ESBD_396487_1739567540965_GENERAL TERMS AND CONDITIONS.pdf

GENERAL TERMS AND CONDITIONS Disaster Recovery Plan. Upon request of TWDB, CONTRACTOR/RESPONDENT must provide descriptions of its business continuity and disaster recovery plans. Dispute Resolution. The dispute resolution process provided for in Texas Government Code Chapter 2260 must be used by TWDB and CONTRACTOR/RESPONDENT to attempt to resolve all disputes arising under the Contract. Excess Obligations Prohibited/No Debt Against the State. A contract resulting from this procurement is subject to termination or cancellation without penalty to TWDB, either in whole or in part, subject to the availability of state funds. False Statements. If CONTRACTOR/RESPONDENT signed its bid or response with a false statement or it is subsequently determined that CONTRACTOR/RESPONDENT has violated any of the representations, guarantees, warranties, certifications or affirmations included in its bid or response, CONTRACTOR/RESPONDENT will be in default under the CONTRACT and TWDB may terminate or void the CONTRACT. (Note: This is a recommended clause): Force Majeure. Neither CONTRACTOR/RESPONDENT nor TWDB will be liable to the other for any delay in or failure of performance of any requirement included in the contract caused by force majeure. The existence of such causes of delay or failure will extend the period of performance until after the causes of delay or failure have been removed, provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome. Governing Law and Venue. This CONTRACT will be governed by the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under this CONTRACT is fixed in any court of competent jurisdiction in Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the TWDB. Indemnification. CONTRACTOR/RESPONDENT AGREES TO DEFEND, INDEMNIFY AND HOLD

HARMLESS THE STATE OF TEXAS AND TWDB, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES,

REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR RESULTING FROM ANY ACTS OR OMISSIONS OF CONTRACTOR/RESPONDENT OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER

THE CONTRACT. THE DEFENSE MUST BE COORDINATED BY CONTRACTOR/RESPONDENT WITH THE

OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT, AND CONTRACTOR/RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST

OBTAINING CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL.

CONTRACTOR/RESPONDENT AND TWDB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. Public Information Act. Information, documentation, and other material in connection with this CONTRACT/RESPONSE may be subject to public disclosure pursuant to Texas Government Code Chapter 552 (the "Public Information Act"). In accordance with Texas Government Code § 2252.907, CONTRACTOR/RESPONDENT is required to make any information created or exchanged with the state pursuant to the solicitation or contract and not otherwise excepted from disclosure under the Public Information Act available in a format that is accessible to the public at no additional charge to the State. State Auditor's Right to Audit. The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. AFFIRMATIONS AND CERTIFICATIONS Antitrust. CONTRACTOR/RESPONDENT represents and warrants that, in accordance with Texas Government Code § 2155.005, neither CONTRACTOR/RESPONDENT nor the firm, corporation, partnership, or institution represented by CONTRACTOR/RESPONDENT, or anyone acting for such firm, corporation, partnership or institution, has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Texas Business and Commerce Code Chapter 15, or the federal antitrust laws; or (2) communicated directly or indirectly the contents of its proposal to any competitor or any other person engaged in the same line of business as CONTRACTOR/RESPONDENT. Child Support Obligation. Under Texas Family Code § 231.006, CONTRACTOR/RESPONDENT certifies that the individual or business entity named in its proposal or response is not ineligible to receive the specified payment and acknowledges that any contract resulting from this procurement may be terminated and payment may be withheld if this certification is inaccurate. COVID-19 Vaccine Passport Prohibition.

RESPONDENT/CONTRACTOR certifies that it does not require its customers to provide any documentation certifying the customer'sCOVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the RESPONDENT/CONTRACTORs business.

RESPONDENT/CONTRACTOR acknowledges that such a vaccine or recovery requirement would make RESPONDENT/CONTRACTOR ineligible for a state-funded contract. Authorized Signature 11/08/2022 Texas Water Development Board Business Unit # 58000 Purchase Order # 23-0197 Page: 4 of 7 Dealings with Public Servants. Pursuant to Texas Government Code § 2155.003, RESPONDENT/CONTRACTOR represents and warrants that it has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the goods or services being supplied. Debts and Delinquencies. CONTRACTOR/RESPONDENT agrees that any payments due under the CONTRACT will be applied towards any debt or delinquency that is owed to the State of Texas, including but not limited to delinquent taxes, delinquent student loan payments and delinquent child support. NOTE: The following clause applies only to contracts for $100,000 or more with companies employing at least 10 full-time people and paid at least in part with public funds. The clause does not apply to a governmental entity that determines the requirements Texas Government Code § 2274.002(b) are inconsistent with its duties related to debt obligations or funds as described in Texas Government Code § 2274.002(c).

