ESBD_File_193480_Addendum #1-Sample Contract-04212020.pdf

Texas State University

Addendum #1

RFP# 754-Smoke Testing Services-2020

22 April 2020

1. During contract meeting and per Section 1.7 of RFP, sample contract for services is added to this RFP for University Services. Please see below attached sample contract.

SERVICES AGREEMENT BETWEEN

TEXAS STATE UNIVERSITY

AND

Name Secondary Party (Contractor)

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

University and Contractor agree as follows:

1. SCOPE OF WORK

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

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

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

2. TIME FOR COMMENCEMENT AND COMPLETION

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

B. This Agreement shall commence on Start Date and shall terminate on End Date. The

University shall have the option to renew the contract for Contract Renewal Term additional one (1) year terms(s). The term of the Agreement may be amended by mutual written agreement by both parties.

3. PAYMENT TERMS

A. University will pay for Work performed under this Agreement in accordance with Texas

Government Code, section 2251.021.

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

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

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

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

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

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

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

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

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

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

J. The acceptance of Final Payment(s) constitutes a waiver of all claims by Contractor except those previously made in writing and identified by Contractor as unsettled at the time of the Final Invoice(s).

K. Except for the obligation of University to pay Contractor certain amounts pursuant to the terms of this Agreement, University will have no other liability to Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Agreement. Notwithstanding any obligation or liability of University to Contractor, no present or future agent, officer, director, employee, or regent of University or of the institutions comprising The Texas State University System, or anyone claiming under University, has or will have any personal liability to

Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Agreement.

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

4. DEFAULT AND TERMINATION

A. If a party substantially fails to perform in accordance with the terms of this Agreement, the other party may terminate this Agreement upon fifteen (15) days written notice of termination setting forth the nature of the failure. The termination shall not be effective if the failure is fully cured prior to the end of the fifteen (15) day period.

B. Owner may terminate, without cause, this Agreement at any time upon giving XXXX (XX) days advance notice. Upon termination pursuant to this paragraph, Contractor shall receive payment for the services satisfactorily performed from the time of the last payment date to the termination date, provided Contractor shall have delivered to University a final report describing the work completed to the date of termination. University shall not reimburse Contractor for any services performed or expenses incurred after the date of termination notice.

5. ALTERNATIVE DISPUTE RESOLUTION

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

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

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

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

3. A copy of the notice shall also be given to all other representatives of University and

Contractor otherwise entitled to notice under the parties’ contract.

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

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

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

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

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

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

6. LOSS OF FUNDING

Performance by University under the Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of the Texas State University System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then University will issue written notice to Contractor and University may terminate the Agreement without further duty or obligation hereunder.

Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the University’s control.

7. LIMITATIONS

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

• those terms and conditions relating to liens on University’s property;

• disclaimers and limitations of warranties;

• disclaimers and limitations of liability for damages; waivers, disclaimers and limitations of legal rights, remedies, requirements and processes;

• limitations of periods to bring legal action; granting control of litigation or settlement to another party;

• liability for acts or omissions of third parties;

• payment of attorneys’ fees; dispute resolution; indemnities; and,

• confidentiality (collectively, the “Limitations”).

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

8. AGREEMENT CONTROLLING

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

9. ENTIRE AGREEMENT

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

10. INDEMNIFICATION - CONTRACTOR SHALL AND DOES HEREBY AGREE TO

INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND

HOLD HARMLESS UNIVERSITY AND THE TEXAS ST ATE UNIVERSITY SYSTEM AND

THEIR REGENTS, OFFICERS, DIRECTORS, ATI'ORNEYS, EMPLOYEES,

REPRESENTATIVES AND AGENTS (COLLECTIVELY "INDEMNITEES") FROM AND

AGAINST ALL DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS,

EXPENSES, AND OTHER CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION,

INCLUDING REASONABLE ATTORNEYS' FEES INCURRED IN INVESTIGATING,

DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY "CLAIMS") BY

ANY PERSON OR ENTITY, ARISING OUT OF, CAUSED BY, OR RESULTING FROM

CONTRACTOR'S PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT AND THAT

ARE CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT ACT, NEGLIGENT OMISSION

OR WILLFUL MISCONDUCT OF CONTRACTOR, ANYONE DIRECTLY EMPLOYED BY

CONTRACTOR OR ANYONE FOR WHOSE ACTS CONTRACTOR MAYBE LIABLE. THE

PROVISIONS OF THIS SECTION WILL NOT BE CONSTRUED TO ELIMINATE OR REDUCE

ANY OTHER INDEMNIFICATION OR RIGHT, WHICH ANY INDEMNITEE HAS, BY LAW

OR EQUITY. IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO COOPERATE

REASONABLY WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE

REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.

