ESBD_366435_1722267486489_ADDENDUM NO 2.pdf

RFP No. 754 Sludge Removal Services - 2024

ADDENDUM NO.2

July 29, 2024

REQUEST FOR PROPOSALS

FOR

RFP 754-Sludge Removal Services

TEXAS STATE UNIVERSITY

SAN MARCOS, TEXAS

Sludge Removal Services

754-Sludge Removal

NOTICE TO ALL RESPONDENTS:

The following is Addendum No. 2 to the Request for Proposals

Sludge Removal Services

RFP was posted on the ESBD on 7/3/2024.

• Sample contract is attached

• Questions dead line extended to 7/31/2024

• RFP due date extended to 7/9/2024

TCM Contract Number

SERVICES AGREEMENT BETWEEN

TEXAS STATE UNIVERSITY

AND

Name Secondary Party (Contractor)

This Agreement (“Agreement”) is made and entered into by and between Texas State University (“University”) and Name secondary party (“Contractor”) to provide Description of Services for the University. University and Contractor agree as follows:

1. SCOPE OF WORK

A. The Scope of Work (“Work”) and the time for performance thereof, is set forth in Exhibit A, attached to and made a part of this Agreement for all purposes.

B. Upon execution of this Agreement, all services previously performed by Contractor on behalf of the University and included in the description of the Work, shall become part of the Work subject to the terms and conditions of this agreement.

C. The Scope of Work may be amended by mutual written agreement by both parties.

2. TIME FOR COMMENCEMENT AND COMPLETION

A. Time is of the essence in this Agreement and Contractor shall complete all authorized Work in accordance with the time for performance described for the Work, consistent with the usual and customary professional customs, standards and practices of Contractor’s business or profession.

B. This Agreement shall commence on Start Date and shall terminate on End Date unless terminated in accordance with Section 4, below. The University shall have the option to renew the contract for Contract Renewal Term additional one (1) year terms(s). The term of the Agreement may be amended by mutual written agreement by both parties.

3. PAYMENT TERMS

A. University will pay for Work performed under this Agreement in accordance with Texas Government Code, section 2251.021.

B. For the satisfactory performance of the Work, the University shall pay Contractor an amount not to exceed and in a manner that is described in Exhibit B, attached to and made a part of this Agreement for all purposes.

C. The amount due to Contractor will be paid upon receipt of an invoice that details the date of service, describes the Work performed, and provides supporting documentation for reimbursable expenses relating to the Work. The Contractor shall submit all signed invoices to University at the address specified in Exhibit A, Section XX, below.

D. No work shall commence until such time as a valid signed purchase order is received. Invoices that are submitted without a purchase order number and issued before the commencement of work will be subject to loss of payment.

E. The purchase order number must be on the invoice(s) or the invoice(s) will be returned to your company for revision, which will delay payment.

F. University, an agency of the State of Texas, is exempt from Texas Sales & Use Tax on the Work in accordance with Section 151.309, Texas Tax Code, and Title 34 Texas Administrative Code ("TAC") Section 3.322.

G. Within ten (10) calendar days after termination of this Agreement, Contractor will submit any outstanding invoice(s) ("Final Invoice(s)") to the University, which will set forth all amounts due and remaining unpaid to Contractor and upon approval of the Final Invoice(s) by University, University will pay to Contractor the amount due.

H. Notwithstanding any provision to the contrary, University will not be obligated to make any payment to Contractor if any one or more of the following conditions exist:

i. Contractor is in breach or default under this Agreement; or

ii. Any part of the payment is attributable to Work, which is not performed in accordance with this Agreement provided; however, payment will be made as to the part attributable to Work, which is performed in accordance with this Agreement.

I. No partial payment made will be or construed to be final acceptance or approval of that part of the Work to which the partial payment relates or relieve Contractor of any of its obligations under this Agreement.

J. The acceptance of Final Payment(s) constitutes 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(s).

Except for the obligation of University to pay Contractor certain amounts pursuant to the terms of this Agreement, University will have no other liability to Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Agreement.

