The Project.

The Work will be provided in connection with _____________________________ and all other related, necessary and appropriate services (Project).

3. Time for Commencement and Completion.

The term (Initial Term) of this Agreement will begin on the Effective Date and expire on

______________________, 20___. University will have the option to renew this Agreement for _______ (___) additional ______ (____) year terms (each a Renewal Term). The Initial Term and each Renewal Term are collectively referred to as the Term.

4. Contractor's Obligations.

4.1 Contractor will perform Work in compliance with (a) all Applicable Laws, and (b) the Board of Regents of The University of Texas System Rules and Regulations (http://www.utsystem.edu/offices/board-regents/regents-rules-and-regulations), the rules, regulations, and policies of The University of Texas System (https://www.utsystem.edu/sites/policy-library), and the institutional rules, regulations and policies of University (________________________) (collectively, University Rules).

Contractor represents and warrants that neither Contractor nor any firm, corporation or institution represented by Contractor, or anyone acting for Contractor or any such firm, corporation or institution, (1) has violated the antitrust laws of the State of Texas, Chapter 15, Texas Business and Commerce Code, or federal antitrust laws, or (2) has communicated directly or indirectly the content of Contractor’s response to University’s procurement solicitation to any competitor or any other person engaged in a similar line of business during the procurement process for this Agreement.

4.2 Contractor represents and warrants that (a) it will use commercially reasonable efforts to perform Work in a good and workmanlike manner and in accordance with commercially reasonable standards of Contractor’s profession or business, and (b) all Work performed will http://www.utsystem.edu/offices/board-regents/regents-rules-and-regulations https://www.utsystem.edu/sites/policy-library http://www.statutes.legis.state.tx.us/Docs/BC/htm/BC.15.htm be of the quality that prevails among similar businesses engaged in providing similar services in major United States urban areas under the same or similar circumstances.

4.3 Contractor will call to University’s attention in writing all information in any materials supplied to Contractor (by University or any other party) that Contractor regards as unsuitable, improper or inaccurate in connection with the purposes for which the material is furnished.

4.4 University at all times is relying on Contractor's skill and knowledge in performing Work.

Contractor represents and warrants that Work will be accurate and free from any material defects. Contractor's duties and obligations under this Agreement will not be in any way diminished by reason of any approval by University. Contractor will not be released from any liability by reason of any approval by University.

4.5 Contractor will, at its own cost, correct all material defects in Work as soon as practical after

Contractor becomes aware of the defects. If Contractor fails to correct material defects in Work within a reasonable time, then University may correct the defective Work at Contractor’s expense. This remedy is in addition to, and not in substitution for, any other remedy for defective Work that University may have at law or in equity.

4.6 Contractor will maintain a staff of properly trained and experienced personnel to ensure satisfactory performance under this Agreement. Contractor will cause all persons connected with Contractor directly in charge of Work to be duly registered and licensed under all Applicable Laws. Contractor will assign to the Project a designated representative who will be responsible for administration and coordination of Work. Contractor will furnish efficient business administration and coordination and perform Work in an expeditious and economical manner consistent with the interests of University.

4.7 Contractor represents and warrants it is duly organized, validly existing and in good standing under the laws of the state of its organization; it is duly authorized and in good standing to conduct business in the State of Texas; it has all necessary power and has received all necessary approvals to execute and deliver this Agreement; and the individual executing this Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

4.8 Contractor represents and warrants that neither the execution and delivery of this Agreement by Contractor nor the performance of its duties and obligations under this Agreement will (a) result in the violation of any provision of its organizational documents; (b) result in the violation of any provision of any agreement by which it is bound; or (c) conflict with any order or decree of any court or other body or authority having jurisdiction.

4.9 Intentionally Omitted..

4.10 Contractor represents and warrants that: (i) Work will be performed solely by Contractor, its full-time or part-time employees during the course of their employment, or independent contractors who have assigned in writing all right, title and interest in their work to Contractor (for the benefit of University); (ii) University will receive free, good and clear title to all Work Material developed under this Agreement; (iii) Work Material and the intellectual property rights protecting Work Material are free and clear of all encumbrances, including security interests, licenses, liens, charges and other restrictions; (iv) Work Material will not infringe upon or violate any patent, copyright, trade secret, trademark, service mark or other property right of any former employer, independent contractor, client or other third party; and (v) the use, reproduction, distribution, or modification of Work Material will not violate the rights of any third parties in Work Material, including trade secret, publicity, privacy, copyright, trademark, service mark and patent rights.]