11. RIGHT TO AUDIT; INDEPENDENT AUDITS - Contractor understands that acceptance of funds under this Agreement constitutes acceptance of the authority of the State of Texas Auditor's Office or any successor agency (" Auditor"), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Contractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of the Work as requested. Contractor's failure to comply with this requirement shall constitute a material breach of Agreement and shall authorize University and the State of Texas to assess immediately appropriate damages for such failure. Contractor acknowledges and understands that the acceptance of funds under Agreement 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.

12. CONFIDENTIALITY AND SAFEGUARDING OF UNIVERSITY RECORDS; PRESS

RELEASES; PUBLIC INFORMATION - Completing the contracted work under this Agreement, Contractor may (1) create, (2) receive from or on behalf of University, or (3) have access to, records or record systems (collectively, "University Records.") Among other things, University Records may contain social security numbers, credit card numbers, or data protected or made confidential or sensitive by Applicable Laws, including the Gramm-Leach-Bliley Act (Public Law No: I 06-102) and the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g ("FERPA.") If University Records are subject to FERPA, ( 1) University designates Contractor as a University official with a legitimate educational interest in University Records, and (2) Contractor acknowledges that its improper disclosure or redisclosure of personally identifiable information from University Records will result in Contractor's exclusion from eligibility to contract with University for at least five (5) years. Contractor represents, warrants, and agrees that it will: ( 1) hold University Records in strict confidence and will not use or disclose University Records except as (a) permitted or required by this Agreement, (b) required by Applicable Laws, or (c) otherwise authorized by University in writing; (2) safeguard University Records according to reasonable administrative, physical and technical standards (such as standards established by (i) the National Institute of Standards and Technology and (ii) the Center for Internet Security, as well as the Payment Card Industry Data Security Standards) that are no less rigorous than the standards by which Contractor protects its own confidential information; (3) continually monitor its operations and take any action necessary to assume that University Records are safeguarded and the confidentiality of University Records is maintained in accordance with all Applicable Laws, including FERPA and the Gramm-Leach Bliley Act, and the terms of this Agreement; and (4) comply with University's rules, policies, and procedures regarding access to and use of University's computer systems. At the request of University, Contractor agrees to provide University with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University Records.

A. Notice of Impermissible Use. If an impermissible use or disclosure of any University Records occurs, Contractor will provide written notice to University within one (1) day after Contractor's discovery of that use or disclosure. Contractor will promptly provide University with all information requested by University regarding the impermissible use or disclosure.

B. Return of University Records. Contractor agrees that within thirty (30) days after the expiration or termination of this Agreement, for any reason, all University Records created or received from or on behalf of University will be (1) returned to University, with no copies retained by Contractor; or (2), destroyed if return is not feasible. Twenty days before destruction of any University Records, Contractor will provide University with written notice of Contractor's intent to destroy University Records. Within five (5) days after destruction, Contractor shall confirm to University in writing the destruction of University Records.

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

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

E. Public Information. University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act, Chapter 552, Texas Government Code. Sponsor is required to make any information created or exchanged with the state pursuant to this contract, that is 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. The following format(s) shall be deemed to be in compliance with this provision: electronic files in Word, PDF, or similar generally accessible format.

F. Termination. In addition to any other termination rights set forth in this Agreement and any other rights at law or equity, if University reasonably determines that Contractor has breached any of the restrictions or obligations set forth in this Agreement, University may immediately terminate this Agreement without notice or opportunity to cure.