Energy Company Boycotts. CONTRACTOR/RESPONDENT represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by Texas Government Code § 2274.002 does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, CONTRACTOR/RESPONDENT must promptly notify TWDB. NOTE: The following clause applies only to contracts for $100,000 or more with companies employing at least 10 full-time people and paid at least in part with public funds. Entities that Boycott Israel. CONTRACTOR/RESPONDENT represents and warrants that (1) it does not, and will not for the duration of the contract, boycott Israel or (2) the verification required by Texas Government Code §

2271.002 does not apply to the CONTRACT. If circumstances relevant to this provision change during the course of the CONTRACT, RESPONDENT/CONTRACTOR will promptly notify TWDB. Excluded Parties.

CONTRACTOR/RESPONDENT certifies that it is not listed on the federal government's terrorism watch list as described in Executive Order 13224. Executive Head of a State Agency. Under Texas Government Code § 669.003, CONTRACTOR/RESPONDENT certifies that it does not employ, or has disclosed its employment of, any former executive head of TWDB. If § 669.003 applies, CONTRACTOR/RESPONDENT must provide the following information: Name of Former Executive: _________________________ Name of State Agency: _________________________ Date of Separation from State Agency:

_________________________ Position with CONTRACTOR/RESPONDENT:

_________________________ Date of Employment with CONTRACTOR/RESPONDENT:

_________________________ Financial Participation Prohibited. Pursuant to Texas Government Code § 2155.004(a), CONTRACTOR/RESPONDENT certifies that neither CONTRACTOR/RESPONDENT nor any person or entity represented by CONTRACTOR/RESPONDENT has received compensation from TWDB or any agency of the State of Texas for participation in the preparation of the specifications or solicitation on which this CONTRACT/RESPONSE is based. Pursuant to Texas Government Code § 2155.004(b), CONTRACTOR/RESPONDENT certifies that the individual or business entity named in this CONTRACT/RESPONSE is not ineligible to receive the specified contract and acknowledges that the CONTRACT may be terminated, and payment withheld if this certification is inaccurate. NOTE: The following clause applies only to contracts for $100,000 or more with companies employing at least 10 full-time people and paid at least in part with public funds. It does not apply when such contracts are sole source or no-bid. Firearm Entities and Trade Associations Discrimination.

CONTRACTOR/RESPONDENT verifies that: (1) it does not, and will not for the duration of the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Texas Government Code § 2274.002 does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, CONTRACTOR/RESPONDENT must promptly notify TWDB. Foreign Terrorist Organizations.

CONTRACTOR/RESPONDENT represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Texas Government Code § 2252.152. Human Trafficking Prohibition. Under Texas Government Code § 2155.0061, CONTRACTOR/RESPONDENT certifies that the individual or business entity named in this CONTRACT/RESPONSE is not ineligible to receive the specified contract and acknowledges that the CONTRACT may be terminated, and payment withheld if this certification is inaccurate. Lobbying Prohibition. CONTRACTOR/RESPONDENT represents and warrants that TWDB's payments to CONTRACTOR/RESPONDENT and CONTRACTOR/RESPONDENTs receipt of appropriated or other funds under the contract are not prohibited by Texas Government Code §§ 556.005 or 556.0055, related to the prohibition on payment of state funds to a lobbyist or for lobbying activities. No Conflict of Interest. CONTRACTOR/RESPONDENT represents and warrants that the provision of goods and services or other performance under the CONTRACT will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety. Prior Disaster Relief Contract Violation. Texas Government Code §§ 2155.006 and 2261.053 prohibit state agencies from accepting a response or awarding a contract that includes proposed financial participation by a person who, in the past five years, has been convicted of violating a federal law or assessed a Authorized Signature 11/08/2022 Texas Water Development Board Business Unit # 58000 Purchase Order # 23- 0197 Page: 5 of 7 penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster occurring after September 24, 2005, as defined by Texas Government Code § 418.004. Under Texas Government Code §§ 2155.006 and 2261.053, CONTRACTOR/RESPONDENT certifies that the individual or business entity named in this CONTRACT/RESPONSE is not ineligible to receive the specified contract and acknowledges that the

CONTRACT may be terminated, and payment withheld if this certification is inaccurate. Suspension and Debarment. CONTRACTOR/RESPONDENT certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration. ADDITIONAL LANGUAGE REQUIRED FOR SOLICITATIONS ONLY: Terms and Conditions Attached to Response. Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response.

