ESBD_407145_1743772600422_Attachment G.1 - TMD Standard Terms and Conditions.pdf

Revised 1/1/2024

Texas Military Department Standard Terms and

Conditions Revision 5

I. Affirmations and Certifications

Respondents are ask to read the Standard Terms and Conditions in its entirety. If any assurance is shown to be false, the Contract may be terminated, payment withheld, and the Respondent shall be liable to Texas Military Department (TMD) for attorney’s fees and the costs necessary to complete the contract, including the cost of advertising and awarding a subsequent contract:

1. Abortion Provider and Affiliate Transactions Prohibited Respondent represents and warrants that the Contract is not a taxpayer resource transaction prohibited by Section 2272.003 of the Texas Government Code and that payments made by TMD to Respondent and Respondent’s receipt of appropriated funds under the Contract are not prohibited by Article IX, Section 6.25 of the General Appropriations Act.

2. Antitrust Affirmation The undersigned affirms under penalty of perjury of the laws of the State of Texas that (1) in connection with this Solicitation, neither I nor any representative of the Respondent have violated any provision of the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Comm. Code Chapter 15; (2) in connection with this Solicitation, neither I nor any representative of the Respondent have violated any federal antitrust law; and (3) neither I nor any representative of the Respondent have directly or indirectly communicated any of the contents of this Solicitation to a competitor of the Respondent or any other company, corporation, firm, partnership, or individual engaged in the same line of business as the Respondent. Respondent assigns to TMD all of Respondent’s rights, title and interest in and to all claims and causes of action Respondent may have under the antitrust laws of Texas or the United States for overcharges associated with this solicitation or any resulting Contract.

3. Buy Texas Affirmation he performance of a contract for services it shall purchase products and material produced in Texas when they are available at a price and time comparable to products and materials produced outside this State.

4. Child Support Obligation Affirmation Under Section 231.006(d) of the Texas Family Code, regarding child support, Respondent certifies that the individual or business entity named in this Response is not ineligible to receive the specified payment and acknowledges that the contract may be terminated, and payment may be withheld, if this certification is inaccurate. Furthermore, any Respondent subject to Section 231.006 of the Texas Family Code must include in the Response the names and social security numbers of each person with at least 25% ownership of the business entity submitting the Response. Enter the name and social security numbers (SSN) for each person below. Failure of an organization to provide the above information shall result in the disqualification of the Response.

Name: SSN:

FEDERAL PRIVACY ACT NOTICE: This notice is given pursuant to the Federal Privacy Act.

Disclosure of your Social Security Number (SSN) is required under section 231.006(c) and Section 231.302(c)(2) of the Texas Family Code. The SSN will be used to identify persons that may owe child support and will be kept confidential to the fullest extent allowed under Section 231.302(c), Texas Family Code.

5. Cloud Computing State Risk and Authorization Management Program (TX-TAMP) Pursuant to Section 2054.0593 (d)-(f) of the Texas Government Code, relating to cloud computing state risk and authorization management program, Respondent represents and warrants that it complies with the requirements of the state risk and authorization management program and Respondent agrees that throughout the term of the contract it shall maintain its certifications and comply with the program requirements in the performance of the contract.

6. Computer Equipment Recycling Program If Respondent is submitting a Response for the purchase or lease of computer equipment, then Respondent certifies its compliance with Subchapter Y, Chapter 361, of the Texas Health and Safety Code related to the Computer Equipment Recycling Program and the Texas Commission Environmental Quality rules in 30 TAC Chapter 328.

7. Contracting Information Responsibilities (ONLY for Contracts with a stated expenditure of at least $1 million in public funds for the purchase of goods or services by the governmental body, or results in the expenditure of at least $1 million in public funds for the purchase of goods or services by the governmental body in a fiscal year of the governmental body) Respondent represents and warrants that it will comply with the requirements of Section 552.372(a) of the Texas Government Code. Except as provided by Section 552.374(c) of the Texas Government Code, the requirements of Subchapter J, Chapter 552 of the Government Code, may apply to the Contract and the Respondent agrees that the Contract can be terminated if the Respondent knowingly or intentionally fails to comply with a requirement of that subchapter.