4.11 If this Agreement requires Contractor’s presence on University's premises or in University’s facilities, Contractor agrees to cause its employees, representatives, agents, or subcontractors to become aware of, fully informed about, and in full compliance with all applicable University Rules, including those relative to personal health, security, environmental quality, safety, fire prevention, noise, smoking, and access restrictions.

5. The Contract Amount.

5.1 So long as Contractor has provided University with its current and accurate Federal Tax Identification Number in writing, University will pay Contractor for the performance of Work in accordance with Exhibit C, Payment for Services.

5.2 The Contract Amount includes all applicable federal, state or local sales or use taxes payable as a result of the execution or performance of this Agreement.

5.3 University (a State agency) is exempt from Texas Sales & Use Tax on Work in accordance with §151.309, Texas Tax Code and 34 Texas Administrative Code (TAC) §3.322. Pursuant to 34 TAC §§3.322(c)(4) and (g)(3), this Agreement is sufficient proof of University’s tax exempt status and University is not required to provide further evidence of its exempt status.

6. Payment Terms.

6.1 At least ten (10) days before the end of each month during the Term, Contractor will submit to University an invoice covering Work performed for University to that date, in compliance with Exhibit C, Payment for Services. Each invoice will be accompanied by documentation that University may reasonably request to support the invoice amount. University will pay Contractor for Work in accordance with Chapter 2251, Texas Government Code.

6.2 Within ten (10) days after final completion and acceptance of Work by University or as soon thereafter as possible, Contractor will submit a final invoice (Final Invoice) setting forth all amounts due and remaining unpaid to Contractor. Upon approval of the Final Invoice by University, University will pay (Final Payment) to Contractor the amount due under the Final Invoice.

6.3 Notwithstanding any provision of this Agreement to the contrary, University will not be obligated to make any payment (whether a Progress Payment or Final Payment) to Contractor if Contractor is in default under this Agreement.

6.4 The cumulative amount of all Progress Payments and the Final Payment (defined above) will not exceed the Contract Amount in Exhibit C, Payment for Services.

6.5 No payment made by University will (a) be construed to be final acceptance or approval of that part of the Work to which the payment relates, or (b) relieve Contractor of any of its duties or obligations under this Agreement.

6.6 The acceptance of Final Payment by Contractor will constitute a waiver of all claims by

Contractor except those previously made in writing and identified by Contractor as unsettled at the time of the Final Invoice for payment.

6.7 University will have the right to verify the details in Contractor's invoices and supporting documentation, either before or after payment, by (a) inspecting the books and records of http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.151.htm#151.309 https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=207487 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2251.htm

Contractor at mutually convenient times; (b) examining any reports with respect to the Project;

and (c) other reasonable action.

6.8 Section 51.012, Texas Education Code, authorizes University to make payments through electronic funds transfer methods. Contractor agrees to accept payments from University through those methods, including the automated clearing house system (ACH). Contractor agrees to provide Contractor’s banking information to University in writing on Contractor letterhead signed by an authorized representative of Contractor. Prior to the first payment, University will confirm Contractor’s banking information. Changes to Contractor’s bank information must be communicated to University in accordance with Section 12.14 in writing at least thirty (30) days before the effective date of the change and must include an IRS Form W-9 signed by an authorized representative of Contractor.

6.9 Notwithstanding any other provision of this Agreement, University is entitled to a discount of

____% (Prompt Payment Discount) off of each payment that University submits within ____days after University’s receipt of Contractor’s invoice for that payment.

6.10 Contractor will submit a Historically Underutilized Business Subcontracting Plan progress assessment report (PAR) to the University with each invoice as required by 34 TAC 20.285(g). The PAR is a condition for payment. (Ref. Section 12.28.)

7. Ownership and Use of Work Material.

7.1 All tools, software, programs, drawings, specifications, plans, computations, sketches, data, photographs, tapes, renderings, models, publications, statements, accounts, reports, studies, and other materials prepared by Contractor or any subcontractors in connection with Work (collectively, Work Material), whether or not accepted or rejected by University, are the sole property of University and for its exclusive use and re-use at any time without further compensation and without any restrictions.

7.2 Contractor grants and assigns to University all rights and claims of whatever nature and whether now or hereafter arising in and to Work Material and will cooperate fully with University in any steps University may take to obtain or enforce patent, copyright, trademark or like protections with respect to Work Material.

7.3 Contractor will deliver all Work Material to University upon expiration or termination of this

Agreement. University will have the right to use Work Material for the completion of Work or otherwise. University may, at all times, retain the originals of Work Material. Work Material will not be used by any person other than University on other projects unless expressly authorized by University in writing.

7.4 Work Material will not be used or published by Contractor or any other party unless expressly authorized by University in writing. Contractor will treat all Work Material as confidential.

