ESBD_File_279813_Exhibit C - TCCO Uniform Terms and Conditions.pdf

1 Published and Effective: September 1, 2020

Texas Civil Commitment Office, Terms & Conditions

Table of Contents

ARTICLE I: INTRODUCTION

SECTION 1.01 INDUCEMENTS

SECTION 1.02 CONSTRUCTION OF CONTRACT

SECTION 1.03 NO IMPLIED AUTHORITY

SECTION 1.04 LEGAL AUTHORITY

ARTICLE II: DEFINITIONS

ARTICLE III: GENERAL TERMS AND CONDITIONS

SECTION 3.01 CONTRACT ELEMENTS

SECTION 3.02 FUNDING

SECTION 3.03 NO QUANTITY GUARANTEES

SECTION 3.04 DELEGATION OF AUTHORITY

SECTION 3.05 BINDING EFFECT

SECTION 3.06 NO WAIVER OF SOVEREIGN IMMUNITY

SECTION 3.07 FORCE MAJEURE

SECTION 3.08 DISASTER RECOVERY PLAN

SECTION 3.09 MOST FAVORED CUSTOMER

SECTION 3.10 PUBLICITY

SECTION 3.11 ASSIGNMENT

SECTION 3.12 COOPERATION WITH OTHER VENDORS AND PROSPECTIVE VENDORS

SECTION 3.13 RENEGOTIATION AND REPROCUREMENT RIGHTS

SECTION 3.14 SOLICITATION ERRORS AND OMISSIONS

SECTION 3.15 ATTORNEYS’ FEES

SECTION 3.16 BUY TEXAS; PREFERENCES UNDER SERVICE CONTRACTS

SECTION 3.17 ENSURING TIMELY PERFORMANCE

SECTION 3.18 FREE EXERCISE OF RELIGION

SECTION 3.19 STATE USE OF IDEAS

SECTION 3.20 PROPERTY OF TCCO

SECTION 3.21 DELAY OF SERVICES

SECTION 3.22 TECHNICAL GUIDANCE LETTERS

SECTION 3.23 TERMS AND CONDITIONS ATTACHED TO RESPONSE

SECTION 3.24 TEXAS BIDDER AFFIRMATION

ARTICLE IV: CONTRACTOR PERSONNEL MANAGEMENT

SECTION 4.01 QUALIFICATIONS, RETENTION, AND REPLACEMENT OF CONTRACTOR

EMPLOYMENT

SECTION 4.02 RESPONSIBILITY FOR CONTRACTOR PERSONNEL

SECTION 4.03 COOPERATION WITH TCCO AND STATE ADMINISTRATIVE AGENCIES

SECTION 4.04 CONDUCT OF AND RESPONSIBILITY FOR CONTRACTOR PERSONNEL

SECTION 4.05 RESPONSIBILITY FOR SUBCONTRACTORS

SECTION 4.06 TCCO’S ABILITY TO CONTRACT WITH SUBCONTRACTORS

ARTICLE V: GOVERNING LAW AND REGULATIONS

SECTION 5.01 GOVERNING LAW AND VENUE

SECTION 5.02 CONTRACTOR RESPONSIBILITY FOR COMPLIANCE WITH LAWS AND

REGULATIONS

SECTION 5.03 CHANGE IN LAW AND COMPLIANCE WITH LAWS

SECTION 5.04 FORMER TCCO EMPLOYEES

SECTION 5.05 DISCLOSURE OF PRIOR STATE EMPLOYMENT

SECTION 5.06 COMPLIANCE WITH IMMIGRATION LAWS

SECTION 5.07 COMPLIANCE WITH ANTI-DISCRIMINATION LAWS, REGULATIONS, AND RULES20

SECTION 5.08 COMPLIANCE WITH ENVIRONMENTAL PROTECTION LAWS

SECTION 5.09 COMPLIANCE WITH FRAUD, WASTE AND ABUSE REQUIREMENTS

SECTION 5.10 ELECTRONIC AND INFORMATION RESOURCES ACCESSIBILITY STANDARDS

SECTION 5.11 CRIMINAL HISTORY RECORD INFORMATION

SECTION 5.12 PROHIBITION AGAINST PERFORMANCE OUTSIDE THE CONTIGUOUS UNITED

STATES

SECTION 5.13 PROHIBITION OF A STATE AGENCY CONTRACTING WITH COMPANIES THAT

BOYCOTT ISRAEL

SECTION 5.14 PROHIBITION OF A STATE AGENCY CONTRACTING WITH COMPANIES ENGAGED

IN BUSINESS WITH IRAN, SUDAN, OR FOREIGN TERRORIST ORGANIZATIONS

SECTION 5.15 HUMAN TRAFFICKING PROHIBITION

SECTION 5.16 SUSPENSION AND DEBARMENT

SECTION 5.17 SUSPENSION, DEBARMENT, AND TERRORISM

SECTION 5.18 CONTRACTING WITH EXECUTIVE HEAD OF STATE AGENCY

SECTION 5.19 FINANCIAL PARTICIPATION PROHIBITED AFFIRMATION

SECTION 5.20 SPECIFIC DUTIES AND OBLIGATIONS

ARTICLE VI: CONTRACT MANAGEMENT AND PERFORMANCE MEASUREMENT

SECTION 6.01 CONTRACT MANAGEMENT

SECTION 6.02 PERFORMANCE MEASUREMENT

SECTION 6.03 DEFAULT BY THE CONTRACTOR