8. COVID-19 Vaccine Passport Prohibition Respondent certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Respondent’s business. Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for state-funded contract.

9. Critical Infrastructure Affirmations Pursuant to Government Code Section 2274.0102, 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 Government Code Section 2274.0103, or (2) headquartered in any of those countries.

10. Cybersecurity Training (ONLY applies to Solicitations and Contracts where Contractors have access to a state computer system or database) Respondent shall ensure that any Respondent employee or subcontractor employee who has access to a state computer system or database shall complete a cybersecurity training program certified under Section 2054.519 of the Texas Government Code. Such training is required to occur during the Contract term and the renewal period. Respondent shall provide TMD with verification of the completion of the requisite training.

11. Data Management and Security Controls In accordance with Section 2054.138 of the Texas Government Code, Respondent certifies that it will comply with the security controls required under this contract and will maintain records and make them available to Agency as evidence of Respondent’s compliance with the required controls.

12. Dealings with Public Servants Affirmation Pursuant to Section 2155.003 of the Texas Government Code, Respondent 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 services to a public servant in connection with the submitted Response.

13. Debts and Delinquencies Affirmation Respondent acknowledges and agrees that, to the extent Respondent owes any debt including, but not limited to, delinquent taxes, delinquent student loans, and child support owed to the State of Texas, and payments or other amounts Respondent is otherwise owed under the contract may be applied toward any dept Respondent owes the State of Texas until the debt is paid in full. These provisions are effective at any time Respondent owes any such debt or delinquency.

14. Disclosure of Prior State Employment In accordance with Section 2254.003 of the Texas Government Code, relating to consulting services, Respondent certifies that it does not employ an individual who has been employed by TMD or another agency at any time during the two years preceding the submission of the Response or, in the alternative, Respondent has disclosed in its Response the following: (i) the nature of the previous employment with TMD 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.

15. Energy Company Boycotts If Respondent is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Respondent verifies that Respondent does not boycott energy companies and will not boycott energy companies during the term of the Contract. If Respondent does not make that verification, Respondent must so indicate in its Response and state why the verification is not required.

16. Entities that Boycott Israel If Respondent is required to make a certification pursuant to Section 2271.001 of the Texas Government Code, Respondent certifies that Respondent does not boycott Israel and will not boycott Israel during the term of the Contract resulting from this solicitation. If Respondent does not make that certification, Respondent must indicate that in its Response and state why the certification is not required.

17. E-Verify Program (ONLY applies to Solicitations and Contracts for services from agencies that are under the direction of the Governor) Respondent certifies that for Contracts for services, Respondent shall utilize the U.S. Department of Homeland Security’s E-Verify system during the term of the contract to determine the eligibility of:

• All persons employed by Respondent to perform duties within Texas; and

• All persons, including subcontractors, assigned by Respondent to perform work pursuant the contract within the United States of America.

The Respondent shall provide, upon request of TMD, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three most recent hires that match the criteria above, by the Respondent, and Respondent’s subcontractors, as proof that this provision is being followed.

If it is determined that Respondent has violated the certification set for in this Section, then (1) Respondent shall be in breach of Contract, (2) TMD shall have the option to terminate the Contract for cause without prior notice, and (3) in addition to any other rights or remedies available to TMD under the Contract, Respondent shall be responsible for all costs incurred by TMD to obtain substitute services to replace the terminated Contract.

17. Excluded Parties Respondent certifies that it is not listed on the federal government’s terrorist watch list as described in Executive Order 13224.

18. Executive Head of a State Agency Affirmation Under Section 669.003 of the Texas Government Code; relating to contracting with an executive head of a state agency, Respondent represents that no person who served as an executive of TMD, in the past four (4) years, was involved with or has any interest in the contract. If Respondent employs or has used the services of a former executive of TMD, then Respondent shall provide the following information in the Response:

19. False Statements Respondent represents and warrants that all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a Response with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted Response and any resulting contract.

20. Financial Participation Prohibited Affirmation Under Section 2155.004(b) of the Texas Government Code, Respondent certifies that the individual or business entity named in this Response or any contract resulting from this solicitation is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate. Section 2155.004 prohibits a person or entity from receiving a state contract if they received compensation for participating in preparing the solicitation or specifications for the contract.

