ESBD_425273_1749079509108_RFP 809-25-0018 - TSHM Roof Replacement - Attachment E - Sample Contract.pdf

DRAFT

STATE OF TEXAS SERVICES AGREEMENT

Roof Replacement Services

COUNTY OF TRAVIS Contract #2025-xx

This Agreement is entered into by and between the State Preservation Board ("SPB"), an agency of the State of Texas, located at 201 E. 14th St., Ste. 950, Austin, Texas 78701, and _______________________________ (Contractor) located at ___________________________________________ for roof replacement services for the Bullock Texas State History Museum (TSHM).

ARTICLE 1

SCOPE OF PROJECT

Contractor shall provide to SPB all of the services ("Services") and deliverables described in and in the manner required by the Contract Documents including RFP 809-25-xxxx to reroof the

TSHM.

ARTICLE 2

COMPENSATION

2.1. Compensation shall not exceed $_________________, with the project completed by

2.2 If the scope of work materially changes, any additional services must be identified in a written amendment or change order signed by both parties.

2.3 Payment must be made in accordance with the payment procedure in the SPB Project Manual.

The Payment Period shall be monthly.

2.4 Retainage: Owner will withhold from each progress payment, as retainage, five (5) percent of the total earned amount. Retainage so withheld shall be managed in conformance with Subchapter B, Chapter 2252, Texas Government Code.

2.5 SPB shall be relieved of any obligation to permit performance or to pay for services performed after any termination of this Agreement.

2.6 Payments to Contractor will be made within thirty (30) days from latter of services performed or receipt of a valid, uncontested invoice in accordance with the Texas Government Code, Chapter 2251, Texas Prompt Payment Act. SPB shall timely notify Contractor within 14 days of receipt of an invoice if the SPB questions, disagrees with, or desires additional information regarding an invoice.

SPB Contract #2025-xx

2.7 To receive payment, Contractor must submit an invoice to SPB. The invoice format must be acceptable to the SPB and must include the following:

1. Contractor’s name and mailing address;

2. Name and telephone number of a person designated by Contractor to answer questions regarding the invoice;

3. SPB Contract Number;

4. Valid Texas Identification number (TIN) issued by the Comptroller of Public Accounts;

5. Description of each item for the goods/services listed on the Contract in sufficient detail to identify the order that relates to the invoice; and

6. Shipment date of goods listed in the Contract or dates of services covered by the invoice.

Please send invoices to:

State Preservation Board Attn: Accounting Dept.

P.O. Box 13286, Austin, TX 78711 TSPB.accounting@tspb.state.tx.us

AIA Form G702, Application and Certificate for Payment, while not specifically required, is a good model for the level of detail expected by the SPB.

Each invoice must include all required attachments identifying payment to Historically Underutilized Businesses and to all Subcontractors. Failure to submit “HUB Subcontracting Plan Progress Assessment Report” form with each invoice will cause rejection of the invoice by SPB and its return to Contractor. A copy of the required report is available at http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ and will be provided to

Contractor.

ARTICLE 3

PROJECT SCHEDULE AND TERM OF AGREEMENT

3.1 This Agreement shall be effective as of the date executed by the last party and shall terminate on _____________________, unless extended by the parties or terminated earlier as provided in the Contract.

3.2 Most work will be accomplished during normal business hours, 8am-5pm, M-F, however some weekend after hours work may be approved by SPB. See the SPB Project Manual for additional details. .

ARTICLE 4

CONTRACT DOCUMENTS

4.1 The Contract Documents consist of:

4.1.1 This Contract, SPB Contract No. 2025-xx

4.1.2 The Project Manual, attached as Exhibit A;

http://www.window.state.tx.us/procurement/prog/hub/hub-forms/

4.1.3 The Uniform General Conditions and Supplementary Conditions for the State of Texas, 2015, which can be found online at the Texas Facilities Commission website (http://www.tfc.state.tx.us/divisions/facilities/prog/construct/formsindex/);

4.1.4 SPB Request for Proposals (RFP) #809-25-xxxx (Exhibit A);

4.1.5 Contractor’s Proposal (Exhibit B), including Contractor’s HUB Subcontracting plan

4.2 All of the above are attached to and incorporated as part of this Contract for all purposes.

In the case of conflicts between this document and any of the above attachments, the following shall control in the order of priority as listed above.