7.5 Intentionally Omitted.

7.6 Intentionally Omitted.

7.7 University grants Contractor a non-exclusive, worldwide, perpetual, irrevocable, sub-licensable, royalty-free license to the Work Product Improvements to Contractor IP.

“Work Product Improvements to Contractor IP” means Work Material comprising an improvement, enhancement or modification to Contractor IP, whether or not patentable, copyrightable as a derivative work, or otherwise protectable as intellectual property.]

8. Default and Termination.

http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.012 https://www.irs.gov/uac/about-form-w9 https://www.irs.gov/uac/about-form-w9 https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=214411 https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=214411

8.1 In the event of a material failure by a party to this Agreement to perform in accordance with its terms (default), the other party may terminate this Agreement upon fifteen (15) days’ written notice of termination setting forth the nature of the material failure; provided, that, the material failure is through no fault of the terminating party. The termination will not be effective if the material failure is fully cured prior to the end of the fifteen-day (15-day) period.

8.2 University may, without cause, terminate this Agreement at any time upon giving seven (7) days’ advance written notice to Contractor. Upon termination pursuant to this Section, Contractor will be entitled to payment of an amount that will compensate Contractor for Work satisfactorily performed from the time of the last payment date to the termination date in accordance with this Agreement; provided, that, Contractor has delivered all Work Material to University. Notwithstanding any provision in this Agreement to the contrary, University will not be required to pay or reimburse Contractor for any services performed or for expenses incurred by Contractor after the date of the termination notice that could have been avoided or mitigated by Contractor.

8.3 Termination under Sections 8.1 or 8.2 will not relieve Contractor from liability for any default or breach under this Agreement or any other act or omission of Contractor.

8.4 If Contractor fails to cure any default within fifteen (15) days after receiving written notice of the default, University will be entitled (but will not be obligated) to cure the default and will have the right to offset against all amounts due to Contractor under this Agreement any and all reasonable expenses incurred in connection with University’s curative actions.

8.5 Intentionally Omitted.

9. Indemnification.

9.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CONTRACTOR WILL AND DOES

HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND

HOLD HARMLESS UNIVERSITY, THE UNIVERSITY OF TEXAS SYSTEM, AND THEIR AND ITS]

RESPECTIVE AFFILIATED ENTERPRISES, REGENTS, OFFICERS, DIRECTORS, ATTORNEYS,

EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY, INDEMNITEES) FROM AND AGAINST ALL DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, EXPENSES, AND OTHER

CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION, INCLUDING REASONABLE ATTORNEYS’ FEES

INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY, CLAIMS) BY ANY PERSON OR ENTITY, ARISING OUT OF, CAUSED BY, OR RESULTING (1) FROM

CONTRACTOR’S PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT AND/OR (2) IN WHOLE

OR IN PART FROM ANY NEGLIGENT ACT, NEGLIGENT OMISSION OR WILLFUL MISCONDUCT OF

CONTRACTOR, ANYONE DIRECTLY EMPLOYED BY CONTRACTOR OR ANYONE FOR WHOSE ACTS

CONTRACTOR MAY BE LIABLE. THE PROVISIONS OF THIS SECTION WILL NOT BE CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT WHICH ANY INDEMNITEE HAS BY LAW OR EQUITY. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN

EXPENSE.

9.2 IN ADDITION, CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND

WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS INDEMNITEES FROM AND

AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY INTEREST ARISING BY OR OUT OF THE

PERFORMANCE OF SERVICES OR THE PROVISION OF GOODS BY CONTRACTOR, OR THE USE BY

INDEMNITEES, AT THE DIRECTION OF CONTRACTOR, OF ANY ARTICLE OR MATERIAL; PROVIDED, THAT, UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR INFRINGEMENT, UNIVERSITY

WILL PROMPTLY NOTIFY CONTRACTOR AND CONTRACTOR WILL BE GIVEN THE OPPORTUNITY TO

NEGOTIATE A SETTLEMENT. IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO REASONABLY

COOPERATE WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY

COUNSEL AT THEIR OWN EXPENSE.

10. Relationship of the Parties.

For all purposes of this Agreement and notwithstanding any provision of this Agreement to the contrary, Contractor is an independent contractor and is not a state employee, partner, joint venturer, or agent of University. Contractor will not bind nor attempt to bind University to any agreement or contract. As an independent contractor, Contractor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including workers’ compensation insurance.

