3-Exhibit B - Sample Agreement.pdf

Issued 9/15/2021 ems / GA-48 7/14/2025 ems

SAMPLE AGREEMENT

for

MISCELLANEOUS SERVICES PROVIDED or ENGINEERING SERVICES on

PROJECTS OF LIMITED SCOPE

This Agreement is made as of , 2026 (the “Effective Date”), by and between:

The Owner: The University of Texas Health Science Center at San Antonio 7703 Floyd Curl Dr.

San Antonio, Texas 78229 and

Architect/Engineer: TBD

Texas Tax Account No.

Contract No. 2026-

This Agreement is for the provision of miscellaneous architectural or engineering services for projects of limited scope, to be performed on a non-exclusive, indefinite quantity basis, as requested by the Owner in accordance with the terms of this Agreement. Architect or Engineer (individually and collectively “Services Provider”) represents that it has the knowledge, ability, skills and resources to provide such Services in accordance with the terms and requirements of this Agreement.

The Owner and the Services Provider agree as follows:

ARTICLE 1

TERM OF AGREEMENT

1.01 Initial Term: This initial term of this Agreement shall begin on the effective date and shall expire two (2) years after that date unless renewed or terminated in accordance with the terms of the Agreement.

1.02 Renewal Option: The Owner has the option to renew this Agreement terms for two (2) successive twelve (12) month periods upon written notice to the Services Provider at least sixty (60) days prior to the expiration of the initial or any subsequent term.

1.03 Completion of Work in Progress: The Owner has the option to extend the term of this

Agreement, or any renewal period, as necessary for Services Provider to complete work on any project approved by the Owner prior to the expiration of the Agreement.

ARTICLE 2

AUTHORIZED CONTRACT SUM

2.01 Contract Sum: The overall maximum value of this contract is indefinite, subject to the contractual authority delegated by the Board of Regents to the Owner’s representative. The overall maximum contract value will not exceed the amount of Five Million Dollars ($5,000,000.00) without prior Board of Regents authorization. Allowable fees for each specifically authorized project will be established in an “Authorization to Commence Work” issued by the Owner. Invoices for authorized work performed by the Services Provider shall not exceed the fees established for any portion of authorized work.

Established fee amounts shall not be increased except by written amendment to a previously issued Authorization to Commence Work executed by the Owner and the Services Provider.

2.02 No Minimum Amount of Work: Owner makes no representations regarding the amount or type of services, if any, that Services Provider will be asked to provide to Owner during the term(s) of this Agreement. It is expressly understood that the Owner is under no obligation to request any services from Services Provider and no minimum amount of work is required or contemplated under this Agreement.

All service requests will be made by the Owner on an as-needed basis, subject to future agreement on the scope of the work and the fee.

ARTICLE 3

SCOPE OF WORK

3.01 In General: The Services Provider agrees to provide architectural or engineering services on a per-project basis as requested by the Owner in accordance with the terms of this Agreement. These services are generally described as, but are not limited to:

IDIQ Design Services related to Mechanical Engineering

Refer to Exhibit A for a detailed description of the scope of work and services.

3.02 Project Scope: The specific scope of work for each project shall be determined in advance and in writing between the Owner and the Services Provider.

3.03 Project RFP: The Owner shall prepare a Project Request for Proposal (“Project RFP”) identifying the project and describing, in general, the intended scope and character of the project, the preliminary cost estimate and schedule for the project, and the basic services to be provided by the Services Provider for the project.

3.04 Project Proposal: In response to a Project RFP, the Services Provider shall provide Owner with a written Project Proposal. The Project Proposal shall include the following:

a. A narrative description of Services Provider’s understanding of the project scope of work;

b. A detailed statement of the basic and additional services anticipated for the project, including a list of deliverables;

c. A description of particular phases of the scope of the work, if applicable;

d. A Fee Proposal detailing:

1. the total fee for providing the basic services expressed as a “Not to Exceed” amount;

2. the total fee for providing additional services expressed as a “Not to Exceed” amount;

and

3. the total anticipated amount for reimbursable expenses;

e. A proposed date to commence the work;

f. A list of all consultants, persons and firms that Services Provider proposes to use in the performance of Services Provider’s scope of work;

g. A schedule of hourly billing rates for any consultants that Services Provider proposes to use in the performance of Services Provider’s scope of work;

h. A HUB Subcontracting plan, if required;

i. Any qualifications or conditions applicable to the Project Proposal; and

j. A summary statement of the amount of all previous proposals entered into under this

Agreement to date.

3.05 Project Proposal Review: The Owner and the Services Provider shall review Services Provider’s Project Proposal and negotiate any changes, clarifications or modifications thereto. The Services Provider shall submit a revised Project Proposal incorporating any changes, clarifications or modifications made in the review process. The Owner may accept, reject or seek modification of any Project Proposal.