ARTICLE 5

CONTRACTOR’S RESPONSIBILITIES

5.1 The Contractor shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting the performance of this Contract, including, if applicable, workers compensation laws, compensation statutes and regulations, and licensing laws and regulations. When required, the Contractor shall furnish the SPB with satisfactory proof of its compliance.

5.2 The Contractor shall perform its services consistent with the professional skill and care ordinarily provided by Contractors practicing in the same or similar locality under the same or similar circumstances. The Contractor shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.

5.3 The Contractor shall coordinate its services with those services provided by the SPB and the SPB's other Contractors. The Contractor’s representative shall be ______________.

5.4 The Contractor shall be entitled to rely on the accuracy and completeness of services and information furnished by the SPB and the SPB's Contractors. The Contractor shall provide prompt written notice to the SPB if the Contractor becomes aware of any error, omission or inconsistency in such services or information.

5.5 The Contractor shall be responsible for damage to the SPB's equipment, and/or workplace and its contents, by its or its Contractor’s services, negligence in work, personnel, and equipment.

5.6 The Contractor shall be responsible and liable for the safety, injury and health of its employees and Contractors while they are performing services for the SPB under this Contract.

5.7 The Contractor shall provide all labor and equipment necessary to furnish the goods or perform the service.

5.8 All employees of the Contractor shall be a minimum of 17 years of age and experienced in the type of work to be performed. No visitors or relatives of the Contractor’s employees will be allowed on the work site unless they are bona fide employees of the Contractor performing services under this Contract.

http://www.tfc.state.tx.us/divisions/facilities/prog/construct/formsindex/

5.9 Except with the SPB's knowledge and consent, the Contractor shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Contractor’s professional judgment with respect to this Project.

5.10 Contractor agrees that all information related to the Project is strictly confidential and shall not be shared or released at any time except at the SPB’s direction and with the SPB’s prior approval.

5.11 The Capitol area is a site with security considerations. Contractor shall be prepared to submit security clearance information for all employees working on site, and ensuring that security clearance requirements do not impact their ability to perform the Work defined in this Contract.

ARTICLE 6

SPB RESPONSIBILITIES

6.1 SPB shall provide information and decisions to Contractor in a timely manner and shall clearly convey the SPB’s expectations to Contractor.

6.2 The SPB’s representative shall be Bob Cash. Bob.Cash@tspb.texas.gov (512)463-5390

6.3 SPB shall provide project milestones and access to Project.

6.4 SPB shall assist in coordination with facility occupants and usage.

6.5 SPB reserves the right to change its designated representation and/or project manager for convenience by written notification from the Executive Director of the State Preservation Board.

6.6 The SPB reserves the right, at its sole discretion, to unilaterally amend this Contract throughout the term of the Contract to incorporate any modifications necessary for the SPB's or the Contractor’s compliance with all applicable state and federal laws, regulations, requirements and guidelines.

ARTICLE 7

CLAIMS AND DISPUTES

7.0 The dispute resolution process provided for in Chapter 2260 as described in the Uniform General Conditions shall be used by the parties to attempt to resolve all disputes arising under

ARTICLE 8

TERMINATION AND SUSPENSION

8.0. The Suspension and Termination provisions of the Uniform General Conditions shall apply to mailto:Bob.Cash@tspb.texas.gov

ARTICLE 9

MISCELLANEOUS PROVISIONS

9.1 The Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State of Texas.

9.2 The venue of any suit arising under this Contract is fixed in any court of competent jurisdiction of Travis County, Texas.

9.3 Terms in this Agreement shall have the same meaning as those in Uniform General

Conditions of the State of Texas.

9.64 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Contractor.

ARTICLE 10

SPECIAL TERMS AND CONDITIONS

10.1 Independent Contractor: For the purposes of the Contract, the Contractor shall be considered an independent professional and is not to be considered an employee of the State Preservation Board (SPB) or the State of Texas. The Contractor may not enter into any agreement or make any representation on behalf of the SPB or the State of Texas.

The Contractor shall be responsible for providing all necessary unemployment and workers' compensation insurance for the Contractor’s employees.