21. Firearm Entities and Trade Associations Discriminations If Respondent is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Respondent 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 contract against a firearm entity or firearm trade association. If Respondent does not make that verification, Respondent must so indicate in its response and state

Name of Former Executive:

Name of State Agency:

Date of Separation:

Position with Respondent:

Date of Employment with Respondent:

why the verification is not required.

22. Foreign Terrorist Organizations Respondent represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government Code. Refer to the list located at https://comptroller.texas.gov/purchasing/publications/divestment.php

23. Former Agency Employees Respondent represents and warrants that none of its employees including, but not limited to, those authorized to provide services under the contract, were former employees of TMD during the twelve

(12) month period immediately prior to the date of execution of the contract.

24. Human Trafficking Prohibition Under Section 2155.0061 of the Texas Government Code, the Respondent certifies that the individual or business entity named in this Response is not ineligible to receive the specified Contract and acknowledges that this Contract may be terminated and payment withheld if this certification is inaccurate.

25. Insurance Requirements Respondent represents and warrants that it will carry the following coverage throughout the life of the Contract:

Workers Compensation (WC) & Employers Liability:

Contractor must maintain Workers’ Compensation insurance coverage in accordance with the following statutory limits:

Employers Liability – Each Accident $1,000,000 Disease – Each Employee $1,000,000 Disease – Policy Limit $1,000,000 The following website addresses what Texas requires of WC:

http://www.tdi.texas.gov/wc/act/index.html (Coverage starts with 406 of the Labor code)

Commercial General Liability:

Occurrence based:

Bodily Injury and Property Damage each occurrence limit: $1,000,000 Aggregate limit: $2,000,000 Medical Expense each person: $5,000 Personal Injury and Advertising Liability: $1,000,000 Products /Completed Operations Aggregate Limit: $2,000,000 Damage to Premises Rented to You: $50,000 Note: The required coverage is to be with companies licensed in the state of Texas, with an “A” rating from A.M. Best, and authorized to provide the corresponding coverage.

26. No Conflicts of Interest 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.

27. Prior Disaster Relief Contract Violation Under Sections 2155.006 and 2261.053 of the Texas Government Code, the Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

28. Signature Authority By submitting the Response, Respondent represents and warrants that the individual submitting this document and the documents made part of this Response is authorized to sign such documents and on https://comptroller.texas.gov/purchasing/publications/divestment.php http://www.tdi.texas.gov/wc/act/index.html behalf of the Respondent and to bind the Respondent under any contract that may result from the submission of this Response.

29. Suspension and Debarment 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.

30. Technology Access Clause For the purposes of this Section, the phrase “equivalent access” means a substantially similar ability to communicate with or make use of the technology, either directly by features incorporated within the technology or by other reasonable means such as assistive devices or services which would constitute reasonable accommodations under the Americans With Disabilities Act or similar state or federal laws.

Examples of methods by which equivalent access may be provided include, but are not limited to, keyboard alternatives to mouse commands and other means of navigating graphical displays, and customizable display appearance. This clause only applies to contracts for Automated Information Systems entered into before September 1, 2006.

31. Television Equipment Recycling Program (ONLY for Contracts for the purchase or lease of covered television equipment as defined by Section 361.91(3) of the Texas Health and Safety Code) Respondent certifies its compliance with Subchapter Z, Chapter 361 of the Texas Health and Safety Code, related to the Television Equipment Recycling Program.

32. Texas Bidder Affirmation Respondent certifies that if a Texas address is shown as the address of the Respondent on the Response, Respondent qualifies as a Texas Bidder as defined in Section 2155.444(c) of the Texas Government Code.

Corporations submitting Responses to TMD shall provide the following information:

33. Vendor Taxes/Workers’ Compensation/Unemployment Insurance Respondent agrees and acknowledges that during the existence of this Contract, Respondent shall be entirely responsible for the liability and payment of Respondent’s and Respondent’s employees’ taxes of whatever kind, arising out of the performances in this Contract. Respondent agrees to comply with all state and federal laws applicable to any such persons, including laws regarding wages, taxes, insurance, and workers’ compensation. The Customer and/or the State shall not be liable to the Respondent, its employees, agents, or others for the payment of taxes or the provision of unemployment insurance and/or workers’ compensation or any benefit available to a State employee or employee of another governmental entity customer.