3.06 Notice to Proceed: Upon approval of a Project Proposal by the Owner, the Owner shall issue a written ‘Architect/Engineer Services Provider Work Order’ (“Work Order”). The Work Order authorizes the Services Provider to begin the work identified in the Project Proposal on the date specified in the Notice. The Work Order shall include a Work Order number specific to the project.

3.07 Group Purchase Authority: Texas law authorizes institutions of higher education

(defined by Section 61.003, Education Code) to use the group purchasing procurement method (ref.

Sections 51.9335, 73.115 and 74.008, Education Code). Other Texas institutions of higher education and Services Provider may, therefore, agree to enter into a separate agreement for the provision of these services on the same terms as this Agreement.

ARTICLE 4

SERVICES PROVIDER’S GENERAL SERVICES AND RESPONSIBILITIES

4.01 Management of Services: The Services Provider shall manage the Services Provider’s services and administer any project authorized pursuant to this Agreement. The Services Provider shall provide and/or coordinate the basic services necessary and reasonably inferable for the complete performance of any project authorized pursuant to this Agreement.

4.02 Standard of Care: Project Services Provider agrees and acknowledges that Owner is entering into this Agreement in reliance on Project Services Provider’s represented professional abilities with respect to performing Project Services Provider’s services, duties, and obligations under this Agreement. Project Services Provider shall perform its Services (i) with the professional skill and care ordinarily provided by competent Services Providers practicing in the same or similar locality and under the same or similar circumstances and professional license; and (ii) as expeditiously as is prudent considering the ordinary professional skill and care of a competent Services Provider. Services Provider shall provide all qualified personnel necessary to accomplish Services Provider's Services within the time limits set forth in the schedule.

4.03 Compliance with Laws: Services Provider shall endeavor to perform Services Provider's services in compliance with all applicable national, federal, state, municipal, and State of Texas laws, regulations, codes, ordinances, orders and with those of any other body having jurisdiction over the Project.

4.04 Existing Conditions: Services Provider shall use reasonable efforts to verify the accuracy and suitability of any drawings, plans, sketches, instructions, information, requirements, procedures, requests for action, and other data supplied to Services Provider by Owner, or any other party, that Services Provider uses for the Project. Owner makes no warranties or representations as to the accuracy or suitability of information provided to the Services Provider by the Owner or by others.

4.05 Correction of Work: Services Provider's services and its Consultants services shall be reasonably accurate and free from material errors or omissions. Upon notice, Services Provider shall promptly correct any known or discovered error, omission, or other defect without any additional cost or expense to Owner.

4.06 Phasing: The Services Provider shall not proceed beyond any previously authorized phase of the work for a project unless authorized by the Owner in writing, except at the Services Provider’s own financial risk. Applicable phases of the scope of work shall be identified in the Project Proposal.

4.07 Representative: Services Provider shall designate a representative primarily responsible for Services Provider's services under this Agreement. The designated representative shall act on behalf of Services Provider with respect to all phases of Services Provider's services and shall be available as required for the benefit of any project and the Owner. The designated representative shall not be changed without prior approval of the Owner, which approval shall not be unreasonably withheld.

4.08 Documentation: The Services Provider shall fully document its project activities, in drawings, reports or other methods as appropriate to the scope of work and as identified in the Project Proposal. The Services Provider shall bear the cost of providing all plans, specifications and other documents used by the Services Provider and its consultants.

ARTICLE 5

THE OWNER'S RESPONSIBILITIES

5.01 Project Program: The Owner shall provide a Project RFP setting forth the Owner’s description of the project scope; preliminary project budget; schedule; objectives, characteristics and constraints; and a description of the basic services to be provided by the Services Provider for the project.

5.02 Representative: The Owner designates the Office of Facilities Management as its representative authorized to act in the Owner's behalf with respect to the Project. The Owner designates the Executive Director of Engineering and Construction Management or his designee as its representative for the purpose of administering this contract.

5.03 Special Information: The Owner shall furnish available property, boundary, easement, right-of-way, topographic and utility surveys; plans and specifications; and special data and conditions relevant to the project. Owner shall furnish other special investigations of the Project site as requested by the Services Provider and as reasonably necessary for the Project. Services Provider shall exercise reasonable care in relying upon this information in the performance of its services under this Agreement.

Owner makes no warranties or representations as to the accuracy or suitability of information provided to the Services Provider by the Owner or by others.

5.04 Entry on Land: The Owner shall assist Services Provider in gaining entry to state owned or controlled property as necessary for Services Provider to perform its services under this Agreement.

5.05 Administrative Services: The Owner shall furnish all legal, accounting, auditing and insurance counseling services that it requires for the Project.

5.06 Review of Work: The Owner will review the Services Provider's documents at the completion of each stage of development as described in the Project Proposal. Owner’s review comments or decisions regarding the documents will be furnished to the Services Provider in a reasonably prompt manner.

