ESBD_432157_1751320474473_Attachment D - Sample Contract.pdf

DRAFT CONTRACT

STATE OF TEXAS Services Agreement

COUNTY OF TRAVIS Contract # 2025-xx

THIS AGREEMENT (Agreement or Contract) is between the State Preservation Board (SPB), a Texas state agency located at 201 E. 14th Street, Suite 950 Austin, Texas 78701 (hereinafter referred to as "SPB" or "Owner"), on behalf of the Texas State Cemetery ("TSC ") 909 Navasota Street, Austin, Texas 78702 and __________________________ located at ________________(hereinafter referred to as "Contractor") (together known as "The Parties"), effective as of the date signed by the last party.

ARTICLE 1: SCOPE OF PROJECT

The project is known as the TSC Fence Renovation and Replacement Project and requires labor and materials for services at the Texas State Cemetery fence at 909 Navasota St, Austin, Texas. The existing fence will be removed and replaced, and historic elements such as the Comal Gate will be restored and repaired.

Contractor shall provide to SPB all of the services ("Services") and deliverables described in and in the manner required by the Contract Documents listed in Article 2, below. Compensation is $ (Article

5) with the contract term of _______________________(Article 6).

ARTICLE: 2 CONTRACT DOCUMENTS

2.1 The Contract Documents consist of:

A. This Contract, SPB Contract No. 2025-xx;

B. The SPB’s Request for Proposals (RFP) #809-25-0011, including the Project Manual and Drawings which are a part of the RFP, (Exhibit A);

C. 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/);

D. Contractor’s Proposal, including Contractor’s HUB Subcontracting Plan (Exhibit B).

2.2 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 document shall control in the order listed above.

2.3 The Contractor’s authorized representative is .

2.4 The SPB's authorized representative is .

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

2.5 Owner 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.

ARTICLE 3: CONTRACTOR RESPONSIBILITIES

3.1 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.

3.2 The Contractor shall perform its services consistent with the 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 skill and care and the orderly progress of the Project according to the project manual and construction documents.

3.3 Contractor shall perform all services specifically allocated to it by the Contract Documents as well as those services reasonably inferable from the Construction Documents as necessary for completion of the Work and the Project. Contractor agrees to perform these services using its best efforts, skills, judgments, and abilities.

3.4 Contractor shall contract directly with such subcontractors and suppliers as may be necessary for construction or supply of the Project. All such contracts shall be issued consistent with the applicable provisions of this Contract.

3.5 The Contractor shall coordinate its services with those services provided by the SPB and the SPB's consultants. The Contractor shall be entitled to rely on the accuracy and completeness of services and information furnished by the SPB and the SPB's consultants. 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.

3.6 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.

3.7 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.

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

3.9 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.

3.10 The contractor shall comply with minimum wage rate requirements detailed in the contract documents.

3.11 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.

3.12 Contractor agrees that all information related to the Project managed by the Agency and shall not be shared or released at any time except at the SPB’s direction and with the SPB’s prior approval.

3.13 The Governor’s Mansion 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 4: SPB RESPONSIBILITIES

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

4.2 The SPB’s representative shall be Bob Cash. Bob.Cash@tspb.texas.gov

4.3 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.

4.4 SPB shall provide project milestones and access to Project.

4.5 Owner, at its sole cost, will secure the services of environmental surveys or other special consultants to develop such additional information as may be necessary for the design or construction of the Project.

4.6 Owner shall arrange and pay for testing of materials, structural, mechanical, chemical, and other laboratory tests as required by the Construction Documents.

4.7 Owner shall have the right to reject any defective work on the Project. Should Contractor refuse or neglect to correct any such, Owner may have the Work corrected and recover all expenses incurred from Contractor on demand.

4.8 SPB shall assist in all coordination with facility occupants.

4.9 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 5: COMPENSATION

5.1. Compensation for all work under this Agreement, inclusive of contractor's contingency, profit, general conditions, and insurance, shall not exceed $_____________________.

mailto:Bob.Cash@tspb.texas.gov

5.2 Changes to the Contract Amount shall be executed as described in the Uniform General Conditions.

Changes will be processed as they arise and incorporated formally into this agreement by amendment on a monthly basis.

5.3 Payment must be made in accordance with the payment procedure in the SPB Project Manual. The Payment Period shall be monthly.

5.4 Retainage: In case of delays causing the Project to extend past one month, 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.

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

5.6 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.

5.7 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

Please send a copy of invoices to the Owner's Representative at the same time they are submitted to accounting, for review against completed work.

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.