ARTICLE VII: AMENDMENTS, MODIFICATIONS, AND CHANGE ORDER

REQUESTS

SECTION 7.01 AMENDMENTS AND MODIFICATIONS

SECTION 7.02 REQUIRED COMPLIANCE WITH AMENDMENT MODIFICATION PROCEDURES

ARTICLE VIII: AUDIT AND FINANCIAL COMPLIANCE

SECTION 8.01 RECORD RETENTION AND AUDIT

SECTION 8.02 ACCESS TO RECORDS, BOOKS, AND DOCUMENTS

SECTION 8.03 AUDITS AND INSPECTIONS OF SERVICES AND DELIVERABLES

SECTION 8.04 RESPONSE/COMPLIANCE WITH AUDIT OR INSPECTION FINDINGS

SECTION 8.05 AUDIT OF CONTRACTOR FEES

SECTION 8.06 SAO AUDIT

ARTICLE IX: TERMS AND CONDITIONS OF PAYMENT

SECTION 9.01 PAYMENT

SECTION 9.02 RIGHTS OF SET-OFF

SECTION 9.03 EXPENSES

SECTION 9.04 DISPUTED FEES

SECTION 9.05 LIABILITY FOR TAXES

SECTION 9.06 LIABILITY FOR EMPLOYMENT-RELATED CHARGES AND BENEFITS

SECTION 9.07 NO ADDITIONAL CONSIDERATION

SECTION 9.08 NO INCREASE IN RATES

SECTION 9.09 NO DEBT AGAINST THE STATE

ARTICLE X: DISCLOSURE AND CONFIDENTIALITY OF INFORMATION

SECTION 10.01 CONTRACTING INFORMATION RESPONSIBILITIES

SECTION 10.02 HHSC DATA USE AGREEMENT

SECTION 10.03 REQUESTS FOR PUBLIC INFORMATION

SECTION 10.04 PRIVILEGED WORK PRODUCT

SECTION 10.05 UNAUTHORIZED ACTS

SECTION 10.06 LEGAL ACTION

ARTICLE XI: REMEDIES AND DISPUTES

SECTION 11.01 UNDERSTANDING AND EXPECTATIONS

SECTION 11.02 TAILORED REMEDIES

SECTION 11.03 TERMINATION OF CONTRACT

SECTION 11.04 EFFECTIVE DATE OF TERMINATION

SECTION 11.05 EXTENSION OF TERMINATION EFFECTIVE DATE

SECTION 11.06 PAYMENT AND OTHER PROVISIONS AT CONTRACT TERMINATION

SECTION 11.07 MODIFICATION OF CONTRACT IN THE EVENT OF REMEDIES

SECTION 11.08 TURNOVER ASSISTANCE

SECTION 11.09 RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT

SECTION 11.10 CONTRACTOR RESPONSIBILITY FOR ASSOCIATED COSTS

SECTION 11.11 DISPUTE RESOLUTION

SECTION 11.12 LIABILITY OF CONTRACTOR

ARTICLE XII: ASSURANCES AND CERTIFICATIONS

SECTION 12.01 PROPOSAL CERTIFICATIONS

SECTION 12.02 CONFLICTS OF INTEREST

SECTION 12.03 ORGANIZATIONAL CONFLICTS OF INTEREST

SECTION 12.04 TCCO PERSONNEL RECRUITMENT PROHIBITION

SECTION 12.05 ANTI-KICKBACK PROVISION

SECTION 12.06 DEBT OR BACK TAXES OWED TO THE STATE OF TEXAS

SECTION 12.07 CERTIFICATION REGARDING STATUS OF LICENSE, CERTIFICATE OR PERMIT 51

SECTION 12.08 OUTSTANDING DEBTS AND JUDGMENTS

SECTION 12.09 ANTI-TRUST

SECTION 12.10 CERTIFICATION CONCERNING HURRICANE RELIEF

SECTION 12.11 CONTRACTOR STATUS

SECTION 12.12 FALSE STATEMENTS

ARTICLE XIII: REPRESENTATIONS AND WARRANTIES

SECTION 13.01 AUTHORIZATION

SECTION 13.02 ABILITY TO PERFORM

SECTION 13.03 WORKMANSHIP AND PERFORMANCE

SECTION 13.04 WARRANTY OF DELIVERABLES

SECTION 13.05 MANUFACTURERS’ WARRANTIES

SECTION 13.06 COMPLIANCE WITH CONTRACT

ARTICLE XIV: INTELLECTUAL PROPERTY

SECTION 14.01 INFRINGEMENT AND MISAPPROPRIATION

SECTION 14.02 EXCEPTIONS

ARTICLE XV: LIABILITY

SECTION 15.01 NOTICE OF LEGAL MATTER OR LITIGATION

SECTION 15.02 PROPERTY DAMAGE

SECTION 15.03 RISK OF LOSS

SECTION 15.04 LIMITATION OF TCCO’S LIABILITY

SECTION 15.05 INDEMNIFICATION

ARTICLE I: INTRODUCTION

SECTION 1.01 INDUCEMENTS

In making the award of the Contract, the Texas Civil Commitment Office (TCCO) relies on Contractor’s assurances of the following:

A. Contractor and its subcontractors are established providers of the types of services described in the solicitation;

B. Contractor and its subcontractors have the skills, qualifications, expertise, financial resources, and experience necessary to perform the services described in the solicitation, Contractor’s proposal, and the Contract in an efficient, cost-effective manner with a high degree of quality and responsiveness, and has performed similar services for other public or private entities;

C. Contractor has thoroughly reviewed, analyzed, and understood the solicitation, has timely raised all questions or objections to the solicitation, and has had the opportunity to review and fully understand TCCO’s current program and operating environment for the activities that are the subject of the Contract and the needs and requirements of the State during the Contract term;

D. Contractor has had the opportunity to review and understand the State’s stated objectives in entering into the Contract and, based on such review and understanding, Contractor currently has the capability to perform in accordance with the terms and conditions of the Contract;

E. Contractor has also reviewed and understands the risks associated with the TCCO programs as described in the solicitation, including the risk of non-appropriation of funds.

Accordingly, TCCO desires to engage Contractor to perform the services described in the Contract under the terms and conditions set forth in the Contract.

SECTION 1.02 CONSTRUCTION OF CONTRACT

A. Scope of Introductory Article – The provisions of any introductory article to the Contract are intended to be a general introduction and are not intended to expand the scope of the Parties’ obligations under the Contract or to alter the plain meaning of the terms and conditions of the Contract.

B. References to the “State” – References in the Contract to the “State” mean the State of

Texas unless otherwise indicated and will be interpreted, as appropriate, to mean or include TCCO and other agencies of the State of Texas that may participate in the administration of TCCO programs, provided, however, that no provision will be interpreted to include any entity other than TCCO as the contracting agency.

C. Severability – If any provision of the Contract is for any reason held to be unenforceable, the rest of it remains fully enforceable.

D. Survival of Terms – Termination or expiration of the Contract for any reason will not release either party from any liabilities or obligations set forth in the Contract that:

1. The Parties agree will survive the termination or expiration; or

2. Remain to be performed or by their nature would be intended to be applicable following any such termination or expiration.

E. Headings – The article and section headings in the Contract are for reference and convenience only and may not be considered in the interpretation of the Contract.

F. Global Drafting Conventions

1. The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

2. The terms “hereof,” “herein,” “hereunder,” and similar words refer to this Contract as a whole and not to any particular provision, section, Attachment, or schedule of this Contract unless otherwise specified.