Notwithstanding any obligation or liability of University to Contractor, no present or future agent, officer, director, employee, or regent of University or of the institutions comprising The Texas State University System (“TSUS”), 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.

K. (OPTIONAL for out of Region contracts)The University will pay for authorized travel related expenses in accordance with State of Texas Travel Guidelines for state employees authorized in writing and in advance.

4. DEFAULT AND TERMINATION

A. Termination for Default: If a party substantially fails to perform in accordance with the terms of this Agreement, the other party may terminate this Agreement upon thirty (30) 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 shall not be effective if the material failure is fully cured prior to the end of the thirty (30) day period.

B. Termination for Convenience: University may terminate, without cause, this Agreement at any time upon giving XXXX (XX) days advance notice to Contractor. Upon termination pursuant to this paragraph, Contractor will be entitled to payment of an amount that will compensate Contractor for services satisfactorily performed from the time of the last payment date to the termination date in accordance with this agreement, provided that Contractor has delivered to University all

Work Material. 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.

C. The University may terminate this Agreement immediately with no further notice if Contractor:

(a) petitions for reorganization under the Bankruptcy Code or is adjudged bankrupt; (b) becomes insolvent; or (c) makes a general assignment or sale of Contractor’s assets or business for the benefit of creditors.

D. Termination under Sections A, B or C will not relieve Contractor from liability for any default or breach under this agreement or any other act or omission of Contractor.

5. ALTERNATIVE DISPUTE RESOLUTION

The dispute resolution process provided for in Chapter 2260 of the Texas Government Code shall be used, as further described herein, by University and Contractor to attempt to resolve any claim for breach of contract made by the Contractor:

A. A Contractor’s claim for breach of this contract that the parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided in Chapter 2260, subchapter B, of the Texas Government Code. To initiate the process:

1. Contractor shall submit written notice, as required by subchapter B, to the University’s representative named in section XX.

2. This notice shall specifically state that the provisions of Chapter 2260, subchapter B, are being invoked.

3. A copy of the notice shall also be given to all other representatives of University and Contractor otherwise entitled to notice under the parties’ contract.

4. Compliance by Contractor with subchapter B is a condition precedent to the filing of a contested case proceeding under Chapter 2260, subchapter C, of the Texas Government Code.

B. The contested case process provided in Chapter 2260, subchapter C, of the Texas Government Code is Contractor’s sole and exclusive process for seeking a remedy for any and all alleged breaches of contract by University if the parties are unable to resolve their disputes under subparagraph (A) of this section.

C. Compliance with the contested case process provided in subchapter C is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of this Agreement by University nor any other conduct of any representative of University relating to this Agreement shall be considered a waiver of sovereign immunity to suit.

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

E. The occurrence of an event nor the pendency of a claim constitutes grounds for the suspension of performance by Contractor, in neither whole or in part.

F. The designated individual responsible on behalf of University for examining any claim or counterclaim and conducting any negotiations related thereto as required under §2260.052 of the Texas Government Code shall be University’s representative named in section 17, paragraph H.

6. LOSS OF FUNDING

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

7. LIMITATIONS

The Parties are aware that there are constitutional and statutory limitations on the authority of University (a State agency) to enter into certain terms and conditions of the Agreement, including, but not limited to:

• those 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 (collectively, the “Limitations”).

Terms and conditions related to the Limitations will not be binding on University except to the extent authorized by the laws and Constitution of the State of Texas.

8. AGREEMENT CONTROLLING

These Terms and Conditions shall take precedence over any Terms and Conditions contained in any proposal or like document.

9. ENTIRE AGREEMENT

The Agreement (including all exhibits, schedules, supplements and other attachments) supersedes all prior Agreements, written or oral, between Contractor and University for Work as set forth in Exhibit A and will constitute the entire Agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except in writing signed by the University and Contractor.