5.8 Each invoice must include all required attachments identifying payments to Historically

Underutilized Businesses and to all subcontractors. Failure to submit “HUB Subcontracting Plan mailto:TSPB.accounting@tspb.state.tx.us http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ProgressAssessmentReportForm.xls

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 6: PROJECT SCHEDULE AND TERM OF AGREEMENT

6.1 The date for Substantial Completion of the project is __________________.

6.2 Within 2 weeks of contract execution the Contractor shall develop a WPS/Project Schedule for Project Team review and Owner’s approval that coordinates and integrates the activities of the Project, including Contractor’s services, the anticipated milestones for the Work, site access requirements, permits and approvals, A/E’s services, the work of other consultants and suppliers, and Owner’s activities and key milestones with the anticipated construction schedules for other contractors. The WPS must identify all major milestones through Project Final Completion. The WPS shall be created and maintained in accordance with Owner’s Specifications using Owner specified format and software.

6.3 This Agreement shall be effective as of the date executed by the last party and shall terminate on

____________________ unless extended by written agreement of the parties or terminated earlier as provided in the Contract.

ARTICLE 7: COPYRIGHTS AND LICENSES

7.1 No license or right shall be deemed granted or implied under this Agreement. The Owner, defined as the State of Texas for this purpose, shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein.

ARTICLE 8: CLAIMS AND DISPUTES

8.1 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 this Contract.

ARTICLE 9: TERMINATION AND SUSPENSION

9.1 The Suspension and Termination provisions of the Uniform General Conditions shall apply to this

Contract.

ARTICLE 10: SPECIAL TERMS AND PROVISIONS

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

Conditions of the State of Texas.

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

10.3 Assignment: Respondent shall not assign its rights under the contract or delegate the performance of its duties under the contract without prior written approval from the Agency. Any attempted assignment in violation of this provision is void and without effect.

10.4 Binding authority: The SPB and Contractor, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement.

10.5 Confidentiality: When Contractor receives information, Contractor shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, or (3) its consultants and contractors who need to know the content of such information in order to perform services or construction solely and exclusively for the Project and whose contracts include similar restrictions on the use of confidential information. Contractor shall contractually require its consultants, if any, be bound by this confidentiality requirement.

10.6 Change in Law/Compliance: 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 amendments hereto, and shall become effective on the date designated by such law or by regulation.

10.7 Child Support Obligation Affirmation: Under Section 231.006 of the Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid or application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate.

10.8 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 a state-funded contract.

10.9 Cybersecurity Training: Respondent represents and warrants that it will comply with the requirements of Section 2054.5192 of the Texas Government Code relating to cybersecurity training and required verification of completion of the training program.

10.10 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 the Agency in writing of any such damage within one (1) calendar day.

10.11 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.

6-8138 or (512) 936-8138, or send an email message to claims.division@cpa.state.tx.us.

10.12 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.

10.13 Dealings with Public Servants Affirmation: Respondent has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted Response.

10.14 Debts and Delinquencies Affirmation: Respondent agrees that any payments due under the contract shall be applied towards any debt or delinquency that is owed to the State of Texas. Respondent agrees that any payments due under the contract shall be directly applied towards eliminating any debt or delinquency it has to the State of Texas including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.

10.15 Disaster Recovery Plan: In accordance with 13 TAC § 6.94(a)(9), Respondent shall provide to Agency the descriptions of its business continuity and disaster recovery plans.

10.16 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.

10.17 Electrical Items: 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).

10.18 Energy Company Boycotts: Respondent represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by Section

2274.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

10.19 Entities that Boycott Israel: Respondent represents and warrants that (1) it does not, and shall not for the duration of the contract, boycott Israel or (2) the verification required by Section 2271.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

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

10.21 E-Verify Program: Respondent certifies that for contracts for services, Respondent shall utilize the U.S.

mailto:claims.division@cpa.state.tx.us

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. This provision applies to any employees hired by Contractor or its subcontractors between the start of the contract and its conclusion. The Contractor shall provide, upon request of the SPB, 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 Contractor, and Contractor’s subcontractors, as proof that this provision is being followed. .If this certification is falsely made, the Contract may be immediately terminated, at the discretion of the state and at no fault to the state, with no prior notification. The Contractor shall also be responsible for the costs of any re-solicitation that the state must undertake to replace the terminated Contract.

10.22 Excess Obligations Prohibited: The contract is subject to termination or cancellation, without penalty to Agency, either in whole or in part, subject to the availability of state funds. Any contract resulting from this Solicitation is contingent upon the continued availability of lawful appropriations by the Texas Legislature.

10.23 Excluded Parties: Respondent certifies that it is not listed in the prohibited vendors list authorized by

Executive Order No. 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets Control.

10.24 Executive Head of a State Agency Affirmation: In accordance with Section 669.003 of the Texas

Government Code, relating to contracting with the executive head of a state agency, Respondent certifies that it is not (1) the executive head of the Agency, (2) a person who at any time during the four years before the date of the contract was the executive head of the Agency, or (3) a person who employs a current or former executive head of the Agency.