3. The terms “include,” “includes,” and “including” are terms of inclusion and enlargement and, where used in the Contract, should be read as if followed by the phrase “without limitation.”

4. Any references to “sections,” “appendices,” or “attachments” are references to sections, appendices, or attachments of the Contract.

5. Any references to agreements, contracts, statutes, or administrative rules or regulations in the Contract are references to those documents as amended, modified, or supplemented from time to time during the time of the Contract.

SECTION 1.03 NO IMPLIED AUTHORITY

The authority designated to Contractor by TCCO is limited to the terms of the Contract. TCCO is the state agency designated by the Legislature to administer the TCCO programs and no other state agency grants Contractor any authority related to the Contract unless directed through TCCO.

Contractor may not rely upon implied authority and is not delegated authority under the Contract to:

A. Make public policy;

B. Promulgate, amend, or disregard administrative regulations or program policy decisions made by State and federal agencies responsible for administration of TCCO programs; or

C. Unilaterally communicate or negotiate with any federal or state agency or the Texas

Legislature on behalf of TCCO regarding TCCO programs or the Contract.

To the fullest extent possible, Contractor is required to assist TCCO in communications and negotiations with state and federal governments and agencies as directed by TCCO.

SECTION 1.04 LEGAL AUTHORITY

TCCO has the authority to contract through administrative attachment to the Health and Human Services Commission (HHSC) under Texas Government Code Chapter 420A, and the authority of HHSC under Texas Government Code Section 2155.14. Contractor is authorized to enter into the Contract pursuant to the authorization of its governing board or controlling owner or officer.

The person or persons signing and executing the Contract on behalf of the Parties, or representing themselves as signing and executing the Contract on behalf of the Parties, warrant and guarantee that he, she, or they have been duly authorized to execute the Contract and to validly and legally bind the Parties to all of its terms, performances, and provisions.

ARTICLE II: DEFINITIONS

“Amendment” means a written agreement, signed by the parties hereto, which documents changes to the Contract other than those permitted by Work Orders or Technical Guidance Letters, as defined herein.

“Attachment” means documents, terms, conditions, or additional information physically added to this Contract following the Signature Document or included by reference, as if physically, within the body of this Contract.

“Change” means any alteration, adjustment, exchange, substitution, or modification of the Services under the Contract that are authorized in accordance with the terms of the Contract.

“Confidential Information” means any communication or record (whether oral, written, electronically stored or transmitted, or in any other form) provided to or made available to Contractor or that Contractor may create, receive, maintain, use, disclose or have access to on behalf of TCCO that consists of or includes any or all of the following:

A. Client information;

B. Protected health information, in any form including without limitation, electronic protected health information or unsecured protected health information;

C. Sensitive personal information defined by Texas Business and Commerce Code Chapter

521;

D. Criminal history record information;

E. Federal tax information;

F. Personally identifiable information;

G. Social security administration data, including, without limitation, Medicaid information;

H. All privileged work product;

I. All information designated as confidential under the constitution and laws of the State of

Texas and of the United States, including the Texas Health and Safety Code and the Texas Public Information Act, Texas Government Code Chapter 552; and

J. Other confidential information as designated in the Contract.

“Contract” means the Signature Document, these Terms & Conditions, along with any Attachments, and any Amendments, purchase orders, Work Orders, or Technical Guidance Letters that may be issued by TCCO, to be incorporated by reference herein for all purposes if issued.

“Contractor” means the party identified in the Contract as the individual or entity required to perform the services and related obligations under the Contract.

“Corrective Action Plan” means the detailed written plan required by TCCO to correct or resolve a deficiency or breach of the Contract.

“Deliverable” means a work product prepared, developed, or procured by Contractor as part of the services under the Contract for the use or benefit of TCCO or the State of Texas.

“Disability” means a physical or mental impairment that substantially limits one or more of the major life activities of an individual.

“Effective Date” means the date of the complete execution of the Contract unless another date is agreed to by the Parties as the date on which the Contract takes effect. For purposes of the Contract, the term includes any period under which work is performed in accordance with a properly executed Letter of Intent between TCCO and Contractor.

“Initial Term” means the period between the effective date and the original expiration date of the Contract.