11. Insurance.

11.1 Contractor, consistent with its status as an independent contractor will carry and will cause its subcontractors to carry, at least the following insurance, with companies authorized to do insurance business in the State of Texas or eligible surplus lines insurers operating in accordance with the Texas Insurance Code, having an A.M. Best Rating of A-VIII or better, and in amounts not less than the following minimum limits for each coverage. The insurance requirements herein are minimum requirements for this Agreement and in no way limit Contractor’s obligations (including Contractor’s indemnity obligations) contained in this Agreement. Contractor is solely responsible for procuring insurance in addition to that set forth in this Section 11 as Contractor determines is necessary to protect the Contractor or its agents, representatives, employees, or subcontractors.

11.1.1 Workers’ Compensation Insurance with statutory limits, and Employer’s Liability

Insurance with limits of not less than $1,000,000:

Employers Liability - Each Accident $1,000,000 Employers Liability – Disease - Each Employee $1,000,000 Employers Liability – Disease - Policy Limit $1,000,000

Workers’ Compensation policy must include identification of the U.S. states where Contractor is to perform Work for University.

11.1.2 Commercial General Liability Insurance should be provided on an occurrence basis with limits of not less than:

Each Occurrence Limit $ 1,000,000 Damage to Rented Premises $ 1,000,000 Personal & Advertising Injury $ 1,000,000 General Aggregate $ 2,000,000 Products - Completed Operations Aggregate $ 2,000,000

Contractor’s Commercial General Liability Insurance policy must be on an ISO CG 00 01 or a substitute form providing equivalent coverage that includes bodily injury, property damage and liability assumed under an insured contract, including http://www.statutes.legis.state.tx.us/ defense costs with respect to liability arising out of activities performed by or on behalf of Contractor.

11.1.3 Business Auto Liability Insurance must be on an ISO CA 00 01 or substitute form providing equivalent coverage that covers all owned, non-owned or hired automobiles, with limits of not less than $1,000,000 single limit of liability per accident for Bodily Injury and Property Damage.

11.1.4 Aircraft Liability Insurance. The Operator shall maintain, or cause to be maintained at its sole expense, Single Limit Aircraft Liability Policy for Bodily Injury (including passengers) and property damage with minimum limits of liability insurance set at $2 million for light helicopters, $25 Million for light turboprop aircraft, $50 million for light jet aircraft and $3 million per seat for large aircraft (aircraft that seat 20 or more passengers). The University of Texas System Board of Regents, and the University of Texas System should be included as an additional insured party and must provide a certificate of insurance to university not less than 30 days prior to the scheduled departure date. If the certificate is not provided, University may cancel contract without penalty. The Aircraft Liability policy must not include sub-limits for passengers.

11.1.5 All Risk Aircraft Physical Damage of “Hull” insurance. A waiver of subrogation must be added in favor of University, its respective affiliated enterprises, officers, directors, attorneys, employees, representatives and agents.

11.2 Contractor will deliver to University:

11.2.1 After the execution and delivery of this Agreement and prior to the performance of any Work by Contractor, Contractor must provide evidence of insurance on a Texas Department of Insurance (“TDI”) approved certificate form (the Acord form is a TDI-approved form) verifying the existence of all required insurance policies;

and, if the coverage period shown on the current certificate form ends during the Term, then prior to the end of the coverage period, Contractor must provide a new certificate form verifying the continued existence of all required insurance policies.

Certificates of Insurance shall reflect applicable limits, sub-limits, self-insured retentions, and deductibles provided by Contractor. The certificate of insurance must confirm the required coverages in the "Description of Operations” or “Additional Remarks” section or Contractor must provide a copy of the declarations page. In the event Contractor maintains broader coverage and/or higher limits than the minimums shown above, University requires and shall be entitled to the broader coverage and/or higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to University.

11.2.1.1 All insurance policies (except for workers’ compensation, employer’s liability, and professional liability) will be endorsed and name or list (1) University, (2) The University of Texas System, and (3) The University of Texas System Board of Regents as Additional Insureds for liability caused by Contractor’s acts or omissions with respect to its on-going and completed operations. A Blanket Additional Insured Certificate is also acceptable. Commercial General Liability and Business Auto Liability will be endorsed to provide primary and non-contributory coverage.

11.2.1.2 Contractor hereby waives all rights of subrogation against (1) University,

(2) The University of Texas System, and (3) The University of Texas

System Board of Regents. All insurance policies will be endorsed to provide a waiver of subrogation in favor of the entities identified in the preceding sentence. A Blanket Waiver of Subrogation Certificate is also acceptable. No policy will be canceled until after thirty (30) days' unconditional written notice to University. Contractor will send notice to University thirty (30) days in advance of any cancellation, material change, or non-renewal relating to any insurance policy required in this Section 11.

11.2.1.3 Contractor will pay any deductible or self-insured retention and be responsible for any applicable policy waiting periods for claims covered by policies Contractor is required to provide under this Agreement.