Federal Employee ID Texas Identification Number System

(TINS):

Full Entity Name:

Street Address:

City/State/Zip:

Telephone Number:

Fax Number:

Email Address:

II. Clauses

1. Disaster Recovery Plan In accordance with 13 TAC 6.94(a)(9), upon request of TMD, Respondent shall provide copies of its most recent business continuity and disaster recovery plans.

2. Dispute Resolution The dispute resolution process provided for in chapter 2260 of the Texas Government Code must be used to attempt to resolve any dispute arising under the Contract.

3. Dispute Resolution (Engineering, Architectural, or Construction Services) Subject to Texas Government Code, Section 2260.002, the dispute resolution process provided for in Chapter 2260 of the Texas Government Code and set forth below in subsections (a)-(d) shall be used by the parties to attempt to resolve all disputes arising under this contract. In accordance with the Texas Civil Practice and Remedies Code, Section 114.005, the parties agree claims encompassed by Texas Government Code, Section 2260.002(3) and Texas Civil Practice and Remedies Code Section

114.002 shall be governed by the dispute resolution process set forth below in subsections (a)- (d).

(a) Notwithstanding Texas Government Code, Chapter 2260.002(3) and Chapter 114.012 and any other statute or applicable law, if the Respondent’s claim for breach of contract cannot be resolved by the parties in the ordinary course of business, Respondent may make a claim against Agency for breach of contract and the Agency may assert a counterclaim against the Respondent as is contemplated by Texas Government Code, Chapter 2260, Subchapter B. In such event, Respondent must provide written notice to Agency 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 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 the Agency, shall examine the claim and any counterclaim and negotiate with the 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, Chapter 2260, Section 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 shall reduce the agreement or settlement to writing and each party shall sign the agreement or settlement. A partial settlement or resolution of a claim does not waive a party’s 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 Agency, 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 Respondent’s sole and exclusive process for seeking a remedy for an alleged breach of contract by the Agency if the parties are unable to resolve their disputes as described in this section.

(e) Nothing in the contract shall be construed as a waiver of the state’s or the Agency’s sovereign immunity. This contract shall not constitute or 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 shall not constitute a waiver of such privileges, rights, defenses, remedies or immunities or be considered as a basis for estoppel.

Agency does not waive any privileges, rights, defenses, or immunities available to Agency by entering into this contract or by its conduct, or by the conduct of any representative of Agency, 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

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.

4. Excess Obligations Prohibited Any contract resulting from this solicitation is subject to termination or cancellation, without penalty to TMD, either in whole or in part, subject to the availability of state funds. TMD is a state agency whose authority and appropriations are subject to actions of the Texas Legislature. If TMD becomes subject to a legislative change, revocation of statutory authority, or lack of appropriated funds which would render TMD’s or Respondent’s delivery or performance under the Contract impossible or unnecessary, the Contract will be terminated or cancelled and be deemed null and void. In the event of a termination or cancellation under this Section, TMD will not be liable to the Respondent for any damages, that are caused or associated with such termination, or cancellation, and TMD will not be required to give prior notice.

5. Governing Law and Venue The Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the Contract is fixed in any court of competent Jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to TMD.

6. Indemnification

RESPONDENT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF

TEXAS AND TMD, 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

THE 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 SHALL BE COORDINATED BY THE RESPONDENT WITH THE

OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE

NAMED DEFENDANTS IN ANY LAWSUIT AND THE RESPONDENT MAY NOT AGREE TO

ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE

OF THE TEXAS ATTORNEY GENERAL. THE RESPONDENT AND TMD AGREE TO FURNISH

TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

THIS PARAGRAPH IS NOT INTENDED TO AND SHALL NOT BE CONSTRUED TO REQUIRE

RESPONDENT TO INDEMNIFY OR HOLD HARMLESS THE STATE OR TMD FOR ANY

CLAIMS OR LIABILITIES RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OF

TMD OR ITS EMPLOYEES.