“Material Subcontract” means any subcontract that exceeds, or is reasonably expected to exceed, $100,000 per year. Any subcontract between Contractor and a single entity that are split into separate agreements by time period, program, or service area etc. may be consolidated for the purpose of this definition.

“Parties” means TCCO and Contractor, collectively.

“Party” means either TCCO or Contractor, individually.

“Proposal” means the proposal submitted by Contractor in response to the Solicitation.

“Public Information” has the meaning assigned by Texas Government Code Chapter 552.

“Scope of Work” means the description of Services and Deliverables specified in the Contract, the solicitation, and any agreed modifications.

“Services” means the tasks, functions, and responsibilities assigned and delegated to Contractor under the Contract.

“Signature Document” means the document executed by both Parties that specifically sets forth all the documents that constitute the Contract.

“Software” means all operating system and applications software used or created by Contractor to provide the services under the Contract.

“Solicitation” means the document issued by HHSC on behalf of TCCO under which the goods or services provided under the Contract were initially requested, which is incorporated herein by reference for all purposes in its entirety, including all Amendments and Attachments.

“Solicitation Response” means Contractor’s full and complete response to the Solicitation, which is incorporated herein by reference for all purposes in its entirety, including any attachments and addenda.

“State Fiscal Year” means the period beginning September 1 and ending August 31 each year, which is the annual accounting period for the State of Texas.

“State of Texas TexTravel” means Texas Administrative Code, Title 34, Part 1, Chapter 5, Subchapter C, Section 5.22 relative to travel reimbursements under this Contract, if any.

“Subcontract” means any written agreement between Contractor and another party to fulfill the requirements of the Contract. All subcontracts are required to be in writing.

“Subcontractor” means any individual or entity that has entered into a subcontract with Contractor.

“Technical Guidance Letter” or “TGL” means an instruction, clarification, or interpretation of the requirements of the Contract, issued by TCCO to the Contractor.

“Turnover Plan” means the written plan developed by Contractor, approved by TCCO, and to be employed in the event the work described in the Contract transfers to the State or another vendor from Contractor. TCCO may require Contractor to develop a turnover plan at any time during the term of the Contract at TCCO’s discretion. The turnover plan describes Contractor’s policies and procedures that will assure 1) the least disruption in the delivery of services during the transition to a substitute vendor, and 2) cooperation with TCCO and the substitute vendor in transferring information and services to a substitute vendor.

ARTICLE III: GENERAL TERMS AND CONDITIONS

SECTION 3.01 CONTRACT ELEMENTS

A. Entire Agreement The Contract between the Parties will consist of the document bearing the signatures of the Parties, Exhibits, or Attachments to that document, these Terms and Conditions, the Solicitation, Contractor’s Proposal, and any agreed to modifications (incorporated by reference).

B. Order of Precedence Unless otherwise agreed, in the event of any conflict or contradiction between or among these documents, the documents will control in the following order of precedence:

1. The final executed document that bears the signature of the Parties, including any

Exhibits or Attachments, and all amendments to that document;

2. These Terms and Conditions, including any attachments;

3. The solicitation and any addendums, corrections, and clarifications;

4. Contractor’s proposal and any agreed to modifications.

SECTION 3.02 FUNDING

This Contract is conditioned on the availability of state and federal appropriated funds. Contractor will have no right of action against TCCO in the event TCCO is unable to perform its obligations under the Contract as a result of the suspension, termination, or withdrawal of funding to TCCO, the failure to fund TCCO, or lack of sufficient funding of TCCO for any activities or functions contained within the scope of the Contract.

If funds become unavailable, the provisions of Article XI Remedies and Disputes will apply.

TCCO will use all reasonable efforts to ensure that such funds are available and will negotiate in good faith with Contractor to resolve any Contractor claims for payment that represent accepted services or deliverables pending at the time funds become unavailable. TCCO will make best efforts to provide reasonable written advance notice to Contractor upon learning funding for the Contract may be discontinued. If funds for the continued fulfillment of this Contract by TCCO are at any time not forthcoming or are insufficient, through failure of any entity to appropriate funds or otherwise, then TCCO will have the right to terminate this Contract at no additional cost and with no penalty whatsoever by giving prior written notice documenting the lack of funding.

SECTION 3.03 NO QUANTITY GUARANTEES

TCCO makes no express or implied warranty whatsoever that any minimum compensation or minimum quantity will be guaranteed under the contract.