10. INDEMNIFICATION - CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS UNIVERSITY, THE SYSTEM AND

THEIR 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, IN CONNECTION WITH, OR RESULTING FROM THIS AGREEMENT OR THE GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, TO THE EXTENT CAUSED, IN WHOLE OR IN PART, BY THE ACTS, OMISSIONS, OR WILLFUL MISCONDUCT OF CONTRACTOR, OR IT AGENTS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS OR ANYONE DIRECTLY EMPLOYED BY CONTRACTOR OR ANYONE FOR

WHOSE ACTS CONTRACTOR MAY BE LIABLE. THE FOREGOING SHALL NOT APPLY IF DUE TO THE

NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNITEES. IN ADDITION, CONTRACTOR WILL INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS THE

INDEMNITEES FROM AND AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED

INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY

RIGHTS ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THIS AGREEMENT OR THE GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT. 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. IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO COOPERATE REASONABLY WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED

BY COUNSEL AT THEIR OWN EXPENSE.

11. STATE AUDITOR’S RIGHT TO AUDIT - Contractor understands that acceptance of funds under this Agreement constitutes acceptance of the authority of the State of Texas Auditor's Office or any successor agency (Auditor), to conduct an audit or investigation in connection with those funds.

Contractor shall cooperate with the State Auditor’s Office in the conduct of the audit or investigation, including providing all records requested. Contractor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractors through Contractor and the requirement to cooperate is included in any subcontract it awards. Additionally, the State Auditor’s Office shall at any time have access to and the rights to examine, audit, excerpt, and transcribe any pertinent books, documents, audit documentation, and records of the Contractor relating to this contract for any purpose.

12. RIGHT TO AUDIT - Contractor agrees that the University, or any of its duly authorized representatives, at any time during the term of the Agreement, will have access to, and the right to audit and examine, any relevant books, documents, papers, and records of Contractor and related Contractor charges incurred in its performance under this Agreement. Such records will be kept by Contractor for a period of four (4) years after Final Payment under this Agreement. Contractor agrees to refund the University thirty (30) days of being notified by the University of any overpayments disclosed by any audits.

13. CONFIDENTIALITY AND SAFEGUARDING OF UNIVERSITY RECORDS; PRESS RELEASES; PUBLIC INFORMATION - Under this Agreement, Contractor may (1) create, (2) receive from or on 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, including student records and protected health information as defined by the Health Insurance Portability and Accountability Act and 45 Code of Federal Regulations (CFR) Part 160 and subparts A and E of Part 164 (collectively, HIPAA). Additional mandatory confidentiality and security compliance requirements with respect to University Records subject to the Family Educational Rights and Privacy Act, 20 United States Code (USC) §1232g (FERPA) are addressed in Section 17, subsection JJ. Contractor represents, warrants, https://www.gpo.gov/fdsys/pkg/PLAW-104publ191/content-detail.html http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title45/45cfr160_main_02.tpl http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title45/45cfr164_main_02.tpl http://uscode.house.gov/view.xhtml?req=(title:20%20section:1232g%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section1232g)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:20%20section:1232g%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section1232g)&f=treesort&edition=prelim&num=0&jumpTo=true and agrees that it will: (1) hold University Records in strict confidence and will not use or disclose University Records except as (a) permitted or required by this Agreement, (b) required by Applicable Laws, or (c) otherwise authorized by University in writing; (2) safeguard University Records according to reasonable administrative, physical and technical standards (such as standards established by the National Institute of Standards and Technology and the Center for Internet Security) that are no less rigorous than the standards by which Contractor protects its own confidential information; (3) continually monitor its operations and take any action necessary to assure that University Records are safeguarded and the confidentiality of University Records is maintained in accordance with all Applicable Laws and the terms of this Agreement; and (4) comply with the TSUS Information Security Policy detailed in Appendix A-3, The Texas State University System Rules and Regulations at https://www.tsus.edu/about-tsus/policies.html. At the request of University, Contractor agrees to provide University within ten (10) calendar days with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University Records.

A. 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.

B. 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), destroyed if return is not feasible. 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 shall confirm to University in writing the destruction of University Records.

C. Disclosure: If Contractor has need to disclose any University Records to a subcontractor or agent, Contractor will first secure written permission from the University and then require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor by this Agreement.