7. Indemnification (Engineering or Architectural Services)

RESPONDENT SHALL INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND

AGENCY, 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 RESPONDENT’S PERFORMANCE, AND/OR FAILURES TO PAY A

SUBCONTRACTOR OR SUPPLIER BY THE RESPONDENT OR ITS AGENTS, EMPLOYEES,

SUBCONTRACTORS, ORDER FULFILLERS, CONSULTANTS UNDER CONTRACT TO

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 SHALL BE COORDINATED BY

RESPONDENT WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS

STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND RESPONDENT

MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE

CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL. RESPONDENT

AND AGENCY AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY

SUCH CLAIM

8. Indemnification (IP)

RESPONDENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS AGENCY 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 RESPONDENT

PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE, WORK PRODUCT,

CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (3)

AGENCY’S AND/OR RESPONDENT’S USE OF OR ACQUISITION OF ANY REQUESTED

SERVICES OR OTHER ITEMS PROVIDED TO AGENCY BY RESPONDENT OR OTHERWISE

TO WHICH AGENCY HAS ACCESS AS A RESULT OF RESPONDENT’S PERFORMANCE

UNDER THE CONTRACT. RESPONDENT AND AGENCY AGREE TO FURNISH TIMELY

WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. RESPONDENT SHALL

BE LIABLE TO PAY ALL COSTS OF DEFENSE, INCLUDING ATTORNEYS’ FEES. THE

DEFENSE SHALL BE COORDINATED BY RESPONDENT WITH THE OFFICE OF THE TEXAS

ATTORNEY GENERAL(OAG) WHEN TEXAS STATE AGENCIES ARE NAMED

DEFENDANTS IN ANY LAWSUIT AND RESPONDENT MAY NOT AGREE TO ANY

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM OAG. IN

ADDITION, RESPONDENT WILL REIMBURSE AGENCY 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 AGENCY DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS

AND THOSE OF RESPONDENT OR IF AGENCY IS REQUIRED BY APPLICABLE LAW TO

SELECT SEPARATE COUNSEL, AGENCY WILL BE PERMITTED TO SELECT SEPARATE

COUNSEL AND RESPONDENT WILL PAY ALL REASONABLE COSTS OF AGENCY’S

COUNSEL.

9. Standard of Care for Architectural and Engineering Contractors Pursuant to Section 2254.0031 of the Texas Government Code, which incorporates by reference Section 271.904(d) of the Texas Local Government Code, Respondent shall perform services (1) with professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license, and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.

10. National Anthem Verification If Respondent is a professional sports team as defined by Section 2004.002 of the Texas Occupations Code, Respondent will play the United States national anthem at the beginning of each team sporting event held at the Respondent’s home venue or other venue controlled bt Respondent for the event.

Failure to comply with this obligation constitutes a default of this contract, and immediately subjects Respondent to the penalties for default, such as repayment of money received or ineligibility for additional money. In addition, Respondent may be debarred from contracting with the State. The Agency or the Attorney General may strictly enforce this provision.

12. Public Information Act Information, documentation, and other material in connection with this solicitation or any resulting Contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the “Public Information Act”). In accordance with Section 2252.907 of the Texas Government Code, Respondent is required to make any information created or exchanged with the State pursuant to the Contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the State. Any part of the solicitation response that is of a confidential or proprietary nature must be clearly and prominently marked as such by the Respondent.

13. 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. Respondent will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Respondent and the requirement to cooperate is included in any subcontract awards.

14. 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.

III. Additional Clauses

1. Abandonment or Default If Respondent defaults on this Contract, Texas Military Department reserves the right to cancel this Contract without notice and either re-solicit or re-award the Contract to the next best responsive and responsible Respondent. The defaulting Respondent will not be considered in the re-solicitation and may not be considered in future solicitations for the same type of work, unless the specification or scope of work significantly changed. The period of suspension will be determined by the agency based on the seriousness of the default

2. Agency’s Right to Audit Respondent will make available at reasonable times and upon reasonable notice, and for reasonable periods, work papers, reports, books, records, and supporting documents kept current by Respondent pertaining to the Contract for purposes of inspecting, monitoring, auditing, or evaluating by TMD and the State of Texas.