10.2 Indemnification: The contractor shall indemnify and hold harmless the SPB, the State of Texas, all of its officers, agents, and employees from and against all claims, actions, suits, demands, proceedings, costs, damages, and liabilities including without limitation the costs of defense including reasonable attorneys' fees and court costs, arising out of, connected with, or resulting from any acts or omissions of the Contractor or any agent, employee, subcontractor, or supplier of the Contractor in the execution or performance of the Contract. The Contractor shall coordinate its defense with the Texas Attorney General as required by the SPB. This paragraph is not intended to and shall not be construed to require the Contractor to indemnify or hold harmless the State or the SPB for any claims or liabilities resulting from the negligent acts or omissions of the SPB or its employees.

10.3 Patent, Trademark, Copyright and other Infringement Claims: Contractor shall indemnify, save and hold harmless the SPB and the State of Texas from and against claims of patent, trademark, copyright, trade secret or other proprietary rights, violations or infringements arising from the SPB’s or Contractor’s use of or acquisition of any services or other items provided to the SPB by Contractor or otherwise to which the SPB has access as a result of Contractor’s performance under this Contract, provided that the SPB shall notify Contractor of any such claim within a reasonable time of the SPB’s receiving notice of any such claim. If Contractor is notified of any claim subject to this section, Contractor shall notify SPB of such claim within five (5) business days of such notice. No settlement of any such claim shall be made by Contractor without SPB’s prior written approval. Contractor shall reimburse the SPB and the State of Texas for any claims, damages, losses, costs, expenses, judgments, or any other amounts, including, but not limited to, attorneys’ fees and court costs, arising from any such claim. Contractor shall pay all reasonable costs of the SPB’s counsel and shall also pay costs of multiple counsel, if required to avoid conflicts of interest as determined by the SPB, or if separate counsel is required by applicable law.

Contractor represents that it has determined what licenses, patents and permits are required under this Contract and has acquired all such licenses, patents and permits.

Should the goods, or use of the goods, become the subject of a claim of infringement of a United States patent, copyright or trade secret, SPB may require the Contractor to procure for SPB the right to continue using the goods, to replace or modify the same to remove the infringement, or to accept return of the goods. Contractor agrees that for the exclusive use by SPB for State business, SPB is free to reproduce without royalty, all manuals, publications, maintenance programs, diagnostics and documentation pertaining to any product developed as a result of the contract.

10.4 Contractor Responsibilities: The Contractor will endeavor, in connection with the performance of Services, to comply with all applicable federal, state, and local laws, statutes, ordinances, rules and regulations and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting the performance of this Contract, including, if applicable, workers, compensation laws, compensation statutes and regulations, and licensing laws and regulations. When required, the Contractor shall furnish the SPB with satisfactory proof of its compliance. The SPB reserves the right, at its sole discretion, to unilaterally amend this Contract throughout the term of the Contract to incorporate any modifications necessary for the SPB's or the Contractor’s compliance with all applicable state and federal laws, regulations, requirements, and guidelines. The Contractor shall be responsible for damage to the SPB's equipment, and/or workplace and its contents, by its or its Contractor’s work, negligence in work, personnel, and equipment. The Contractor shall be responsible and liable for the safety, injury and health of its employees and Contractors while they are performing work for the SPB under this Contract. The Contractor shall provide all labor and equipment necessary to furnish the goods or perform the service. All employees of the vendor shall be a minimum of 17 years of age and experienced in the type of work to be performed. No visitors or relatives of the Contractor’s employees and Contractors will be allowed on state property unless they are bona fide employees or Contractors of the Contractor performing work under this Contract.

10.5 Funding: The Contract is subject to cancellation, without penalty to the SPB, either in whole or in part, if funds are not appropriated by the Texas Legislature. The SPB is a state agency whose authority and appropriations are subject to actions of the Texas Legislature and whose availability of funds may be subject to governmental action. If the SPB becomes subject to a legislative change, revocation of statutory authority, lack of appropriate funds, or unavailability of funds which would render Contractor’s delivery or performance under this Contract impossible or unnecessary, this Contract will be terminated, either in whole or in part. In the event of such a termination, the Contractor shall, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. The SPB shall be liable for payments limited only to the portion of work the SPB authorized in writing and which the Contractor has completed, delivered to the SPB, and which has been accepted by the SPB. All such work shall have been completed, per the Contract requirements, prior to the effective date of termination.