The Owner will notify the Services Provider in writing of any material error or omission or other defect in the project or any conflict in the contract documents that the Owner becomes aware of, but Owner shall have no obligation or duty to investigate whether such faults, defects, or conflicts exist.

5.07 Time for Response: The Owner shall furnish required information and services and shall render approvals and decisions as expeditiously as necessary for the orderly progress of the Services Provider's services and of the Work.

ARTICLE 6

ACCEPTANCE OF WORK

6.01 Owner's Satisfaction: All work performed under this Agreement shall be completed to the satisfaction of the Owner’s representative assigned to the project. The Owner’s representative shall decide all questions regarding Services Provider’s performance under the Agreement and such decisions shall be final and conclusive.

6.02 Correction of Work: Should Services Provider’s services not conform to the requirements of this Agreement and the Project Proposal as determined by the Owner’s representative, Owner may order the Services Provider to re-perform such services at no additional expense to the Owner or deduct the fees for such services from any other fees payable to the Services Provider.

6.03 Liability: Owner’s approval or acceptance of Services Provider's services will not release

Services Provider from any liability for such services because Owner is, at all times, relying upon Services Provider's skill and knowledge in performing Services Provider's services.

ARTICLE 7

COMPENSATION FOR SERVICES RENDERED

7.01 Owner’s Approval Required: Owner agrees to pay Services Provider for those services rendered at Owner's specific request, in advance and in writing.

7.02 Scheduled Billing Rates: Attached as Exhibit A, and incorporated herein, is Services Provider’s Schedule of Billing Rates, including hourly billing rates and/or per service billing rates as applicable. The Billing Rates include all costs for any identified services and the Services Provider shall not be entitled to any additional compensation for providing those services. The Schedule of Billing rates shall remain in full force and effect for the initial two (2) year term of this Agreement. At least ninety (90) days before the expiration of the initial term or any renewal period exercised by the Owner, the Service Provider shall submit any changes to its billing rates that would apply to the subsequent renewal period to the Owner in writing. All rate increases require the Owner’s approval prior to the exercise of any renewal option. The increased rates apply only to work performed pursuant to Notices to Proceed issued after the effective start date of any renewal period.

7.03 Basic Service: For Basic Services rendered in connection with any project authorized pursuant to this Agreement, Services Provider shall be compensated on an hourly rate basis or on a per-service fee basis in accordance with Services Provider’s Project Proposal, up to the maximum “Not to Exceed” amount approved in Services Provider’s Project Proposal.

7.04 Additional Services: Additional Services are services not identified or reasonably inferable as Basic Services included in a Project Proposal. Additional Services shall be provided only if authorized or confirmed in writing by the Owner. For approved Additional Services provided in connection with any project authorized by this Agreement, Services Provider shall be compensated on an hourly rate basis or on a per-service fee basis in accordance with Services Provider’s Additional Services Proposal, up to the maximum “Not to Exceed” amount approved in Services Provider’s Additional Services Proposal.

7.05 Consultant Costs: Unless approved in advance by the Owner, Services Provider shall pay for all consultant services and costs associated with his services under this Agreement, whether basic services or additional services, out of his fees. Owner is not responsible for any such consultant fees or costs unless otherwise agreed to in writing. When consultant fees or costs are approved by the Owner, the Services Provider’s fee or mark up on those consultant fees or costs shall be calculated as an amount not to exceed 10% of the amount that the consultant actually bills the Services Provider.

ARTICLE 8

REIMBURSABLE EXPENSES

8.01 Reimbursable Expenses: Reimbursable Expenses are in addition to compensation for basic and additional services. Reimbursable Expenses recoverable by the Services Provider under this Agreement are limited to the following:

a. Travel from Texas to out of state locations:

1. Maximum rates for lodging and meals shall be in accordance with the “Out of State Meals and Lodging Rates”, Texas Comptroller of Public Accounts, plus city and state taxes.

2. Not withstanding the limitation on lodging rates above, if the expenses actually incurred by the Service Provider for lodging exceed the State rate, the Service Provider may be reimbursed for the additional amount incurred up to a maximum of forty percent (40%) of the State rate, plus city and state tax rates up to the allowable maximum lodging rate.

3. Meals will only be reimbursed on trips involving overnight travel.

Reimbursement will be based on the itemized receipts provided and only up to the maximum allowable state rate.

b. Travel to Texas from out of state locations:

1. Lodging: maximum reimbursement for lodging in state shall be limited to current State of Texas per diem rate plus city and state taxes. Meals will only be paid on trips involving overnight travel.

2. Not withstanding the limitation on lodging rates above, if the expenses actually incurred by the Service Provider for lodging exceed the State rate, the Service Provider may be reimbursed for the additional amount incurred up to a maximum of forty percent (40%) of the State rate, plus city and state tax rates up to the allowable maximum lodging rate, plus city and state tax rates up to the allowable maximum lodging rate.