10.25 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.

10.26 Force Majeure: Neither Respondent nor Agency 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.

10.27 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.

10.28 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 the Agency or the State of Texas. Or Respondent and Respondent’s employees, representatives, agents, subcontractors, suppliers, and third-party service providers shall serve as independent contractors in providing the services under the contract. Neither Respondent nor Agency is an agent of the other and neither may make any commitments on the other party’s behalf. Should Respondent subcontract any of the services required in the contract, Respondent expressly understands and acknowledges that in entering into such subcontract(s), Agency is in no manner liable to any subcontractor(s) of Respondent. In no event shall this provision relieve Respondent of the responsibility for ensuring that the services performed under all subcontracts are rendered in compliance with the contract. Respondent shall have no claim against Agency for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. The contract shall not create any joint venture, partnership, agency, or employment relationship between Respondent and Agency.

10.29 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.

10.30 Financial Participation Prohibited Affirmation: Pursuant to Section 2155.004(a) of the Texas

Government Code, Respondent certifies that neither Respondent nor any person or entity represented by Respondent has received compensation from Agency to participate in the preparation of the specifications or solicitation on which this Response or contract is based. Under Section 2155.004(b) of the Texas Government Code, 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 the contract may be terminated and payment withheld if this certification is inaccurate.

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

10.32 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.

10.33 Former Agency Employees: In accordance with Section 2252.901 of the Texas Government Code, 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 the Agency during the twelve (12) month period immediately prior to the date of execution of the contract.

10.34 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 the contracting Agency.

10.35 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 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.

10.36 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.

10.37 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 the Agency or the State of Texas.

10.38 Indemnification: RESPONDENT SHALL DEFEND, 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 COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR

RESULTING FROM ANY ACTS OR OMISSIONS OF 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 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.

10.39 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.

10.40 Limitation on Authority: Respondent shall have no authority to act for or on behalf of Agency 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 Agency or the State of Texas.

10.41 Lobbying Prohibition: Respondent represents and warrants that Agency’s payments to 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.

10.42 Media Releases: Respondents hall not use Agency’s name, logo, or other likeness in any press release, marketing material, or other announcement without Agency’s prior written approval. Agency 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 relate without Agency’s prior written consent, and then only in accordance with explicit written instructions from Agency. The Contractor may include photographs of the Project among the Contractor's promotional and professional materials only with SPB written approval. Contractor shall make a formal request including any photos or graphics Contractor proposed to use. The Contractor shall consider all materials to be the SPB's confidential or proprietary information even if the SPB has not previously advised the Contractor that specific information is considered by the SPB to be confidential or proprietary.

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

10.44 No Conflict 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.

10.45 No Implied Waiver: The failure of a Party to insist at any time upon the strict performance 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.

10.46 No Third-Party Beneficiaries: The contract is made solely and specifically among and for the benefit of the parties named herein and their respective successors and assigns, and no other person shall have any right, interest, or claims hereunder or be entitled to any benefits pursuant to or on account of the contract as a third-party beneficiary or otherwise.

10.47 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.

10.48 Prior Disaster Relief Contract Violation: Sections 2155.006 and 2261.053 of the Texas Government

Code, prohibit state agencies from accepting a Response or awarding a contract that includes proposed financial participation by a person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by Section 418.004 of the Texas Government Code, occurring after September 24, 2005. Under Sections 2155.006 and 2261.053 of the Texas Government Code, 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.

10.49 Public Information Act Respondent understands that Agency will comply with the Texas Public

Information Act (Chapter 552 of the Texas Government Code) as interpreted by judicial rulings and opinions of the Attorney General of the State of Texas. Information, documentation, and other material in connection with this Solicitation or any resulting contract may be subject to public disclosure pursuant to the Texas 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.

10.50 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.

10.51 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.

10.52 Refund: Respondent will promptly refund or credit within thirty (30) calendar days any funds erroneously paid by Agency which are not expressly authorized under the contract.

10.53 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 Agency involving 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 service or employment ceased on or after September 1, 2015.

10.54 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 SPB and/or the State of Texas.

10.55 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.

10.56 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 on behalf of the Respondent and to bind the Respondent under any contract that may result from the submission of this Response.

10.57 State Auditor’s Right to Audit: Pursuant to Section 2262.154 of the Texas Government Code, the state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under any contract or indirectly through a subcontract under the contract. The acceptance of funds by the Respondent or any other entity or person 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, the Respondent or other 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 shall ensure that this paragraph concerning the authority to audit funds received indirectly by subcontractors through the contract and the requirement to cooperate is included in any subcontract it awards.

10.58 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.

10.59 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.

10.60 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.