10.6 Amendment: The contracting parties, if agreed, may amend the Contract at any time during the Contract's duration. To be valid and binding, such amendments must be in writing and executed by the SPB and the Contractor. No agent, servant, or employee of the SPB has authority to modify the Contract except by written amendment signed by the Executive Director. Any other attempted changes, including oral modifications, written notices that have not been agreed to by both Parties, or other modifications of any type, shall be invalid.

10.7 Notice of Administrative Changes: The Contractor shall provide written notification of administrative changes, including changes to company name, address, telephone number, and billing instructions, to the SPB as soon as possible, but not later than thirty (30) days from the date of the change.

10.8 Confidentiality and Public Information: Notwithstanding any provisions of this Contract to the contrary, the Contractor understands that the SPB will comply with the Texas Public Information Act, Texas Government Code, Chapter 552 as interpreted by judicial opinions and opinions of the Attorney General of the State of Texas. The SPB agrees to notify the Contractor in writing within a reasonable time from receipt of a request for information related to the Contractor’s work under this contract, if such information is held by Contractor, or if the request pertains to information Contractor has labeled as proprietary or confidential as described below. Contractor will cooperate with the SPB in the production of documents responsive to the request. The SPB will make a determination whether to submit a Public Information Act request to the Attorney General. The Contractor will notify the SPB within twenty-four (24) hours of receipt of any third-party requests for information that was provided by the State of Texas for use in performing the Contract. This Contract and all data and other information generated or otherwise obtained in its performance may be subject to the Texas Public Information Act. the Contractor agrees to maintain the confidentiality of information received from the State of Texas during the performance of this Contract, including information which discloses confidential personal information particularly, but not limited to, social security numbers.

10.9 The SPB is a government agency subject to the Texas Public Information Act. Information submitted to the SPB by the Contractor shall be presumed to be subject to disclosure unless a specific exception to disclosure under the PIA applies. If it is necessary for the Contractor to include proprietary or otherwise confidential information in its submitted information, the Contractor must clearly label that proprietary or confidential information and identify the specific exception to disclosure in the PIA. Merely making a blanket claim that the information is accepted from disclosure because it contains some proprietary information is not acceptable, and shall make the information subject to release under the PIA. In order to trigger the process of seeking an Attorney General opinion on the release of proprietary of confidential information, the specific provisions of information that are considered by the Contractor to be proprietary or confidential must be clearly labeled as described above. Any information which is not clearly identified as proprietary or confidential shall be deemed to be subject to disclosure pursuant to the PIA.

10.10 Antitrust and Assignment of Claims The Contractor represents and warrants that neither the Contractor nor any firm, corporation, partnership, or institution represented by the Contractor or anyone acting for such firm, corporation or institution has, (1) violated the antitrust laws of the State of Texas or of the United States; or (2) communicated directly or indirectly the proposal to any competitor or any other person engaged in such line of business during the procurement process for this Contract.

10.11 Affirmation Clauses:

A. The Contractor affirms that it has not given, offered to give, or 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 Contract. Any instances of unethical conduct, undisclosed conflicts of interest and/or potential conflicts of interest, and other improprieties by the Contractor are grounds for termination of the Contract.

B. The Contractor certifies that the individual or business entity named in the

Contract is in compliance with Texas Government Code, Section 669.003, relating to contracting with executive head of a State agency.

C. Pursuant to Texas Government Code, Section 2155.004, the Contractor certifies that the individual or business entity named in the Contract 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 that person or entity received compensation for participating in preparing the solicitations or specifications for the Contract.

D. Pursuant to Texas Family Code, Section 231.006 (relating to child support), the

Contractor certifies that the individual or business entity named in the contract is not ineligible to receive the specified payment and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate. The Contractor shall provide names and social security numbers of all individuals with an ownership interest of at least twenty-five percent (25%) of the business entity prior to award of the Contract. (Bidders that have pre-registered this information on the SPB Centralized Master Bidders List have satisfied the requirement.)

E. The Contractor agrees that any payments due under the Contract will be applied toward any debt, including but not limited to delinquent taxes and child support that is owed to the State of Texas.

F. The Contractor certifies that the individual or business entity named in the Contract is eligible to participate in this transaction and that it has not been subjected to suspension, debarment, or similar ineligibility determined by any federal, state, or local governmental entity and that the Contractor is in compliance with the State of Texas statutes and rules relating to procurement and that the Contractor is not listed on the federal government's terrorism watch list as described in Executive Order 13224. Entities ineligible for federal procurement are listed at http://www.epls.gov.