Texas Bidder Affirmation. RESPONDENT certifies that if a Texas address is shown as the address of RESPONDENT on its Response, RESPONDENT qualifies as a Texas Bidder as defined in Texas Government Code § 2155.444(c). ADDITIONAL LANGUAGE REQUIRED FOR SOLICITATIONS AND CONTRACTS WHERE CONTRACTOR WILL HAVE ACCESS TO A STATE COMPUTER SYSTEM OR DATABASE: Cybersecurity Training. If CONTRACTOR/RESPONDENT has access to any state computer system or database, CONTRACTOR/RESPONDENT must complete cybersecurity training and verify completion of the training program to TWDB pursuant to and in accordance with Texas Government Code § 2054.5192.

CONTRACTOR/RESPONDENT must provide a unique email address for every employee who will be working under the CONTRACT and must notify TWDB's Contract Manager upon completion of the training. ADDITIONAL LANGUAGE REQUIRED FOR SOLICITATIONS AND CONTRACTS WHERE CONTRACTOR WILL HAVE REMOTE OR DIRECT ACCESS TO OR CONTROL OF CRITICAL INFRASTRUCTURE AS DEFINED IN TEXAS GOVERNMENT CODE § 2274.0101: Pursuant to Texas Government Code § 2274.0102, CONTRACTOR/RESPONDENT certifies that neither it nor its parent company, nor any affiliate of Respondent or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Texas Government Code § 2274.0103, or (2) headquartered in any of those countries. ADDITIONAL LANGUAGE REQUIRED FOR GOODS AND SERVICES CONTRACTS WITH A STATED EXPENDITURE OF $1 MILLION OR MORE IN PUBLIC FUNDS OR THAT RESULT IN EXPENDITURE OF AT LEAST $1 MILLION OF PUBLIC FUNDS IN A FISCAL YEAR (between a government body and an entity that is not a government body): Contracting Information Responsibilities. In accordance with Texas Government Code § 552.372, CONTRACTOR/RESPONDENT agrees to (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to TWDB for the duration of the contract, (2) promptly provide to TWDB any contracting information related to the contract that is in the custody or possession of the CONTRACTOR/RESPONDENT on request; and (3) on termination or expiration of the contract, either provide at no cost to TWDB all contracting information related to the contract that is in the custody or possession of CONTRACTOR/RESPONDENT or preserve the contracting information related to the contract as provided by the records retention requirements applicable to TWDB. Except as provided by Texas Government Code § 552.374(c), the requirements of Texas Government Code Chapter 552 Subchapter J may apply to the Contract, and CONTRACTOR/RESPONDENT agrees that the Contract can be terminated if CONTRACTOR/RESPONDENT knowingly or intentionally fails to comply with a requirement of that subchapter. ADDITIONAL LANGUAGE REQUIRED FOR SERVICES SOLICITATIONS AND CONTRACTS: Assignment Prohibited. CONTRACTOR/RESPONDENT may not assign the contract or assign, transfer or delegate, in whole or in part, any of its interest in, or rights or obligations under, the contract without the prior written consent of the Agency, and any attempted or purported assignment, transfer or delegation thereof without such consent will be null and void. Buy Texas: CONTRACTOR/RESPONDENT agrees to comply with Texas Government Code § 2155.441, requiring the purchase of products and materials produced in the State of Texas in performing service contracts. E-Verify Program: CONTRACTOR/RESPONDENT certifies that for contracts for services, CONTRACTOR/RESPONDENT will utilize the U.S. Department of Homeland Security's E-Verify system during the term of the CONTRACT to determine the eligibility of: (1) all persons employed by CONTRACTOR/RESPONDENT to perform duties within Texas; and (2) all persons, including subcontractors, assigned by CONTRACTOR/RESPONDENT to perform work pursuant to the contract within the United States of America. ADDITIONAL LANGUAGE REQUIRED FOR EMPLOYMENT, PROFESSIONAL SERVICES AND CONSULTING CONTRACTS: Former Agency Employees:

CONTRACTOR/RESPONDENT represents and warrants that none of its employees, including but not limited to those authorized to provide services under the CONTRACT, were employees of TWDB during the 12-month period immediately prior to the date of execution of the CONTRACT. Authorized Signature 11/08/2022 Texas Water Development Board Business Unit # 58000 Purchase Order # 23-0197 Page: 6 of 7 ADDITIONAL LANGUAGE REQUIRED FOR CHAPTER 2254 CONSULTING CONTRACTS: Disclosure of Prior State Employment: In accordance with Texas Government Code § 2254.033, relating to consulting services, CONTRACTOR/RESPONDENT certifies that it does not employ an individual who has been employed by TWDB or another state agency at any time during the two years preceding the submission of the Response to this procurement, or, in the alternative, CONTRACTOR/RESPONDENT has disclosed in its Response the following: (i) the nature of the previous employment with TWDB or the other agency;

(ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination. ADDITIONAL LANGUAGE REQUIRED FOR CONTRACTS OF $1 MILLION OR MORE (STATED OR SPENT PER FISCAL YEAR): In accordance with Texas Government Code § 552.372, CONTRACTOR/RESPONDENT agrees to (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to TWDB for the duration of the contract; (2) promptly provide to TWDB any contracting information related to the contract that is in the custody or possession of the CONTRACTOR/RESPONDENT on request; and (3) on termination or expiration of the contract, either provide at no cost to TWDB all contracting information related to the contract that is in the custody or possession of the CONTRACTOR/RESPONDENT or preserve the contracting information related to the contract as provided by the records retention requirements applicable to TWDB Except as provided by Texas Government Code § 552.374(c), the requirements of Government Code Subchapter J, Chapter 552 may apply to the contract, and CONTRACTOR/RESPONDENT agrees that the contract can be terminated if CONTRACTOR/RESPONDENT knowingly or intentionally fails to comply with a requirement of that subchapter. ADDITIONAL LANGUAGE REQUIRED FOR ARCHITECTURAL, ENGINEERING CONTRACTS: Standard of Care for Architectural and Engineering Contractors: Pursuant to Texas Government Code § 2254.0031, which incorporates by reference Texas Local Government Code § 271.904(d), CONTRACTOR/RESPONDENT must perform services (1) with professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional licensing; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect. Indemnification: CONTRACTOR/RESPONDENT AGREES TO INDEMNIFY AND HOLD

HARMLESS THE STATE OF TEXAS AND TWDB, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES,

REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED DAMAGES, COSTS, ATTORNEY FEES, AND

EXPENSES TO THE EXTENT CAUSED BY, ARISING OUT OF, OR RESULTING FROM ANY ACTS OF

NEGLIGENCE, INTENTIONAL TORTS, WILLFUL MISCONDUCT, PERSONAL INJURY OR DAMAGE TO

PROPERTY, AND/OR OTHERWISE RELATED TO CONTRACTOR/RESPONDENT'S PERFORMANCE, AND/OR

FAILURES TO PAY A SUBCONTRACTOR OR SUPPLIER BY THE CONTRACTOR/RESPONDENT OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, CONSULTANTS UNDER CONTRACT TO

CONTRACTOR/RESPONDENT, OR ANY OTHER ENTITY OVER WHICH THE CONTRACTOR EXERCISES

CONTROL, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE

CONTRACT. THE DEFENSE MUST BE COORDINATED BY CONTRACTOR/RESPONDENT WITH THE OFFICE OF

THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY

LAWSUIT AND CONTRACTOR/RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST

OBTAINING CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL.

CONTRACTOR/RESPONDENT AND TWDB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. ADDITIONAL LANGUAGE REQUIRED FOR CONTRACTS INVOLVING INTELLECTUAL PROPERTY: CONTRACTOR/RESPONDENT AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS TWDB

AND THE STATE OF TEXAS FROM AND AGAINST ANY AND ALL CLAIMS, VIOLATIONS,

MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY OR PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM: (1) THE PERFORMANCE OR ACTIONS OF CONTRACTOR/RESPONDENT PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (3) TWDB'S AND/OR CONTRACTOR/RESPONDENT'S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR

OTHER ITEMS PROVIDED TO TWDB BY CONTRACTOR/RESPONDENT OR OTHERWISE TO WHICH TWDB

HAS ACCESS AS A RESULT OF CONTRACTOR/RESPONDENT'S PERFORMANCE UNDER THE CONTRACT.