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

E. Public Information Act: 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.

F. Termination: In addition to any other termination rights set forth 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 set forth in this Section, University may immediately terminate this Agreement without notice or opportunity to cure.

https://www.tsus.edu/about-tsus/policies.html

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

14. COMPLIANCE WITH LAW - Contractor is aware of, fully informed about and in full compliance with its obligations with all applicable, federal, state and local, laws, regulations, codes, ordinances and orders and with those of any other body or authority having jurisdiction ("Applicable Laws"), including Title VI of the Civil Rights Act of 1964, as amended [ 42 USC 2000(D)], Executive Order I I 246, as amended (41 CFR 60-1 and 60-2), Vietnam Era Veterans Readjustment Act of 1974, as amended (41 CFR 60250), Rehabilitation Act of 1973, as amended (41 CFR 60-741), Age Discrimination Act of 1975 (42 USC 6101 et seq.), Non-segregated Facilities (41 CFR 60-1), Fair Labor Standards Act of 1938, Sections 6, 7, and 12, as amended, Immigration Reform and Control Act of 1986, Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (PL 95-507), Americans with Disabilities Act of 1990 (42 USC 12101 et seq.), Civil Rights Act of 1991, Occupational Safety and Health Act of 1970, as amended (PL 91-596), Immigration and Nationality Act (8 United States Code 1324a) and all other applicable laws. Contractor represents and warrants that neither Contractor nor any firm, corporation or institution represented by Contractor, nor anyone acting for that 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.

15. COMPLIANCE WITH UNIVERSITY POLICIES – Contractor agrees to comply with all University Policies including but not limited to the following and, at a minimum, shall apply to the Contractor's employees, subcontractors, and agents while on the Texas State campuses:

a. On-campus driving and parking;

b. Prohibition on smoking or tobacco use;

c. Fire safety;

d. Hazardous Materials;

e. Drug-free workplace; and,

f. Prohibition of sexual harassment, or harassment or discrimination based on race, color, national origin, age, sex, religion, disability, gender identity or expression, or sexual orientation.

All University Policies and Procedures Statements may be viewed at http://www.txstate.edu/effective/upps/.

16. HISTORICALLY UNDERUTILIZED BUSINESS SUBCONTRACTING PLAN ("HSP") - Contractor agrees to use good faith effort to subcontract the Work to be provided under this Agreement in accordance with the HSP (Ref. Exhibit H.) Contractor agrees to maintain business records documenting its compliance with the HSP and to submit a monthly compliance/progress assessment report (PAR) to University in the format required by the Statewide Procurement Division of the Texas Comptroller of Public Accounts or any successor agency (collectively, "SPD.") Submission of compliance reports will be required as a condition for payment under this Agreement. If University determines that Contractor has failed to subcontract as set out in the HSP, University will notify Contractor of any deficiencies and give Contractor an opportunity to submit documentation and explain why the failure to comply with the http://www.txstate.edu/effective/upps/

HSP should not be attributed to a lack of good faith effort by Contractor. If University determines that Contractor failed to implement the HSP in good faith, University, in addition to any other remedies, may report non-performance to SPD in accordance with 34 TAC §§20.285(g)(5), 20.585 and 20.586.

University may also revoke this Agreement for breach and make a claim against Contractor.

A. Changes to the HSP: If at any time during the term of this Agreement, Contractor desires to change any HSP associated with this Agreement, before any proposed changes become effective (1) Contractor must comply with 34 TAC §20.285; (2) the changes must be reviewed and approved by University; and (3) if University approves changes to the HSP, this Agreement must be amended in accordance with Section 2 to replace the HSP with the revised subcontracting plan.

B. Expansion of Services: If University expands the scope of services through a change order or any other amendment, University will determine if the additional services contain probable subcontracting opportunities not identified in the initial solicitation for the services. If University determines additional probable subcontracting opportunities exist, Contractor will submit a new or amended subcontracting plan covering those opportunities. The new/amended subcontracting plan must comply with the provisions of 34 TAC §20.285 before (1) this Agreement may be amended to include the additional services; or (2) Contractor may perform the additional services.