G. Contractor affirms by signature to this document that it (i) does not boycott Israel and (ii) will not boycott Israel during the term of the contract if these provisions apply under 2271.002 of the Texas Government Code.

H. Contractor affirms by signature to this document that it is not engaged in active business operations with Sudan, Iran, or any foreign terrorist organization and/or organizations with policies that are anathema to the policy interest of the United States or the State of Texas.

I. Contractor affirms in writing by signature hereto that this contract for Contractor services to which a governmental agency is a party that the licensed engineer or registered architect performing services will be rendered:

(1) with the professional skill and care ordinarily provided by competent engineers or architect 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.

Nothing in this section prohibits a governmental agency in a contract for engineering or architectural services to which the governmental agency is apart from including and enforcing conditions that relate to the scope, fees, and schedule of a project in the contract.

10.12 Buy Texas: The Contractor represents and warrants that it will buy Texas products and materials for use in providing the services authorized herein when such products and materials are available at a price and time comparable to products and materials produced outside the state.

10.13 Taxes: Purchases made for state uses are exempt from Texas State Sales Tax and Federal

Excise Tax. An Excise Tax Exemption Certificate will be furnished upon written request to the SPB.

10.14 Supporting Documents, Retention; Right to Audit; Independent Audits: Contractor shall maintain and retain supporting fiscal and any other documents relevant to showing that any payments under this Contract funds were expended in accordance with the laws and regulations of the State of Texas, including but not limited to, requirements of the Comptroller of the State of Texas and the State Auditor. Contractor shall maintain all such documents and other records relating to this Contract and the State’s property for a period of four (4) years after the date of submission of the final invoices or until a resolution of all billing questions, whichever is later. Contractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the “Work” as defined in this Contract. Contractor and the Subcontractors shall provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit. Contractor must retain all work and other supporting documents pertaining to this Contract, for purposes of inspecting, http://www.epls.gov/ monitoring, auditing, or evaluating by the SPB and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor.

Contractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of such State’s work as requested. Contractor’s failure to comply with this Section shall constitute a material breach of this Contract and shall authorize the SPB and the State of Texas to immediately assess appropriate damages for such failure. Pursuant to Texas Government Code, Section 2262.003 the acceptance of funds by Contractor or any other entity or person directly under this Contract, or indirectly through a subcontract under this Contract, shall constitute acceptance of the authority of the State Auditor to conduct an audit or investigation in connection with those funds. Contractor acknowledges and understands that the acceptance of funds under this Contract shall constitute consent to an audit by the State Auditor, Comptroller, or other agency of the State of Texas. 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. Furthermore, 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.

10.15 Force Majeure: Neither Contractor nor the SPB shall be liable to the other for any delay in, or failure of performance, of any requirement resulting from this 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.

10.16 No Waiver: This Contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the SPB as an agency of the State of Texas or otherwise available to the SPB. The failure to enforce or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities available to the SPB under this Agreement 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. The SPB does not waive any privileges, rights, defenses, remedies, or immunities available to the SPB as an agency of the State of Texas, or otherwise available to the SPB, by entering into this Agreement or by its conduct prior to or subsequent to entering into this Agreement. The modification of any privileges, rights, defenses, remedies, or immunities available to the SPB must be in writing, must reference this Section, and must be signed by the SPB to be effective, and such modification of any privileges, rights, defenses, remedies, or immunities available to the SPB shall not constitute waiver of any subsequent privileges, rights, defenses, or immunities under this Agreement or under applicable law.

10.17 Limitation of Liability: The SPB shall not be liable for any direct or consequential damages to the Contractor or any third party for any act or omission of the Contractor in the performance of this Agreement. The SPB shall not indemnify nor guarantee any obligation of the Contractor.

10.18 Federal, State, and Local Requirements: The Contractor shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W-2's to common law employees. The Contractor is responsible for both Federal and State Unemployment insurance coverage and standard Workers' Compensation Insurance coverage. The Contractor shall comply with all Federal and State tax laws and withholding requirements.