3. Meals; reimbursement is based on itemized receipts and only up to the maximum allowed per State rate.

c. Automobile Expenses: auto rental for an individual traveler will be reimbursed for small cars category, such as compact or economy. Multiple travelers in the same vehicle will be reimbursed for midsize car category, such as standard or intermediate. Also included is related auto insurance, gasoline, parking, toll road costs and taxi service. Costs include applicable taxes.

d. Airline Travel: coach class air travel with rates nearest to the State contract rate.

All airline travel shall be booked no less than 7 days in advance when possible.

Reimbursement for air travel booked within 7 days of departure, without the prior approval of the PM/RCM, may be limited. A sales receipt and a boarding pass must be provided for each flight in order to receive reimbursement. Upgrades to the standard air travel charges, such as personal seating selection, business select upgrades, or early boarding, will not be subject to reimbursement.

e. Approval: Unless expressly directed and approved “in writing” by the Owner, amounts exceeding the above stipulated limitations will not be subject to reimbursement.

f. Fees paid for securing approval of authorities having jurisdiction over any particular project;

g. Expenses of reproductions, printing, collating, postage and handling of Drawings, Specifications, Reports and other documents or other project related work product, but excluding plotting costs of drawings, reproductions for the use of Services Provider and Services Provider’s consultants as well as up to three (3) review sets as necessary for progressive reviews by Owner in accordance with the Project Proposal;

h. Communication expenses such as long distance telephone, facsimile transmissions, express charges and postage that are directly attributable to the project;

i. Disbursements made by the Services Provider under approved subcontracts;

j. Reasonable costs for rental or use of special equipment, tools, and electronic data processing equipment required in connection with the project if approved in advance and in writing by Owner;

k. Expense of any additional insurance coverage or limits, requested by the Owner excluding professional liability and errors and omissions insurance required under Basic Services of this contract that exceed those normally carried by the Services Provider and the Services Provider’s consultants.

l. Vehicle trip charges are applicable to vehicles that are specifically equipped and used to transport testing and sampling equipment, safety equipment, tools, heavy equipment, drilling devices and/or supplies that are specifically required for the scope of services proposed and approved for the subject project.

Light duty vehicles (pick-up trucks) are applicable when transporting equipment or materials to the jobsite or returning from the jobsite with material samples, equipment or related items.

Vehicle trip charges are not applicable for standard passenger automobile transportation to the job site regardless of the ownership of the vehicle.

When a specialty vehicle as noted above is required for the appropriate execution of the proposed scope of services, mileage reimbursement may be allowed when previously identified in a ‘vehicle trip rate schedule’ and when approved in advance, in writing, by the Owner.

‘Vehicle trip rates’ apply to the distance from the location in which the vehicle is usually and customarily located, to the jobsite.

Specific information shall be submitted that confirms the vehicle’s typical permanent location or established base of operation. Also, odometer reporting is expected to be provided to establish the distance of travel and substantiate the amount submitted for reimbursement.

Standard passenger automobile transportation mileage reimbursement shall be in accordance with Article 8.01(b) of the Agreement.

When vehicle trip charges are allowed, additional transportation ‘mileage’ reimbursement, for that vehicle, will not be allowed.

m. Expenses not allowed for reimbursement include the cost of alcoholic beverages, incidental expenses, laundry, valet service, entertainment or any non-project related items. All tips must be included within the maximum state rate allowances.

8.02 Compensation for Reimbursable Expenses: The Services Provider and its employees and consultants, shall be compensated for the actual, out-of-pocket, reasonable costs for all approved Reimbursable Expenses that are incurred solely and directly in connection with the performance of the Services Provider’s services and duties under this Agreement or in the interest of any particular project. No mark-up will be allowed on Reimbursable Expenses by Services Provider or consultants.

8.03 Proposal Costs Not Recoverable: Services Provider is solely responsible for any expenses or costs, including expenditures of time, incurred by the Services Provider and its employees and consultants in the development of Project Proposals or Additional Services Proposals. Such expenses or costs are not Reimbursable Expenses.

ARTICLE 9

INVOICING

9.01 Monthly Invoices: Services Provider shall submit a monthly record or invoice of services performed under this Agreement identifying all fees earned and reimbursable expenses incurred in the previous month. Invoices shall be submitted in a format approved by the Owner and must contain at least the following information:

a. Project Name and Work Order Number;

b. Owner Agreement Number;

c. Services Provider’s Tax Identification Number;

d. Name of Project Manager;

e. Identification of billing period, by calendar month, to which the invoice applies;

f. Itemized description of services provided including the names, billing rates and amount of time per task expended by all persons who performed services on the project during the billing period.

g. Completion status of project by percentage;

h. Total amount of invoice;

i. Total amount of prior invoices and maximum contract sum;

j. Copy of all receipts in support of any reimbursable expenses invoiced;

9.02 Limited to Maximum Contract Sum: It is the responsibility of Services Provider not to provide services or submit invoices that exceed the allowable fee amount established for any specific project in the Services Provider Work Order issued by the Owner. Services provided, and/or expenses incurred that exceed the established fee amount for any specific project without Owner's written consent will be at Services Provider's financial risk and Owner shall not be obligated to pay for any such services or expenses.