If Contractor subcontracts any of the additional subcontracting opportunities identified by University without prior authorization and without complying with 34 TAC §20.285, Contractor will be deemed to be in breach of this Agreement and will be subject to any remedial actions provided by applicable Texas laws including Chapter 2161, Texas Government Code and 34 TAC 34 TAC §20.285. University may report non-performance under this Agreement to SPD in accordance with 34 TAC 34 TAC §§20.285(g)(5), 20.585 and 20.586.

17. MISCELLANEOUS

A. Contractor shall neither assign its rights nor delegate its duties under this Agreement without the prior written consent of the University.

B. Contractor shall be considered independent contractor, and neither Contractor nor any employee of Contractor shall be deemed to be an agent or employee of the University. As an independent contractor, Contractor will be solely responsible for determining the means and methods for performing the services described. Contractor shall observe and abide by all applicable laws and regulations, policies and procedures, including but not limited to, those of the University relative to conduct on its premises.

C. This Agreement and all claims arising from this Agreement shall be interpreted and construed in accordance with the laws of the State of Texas, without regard to its conflict of laws principles.

Any judicial action or proceeding between the parties relating to this Agreement and all claims arising from this Agreement shall be brought in the federal or state courts serving Hays County in the State of Texas.

Notwithstanding any provision of this Agreement, nothing herein shall be construed as a waiver by Texas State University of its constitutional, statutory or common law rights, privileges, immunities or defenses. To the extent the terms of this paragraph conflicts with any other provision in this Agreement, the terms of this paragraph shall control.

D. Tax Certification: Contractor certifies that, upon the effective date of this Agreement, Contractor is not currently delinquent in the payment of any taxes due under Chapter 171, Texas Tax Code, 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.

E. Lobbying Prohibition: Contractor represents and warrants that the University’s payments to Contractor and Contractor’s receipt of appropriated or other funds under the contract are not prohibited by Sections 556.005 or 556.0055 of the Texas Government Code.

F. ETHICS MATTERS, NO FINANCIAL INTEREST: Contractor and its employees, agents, representatives, and subcontractors have read and understand University's Conflicts of Interest Policy available at http://www.txstate.edu/effective/upps/upps-01-04-02.html, The Texas State University System Rules and Regulations, Chapter VIII, and applicable state ethics laws and rules. Neither Contractor nor its employees, agents, representatives, or subcontractors will assist or cause University employees to violate University's Conflicts of Interest Policy. 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.

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 Ethics Code, TSUS Rules and Regulations 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.

[Option: Include if Agreement requires TSUS Board of Regents Approval prior to execution or has a value of at least $1M:Further, Contractor agrees to comply with §2252.908, Texas Government Code (Disclosure of Interested Parties Statute), and 1 TAC §46.1 through 46.5 (Disclosure of Interested Parties Regulations), as implemented by the Texas Ethics Commission (TEC), including, among other things, providing the TEC and University with information required on the form promulgated by TEC. Contractor may learn more about these disclosure requirements, including the use of TEC’s electronic filing system, by reviewing the information on TEC’s website at:

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

G. Restricted Employment for Certain State Personnel: Pursuant to Section 572.069 of the Texas Government Code, Contractor certifies that it has not employed and will not employ a former state officer or employee who participated in a procurement or contract negotiations for the University involving Contractor within two (2) years after the date that the Agreement is signed or the procurement is terminated or withdrawn. This certification only applies to former state officers or employees whose state service or employment ceased on or after September 1, 2015.

H. Any written notice required by this Agreement shall be mailed to the attention of the Authorized Representative at the address listed below:

If to University: Texas State University Attn: Facilities Procurement and Contracting 601 University Drive San Marcos, Texas 78666 Email: Fac_Contracts@txstate.edu

With a copy to: Texas State University Office of Procurement and Strategic Sourcing Attn: Director of Procurement and Strategic Sourcing 601 University Drive http://www.txstate.edu/effective/upps/upps-01-04-02.html https://www.ethics.state.tx.us/filinginfo/1295/ mailto:Fac_Contracts@txstate.edu

San Marcos, Texas 78666 Phone: 512-245-2521 Email: contracts@txstate.edu

If to Contractor: Name Secondary Party (Contractor) Attn: Contact Name Contractor Address City, State Zip Code Phone: ###-###-#### Email: email@email.com

I. If Contractor signed its Proposal with a false statement, or signs this Agreement with a false statement, or it is subsequently determined that Contractor has violated any of the representations, warranties, guarantees, certifications or affirmations included in this Agreement, Contractor shall be in default under the Contract and the University may terminate or void the Agreement for cause and pursue other remedies available under the Agreement and applicable law.