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

13. COMPLIANCE WITH LAW - Contractor is aware of, fully informed about and in full compliance with its obligations with all applicable, federal, state and local, laws, regulations, codes, ordinances and orders and with those of any other body or authority having jurisdiction ("Applicable Laws"), including Title VI of the Civil Rights Act of 1964, as amended [ 42 USC 2000(D)], Executive Order I I 246, as amended (41 CFR 60-1 and 60-2), Vietnam Era Veterans Readjustment Act of 1974, as amended (41 CFR 60250), Rehabilitation Act of 1973, as amended ( 41 CFR 60-741 ), Age Discrimination Act of 1975 (42 USC 6101 et seq.), Non-segregated Facilities (41 CFR 60-1), Fair Labor Standards Act of 1938, Sections 6, 7, and 12, as amended, Immigration Reform and Control Act of 1986, Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (PL 95-507), Americans with Disabilities Act of 1990 (42 USC 12101 et seq.), Civil Rights Act of 1991, Occupational Safety and Health Act ofl970, as amended (PL 91-596), Immigration and Nationality Act (8 United States Code 1324a) and all other applicable laws. Contractor represents and warrants that neither Contractor nor any firm, corporation or institution represented by Contractor, nor anyone acting for that firm, corporation or institution, (1) has violated the antitrust laws of the State of Texas, Chapter 15, Texas Business and Commerce Code, or federal antitrust laws, or (2) has communicated directly or indirectly the content of Contractor's response to University's procurement solicitation to any competitor or any other person engaged in a similar line of business during the procurement process for this Agreement.

14. COMPLIANCE WITH UNIVERSITY POLICIES – Contractor agrees to comply with all University

Policies including but not limited to the following and, at a minimum, shall apply to the Contractor's employees, subcontractors, and agents while on the Texas State campuses:

a. On-campus driving and parking;

b. Prohibition on smoking or tobacco use;

c. Fire safety;

d. Hazardous Materials;

e. Drug-free workplace; and,

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

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

15. HISTORICALLY UNDERUTILIZED BUSINESS SUBCONTRACTING PLAN ("HSP") -

Contractor agrees to use good faith effort to subcontract the Work to be provided under this Agreement in accordance with the HSP (Ref. Exhibit H.) Contractor agrees to maintain business records documenting its compliance with the HSP and to submit a monthly compliance report to University in the format required by the Texas Procurement and Support Services Division of the Texas Comptroller of Public Accounts or any successor agency (collectively, "TPASS.") Submission of compliance reports will be required as a condition for payment under this Agreement. If University determines that Contractor has failed to subcontract as set out in the HSP, University will notify Contractor of any deficiencies and give Contractor an opportunity to submit documentation and explain why the failure to comply with the HSP should not be attributed to a lack of good faith effort by Contractor. If University determines that Contractor failed to implement the HSP in good faith, University, in addition to any other remedies, may report non-performance to TPASS in accordance with 34 TAC Chapter 20, §§20.101 -20.108. University may also revoke this Agreement for breach and make a claim against Contractor.

A. Changes to the HSP: If at any time during the term of this Agreement, Contractor desires to change the HSP, before any proposed changes become effective (1) Contractor must comply with 34 TAC Section 20.14; (2) the changes must be reviewed and approved by University; and (3) if University approves changes to the HSP, this Agreement must be amended in accordance with Section 44 to replace the HSP with the revised subcontracting plan.

B. Expansion of Services: If University expands the scope of services through a change order or any other amendment, University will determine if the additional services contain probable subcontracting opportunities not identified in the initial solicitation for the services. If University determines additional probable subcontracting opportunities exist, Contractor will submit an amended subcontracting plan covering those opportunities. The amended subcontracting plan must comply with the provisions of 34 TAC Section

20. 14 before ( 1) this Agreement may be amended to include the additional services; or (2) Contractor may perform the additional services. If Contractor subcontracts any of the additional subcontracting opportunities identified by University without prior authorization and without complying with 34 TAC Section 20. 14, Contractor will be deemed to be in breach of this Agreement and will be subject to any remedial actions provided by Texas law including Chapter 2161, Texas Government Code and 34 TAC Section 20.14.

University may report non-performance under this Agreement to TPSS in accordance with 34 TAC Chapter 20, §20. 101-20. 108. 1.

16. MISCELLANEOUS

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

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

C. This Agreement and all claims arising from this Agreement shall be interpreted and construed in accordance with the laws of the State of Texas, without regard to its conflict of laws principles. Any judicial action or proceeding between the parties relating to this Agreement and all claims arising from this Agreement shall be brought in the federal or state courts serving Hays County in the State of Texas.

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

D. Contractor certifies that, upon the effective date of this Agreement, Contractor is not delinquent in payment of State of Texas corporate franchise taxes. Contractor agrees that any false statement with respect to franchise tax status shall be a material breach hereof and University shall be entitled to terminate this Agreement upon written notice to the Contractor.