The SPB shall not be liable to the Contractor or its employees for any Unemployment or Workers' Compensation coverage, or Federal or State withholding requirements. The Contractor shall indemnify the SPB and pay to the SPB all costs, penalties, or losses resulting from the Contractor’s omission or breach of this Section.

10.19 Assignment: The Contractor may not assign or subcontract this Agreement, in whole or in part, without the SPB's prior written consent. The Agreement is void if sold or assigned to another company without the written approval of the SPB.

10.20 DTPA: The Contractor represents and warrants that it has not been the subject of a Deceptive Trade Practices Act or any unfair business practice administrative hearing or court suit and that the Contractor has not been found to be liable for such practices in such proceedings. The Contractor certifies that it has no officers who have served as officers of other entities who have been the subject of a Deceptive Trade Practices Act or any unfair business administrative hearing or court suit and that such officers have not been found to be liable for such practices in such proceedings.

10.21 False Statements: By signature to this Contract, the Contractor makes all the representations, warranties, guarantees, certifications, and affirmations included in this Agreement. If the Contractor signed its proposal with a false statement or signs this Agreement with a false statement or it is subsequently determined that the Contractor has violated any of the representations, warranties, guarantees, certifications, or affirmations included in this Contract, the Contractor shall be in default under this Agreement and the SPB may terminate or void this Agreement for cause and pursue other remedies available to the SPB under this Agreement and applicable law.

10.22 Felony Criminal Convictions: The Contractor represents and warrants that the Contractor has not and the Contractor’s employees have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, the Contractor has fully advised the SPB as to the facts and circumstances surrounding the conviction.

10.23 Limitation on Authority: The Contractor will have no authority to act for or on behalf of the SPB or the State of Texas except as expressly provided for in the Contract; no other authority, power or use is granted or implied. The Contractor may not incur any debts, obligations, expenses, or liabilities or any kind on behalf of the SPB or the State of Texas.

10.24 Equal Opportunity: The Contractor represents and warrants that it shall comply with the Civil Rights Act in giving equal opportunity without regard to race, color, creed, sex, or national origin.

10.25 Immigration Laws: The Contractor certifies that all Contractor employees are and will be in compliance with all requirements of the federal Immigration Reform and Control Act of 1986 (Public Law 99-603).

10.26 Direct Deposit: The electronic funds transfer (EFT) provisions of Texas law were revised by H.B. 2429, which is now in effect. Depending on eligibility under the law, certain payments from the State may be directly deposited into the Contractor’s bank account or may be made by warrant. Vendors who may be eligible for direct deposit and who wish to be paid by direct deposit, must complete the form titled "Vendor Direct Deposit Authorization" and return it as soon as possible to: State Preservation Board, Accounting, P.O. Box 132876, Austin, TX 78711. Comptroller of Public Accounts' Claims Divisions oversees the distribution of the state payments, both warrants (paper checks) and direct deposit. For questions regarding the statewide process, contact the Claims Payment Processing Section, at 1-800-531-5441, ext. 6-2499 or (512) 936-2499, or send an email message to claims.division@cpa.state.tx.us.

10.27 Partially Completed Work: No later than the seventh calendar day after the termination of this Contract, or at SPB request, the Contractor shall deliver to the SPB all completed, or partially completed, work and any and all documentation or other products and results of these services. Failure to timely deliver such work or any and all documentation or other products and results of the services shall be considered a material breach of this Contract Agreement. The Contractor shall not make or retain any copies of the work or any and all documentation or other products and results of the services without the prior written consent of the SPB.

10.28 Non-Waiver of Rights: Failure of a party to require performance by another party under this Contract will not affect the right of such party to require performance in the future. No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Contract shall operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. A waiver by a party of any breach of any term of this Contract will not be construed as a waiver of any continuing or succeeding breach.

10.29 Severability: In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

10.30 Prior Agreements Superseded: This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting its subject matter.

10.31 Certification Concerning Hurricane Relief: Government Code §2155.006 and §2261.053 prohibit the SPB from awarding a contract to any person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by Government Code §418.004, occurring after September 24, 2005. Under Government Code §2155.006 the Contractor certifies that the individual or business entity mailto:claims.division@cpa.state.tx.us named in its proposal is not ineligible to receive the Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate.