3. Americans with Disabilities Act Respondent represents and warrants its compliance with the requirements of the Americans With Disabilities Act (ADA) and its implementing regulations, as each may be amended.

4. AssignmentI Respondent shall not assign its rights under the Contract or delegate the performance of its duties under the Contract without prior written approval from TMD. Any attempted assignment in violation of this provision is void and without effect.

5. Binding Effect The Contract shall inure to the benefit of, be binding upon, and be enforceable against, each Party and their respective permitted successors, assigns, transferees and delegates.

6. Change in Law and Compliance with Laws Any alterations, additions, or deletions to the terms of the Contract that are required by changes in federal or state law or regulations are automatically incorporated into the Contract without written amendment hereto, and shall become effective on the date designated by such law or by regulation.

7. Damage to Government Property Respondent shall be liable for all damage to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract.

Respondent shall notify TMD in writing of any such damage within one (1) calendar day. Respondent is responsible for the removal of all debris resulting from work performed under the Contract.

8. Delivery If delay is foreseen, Respondent shall give written notice to TMD immediately upon discovering a delay will occur. Respondent must keep TMD advised at all times of status of progress for the services being provided. Default in meeting deliverable timelines (without accepted reasons) or failure to meet deliverable specifications authorizes TMD to purchase the services of this solicitation elsewhere and charge any increased costs for the services, including the cost of rebidding, to the Respondent. No substitutions are permitted without written approval of TMD.

9. Disclosure of Interested Parties Respondent represents and warrants that if selected for award of a contract as a result of the solicitation, Respondent will submit to TMD a Certificate of Interested Parties prior to Contract execution in accordance with Section 2252.908 of the Texas Government Code. This Section applies only to a Contract of a governmental agency or state agency that:

a. Requires an action or vote by the governing body of the entity or agency before the Contract may be signed; or

b. Has a value of at least one million dollars

10. Disclosure of Potential Conflicts of Interest; Certain Contracts Prohibited Pursuant to Section 2261.252 of the Texas Government Code, the Department may not enter into a Contract for the purchase of goods or services with a private vendor if certain positions within the agency including the Adjutant General, Executive Director, General Counsel or the Procurement Director or their covered family members have a financial interest in the vendor. Any contract found to violate Government Code 2261.252 is void.

11. Discounts If Respondent at any time during the term of the Contract provides a discount on the final Contract costs, Respondent will notify TMD in writing ten (10) calendar days prior to effective date of discount.

TMD will generate a Purchase Order Change Notice and send a revised Purchase Order to Respondent.

12. Drug-Free Workplace Respondent represents and warrants that it shall comply with the applicable provisions of the Drug- Free Work Place Act of 1988 (41 U.S.C. § 701 et seq.) and maintain a drug-free work environment.

13. Electrical Items (if applicable) All electrical items must meet all applicable OSHA standards and regulations and bear the appropriate listing from Underwriters Laboratory (UL), Factory Mutual Resource Corporation (FMRC), or National Electrical Manufacturers Association (NEMA).

14. Entire Agreement Any Contract resulting from this solicitation represents the entire agreement between the parties. No prior agreement or understanding, oral or otherwise, of the parties or their agents will be valid or enforceable unless embodied in the Contract documents.

15. Equal Employment Opportunity Respondent represents and warrants its compliance with all applicable duly enacted state and federal laws governing equal employment opportunities.

16. Federal Occupational Safety and Health Law Respondent represents and warrants that all articles and services shall meet or exceed the safety standards established and promulgated under the Federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C Chapter 15).

17. Force Majeure Neither Respondent nor TMD shall 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 shall 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. Each party must inform the other in writing, with proof of receipt, within three (3) business days of the existence of such force majeure, or otherwise waive this right as a defense.