E. Any written notice required by this Agreement shall be mailed to the attention of the

Authorized Representative at the address listed below:

If to Owner: Texas State University Attn: Asst. Director of Facilities Procurement and Contracting 601 University Drive San Marcos, Texas 78666 Phone: To be added by contract creator Email: To be added by contract creator

With a copy to: Texas State University Office of Procurement and Strategic Sourcing Attn: Director of Procurement and Strategic Sourcing 601 University Drive San Marcos, Texas 78666 Phone: 512-245-2521 Email: contracts@txstate.edu

If to Services Provider: Name Secondary Party (Contractor) Attn: Contact Name Contractor Address City, State Zip Code Phone Number Email

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

G. “Force Majeure” is defined as acts of God, war, strike, fires, explosions, 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.

a. 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.

b. Except as otherwise provided, neither Contractor nor University, shall be liable to the other for any delay in, or failure of performance, of a requirement contained in 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.

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

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

J. Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code

(“Chapter 171”), then Contractor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that Contractor is exempt from the payment of those taxes, or that Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.

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

L. Payment of Debt or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under the Agreement may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full.

M. Texas Family Code Child Support Certification. Pursuant to Section 231.006, Texas Family

Code, Contractor certifies that it is not ineligible to receive the award of or payments under the Agreement and acknowledges that the Agreement may be terminated and payment may be withheld if this certification is inaccurate.

N. Products and Materials Produced in Texas. If Contractor will provide services under the

Agreement, Contractor covenants and agrees that in accordance with Section 2155.4441, Texas Government Code, in performing its duties and obligations under the Agreement, Contractor will purchase products and materials produced in Texas when such products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.

O. Access by Individuals with Disabilities. Contractor represents and warrants (the “EIR

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

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

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

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

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

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

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

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

Q. Nondiscrimination: In their execution of this agreement, all contractors, subcontractors, their respective employees, and others acting by or through them shall comply with all federal, state, System and Component policies and laws prohibiting discrimination, harassment, and sexual misconduct. Any breach of this covenant may result in termination of this agreement.

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

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

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

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

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

o Contractor shall provide University a letter signed by an authorized representative of

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

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

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

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

2271of the Texas Government Code, Contractor certifies that Contractor does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. If Contractor does not make that certification, Contractor must indicate and state why the certification is not required.

U. Prohibition of Contract with Companies Doing Business with Iran, Sudan, or a Foreign

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

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

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

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

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

a. produced in sufficient quantities;

b. reasonably available; or

c. of a satisfactory quality;

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

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

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

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

X. Assignment and Subcontracting: The Contractor's interest in this Agreement (including

Contractor's duties and obligations under this Agreement, and the fees due to Contractor under this Agreement) may not be subcontracted, assigned, delegated, or otherwise transferred to a third party, in whole or in part, and any attempt to do so will (a) not be binding on University;

and (b) be a breach of this Agreement for which Contractor will be subject to all remedial actions provided by Applicable Laws, including Chapter 2161, Texas Government Code, and 34 TAC Chapter 20,§§20.101 -20.108. The benefits and burdens of this Agreement are assignable by University.

Y. Waivers: No delay or omission in exercising any right accruing upon a default in performance of this Agreement will impair any right or be construed to be a waiver of any right. A waiver of any default under this Agreement will not be construed to be a waiver of any subsequent default under this Agreement.

Z. Severability: In case any provision of this Agreement, for any reason, will be held invalid or unenforceable in any respect, the invalidity or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if the invalid or unenforceable provision had not been included.

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

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

17. PRECENCE on UNIVERSITY PREMISES:

A. Contractor agrees that it will ensure that all of its Employees, Subcontractors and Agents whose duties bring them upon University's premises will obey the rules and regulations that are established by University and TSUS and will comply with reasonable directions University's representatives may give to Contractor.

B. Contractor is responsible for acts of its Employees, Subcontractors and Agents while on

University's premises. Accordingly, Contractor agrees to take all necessary measures to prevent injury and loss to persons and property located on University's premises. Contractor is responsible for all damages to persons or property caused by Contractor or any of its Employees, Subcontractors and Agents. Contractor will promptly repair, in accordance with the specifications of University, any damage that it, or of its Employees, Subcontractors and Agents, may cause to University's premises or equipment. On Contractor's failure to do so, University may repair the damage and Contractor will reimburse University promptly for any and all reasonable expenses incurred in connection with the repair. At its option, University may offset against all amounts due to Contractor any and all reasonable expenses incurred in connection with the repair.