10.32 Misclassification of Workers: Effective January 1, 2014, Texas Labor Code sec. 214.008 authorizes a penalty to be imposed on a person who contracts for certain services with a governmental entity and fails to properly classify their workers. This section applies to subcontractors directly retained and compensated by a person who contracts with a governmental entity.

10.33 No Advertising. Contractor shall not advertise that it is doing business with SPB or use this

Agreement as any sort of marketing or sales tool without the prior written consent of SPB.

10.34 Subcontracts: In any approved Subcontracts, Contractor shall legally bind such

Subcontractor to perform and make such Subcontractor subject to all the duties, requirements, and obligations of Contractor specified herein. Nothing herein shall be construed to relieve Contractor of the responsibility for ensuring that the goods delivered and/or the services rendered by Contractor and/or any of its Subcontractors comply with all the terms and provisions of this Contract. Contractor will provide written notification to SPB of any such Subcontractor performing work under this Contract, including the name and taxpayer identification number of Subcontractor, the task(s) being performed, and the number of Subcontractor employees expected to work on the task.

10.35. Entities that Boycott Energy Companies. Contractor represents and warrants that: (1) it does not, and will not for the duration of the Agreement, boycott energy companies or (2) the verification required by Section 2276.002 of the Texas Government Code does not apply to the Agreement. If circumstances relevant to this provision change during the course of the Agreement, Contractor shall promptly notify SPB.

10.36 Entities that Boycott Firearm Entities or Firearm Trade Associations. Contractor verifies that: (1) it does not, and will not for the duration of the Agreement, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Section 2274.002 of the Texas Government Code does not apply to the Agreement. If circumstances relevant to this provision change during the course of the Agreement, Contractor shall promptly notify SPB.

10.37 COVID-19 Vaccine Passport Prohibition. Under Section 161.0085 of the Texas Health and

Safety Code, Contractor 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 Contractor’s business.

Contractor acknowledges that such a vaccine or recovery requirement would make Contractor ineligible for a state-funded contract.

10.38 Contractor certifies that it is not ineligible to receive this Agreement and acknowledges that this Agreement may be terminated and payment withheld if Contractor’s certification in this matter is inaccurate. SPB may not award a contract, including a contract for which purchasing authority is delegated to a state agency, which includes proposed financial participation by a person who, during the five-year (5) period preceding the date of the award, has been convicted of any offense related to the direct support or promotion of human trafficking.

10.39 Use of State Property. Contractor is prohibited from using State Property for any purpose other than performing services authorized under the Agreement. State Property includes, but is not limited to: SPB’s office space, identification badges, SPB information technology equipment and networks (e.g., laptops, portable printers, cell phones, iPads, external hard drives, data storage devices, any SPB issued software, and the SPB Virtual Private Network (VPN client)), and any other resources of SPB. Contractor shall not remove State Property from the continental United States. In addition, Contractor may not use any computing device to access SPB’s network or e-mail while outside of the continental United States.

Contractor shall not perform any maintenance services on State Property unless the Agreement expressly authorizes such services. During the time that State Property is in the possession of Contractor, Contractor shall be responsible for (i) all repair and replacement charges incurred by SPB that are associated with loss of State Property or damage beyond normal wear and tear; and (ii) all charges attributable to Contractor’s use of State Property that exceeds the scope of the Agreement. Contractor shall fully reimburse such charges to SPB within ten (10) calendar days of Contractor’s receipt of SPB’s notice of amount due.

Use of State Property for a purpose not authorized by agreement shall constitute breach of contract and may result in termination of the Agreement and the pursuit of other remedies available to SPB under contract, at law, or in equity.

10.40 Anti Trust Affirmation: The undersigned affirms under penalty of perjury of the laws of the

State of Texas that (1) in connection with this Response, 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 Response, 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 Response 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.

10.41 Changes in Law and Compliance with Laws: Any alteration, additions, or deletions to the terms of the contract that are required by changed 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.

10.42 Disclosure of Prior State Employment: In accordance with Section 2254.033 of the Texas

Government Code, relating to consulting services, Respondent certifies that it does not employ an individual who has been employed by Agency 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 Agency 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.

10.43 E-Verify Program: 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:

1. all persons employed by Respondent to perform duties within Texas; and

2. all persons, including Subcontractors, assigned by Respondent to perform work pursuant the contract within the United States of America.