10.61 Subcontractors: Respondent may not subcontract any or all of the work and/or obligations due under the contract without prior written approval of the Agency. Subcontracts, if any, entered into by the Respondent shall be in writing and be subject to the requirements of the contract. Should Respondent subcontract any of the services required in the contract, Respondent expressly understands and acknowledges that in entering into such subcontract(s), Agency is in no manner liable to any subcontractor(s) of Respondent. In no event shall this provision relieve Respondent of the responsibility for ensuring that the services performed under all subcontracts are rendered in compliance with the contract.

10.62 Survival: Expiration or termination of the contract for any reason does not release Respondent from any liability or obligation set forth in the contract that is expressly stated to survive any such expiration or termination, that by its nature would be intended to be applicable following any such expiration or termination, or that is necessary to fulfill the essential purpose of the contract, including without limitation the provisions regarding warranty, indemnification, confidentiality, and rights and remedies upon termination.

10.63 Taxes: Purchases made for State of Texas use are exempt from the State Sales Tax and Federal Excise

Tax. Agency will furnish Tax Exemption Certificates upon request. Respondent represents and warrants that it shall pay all taxes or similar amounts resulting from the contract, including, but not limited to, any federal, State, or local income, sales or excise taxes of Respondent or its employees. Agency shall not be liable for any taxes resulting from the contract.

10.64 Termination for Convenience: Agency reserves the right to terminate the contract at any time, in whole or in part, without cost or penalty, by providing thirty (30) calendar days’ advance written notice, if Agency determines that such termination is in the best interest of the state. In the event of such a termination, Respondent must, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. Agency shall be liable for payments limited only to the portion of work Agency authorized in writing and which Respondent has completed, delivered to Agency, and which has been accepted by Agency. All such work shall have been completed, in accordance with contract requirements, prior to the effective date of termination.

Agency shall have no other liability, including no liability for any costs associated with the termination.

10.65 Technology Access Clause: Respondent expressly acknowledges that state funds may not be expended in connection with the purchase of an automated information system unless that system meets certain statutory requirements relating to accessibility by persons with visual impairment. Accordingly, Respondent represents and warrants to Agency that the technology provided to Agency for purchase is capable, either by virtue of features included within the technology or because it is readily adaptable by use with other technology, of: • providing equivalent access for effective use by both visual and non-visual means; • presenting information, including prompts used for interactive communications, in formats intended for nonvisual use; and • being integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired. For 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. In accordance with Section 2157.005 of the Texas Government Code, the Technology Access Clause contract provision remains in effect for any contract entered into before September 1, 2006.

10.66 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. TEX GOVT CODE § 2155.0012 EXCEPTION: Clause does not apply to contracts but is an Essential Clause for solicitations. This clause ensures that Responses received by the agency are complete prior to the closing date of the solicitation.

10.67 Texas Bidder Affirmation: Respondent certifies that if a Texas address is shown as the address of the

Respondent on this Response, Respondent qualifies as a Texas Bidder as defined in Section 2155.444(c) of the Texas Government Code.

71. Unfair Business Practices: Respondent represents and warrants that it has not been the subject of allegations of Deceptive Trade Practices violations under Chapter 17 of the Texas Business and Commerce Code, or allegations of any unfair business practice in any administrative hearing or court suit and that Respondent has not been found to be liable for such practices in such proceedings.

Respondent certifies that it has no officers who have served as officers of other entities who have been the subject of allegations of Deceptive Trade Practices violations or allegations of any unfair business practices in an administrative hearing or court suit and that such officers have not been found to be liable for such practices in such proceedings.

72. Use of State Property: Respondent is prohibited from using State Property for any purpose other than performing Services authorized under the contract. State Property includes, but is not limited to, Agency’s office space, identification badges, Agency information technology equipment and networks (e.g., laptops, portable printers, cell phones, iPads, external hard drives, data storage devices, any Agency issued software, and the Agency Virtual Private Network (VPN client)), and any other resources of Agency. Respondent shall not remove State Property from the continental United States. In addition, Respondent may not use any computing device to access Agency’s network or e-mail while outside of the continental United States. Respondent shall not perform any maintenance services on State Property unless the contract expressly authorizes such services. During the time that State Property is in the possession of Respondent, Respondent shall be responsible for (i) all repair and replacement charges incurred by Agency that are associated with loss of State Property or damage beyond normal wear and tear and (ii) all charges attributable to Respondent’s use of State Property that exceeds the contract scope. Respondent shall fully reimburse such charges to Agency within ten (10) calendar days of Respondent’s receipt of Agency’s notice of amount due. Use of State Property for a purpose not authorized by contract shall constitute breach of contract and may result in termination of the contract and the pursuit of other remedies available to Agency under contract, at law, or in equity.

ARTICLE 11

INSURANCE

11.1 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:

Minimum Insurance Coverage:

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

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