CONTRACTOR/RESPONDENT AND TWDB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. CONTRACTOR/RESPONDENT WILL BE LIABLE TO PAY ALL COSTS OF DEFENSE, INCLUDING ATTORNEYS FEES. THE DEFENSE MUST BE COORDINATED BY CONTRACTOR/RESPONDENT WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL(OAG) WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND CONTRACTOR/RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM OAG. IN ADDITION, CONTRACTOR/RESPONDENT WILL REIMBURSE TWDB AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES, COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF TWDB DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF CONTRACTOR/RESPONDENT OR IF TWDB IS REQUIRED BY APPLICABLE LAW TO SELECT

SEPARATE COUNSEL, TWDB WILL BE PERMITTED TO SELECT SEPARATE COUNSEL AND

CONTRACTOR/RESPONDENT WILL PAY ALL REASONABLE COSTS OF TWDB'S COUNSEL. ADDITIONAL LANGUAGE REQUIRED FOR ARCHITECTURAL, ENGINEERING AND CONSTRUCTION CONTRACTS: Dispute Resolution: Subject to Texas Government Code § 2260.002, the dispute resolution process provided for in Texas Government Code Chapter 2260 and set forth below in subsections (a)-(d) must be used by the parties to attempt to resolve all disputes arising under this contract. In accordance with Texas Civil Practice and Remedies Code § 114.005, the parties agree claims encompassed by Texas Government Code § 2260.002(3) and Texas Civil Practice Authorized Signature 11/08/2022 Texas Water Development Board Business Unit # 58000 Purchase Order # 23-0197 Page: 7 of 7 and Remedies Code § 114.002 are governed by the dispute resolution process set forth below in subsections (a)- (d). (a) Notwithstanding Texas Government Code § 2260.002(3) and § 114.012 and any other statute or applicable law, if CONTRACTOR/RESPONDENTs claim for breach of contract cannot be resolved by the parties in the ordinary course of business, CONTRACTOR/RESPONDENT may make a claim against TWDB for breach of contract and TWDB may assert a counterclaim against CONTRACTOR/RESPONDENT as is contemplated by Texas Government Code Chapter 2260, Subchapter B. In such event, CONTRACTOR/RESPONDENT must provide written notice to TWDB of a claim for breach of the contract not later than the 180th day after the date of the event giving rise to the claim. The notice must state with particularity: (1) the nature of the alleged breach; (2) the amount the CONTRACTOR/RESPONDENT seeks as damages; and (3) the legal theory of recovery. (b) The chief administrative officer, or if designated in the contract, another officer of TWDB, will examine the claim and any counterclaim and negotiate with the CONTRACTOR/RESPONDENT in an effort to resolve them. The negotiation must begin no later than the 120th day after the date the claim is received, as is contemplated by Texas Government Code §

2260.052. (c) If the negotiation under paragraph (b) above results in the resolution of some disputed issues by agreement or in a settlement, the parties must reduce the agreement or settlement to writing and each party must sign the agreement or settlement. A partial settlement or resolution of a claim does not waive a partys rights under this contract as to the parts of the claim that are not resolved. (d) If a claim is not entirely resolved under paragraph (b) above, on or before the 270th day after the date the claim is filed with TWDB, unless the parties agree in writing to an extension of time, the parties may agree to mediate a claim made under this dispute resolution procedure. This dispute resolution procedure is the CONTRACTOR/RESPONDENT's sole and exclusive process for seeking a remedy for an alleged breach of contract by TWDB if the parties are unable to resolve their disputes as described in this section. (e) Nothing in the contract will be construed as a waiver of the states or TWDBs sovereign immunity. This contract does not constitute and should not be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to the State of Texas under this contract or under applicable law will not constitute a waiver of such privileges, rights, defenses, remedies or immunities or be considered as a basis for estoppel. TWDB does not waive any privileges, rights, defenses, or immunities available to TWDB by entering into this contract or by its conduct, or by the conduct of any representative of TWDB, prior to or subsequent to entering into this contract. (f) Compliance with the dispute resolution process provided for in Texas Government Code Chapter 2260 Subchapter B and incorporated by reference in subsection (a)-(d) above is a condition precedent to the CONTRACTOR/RESPONDENT: (1) filing suit pursuant to Chapter 114 of the Civil Practices and Remedies Code; or (2) initiating a contested case hearing pursuant to Subchapter C of Chapter 2260 of the Texas Government Code. ADDITIONAL LANGUAGE REQUIRED FOR PURCHASE OR LEASE OF COMPUTER EQUIPMENT: If CONTRACTOR/RESPONDENT is submitting a Response for the purchase or lease of computer equipment, then CONTRACTOR/RESPONDENT certifies that it is in compliance with Texas Health and Safety Code Chapter 361, Subchapter Y, related to the Computer Equipment Recycling Program, and the Texas Commission on Environmental Quality rules in 30 TAC Chapter 328. ADDITIONAL LANGUAGE REQUIRED FOR PURCHASE OR LEASE OF TELEVISION EQUIPMENT:

CONTRACTOR/RESPONDENT certifies its compliance with Texas Health and Safety Code Chapter 361, Subchapter Z, related to the Television Equipment Recycling Program.