J. Force Majeure: No party shall be liable 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.

Force Majeure shall be interpreted to mean any cause beyond the reasonable control of the party affected, provided such cause is brought to the attention of the other parties immediately by said party. Such cause shall include, but not be limited to, an act of God, employee strikes, disturbance, hostility, war, revolution/riots, strike, sabotage, lockout, terrorist acts, pandemic/epidemic, accident, fire, tropical store, hurricane, flood, government restrictions, any requirement of law, or any other circumstances of like character.

K. Contractor represents and warrants that the Contractor has no actual or potential conflicts of interest in providing services to the University under this Agreement and that Contractor’s provision of services under this Agreement would not reasonably create an appearance of impropriety

L. Representations and Warranties by Contractor: If Contractor is a corporation or a limited liability company, Contractor warrants, represents, covenants, and agrees that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization and is duly authorized and in good standing to conduct business in the State of Texas, that it has all necessary power and has received all necessary approvals to execute and deliver the Agreement, and the individual executing the Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

M. Eligibility Certification: Pursuant to Sections 2155.004 and 2155.006, Texas Government Code, Contractor certifies that the individual or business entity named in the Agreement is not ineligible to receive the award of or payments under the Agreement and acknowledges that the Agreement may be terminated and payment withheld if this certification is inaccurate.

N. Payment of Debt or Delinquency to the State: Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under the 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.

mailto:contracts@txstate.edu

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

P. Products and Materials Produced in Texas: If Contractor will provide services under the Agreement, Contractor covenants and agrees that in accordance with Section 2155.4441, Texas Government Code, in performing its duties and obligations under the Agreement, Contractor will 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.

Q. Access by Individuals with Disabilities: Contractor represents and warrants (the “EIR Accessibility Warranty”) that the electronic and information resources and all associated information, documentation, and support that it provides to University under the Agreement (collectively, the “EIRs”) comply with the applicable requirements set forth in Title 1, Chapter 213 of the Texas Administrative Code and Title 1, Chapter 206, Rule §206.70 of the Texas Administrative Code (as authorized by Chapter 2054, Subchapter M of the Texas Government Code.) To the extent Contractor becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Contractor represents and warrants that it will, at no cost to University, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that Contractor fails or is unable to do so, then University may terminate the Agreement and Contractor will refund to University all amounts University has paid under the Agreement within thirty (30) days after the termination date.

R. Parking: Effective August 16, 2014, there will be no free parking on any Texas State University campus. All visitors must either pay for a parking permit as outlined below, or park in one of the pay parking garages. The pay parking garages are:

o Edward Gary Parking Garage located at 405 N. Edward Gary Street o LBJ Student Center Garage located at 704 Gaillardia Street

Construction related vehicles may be able to park inside the fenced staging areas, even though that space is not intended for parking use, but area will be limited to one to four spaces and be set aside for the Job Superintendent and other essential personnel. The Job Superintendent will provide the authorization for utilizing this space. A dashboard permit will be provided to vehicles that are approved to park inside the staging fence at no charge. This permit must be displayed at all times when paring inside the staging fence.

All other personnel must purchase perimeter permits, will park in lot P/AZ 10W (Bobcat Stadium West) and be transported to the work-site.

Permits must be displayed in all vehicles to legally park on campus.

Vehicles illegally parked on campus or do not have a visible permit may be subject to ticketing, immobilization (booting), and towing at the vehicle owner’s expense.