11.2.1.4 Certificates of Insurance: Additional Insured/Blanket Additional Insured, Waiver of Subrogation/Blanket Waiver of Subrogation Endorsements as required by this Agreement will be mailed, faxed, or emailed to the following University contact:

Name: Louisa L. Ball Address: 15 Smith Rd, Suite 3000, Midland, TX 79705 Phone Number: 432-686-4724 Email Address: lball@utsystem.edu

11.3 Subject to Section 12.18, herein, Contractor’s insurance will be kept in force until all Work has been fully performed and accepted by University in writing or the Agreement expires, is terminated or is cancelled, whichever is later.

11.4 University reserves the right to approve the security of the insurance coverages provided by Contractor’s Insurers, as well as the terms, conditions, and Certificates of Insurance.

Failure of Contractor to fully comply with the requirements of this Section 11 is a material breach of the Agreement and, notwithstanding any requirements for notice and opportunity to cure in Article 8 herein, is a basis for immediate termination of the Agreement by University, at University’s election.

11.5 Nothing in this Agreement shall be deemed to limit Contractor’s liability under this

Agreement to the insurance coverages required by this Section 11. No limitation of liability provided to Contractor under this Agreement, if any, is intended nor shall run to the benefit of any insurance company or in any way prejudice, alter, diminish, abridge or reduce, in any respect, the amount of proceeds of insurance otherwise payable to University under the insurance coverages required to be carried by Contractor under this Agreement, it being the intent of the Parties that the full amount of insurance coverage bargained for be actually available notwithstanding any limitation of liability contained in this Agreement.]

12. Miscellaneous.

12.1 Assignment and Subcontracting. Except as specifically provided in Exhibit E, Historically

Underutilized Business Subcontracting Plan, Contractor's interest in this Agreement (including Contractor’s duties and obligations under this Agreement, and the fees due to Contractor under this Agreement) may not be subcontracted, assigned, delegated, or otherwise transferred to a third party, in whole or in part, and any attempt to do so will (a) not be binding on University; and (b) be a breach of this Agreement for which Contractor will be subject to all remedial actions provided by Applicable Laws, including Chapter 2161, Texas Government Code, and 34 TAC §§20.285(h)(4), 20.585 and 20.586. The benefits and burdens of this Agreement are assignable by University.

12.2 Texas Family Code Child Support Certification. Pursuant to §231.006, Texas Family Code, Contractor certifies it is not ineligible to receive the award of or payments under this http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2161.htm http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2161.htm https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=214411 https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=182631 https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=182632 http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006 http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006

Agreement, and acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

12.3 Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code, then Contractor certifies it is not currently delinquent in the payment of any taxes due under Chapter 171, Contractor is exempt from the payment of those taxes, or Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.

12.4 Payment of Debt or Delinquency to the State. Pursuant to §§2107.008 and 2252.903, Texas Government Code, Contractor agrees any payments owing to Contractor under this Agreement may be applied directly toward any debt or delinquency Contractor owes the State of Texas or any agency of the State of Texas, regardless of when it arises, until paid in full.

12.5 Loss of Funding. Performance by University under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (Legislature) and/or allocation of funds by the Board of Regents of The University of Texas System (Board). If Legislature fails to appropriate or allot necessary funds, or Board fails to allocate necessary funds, then University will issue written notice to Contractor and University may terminate this Agreement without further duty or obligation. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond University’s control.

12.6 Entire Agreement; Modifications. This Agreement (including all exhibits, schedules, supplements and other attachments (collectively, Exhibits)) supersedes all prior agreements, written or oral, between Contractor and University and will constitute the entire agreement and understanding between the parties with respect to its subject matter. This Agreement and each of its provisions will be binding upon the parties, and may not be waived, modified, amended or altered, except by a writing signed by University and Contractor. All Exhibits are attached to this Agreement and incorporated for all purposes.

12.7 Force Majeure. Neither party hereto will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character (force majeure occurrence). Provided, however, in the event of a force majeure occurrence, Contractor agrees to use its best efforts to mitigate the impact of the occurrence so that University may continue to provide: healthcare, research and other mission critical services during the occurrence.

12.8 Captions. The captions of sections and subsections in this Agreement are for convenience only and will not be considered or referred to in resolving questions of interpretation or construction.

12.9 Venue; Governing Law. County, Texas, will be the proper place of venue for suit on or in respect of this Agreement. This Agreement, all of its terms and conditions, all rights and obligations of the parties, and all claims arising out of or relating to this Agreement, will be construed, interpreted and applied in accordance with, governed by and enforced under, the laws of the State of Texas.