9.03 Prompt Payment: For purposes of Texas Government Code § 2251.021(a)(2), the date the performance of service is completed is the date when the Owner's representative approves the invoice.

Payment of invoices shall be made within 30 days of Owner’s approval.

9.03.1 The Owner’s Designated Representative shall determine acceptance of either mailed or electronically-submitted invoices. The payment due date is when the invoice can be viewed by an employee on the first business day following the submittal, if the agency receives the invoice after normal business hour.

9.04 Invoice Submittal: Invoices shall be submitted electronically to:

ap-einvoice@uthscsa.edu or to the alternate address specified on the Services Provider Work Order. Invoices shall be sent to the attention of the individual specified on the Services Provider Work Order.

9.05 Exceptions to Payment: Regardless of any other provision of this Agreement, Owner shall not be obligated to make any payment requested by Services Provider under this Agreement if any of the following conditions precedent exist:

a. Services Provider is in breach or default under this Agreement;

b. The requested payment includes services not performed in accordance with this

Agreement; provided, however, payment shall be made the balance of the services that are performed in accordance with this Agreement;

c. The total of Services Provider's invoices exceed the allowable fee amount established for any specific project;

d. Services Provider has failed to make payments promptly to consultants or other third parties used in connection with the services for which Owner has made payment to Services Provider;

e. Services Provider becomes insolvent, makes a general assignment of its rights or obligations for the benefit of its creditors, or voluntarily or involuntarily files for protection under the bankruptcy laws; or

f. If Owner, in its good faith judgment, determines that the balance of unpaid compensation is insufficient to complete the services required under this

9.06 Partial Payment: No partial payment by Owner shall constitute or be construed as final acceptance or approval of any services or as a release of any of Services Provider's obligations or liabilities with respect to such services.

9.07 Subcontractor Payment: Services Provider shall promptly pay all bills for labor and material performed and furnished by others in connection with the performance of the services.

9.08 Final Payment and Release: The acceptance by Services Provider or Services Provider's successors of final payment under this Agreement, shall constitute a full and complete release of Owner from any and all claims, demands, and causes of action whatsoever that Services Provider or Services Provider's successors have or may have against Owner pursuant to this Agreement except those claims specifically identified in writing by Services Provider as unsettled at the time of the final request for payment is made .

ARTICLE 10

SERVICES PROVIDER'S ACCOUNTING RECORDS

Services Provider shall maintain records of costs, expenses and billings pertaining to services performed under this Agreement in accordance with generally accepted accounting principles. Such records shall be available to the Owner or the Owner's authorized representative at mutually convenient times for a period of at least three (3) years after expiration or termination of this Agreement. Owner shall have the right to audit and to verify the details set forth in Services Provider's billings, certificates, and statements, either before or after payment. The terms of this paragraph shall survive any termination of the Agreement.

ARTICLE 11

OWNERSHIP AND USE OF DOCUMENTS

11.01 All documents prepared by the Services Provider are instruments of service and shall remain the property of the Services Provider. The Owner shall be permitted to retain copies, including reproducible copies, of all documents prepared by the Services Provider for information and reference in connection with the Owner’s use and occupancy of the project. Owner shall have an irrevocable, fully paid-up 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 Services Provider’s involvement. The Services Provider and its consultants shall not be liable for any re-use of or changes made by the Owner to the Drawings or Specifications (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 Services Provider is not involved..

11.02 Submission or distribution 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 Services Provider's rights.

ARTICLE 12

TERMINATION OF AGREEMENT

12.01 Termination for Cause: This Agreement may be terminated by either party upon ten (10) days written notice should the other party fail substantially to perform in accordance with its terms through no fault of the terminating party and such failure is not fully cured prior to the expiration of the notice period.

If a termination for cause under this section is later determined to be improper, the termination shall automatically convert to a termination for convenience under section 12.02 and Services Provider’s recovery for termination shall be strictly limited to the compensation allowable under section 12.03.

12.02 Termination for Convenience: This agreement may be terminated for convenience by the

Owner in whole or in part, upon at least ten (10) days written notice to the Services Provider.

12.03 Compensation: In the event of termination not the fault of the Services Provider, the

Services Provider shall be entitled to compensation for all services satisfactorily performed to the termination date, together with approved Reimbursable Expenses then due, provided Services Provider delivers to Owner statements, accounts, reports and other materials as required for payment along with all reports, documents and other materials prepared by Services Provider prior to termination.