The parking map and parking fees may be viewed at https://www.parking.txstate.edu/.

https://www.parking.txstate.edu/

S. Nondiscrimination: In their execution of the Agreement the parties and others acting by or through them shall comply with all federal and state laws prohibiting discrimination, harassment, and sexual misconduct. To the extent not in conflict with federal or state law, the parties agree not to discriminate on the basis of race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity or gender expression. Any breach of this covenant may result in termination of the Agreement.

T. Personnel; Responsibility For Individuals Performing Work; Criminal Background Checks:

Contractor shall provide representation that it has conducted the following background checks on its officers, employees, or other persons it causes to be on the campus:

o Sex offender and criminal history databases where the above individuals will be placed on the campus, working with or around students;

o Criminal history and credit history background checks where the above individuals will be handling money, information technology, or other security-sensitive areas as determined by University;

o Contractor will determine on a case-by-case basis whether each individual assigned to perform the Work is qualified to provide the services. Contractor will not knowingly assign any individual to provide services on University's premises who has a history of criminal conduct unacceptable for a university campus or healthcare center, including violent or sexual offenses.

o Contractor shall provide University a letter signed by an authorized representative of Contractor certifying compliance with this Section. Contractor will provide University an updated certification letter each time there is a change in the individuals assigned to perform the Work on the University’s campuses.

U. Access to University Facilities: Contractor and its employees, permitted subcontractors and agents may access only the Areas and those University facilities that are necessary to perform Contractor's duties and obligations under this Agreement and will have no right of access to any other University facilities. Contractor and its Employees, permitted Subcontractors and Agents will not use any University equipment including computers, printers, radios, televisions, telephones, desks, chairs, or other equipment, and will not disturb papers or other items on desks or in open drawers or cabinets located on University's premises.

V. Non-Boycott Verification: If Contractor is required to make a certification pursuant to Section

2270.002 of the Texas Government Code, Contractor certifies that Contractor does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. If Contractor does not make that certification, Contractor must indicate and state why the certification is not required.

W. Prohibition of Contract with Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization: Per Texas Government Code, Chapter 2252.152, a governmental entity may not enter into a contract with a company that the Comptroller of Public Accounts has identified that is doing business with a foreign terrorist organization. This prohibition extends to Iran and Sudan under Texas Government Code, Section 806.051 and 807.051.

X. Suspension and Debarment: Pursuant to and in compliance with Executive Orders 12549 and 12689 and Section 180.300 of the Code of Federal Regulations, University cannot purchase goods and/or secure services from vendors that have been debarred, suspended, proposed for debarment, or otherwise excluded from or ineligible to participate in Federal or State assistance programs or activities. Contractor certifies that, to the best of its knowledge, Contractor and/or its Principals are not suspended, debarred, proposed for debarment, declared ineligible, or voluntarily excluded from the award of contracts by the Federal government and/or the State of Texas. Contractor further certifies that it is not subject to a vendor hold by the State of Texas and/or that it is not subject to debarment or suspension by the Texas Comptroller. If it is ever determined that Contractor is suspended or debarred from doing business with the State of Texas or U.S. Federal government, University may immediately terminate the Agreement and will not issue any payment for goods/services rendered.

Y. U.S. Produced Steel: Construction Contracts entered into on or after September 1, 2017, shall contain the provisions mandated by SB 1289, as follows:

• Except as provided below, the bid documents provided to all potential bidders and the contract shall include a requirement that any iron or steel product produced through a manufacturing process and used in the Project shall be produced in the United States (U.S.), within the meaning provided in Texas Government Code, Section 2252.201.

• If any of the following apply, as determined by the TSUS Board of Regents on a project-by project basis, the requirement for U.S. produced steel does not apply:

1. Iron or steel products produced in the U.S. are not:

a. produced in sufficient quantities;

b. reasonably available; or

c. of a satisfactory quality;

2. Use of iron or steel products produced in the U.S. will increase the total cost of the project by more than twenty (20) percent; or

3. Complying with this requirement is inconsistent with the public interest.

• Electrical components, equipment and systems, and appurtenances thereto as described in Texas Government Code, Section 2252.203 (b), are exempt from the requirement for U.S. produced steel.