12.10 Waivers. No delay or omission in exercising any right accruing upon a default in performance of this Agreement will impair any right or be construed to be a waiver of any right. A waiver of any default under this Agreement will not be construed to be a waiver of any subsequent default under this Agreement.

12.11 Confidentiality and Safeguarding of University Records; Press Releases; Public

Information. Under this Agreement, Contractor may (1) create, (2) receive from or on http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2107.htm#2107.008 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.903 behalf of University, or (3) have access to, records or record systems (collectively, University Records). Among other things, University Records may contain social security numbers, credit card numbers, or data protected or made confidential or sensitive by Applicable Laws.

12.11.1 Notice of Impermissible Use.

If an impermissible use or disclosure of any University Records occurs, Contractor will provide written notice to University within one (1) business day after Contractor’s discovery of that use or disclosure. Contractor will promptly provide University with all information requested by University regarding the impermissible use or disclosure.

12.11.2 Return of University Records. Contractor agrees that within thirty (30) days after the expiration or termination of this Agreement, for any reason, all University Records created or received from or on behalf of University will be (1) returned to University, with no copies retained by Contractor; or (2) if return is not feasible, destroyed. Twenty (20) days before destruction of any University Records, Contractor will provide University with written notice of Contractor’s intent to destroy University Records. Within five (5) days after destruction, Contractor will confirm to University in writing the destruction of University Records.

12.11.3 Disclosure. If Contractor discloses any University Records to a subcontractor or agent, Contractor will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor by this Section 12.11.

12.11.4 Press Releases. Except when defined as part of Work, Contractor will not make any press releases, public statements, or advertisement referring to the Project or the engagement of Contractor as an independent contractor of University in connection with the Project, or release any information relative to the Project for publication, advertisement or any other purpose without the prior written approval of University.

12.11.5 Public Information. University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act (TPIA), Chapter 552, Texas Government Code. In accordance with §§552.002 and 2252.907, Texas Government Code, and at no additional charge to University, Contractor will make any information created or exchanged with University pursuant to this Agreement (and not otherwise exempt from disclosure under TPIA) available in a format reasonably requested by University that is accessible by the public.

12.11.6 Termination. In addition to any other termination rights in this Agreement and any other rights at law or equity, if University reasonably determines that Contractor has breached any of the restrictions or obligations in this Section, University may immediately terminate this Agreement without notice or opportunity to cure.

12.11.7 Duration. The restrictions and obligations under this Section will survive expiration or termination of this Agreement for any reason.

12.12 Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted assigns and successors.

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12.13 Records. Records of Contractor's costs, reimbursable expenses pertaining to the Project and payments will be available to University or its authorized representative during business hours and will be retained for seven (7) years after the expiration or termination of this Agreement or until all audit, claim, and litigation matters are resolved, whichever is later, unless University otherwise instructs Contractor in writing.

12.14 Notices. Except as otherwise provided by this Section, notices, consents, approvals, demands, requests or other communications required or permitted under this Agreement, will be in writing and sent via certified mail, hand delivery, overnight courier, facsimile transmission (to the extent a facsimile number is provided below), or email (to the extent an email address is provided below) as indicated below, and notice will be deemed given

(i) if delivered by certified mail, when deposited, postage prepaid, in the United States mail, or (ii) if delivered by hand, overnight courier, facsimile (to the extent a facsimile number is provided below) or email (to the extent an email address is provided below), when received:

If to University: __________________________

Fax: ______________________ Email: _____________________

Attention: __________________ with copy to: __________________________

Fax: ______________________

Attention: __________________

If to Contractor: _________________________

Fax: ______________________

Attention: _________________ or other person or address as may be given in writing by either party to the other in accordance with this Section.

Notwithstanding any other requirements for notices given by a party under this Agreement, if Contractor intends to deliver written notice to University pursuant to §2251.054, Texas Government Code, then Contractor will send that notice to University as follows:

Fax: ______________________ Email: _____________________ Attention: __________________ with copy to: _________________________ Fax: ______________________ Email: ____________________ Attention: _________________ or other person or address as may be given in writing by University to Contractor in accordance with this Section.

12.15 Severability. In case any provision of this Agreement will, for any reason, be held invalid or unenforceable in any respect, the invalidity or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if the invalid or unenforceable provision had not been included.

12.16 State Auditor’s Office. Contractor understands acceptance of funds under this

Agreement constitutes acceptance of authority of the Texas State Auditor's Office or any successor agency (Auditor), to conduct an audit or investigation in connection with those funds (ref. §§51.9335(c), 73.115(c) and 74.008(c), Texas Education Code). Contractor agrees to cooperate with Auditor in the conduct of the audit or investigation, including providing Auditor any information Auditor considers relevant to the investigation or audit.