18. Fraud, Waste, and Abuse By submitting a response, Respondent represents and warrants that it has read and understood and will comply with TMD’s Anti-Fraud Policy, found at https://www.comptroller.texas.gov/about/policies/ethics.php, as such Policy currently reads and as it is amended throughout the term of the Contract.

https://www.comptroller.texas.gov/about/policies/ethics.php

19. Immigration Respondent represents and warrants that it shall comply with the requirements of the Immigration and Nationality Act (8 U.S.C § 1101 et seq.) and all subsequent immigration laws and amendments.

20. Independent Contractor Respondent acknowledges and agrees that it is furnishing products and services in the capacity of an independent contractor and that Respondent and its personnel are not employees of TMD or the State of Texas.

21. Legal and Regulatory Actions Respondent represents and warrants that it is not aware of and has received no notice of any court or governmental agency actions, proceedings or investigations, etc., pending or threatened against Respondent or any of the individuals or entities included in the Response within the five (5) calendar years immediately preceding the submission of the Response that would or could impair Respondent’s performance under the Contract, relate to the solicited or similar goods or services, or otherwise be relevant to TMD’s consideration of the Response. If Respondent is unable to make the preceding representation and warranty, then Respondent instead represents and warrants that it has included as a detained attachment in its Response a complete disclosure of any such court or governmental agency actions, proceedings or investigations, etc. that would or could impair Respondent’s performance under the Contract, relate to the solicited or similar goods or services, or otherwise be relevant to TMD’s consideration of the Response. In addition, Respondent represents and warrants that it shall notify TMD in writing within five (5) business days of any changes to the representation or warranties in this clause and understands that failure to so timely update TMD shall constitute breach of Contract and may resulting in immediate termination of the Contract.

22. License Grant Respondent hereby grants to TMD a non-exclusive, perpetual, irrevocable, worldwide, transferable, fully paid, royalty-free, right and license:

a. To reproduce, modify, distribute, store, publicly perform, publicly display, create derivative works of, and otherwise exploit the deliverables, in each case without any restrictions and without accounting to Respondent; and

b. To sublicense any or all such rights to third parties.

23. Limitation on Authority Respondent shall have no authority to act for or on behalf of TMD or the State of Texas except as expressly provided for in the Contract; no other authority, power or use is granted or implied.

Respondent may not incur any debt, obligation, expense or liability of any kind on behalf of TMD or the State of Texas.

24. Lobbying Prohibition Respondent represents and warrants that TMD’s payments to the Respondent and Respondent’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, relating to the prohibition of using state funds for lobbying activities.

25. Media Releases Respondent shall not use TMD’s name, logo, or other likeness in any press release, marketing material, or other announcement without TMD’s prior written approval. TMD does not endorse any vendor, commodity, or service. Respondent is not authorized to make or participate in any media releases or public announcements pertaining to this procurement, the Response or the services to which they related without TMD’s prior written consent, and then only in accordance with explicit written instructions from TMD.

26. No Felony Criminal Convictions Respondent represents that neither Respondent nor any of its employees, agents, or representatives, including any subcontractors and employees, agents, or representatives of such subcontractors, have been convicted of felony criminal offense or that if such a conviction has occurred Respondent has fully advised TMD in writing of the facts and circumstances surrounding the convictions.

27. No Implied Waiver The failure of a Party to insist at any time upon the strict performances of any covenant or agreement or to exercise any option, right, power, or remedy contained in the Contract shall not be construed as a waiver or a relinquishment thereof for the future.

28. No Quantity Guarantees TMD makes no express or implied warranty whatsoever that any minimum compensation or minimum quantity will be guaranteed under the Contract.

29. No Third-Party Beneficiaries Nothing contained in the Contract resulting from this solicitation, either expressed or implied, is intended to confer on any person other than the Parties, or their respective permitted successors, assigns, transferees or delegates, any interests, rights, remedies, obligations or liabilities pursuant to, or by reason of, the Contract.

30. Patents, Trademarks, and Copyrights Respondent agrees to defend and indemnify the TMD and State from claims involving infringement or violation of patents, trademarks, copyrights, trade secrets, or other proprietary rights, arising out of the TMD’s or the State’s use of any good or service provided by the Respondent as a result of this solicitation.

31. Permits, Certifications, and Licenses Respondent represents and warrants that it has determined what licenses, certifications and permits are required to perform services under the Contract and will acquired all applicable licenses, certifications, and permits prior to starting any work under the Contract.