18. UNDOCUMENTED WORKERS:

The Immigration and Nationality Act (8 United States Code 1324a) ("Immigration Act") makes it unlawful for an employer to hire or continue employment of undocumented workers. The United States Immigration and Customs Enforcement Service has established the Form 1-9 Employment Eligibility Verification Form ("1-9 Form") as the document to be used for employment eligibility verification (8 Code of Federal Regulations 274a). Among other things, Contractor is required to: (1) have all employees complete and sign the 1-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the 1-9 Form to be presented by the employee and ensure the documents appear to be genuine and related to the individual; (3) record information about the documents on the 1-9 Form, and complete the certification portion of the 1-9 Form; and (4) retain the 1-9 Form as required by Applicable Laws. It is illegal to discriminate against any individual (other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual's national origin or citizenship status. If Contractor employs unauthorized workers during performance of this Agreement in violation of the Immigration Act then, in addition to other remedies or penalties prescribed by Applicable Laws, University may terminate this Agreement. Contractor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Act.

19. INSURANCE – Contractor, consistent with its status as an independent contractor, will carry, and will cause its subcontractors to carry, at least the following insurance in a form, with companies and in amounts (unless otherwise specified) as University may require:

A. Workers’ compensation insurance coverage for each of Contractor’s employees employed on this project. Contractor must meet the statutory requirements of the Tex. Lab. Code, 401.011(44); and

1. Commercial General Liability Insurance limits of not less than:

Bodily Injuries (including accidental death) $1,000,000 Per Occurrence $1,000,000 Property Damage $1,000,000

2. Owner's Protective Liability Insurance limits of not less than:

3. Commercial Automobile Liability Insurance Limits, covering all owned, non-owned or hired automobiles of not less than:

B. Such Insurance shall be primary and name The Texas State University System (TSUS), and Texas State University, their Regents and employees added as additional insureds. The additional insured status must cover completed operations as well. This is not applicable to the workers’ compensation and umbrella liability policies.

1. The workers’ compensation and owners’ protective liability policies will provide a waiver of subrogation in favor of the University.

C. Contractor will deliver to University:

1. Evidence, satisfactory to University, of the existence of all insurance promptly after the execution and delivery of this Agreement and prior to the performance or continued performance of any services to be performed by Contractor under this Agreement.

2. Additional evidence, satisfactory to University, of the continued existence of all insurance not less than thirty (30) days prior to the expiration of any insurance.

Insurance policies, with the exception of Workers' Compensation, will name and the evidence will reflect University as an Additional Insured and will provide that the policies will not be canceled until after thirty (30) days unconditional written notice to University.

D. The insurance policies required in this Agreement will be kept in force for the periods specified below:

1. Commercial General Liability Insurance, Commercial Automobile Liability Insurance, will be kept in force until receipt of Final Payment by University to Contractor; and

a. Workers' Compensation Insurance and Owner's Protective Liability Insurance will be kept in force until the Work has been fully performed and accepted by University in writing.

20. BONDING: A Payment Bond will be required by the Contractor for construction, alterations, or repairs to University buildings for contracts exceeding $25,000. In addition, a Performance Bond will be required if the contract exceeds $100,000 per Texas Government Code § 2253.021.

21.(Only use if contract is over $1MM) ETHICS PROVISION - Name secondary party acknowledges that the Texas Government Code, Section 2261.251(a) and 2261.252 require an initial determination in this higher education contract that no Texas State University System Regent, the Chancellor, Vice Chancellor and General Counsel, the University President or Director of Procurement has a 1% interest (or other interest prohibited by law) in Name secondary party or any affiliated company. The Parties also assert that this Agreement complies with Texas Government Code, Section 2252.908 which requires a business entity to submit a Disclosure of Interested Parties (Disclosure), as prescribed by the Texas Ethics Commission, to the government entity (University) at the time the signed contract (or amendment) is submitted. Within thirty (30) days after the Disclosure is filed, the University will file a copy of the Disclosure with the Texas Ethics Commission.

(Signatures on next page) https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm

IN WITNESS WHEREOF, the parties have signed this Agreement on the date indicated below their signatures.

Texas State University Name secondary party

(Signature) (Signature)

(Print Name) (Print Name)

(Title) (Title)

(Date) (Date)

Attachments:

Exhibit A – Scope of Work Exhibit B – Contract Amount/Payment/Pricing Exhibit H –HUB Subcontracting Plan

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