Contractor will include this provision in all contracts with permitted subcontractors. This provision is included pursuant to Section 2262.154 of the Texas Government Code.

12.17 Limitation of Liability. EXCEPT FOR UNIVERSITY’S OBLIGATION (IF ANY) TO PAY CONTRACTOR

CERTAIN FEES AND EXPENSES UNIVERSITY WILL HAVE NO LIABILITY TO CONTRACTOR OR TO ANYONE CLAIMING THROUGH OR UNDER CONTRACTOR BY REASON OF THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT. NOTWITHSTANDING ANY DUTY OR OBLIGATION OF UNIVERSITY TO CONTRACTOR OR TO ANYONE CLAIMING THROUGH OR UNDER CONTRACTOR, NO PRESENT OR FUTURE AFFILIATED

ENTERPRISE, SUBCONTRACTOR, AGENT, OFFICER, DIRECTOR, EMPLOYEE, REPRESENTATIVE,

ATTORNEY OR REGENT OF UNIVERSITY, OR THE UNIVERSITY OF TEXAS SYSTEM, OR ANYONE

CLAIMING UNDER UNIVERSITY HAS OR WILL HAVE ANY PERSONAL LIABILITY TO CONTRACTOR OR TO

ANYONE CLAIMING THROUGH OR UNDER CONTRACTOR BY REASON OF THE EXECUTION OR

PERFORMANCE OF THIS AGREEMENT.

12.18 Survival of Provisions. No expiration or termination of this Agreement will relieve either party of any obligations under this Agreement that by their nature survive expiration or termination, including Sections 6, 7, 9, 12.5, 12.9, 12.10, 12.11, 12.13, 12.16, 12.17, 12.19 and 12.21.

12.19 Breach of Contract Claims.

To the extent that Chapter 2260, Texas Government Code, is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2251.htm#2251.054 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2251.htm#2251.054 http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335 http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.73.htm#73.115 http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.74.htm#74.008 https://statutes.capitol.texas.gov/Docs/GV/htm/GV.2262.htm#2262.154 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2260.htm in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260 will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be resolved in the ordinary course of business. The chief business officer of University will examine Contractor's claim and any counterclaim and negotiate with Contractor in an effort to resolve the claims. The parties specifically agree (i) neither execution of this Agreement by University nor any other conduct, action or inaction of any representative of University relating to this Agreement constitutes or is intended to constitute a waiver of University’s or the state's sovereign immunity to suit; and (ii) University has not waived its right to seek redress in the courts.

12.19.1.2 If the parties are unable to resolve their disputes under Section 12.19.1.1, the contested case process provided in subchapter C of Chapter 2260 is Contractor’s sole and exclusive process for seeking a remedy for any and all of Contractor's claims for breach of this Agreement by University.

12.19.1.3 Compliance with the contested case process provided in subchapter

C of Chapter 2260 is a required prerequisite to seeking consent to sue from the Legislature under Chapter 107, Texas Civil Practices and Remedies Code. The parties hereto specifically agree that (i) neither the execution of this Agreement by University nor any other conduct, action or inaction of any representative of University relating to this Agreement constitutes or is intended to constitute a waiver of University's or the state's sovereign immunity to suit and (ii) University has not waived its right to seek redress in the courts.

12.19.2 The submission, processing and resolution of Contractor’s claim is governed by the published rules adopted by the Texas Attorney General pursuant to Chapter 2260, as currently effective, thereafter enacted or subsequently amended.

12.19.3 University and Contractor agree that any periods provided in this Agreement for notice and cure of defaults are not waived.]

12.20 Undocumented Workers. The Immigration and Nationality Act (8 USC §1324a)

(Immigration Act) makes it unlawful for an employer to hire or continue employment of undocumented workers. The United States Immigration and Customs Enforcement Service has established the Form I-9 Employment Eligibility Verification Form (I-9 Form) as the document to be used for employment eligibility verification (8 CFR §274a). Among other things, Contractor is required to: (1) have all employees complete and sign the I-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the I-9 Form to be presented by the employee and ensure the documents appear to be genuine and related to the individual; (3) record information about the documents on the I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form as required by Applicable Laws. It is illegal to discriminate against any individual (other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual's national origin or citizenship status. If Contractor employs unauthorized workers during performance of this Agreement in violation of the Immigration Act then, in addition to other remedies or penalties prescribed by Applicable Laws, University may terminate this Agreement in accordance with Section 8. Contractor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Act.