10.44 Historically Underutilized Businesses (HUBs): In accordance with State law, it is SPB’s policy to assist HUBs, whether minority or women-owned, whenever possible, to participate in providing goods and services to the agency. SPB encourages those parties with whom it contracts for the provision of goods and services to adhere to this same philosophy in selecting subcontractors to assist in fulfilling Contractor’s obligations with SPB. If contractor subcontracts for some or all of the services to be performed under the contract, Contractor shall comply with all HUB requirement pursuant to Texas Government code, Chapter 2161 and file with SPB a HUB subcontracting Plan.

10.45 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.

10.46 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.

10.47 Sovereign Immunity: Nothing in the contract shall be construed as a waiver of the Agency’s or the State’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 Agency or the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to Agency or the State of Texas under the 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 the contract or by its conduct prior to or subsequent to entering into the contract.

ARTICLE 10

INSURANCE

10.1 Contractor shall purchase and maintain insurance, in full force at all times and at its expense, as shall protect the Contractor from claims that may arise out of or result from the Contractor’s performance of service pursuant to this Agreement, in the following types and amounts for the duration of this Agreement, and any extensions thereof, and furnish original Certificates of Insurance, including policy declaration and policy endorsements before work commences as evidence thereof:

10.1.1. Minimum Insurance Coverage:

10.1.1.1Workers Compensation: Minimum coverage for employer liability as determined by the Texas Department of Insurance.

10.1.1.2 Commercial General Liability Insurance: $1,000,000 minimum each occurrence limit; $2,000,000 minimum general aggregate limit.

10.1.1.3 Automobile Liability Insurance for all owned, non-owned, and hired vehicles: Minimum combined single limit for bodily injury and property damage of $1,000,000 per occurrence.

10.1.1.4 Umbrella Liability Insurance for an amount of not less than $2,000,000.00 that provides coverage at least as broad as and applies in excess and follows the form of the primary liability coverage required hereinabove.

The policy shall provide “drop down” coverage where underlying primary insurance coverage limits are insufficient or exhausted.

10.1.2 General Requirements for Insurance:

Contractor agrees that each of the insurance policies obtained shall meet the requirements of this Agreement and contain the following:

10.1.2.1 The Contractor shall be responsible for deductibles and self-insured retention, if any, stated in policies. All deductibles or self-insured retention shall be disclosed on the certificate of insurance required above and must be approved by the Owner. Actual losses not covered by insurance as required by this Agreement shall be paid by the Contractor.

10.1.2.2 All insurance coverage obtained by Contractor to fulfill the requirements hereunder shall be on an occurrence basis.

10.1.2.3 Contractor shall maintain coverage for the duration of the Agreement and for two years following the completion of the work under the Agreement. The Contractor shall, on at least an annual basis, provide the SPB with an insurance certificate as evidence of insurance. The premium for the reporting period shall be paid by the Contractor.

10.1.2.4 The Parties agree that the policies required in this Agreement, shall be considered primary coverage, as applicable.

10.1.2.5 Insurance shall be written by a company licensed to do business in the State of Texas at the time the policy is issued and shall be written by a company with an A.M. Best rating of A or better.

10.1.2.6 All certificates shall include a clause to the effect that the policy shall not be canceled, reduced, restricted or limited until thirty (30) days after the SPB has received written notice.

10.1.2.7 Unless the requisite prior notification has been provided to the SPB and replacement insurance meeting all of the requirements of this Agreement has been obtained, Contractor shall not cause or allow any of its insurance coverage to be canceled nor permit any insurance coverage to lapse during the term of the Agreement or as required in the Agreement.

10.1.2.8The SPB reserves the right to review the insurance requirements of this section during the effective period of the Agreement and to make reasonable adjustments to insurance coverage and their limits when deemed necessary and prudent by the SPB based upon changes in statutory law, court decisions or the claims history of the industry as well as the Contractor (such adjustments shall be commercially available to the Contractor).

10.1.2.9 Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall require each Subcontractor performing work under the Contract, at the Subcontractor’s own expense, to maintain during the term of the Contract, the same stipulated minimum insurance including the required provisions and additional policy conditions shown above. As an alternative, the Contractor may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The Contractor’s certificates of insurance shall note in such event that the Subcontractors are included as additional insureds and that Contractor agrees to provide Workers’ Compensation for the Subcontractors and their employees.