32. Prompt Payment Payment shall be made in accordance with Chapter 2251 of the Texas Government Code, commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas Government Code shall govern remittance of payment and remedies for late payment and non-payment.

33. Property Rights For purposes of the Contract, the term “Work Product” is defined as all work papers, materials, approaches, designs, specifications, systems, software, programs, source code, documentation, methodologies, concepts, intellectual property or other property and/or results of the services that are developed, produced, generated or provided to TMD in connection with, or as a result of, the services provided under the Contract. TMD and Respondent intend this agreement to be a Contract for the services and each considers and expressly intends and agrees that the Work Product to be rendered by Respondent shall be a work-made-for-hire. Respondent and Respondent’s employees will have no rights in or ownership of the Work Product or any other property of TMD. Respondent acknowledges and agrees that the Work Product (and all rights therein, including without limitation all intellectual property rights) belongs to and shall be the sole and exclusive property of TMD. If for any reason the Work Product would not be considered a work-made-for-hire under applicable law, Respondent does hereby irrevocably sell, assign, and transfer to TMD, it successors and assigns, the entire right, title and interest in and to the Work Product and any and all intellectual property rights embedded therein or associated therewith, and in and to all works based upon, derived from, or incorporating the Work Product, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing. Respondent agrees to execute all papers and to perform such other property rights, as TMD may deem necessary to secure for TMD or its designee the rights herein assigned. In the event that Respondent has any rights in and to the Work Product that cannot be assigned to TMD, Respondent hereby grants to TMD and exclusive, worldwide, royalty-free, irrevocable, and perpetual license to directly and indirectly reproduce, distributed, modify, create derivative works of, publicly perform and publicly display, such rights to make, have made, use, sell and offer for sale any products developed by practicing such rights, and to otherwise use such rights, with the right to sublicense such rights through multiple levels of sublicenses. No later than the first calendar day after the termination or expiration of the Contract or upon TMD’s request, Respondent shall deliver to TMD all completed, or partially completed, Work Product and any and all version thereof. Failure to timely deliver such Work Product will be considered a material breach of the Contract. Respondent will not make or retain any copies of the Work Product or any and all documentation for the other products and results of the services without the prior written consent of

TMD.

34. Protest Procedures Any actual or prospective Respondent who is aggrieved in connection with this solicitation, evaluation, or award of any Contract resulting from this solicitation may formally protest as provided in Texas Military Department rules at 37 TAC Rule 134.1.

35. Records Retention Respondent shall maintain and retain all records relating to the performance of the Contract including supporting fiscal documents adequate to ensure that claims for contract funds are in accordance with applicable State of Texas requirements. These records will be maintained and retained by Respondent for a period of seven (7) years after the Contract expiration date or until all audit, claim, and litigation matters are resolved, whichever is later.

36. Refund Respondent will promptly refund or credit within thirty (30) calendar days any funds erroneously paid by TMD which are not expressly authorized under the Contract.

37. Restricted Employment for Certain State Personnel Pursuant to Section 572.069 of the Texas Government Code, Respondent 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 TMD involving the Respondent within two (2) years after the date that the Contract is signed or the procurement is terminated or withdrawn. This certification only applies to former state officers or employees whose state services or employment ceased on or after September 1, 2015.

38. Secure Erasure of Hard Disk Capability All equipment provided to TMD by Respondent that is equipped with hard disk drives (i.e., computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability to securely erase data written to the hard drive prior to final disposition of such equipment, either at the end of the equipment’s useful life or the end of the related services agreement for such equipment, in accordance with 1 TAC § Chapter 202.

39. Severability If any provision of the Contract is construed to be illegal or invalid, such construction will not affect the legality or validity of any of its other provisions. The illegal or invalid provision will be deemed severable and stricken from the Contract as if it had never been incorporated herein, but all other provisions will continue in full force and effect.

40. Smoke-Free Agency TMD has a policy of being a smoke-free agency which includes but is not limited to electronic cigarettes. The policy reflects TMD’s commitment to providing a healthy environment for all employees and visitors.