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12.21 Limitations. THE PARTIES ARE AWARE THERE ARE CONSTITUTIONAL AND STATUTORY LIMITATIONS (LIMITATIONS) ON THE AUTHORITY OF UNIVERSITY (A STATE AGENCY) TO ENTER INTO CERTAIN TERMS AND CONDITIONS THAT MAY BE PART OF THIS AGREEMENT, INCLUDING TERMS AND CONDITIONS RELATING TO LIENS ON UNIVERSITY’S PROPERTY; DISCLAIMERS AND LIMITATIONS OF WARRANTIES; DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES; WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS, REMEDIES, REQUIREMENTS AND PROCESSES; LIMITATIONS OF

PERIODS TO BRING LEGAL ACTION; GRANTING CONTROL OF LITIGATION OR SETTLEMENT TO

ANOTHER PARTY; LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES; PAYMENT OF ATTORNEYS’ FEES; DISPUTE RESOLUTION; INDEMNITIES; AND CONFIDENTIALITY, AND TERMS AND CONDITIONS

RELATED TO LIMITATIONS WILL NOT BE BINDING ON UNIVERSITY EXCEPT TO THE EXTENT

AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS.

12.22 Ethics Matters; No Financial Interest. Contractor and its employees, agents, representatives and subcontractors have read and understand University’s Conflicts of Interest Policy at: https://www.utsystem.edu/sites/policy-library/policies/uts-180-conflicts-of-interest-conflicts-of-commitment-and-outside-activities, University’s Standards of Conduct Guide: https://www.utsystem.edu/documents/docs/policies-rules/ut-system-administration-standards-conduct-guide, and applicable state ethics laws and rules at https://www.utsystem.edu/offices/systemwide-compliance/ethics. Neither Contractor nor its employees, agents, representatives or subcontractors will assist or cause University employees to violate University’s Conflicts of Interest Policy, University’s Standards of Conduct Guide, or applicable state ethics laws or rules. Contractor represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of this Agreement.

12.23 Intentionally Omitted

12.24 Intentionally Omitted

12.25 Enforcement. Contractor agrees and acknowledges that University is entering into this

Agreement in reliance on Contractor's special and unique knowledge and abilities with respect to performing Work. Contractor's services provide a peculiar value to University. University cannot be reasonably or adequately compensated in damages for the loss of Contractor’s services. Accordingly, Contractor acknowledges and agrees that a breach by Contractor of the provisions of this Agreement will cause University irreparable injury and damage.

Contractor, therefore, expressly agrees that University will be entitled to injunctive and/or other equitable relief in any court of competent jurisdiction to prevent or otherwise restrain a breach of this Agreement.

12.26 Access by Individuals with Disabilities. Contractor represents and warrants (EIR Accessibility Warranty) the electronic and information resources and all associated information, documentation, and support Contractor provides to University under this Agreement (EIRs) comply with: the accessibility requirements in federal and Texas law and regulation applicable to University and/or Contractor, including (1) 28 C.F.R. Part 35, Subpart H and (2) 1 TAC Chapter 213 and 1 TAC §206.70 (ref. Subchapter M, Chapter 2054, Texas Government Code).

12.27 Intentionally Omitted.

12.28 Historically Underutilized Business Subcontracting Plan. Historically Underutilized

Business Subcontracting Plan. Contractor will comply with and use good faith efforts to subcontract Work performed under this Agreement in accordance with the Historically Underutilized Business Subcontracting Plan (HSP) (ref. Exhibit D). Except as specifically provided in the HSP, Contractor will not subcontract any of its duties or obligations under this Agreement, in whole or in part. This Agreement is subject to 34 TAC §20.285.

Contractor will comply with all of its duties and obligations under 34 TAC §20.285. In https://www.utsystem.edu/sites/policy-library/policies/uts-180-conflicts-of-interest-conflicts-of-commitment-and-outside-activities https://www.utsystem.edu/sites/policy-library/policies/uts-180-conflicts-of-interest-conflicts-of-commitment-and-outside-activities https://www.utsystem.edu/documents/docs/policies-rules/ut-system-administration-standards-conduct-guide https://www.utsystem.edu/documents/docs/policies-rules/ut-system-administration-standards-conduct-guide https://www.utsystem.edu/offices/systemwide-compliance/ethics https://www.ecfr.gov/current/title-28/chapter-I/part-35/subpart-H https://www.ecfr.gov/current/title-28/chapter-I/part-35/subpart-H https://texas-sos.appianportalsgov.com/rules-and-meetings?chapter=213&interface=VIEW_TAC&part=10&title=1 https://texas-sos.appianportalsgov.com/rules-and-meetings?$locale=en_US&interface=VIEW_TAC_SUMMARY&queryAsDate=04%2F22%2F2025&recordId=187750…