Z. Group Purchasing Authority: Texas law authorizes Institutions of Higher Education (defined by Section 61.003, Texas Education Code) to use group purchasing procurement methods (Section 51.9335, Texas Education Code). Contractor agrees that other Institutions of Higher Education may enter into an Agreement or Contract with Contractor for the purchase of the services described herein based on the terms, conditions, and prices, of this Contract.

AA. Assignment and Subcontracting: The 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(g)(5), 20.585 and 20.586. The benefits and burdens of this Agreement are assignable by University.

BB. 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.

CC. Severability: In case any provision of this Agreement, for any reason, will 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.

DD. Contractor Conflict: Contractor agrees that it will not at any time prior to or during the term of this Agreement, either directly or indirectly, use labor or materials that could or will create any difficulty with other contractors or labor engaged by Contractor or University or with any other party in the construction, maintenance or operation of University or any part thereof.

EE. Incorporation of Solicitation: The Solicitation, whether a Request for Proposals, the Request for Competitive Sealed Proposals or Request for Qualifications solicitation, the Vendor’s response to same and all associated documents and forms made part of the solicitation process, including any addenda, that resulted in the execution of this agreement are hereby incorporated by reference into this agreement as if copied verbatim.

FF. COVID-19 Vaccine Passport Prohibition: Pursuant to Section 161.0085 of the Texas Health and Safety Code, Contractor certifies that the individual or business entity named in this agreement is not ineligible to receive the award of, or payments under, this Agreement and acknowledges that this Agreement may be terminated, and payment withheld if these certifications are inaccurate.

GG. Critical Infrastructure Affirmation: Pursuant to Texas Government Code Section 2274.0102, Contractor certifies that neither it nor its parent company, nor any affiliate of Contractor or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, or Russia, or any other country designated by the Governor under Texas Government Code Section 2274.0103, or (2) headquartered in any of those countries.

HH. Energy Company Boycotts: Pursuant to Chapter 2274 of the Texas Government Code, for Agreements that exceed $100,000, Contractor certifies that it: (1) does not boycott energy companies as defined in Section 809.001 (1)(A) Texas Government Code (i.e., fossil fuel companies); and (2) will not boycott energy companies during the term of the Agreement.

II. Firearm Entities and Trade Associations Discrimination: Pursuant to Chapter 2274 of the Texas Government Code, for Orders that exceed $100,000 Contractor verifies that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the Agreement against a firearm entity or firearm trade association.

JJ. FERPA Compliance: Some of the University Records Contractor receives, creates or maintains for or on behalf of University may constitute Education Records (as defined by FERPA), or Personally Identifiable Information from Education Records (as defined by FERPA) (collectively, FERPA Records). Contractor will hold University FERPA Records in strict confidence. Contractor will not use or disclose FERPA Records received from or on behalf of University, except as permitted or required by this Agreement in order to execute required Services to the University. Contractor will use the administrative, technical and physical security measures, including secure encryption in the case of electronically maintained or transmitted FERPA Records, approved by University and that are at least as stringent as the requirements of Title 34, Part 99 – Family Educational Rights and Privacy noted at https://www.ecfr.gov/current/title-34/part-99 to preserve the confidentiality and security of all FERPA Records received from, or on behalf of University, its students or any third party pursuant to this Agreement. Contractor agrees that no later than thirty (30) days after the expiration or termination of this Agreement, for any reason, or within thirty (30) days after University’s written request, Contractor will halt all access, use, or processing of FERPA Records and will return to University all FERPA Records, including any copies created by Contractor or any subcontractor; and Contractor will certify in writing to University that all FERPA records have been returned to the University. Contractor will restrict disclosure of FERPA Records solely to those employees, subcontractors, or agents of Contractor that have a need to access the FERPA Records in order for Contractor to perform its obligations under this Agreement. If Contractor discloses any FERPA Records to a subcontractor or agent, Contractor will require the subcontractor or agent to comply with restrictions and obligations that align with the restrictions and obligations imposed on Contractor by this Agreement, including requiring each subcontractor or agent to agree to the same restrictions and obligations in writing.

18. PRESENCE ON UNIVERSITY PREMISES:

A. Contractor agrees that it will ensure that all of its…