ARTICLE 13

DISPUTE RESOLUTION

13.01 To the extent that it is applicable, the dispute resolution process provided for in Chapter

2260 of the Texas Government Code shall be used by the Project Services Provider to resolve any claim for breach of contract made by Project Services Provider that is not resolved in the ordinary course of business between Project Services Provider and Owner.

13.02 Alternative Dispute Resolution Process. Owner may establish a dispute resolution process to be utilized in advance of that outlined in Tex. Gov’t Code, Chapter 2260.

13.03 Nothing herein shall hinder, prevent, or be construed as a waiver of Owner’s right to seek redress on any disputed matter in a court of competent jurisdiction.

13.04 In any litigation between the Owner and the Project Services Provider arising from this Agreement or this Project, neither party will be entitled to an award of legal fees or costs in any judgment regardless which one is deemed the prevailing party.

13.05 Nothing herein shall waive or be construed as a waiver of the State’s sovereign immunity.

13.06 Neither the occurrence of an event giving rise to a breach of contract claim nor the pendency of a claim constitute grounds for the suspension of performance by Project Services Provider, in whole or in part. Owner and Project Services Provider agree that any periods set forth in this Agreement for notice and cure of defaults are not waived, delayed, or suspended by Chapter 2260 or this section.

13.07

13.08 In accordance with Chapter 2260, the Owner designates

The University of Texas Health Science Center at San Antonio Eric R. Walls, Senior Director of Supply Chain Mgt.

Purchasing Dept.

7703 Floyd Curl Dr., MSC 7962 San Antonio, Texas 78229 Off. (210) 562-6200 buscontracts@uthscsa.edu as its representative for the purpose of reviewing Services Provider's claim(s) and negotiating with Services Provider in an effort to resolve such claim(s).

ARTICLE 14

INSURANCE

14.01 Insurance Coverage. Services Provider, consistent with its status as an independent contractor, will carry and will cause its consultants to also 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-:VII or better, and in amounts not less than the minimum limits of coverage described below. The costs of such insurance will be at the expense of the Services Provider.

a) Professional Liability Insurance (errors and omissions), acceptable to and approved by the Owner, with a limit of no less than:

$1,000,000 each claim/$2,000,000 aggregate for projects with total project cost less than $50,000,000;

$2,000,000 each claim/$2,000,000 aggregate for projects with total project costs between $50,000,000 and $100,000,000;

$5,000,000 each claim/$5,000,000 aggregate for projects with total project cost greater than $100,000,000.

For consultants, Professional Liability Insurance (errors and omissions) limits shall be not less than $1,000,000 each claim/$2,000,000 aggregate.

Such insurance shall provide coverage for claims arising out of an error, omission or negligent act in the performance of professional services by or on behalf of Services Provider. Coverage shall not be limited to bodily injury and property damage, but shall also include economic loss. Policy shall not include pollution, mold or asbestos exclusions.

Claims-made coverage is acceptable, as long as the retroactive date on the policy predates the date that professional services are first performed under this contract. The policy must provide for the reporting of circumstances that may give rise to a claim. The policy must be continuously renewed for at least five (5) years following project completion. If coverage is allowed to lapse or the retroactive date on the policy is advanced, then Services Provider or consultant shall purchase an extended reporting period of five (5) years, or the longest extended reporting period commercially available and any physical property damage, including the loss of use thereof, bodily injury or death resulting there from.

b) Commercial General Liability $1,000,000 each occurrence $2,000,000 aggregate

The required Commercial General Liability policy will be issued on a form that insures liability for bodily injury (including death), property damage, and personal and advertising injury assumed under the terms of this Agreement.

c) On Site Insurance: If any services are performed on Owner's premises, Services Provider will carry and will cause its consultants also to carry the following additional insurance. The Services Provider shall furnish to Owner Certificates of Insurance as set forth below prior to the performance of any work hereunder and shall maintain such coverage during the full term of the Agreement.

Worker's Compensation Statutory Limits

Employer's Liability

Bodily Injury by Accident Bodily Injury by Disease Bodily Injury by Disease

$1,000,000 each accident $1,000,000 each employee $1,000,000 policy limit

Business Auto Liability Single Limit

* If a separate Business Auto Liability policy is not available, coverage for hired and non-owned auto liability may be endorsed on the Commercial General Liability policy.

$1,000,000 each occurrence

14.01.01 Evidence of all required insurance shall be provided on a Texas Department of Insurance approved certificate form (Acord Form is a Texas Department of Insurance pre-approved form) verifying the existence of all insurance after the execution and delivery of this Agreement and prior to the performance of any services by Services Provider under this Agreement. Additional evidence of insurance will be provided on a Texas Department of Insurance approved certificate verifying the continued existence of all required insurance no later than 30 days after each annual insurance policy renewal. All insurance policies, with the exception of worker’s compensation, employer’s liability and professional liability will be endorsed and name The Board of Regents of The University of Texas System, The University of Texas System and University as Additional Insured for activities arising out of this contract on an ISO (CG 20 10 0704) or equivalent form. Workers compensation insurance policies will be endorsed to provide a waiver of subrogation in favor of The Board of Regents of The University of Texas System, The University of Texas System and University. Commercial General Liability and Business Auto Liability insurance policies will be endorsed to provide primary and non-contributory coverage.

14.01.02 Notice of Cancellation: Required insurance shall not be cancelable without thirty (30) days’ prior written notice to Owner.

14.01.03 Services Provider is responsible for any self-insured retentions, or deductibles that apply to any policy limit required herein.

14.01.04 Certificates of Insurance. Approved Texas Department of Insurance certificates will be mailed, faxed, or emailed to the following University contact.

University Procurement Contact: BUSCONTRACTS@uthscsa.edu

Services Provider is responsible for obtaining and maintaining evidence of all required insurance from consultants and will provide copies to University upon request.

14.01.05 The insurance policies required in this Agreement will be kept in force for the periods specified below:

Required coverages will be kept in force until receipt of Final Payment to Services Provider by University;

Workers’ Compensation Insurance and Employer’s Liability insurance will be kept in force until the Work has been fully performed and accepted by University in writing.

Professional Liability insurance shall be maintained in accordance with Section 14.01 a).

14.01.06 If Owner is damaged by failure of Services Provider (or consultant) to maintain insurance as required herein, then Services Provider shall bear all reasonable costs properly attributable to that failure.

ARTICLE 15

INDEMNITY

15.01 Indemnification. Services Provider covenants and agrees to indemnify and hold harmless

Owner and the elected and appointed officials, employees, officers, directors, volunteers, and representatives of Owner (collectively “Indemnitees”), from and against liability for all damage to the extent caused by or resulting from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the Services Provider, or its agents, consultants under contract, or another entity over which the Services Provider exercises control.

15.02 The indemnity provided for in this paragraph does not apply to the extent of any liability resulting from the negligence or fault, the breach or violation of applicable law, or the breach of contract of the Indemnitees or their agents or employees, or any third party under their control or supervision other than the Services Provider or its agents, employees, subcontractors or consultants of any tier.

15.03 IN THE EVENT SERVICES PROVIDER AND OWNER ARE FOUND JOINTLY LIABLE BY A COURT

OF COMPETENT JURISDICTION, LIABILITY WILL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH

THE LAWS OF THE STATE OF TEXAS WITHOUT WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO

THE STATE UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSE OF THE PARTIES UNDER TEXAS LAW.

15.04 The provisions of this Section will not be construed to eliminate or reduce any other indemnification or right which Indemnitee has, by law or equity.

ARTICLE 16

HISTORICALLY UNDERUTILIZED BUSINESSES

16.01 The Owner has adopted a policy on Utilization of Historically Underutilized Business

("Policy"), which is incorporated herein by reference. The Policy and it requirements can be found on the following website: http://www.utsystem.edu/offices/historically-underutilized-business/hub-forms

16.02 Services Provider, as a material provision of the Agreement, must comply with the requirements of the Policy and adhere to any HUB Subcontracting Plan submitted with Services Provider’s Proposal. No changes to the HUB Subcontracting Plan can be made by the Services Provider without the prior written approval of the Owner in accordance with the Policy.

ARTICLE 17

MISCELLANEOUS PROVISIONS

17.01 Appointment of Representative: Owner may designate a representative to act partially or wholly for Owner in connection with this Agreement. Services Provider shall coordinate its services solely through the designated representative.

17.02 Independent Contractor: Services Provider acknowledges that it is engaged as an independent contractor and that Owner shall have no responsibility to provide Services Provider or its employees with transportation, insurance or other fringe benefits normally associated with employee status.

Services Provider is responsible for all income taxes required by applicable law.

17.03 Confidentiality: The Services Provider shall treat any Owner supplied information or information pertaining to Owner's business as confidential and shall not disclose any such information to others except as necessary for the performance of this Agreement or as authorized by the Owner in writing.

17.04 Successors and Assigns. The Owner and the Services Provider, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to the terms and conditions of this Agreement. This Agreement is a personal service contract for the services of Services Provider, and Services Provider's interest in this Agreement, duties hereunder and/or fees due hereunder may not be assigned or delegated to a third party without written consent of Owner. The benefits and burdens of this Agreement are, however, assignable by Owner.

17.05 Subcontracting: The Services Provider agrees not to subcontract any part of the work without the prior written consent of Owner. If subcontracting is permitted, the Services Provider must identify the subcontractor(s) to Owner prior to any subcontractor beginning work. Submission and approval of a Historically Underutilized Businesses (HUB) Sub Contractor Plan is considered consent under this Article.

17.06 Loss of Funding: Performance by Owner under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the “Legislature”) and/or allocation of funds by the Board of Regents of The University of Texas System (the “Board”). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then Owner shall issue written notice to Services Provider and Owner may terminate this Agreement without further duty or obligation hereunder. Services Provider acknowledges that appropriation, allotment, and allocation of funds are beyond the control of Owner.

17.07 Open Records: All information, documentation and other material submitted by the Services Provider may be subject to public disclosure under the Public Information Act, Texas Government Code Chapter 552.

17.08 Family Code Child Support Certification: Pursuant to Section 231.006, Texas Family Code, the Services Provider certifies that it is not ineligible to receive the award of or payments under this Agreement and acknowledges that this Agreement may be terminated and payment may be withheld if this certification is inaccurate.

17.09 Franchise Tax Certification: A corporate or limited liability company Contractor certifies that it is not currently delinquent in the payment of any Franchise Taxes due under Chapter 171 of the Texas Tax Code, or that the corporation or limited liability company is exempt from the payment of such taxes, or that the corporation or limited liability company is an out-of-state corporation or limited liability company that is not subject to the Texas Franchise Tax, whichever is applicable.

17.10 Payment of Debt or Delinquency to the State: Pursuant to Sections 2107.008 and 2252.093, Texas Government Code, Services Provider agrees that any payments owing to Services Provider under this Agreement may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full

17.11 Taxes: The University of Texas System is a tax exempt State of Texas Agency under Chapter 151, Texas Tax Code and an institution of higher education. Services Provider shall avail itself of all tax exemptions applicable to Services Provider’s work or expenses.

17.12 Not Used.

17.13 Captions: The captions of paragraphs in this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.

17.14 Severability: Should any provisions(s) of this Agreement be held invalid or unenforceable in any respect, that provision shall not affect any other provisions and this Agreement shall be construed as if the invalid or unenforceable provision(s) had not been included.

17.15 Waivers: No delay or omission by either party in exercising any right or power provided under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver of the right or power. A written waiver granted by either of the parties of any provision of this Agreement shall not be construed as a future waiver of that provision or a waiver of any other provision of the Agreement.

17.16 Force Majeure: No party shall be liable or responsible to the other for any loss or damage or for any delays or failure to perform under this Agreement due to causes beyond its reasonable control, including, but not limited to, acts of God, employee strikes, epidemics, war, riots, flood, fire, sabotage, terrorist acts or any other circumstances of like character (force majeure occurrence). In the event of a force majeure occurrence, Services Provider agrees to use its best efforts to mitigate the impact of the occurrence so that the Owner may continue operations during the occurrence.

17.17 Governing Law: This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of Texas without regard for choice of law principles. All obligations of the parties created hereunder are enforceable in Travis County, Texas. Travis County is a proper venue for any legal action to enforce this Agreement.

17.18 Entire Agreement: This Agreement constitutes the sole and only agreement between the parties with respect to the services contracted for and supersedes any prior understandings, written or oral.

No modification, alteration or waiver of this Agreement or any of its provisions shall be effective unless in writing and signed by both parties. No course of prior dealings, no usage of trade, and no course of performance shall be used to modify, supplement or explain any terms used in this Agreement.

17.19 Ethics Matters; No Financial Interest: Service Provider and its employees, agents, representatives and consultants have read and understand University’s Conflicts of Interest Policy available at ,http://www.uthscsa.edu/compliance, and http://www.uthscsa.edu/hop2000/10.1.12.pdf University’s Standards of Conduct Guide available at http://www.uthscsa.edu/compliance and http://www.uthscsa.edu/hop2000/10.1.2.pdf and applicable state ethics laws and rules available at https://www.utsystem.edu/offices/systemwide-compliance/ethics Neither Services Provider nor its employees, agents, representatives or consultants will assist or cause University employees to violate University’s Conflicts of Interest Policy, provisions described by University’s Standards of Conduct Guide, or applicable state ethics laws or rules. Services Provider represents and warrants that no member of the Board of Regents of The University of Texas System, or Executive Officers, including component institutions has a direct or indirect financial interest in the transaction that is the subject of this

17.20 Products and Materials Produced in Texas: If Services Provider will provide services under this Agreement, Service Provider covenants and agrees that in accordance with Section 2155.4441, Texas Government Code, in performing its duties and obligations under this Agreement, Services Provider shall purchase products and materials produced in Texas when such products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.

17.21 Authority to Act: If Service Provider is a corporation or a limited liability company, Service Provider warrants, represents, and agrees that (1) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization; (2) it is duly authorized and in good standing to conduct business in the State of Texas; (3) it has all necessary power and has received all necessary approvals to execute and deliver this Agreement; and (4) the individual executing this Agreement on behalf of Services Provider has been duly authorized to act for and bind Service Provider.

17.22 Disclosure of Interested Parties. By signature hereon, Services Provider certifies that if the value of this Agreement exceeds $1 Million it has complied with Section 2252.908 of the Texas Government Code and 1 Texas…