SECTION 3.04 DELEGATION OF AUTHORITY

State and federal laws generally limit TCCO’s ability to delegate certain decisions and functions to a Contractor, including, but not limited to: (1) policy-making authority; and (2) final decision-making authority on the acceptance or rejection of contracted services.

SECTION 3.05 BINDING EFFECT

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

SECTION 3.06 NO WAIVER OF SOVEREIGN IMMUNITY

The Parties agree no provision of the Contract is in any way intended to constitute a waiver by TCCO or the State of Texas of any immunities from suit or from liability TCCO or the State of Texas may have by operation of law.

SECTION 3.07 FORCE MAJEURE

A Party will not be liable for any failure or delay in performing its obligations under the Agreement if such failure or delay is due to any cause beyond the reasonable control of the Party, including, but not limited to, unusually severe weather, strikes, natural disasters, fire, civil disturbance, epidemic, war, court order, or acts of God. The existence of such causes of delay or failure will extend the period of performance in the exercise of reasonable diligence until after the causes of delay or failure have been removed. Each Party must inform the other in writing with proof of receipt within three (3) business days of the existence of a force majeure event as described above or otherwise waive this right as a defense.

SECTION 3.08 DISASTER RECOVERY PLAN

Upon request of TCCO, Contractor shall provide copies of its most recent business continuity and disaster recovery plans.

SECTION 3.09 MOST FAVORED CUSTOMER

The Contractor agrees that if, during the term of the Contract, the Contractor enters into any agreement with any other governmental customer or any non-affiliated commercial customer by which it agrees to provide equivalent services at lower prices, or additional services at comparable prices, the Contract will, at TCCO’s option, be amended to afford equivalent advantage to TCCO.

SECTION 3.10 PUBLICITY

A. No Use Except as provided in the paragraphs below, Contractor must not use the name of, or directly or indirectly refer to, TCCO, the State of Texas, or any other State agency in any media release, public announcement, or public disclosure relating to the Contract or its subject matter, including in any promotional or marketing materials, customer lists, or business presentations (other than proposals or reports submitted to TCCO, an administrative agency of the State of Texas, or a governmental agency or unit of another state or the Federal Government).

B. Limited Exception Contractor may publish, at its sole expense, results of Contractor performance under the Contract with TCCO’s prior review and approval, which TCCO may exercise at its sole discretion. Any publication (written, visual, or sound) will acknowledge the support received from TCCO and any federal agency, as appropriate. Contactor will provide TCCO at least three (3) copies of any such publication prior to public release. Contractor will provide additional copies at the request of TCCO. Contractor may include information concerning the Contract’s terms, subject matter, and estimated value in any report to a governmental body to which the Contractor is required by law to report such information.

SECTION 3.11 ASSIGNMENT

A. Assignment by Contractor Contractor will not assign all or any portion of its rights under or interests in the Contract or delegate any of its duties without prior written consent of TCCO. Any written request for assignment or delegation must be accompanied by written acceptance of the assignment or delegation by the assignee or delegation by the delegate. Except where otherwise agreed in writing by TCCO, assignment or delegation will not release Contractor from its obligations under the Contract.

B. Assignment by TCCO Contractor understands and agrees TCCO may in one or more transactions assign, pledge, or transfer the Contract. This assignment will only be made to another State agency or a non-state agency contracted to perform agency support.

C. Assumption.

SECTION 3.12 COOPERATION WITH OTHER VENDORS AND PROSPECTIVE VENDORS

A. Supplemental Contracts TCCO may award supplemental contracts for work related to the Contract, or any portion thereof, TCCO reserves the right to award the Contract as a joint venture between two or more potential vendors, if such an agreement is in the best interest of TCCO. Contractor agrees to cooperate with such other vendors and will not commit or permit any act that may interfere with the performance of work by any other vendor.

B. Access At TCCO’s request, Contractor will allow parties interested in responding to TCCO solicitations to have reasonable access during business hours to software, systems documentation, and site visits to the Contractor’s facilities. All such parties inspecting the facilities and software and systems documentation may be required to agree to use the information so obtained only in the State of Texas and only for the purpose of responding to the solicitation.

SECTION 3.13 RENEGOTIATION AND REPROCUREMENT RIGHTS

A. Renegotiation of Contract Terms Notwithstanding anything in the Contract to the contrary, TCCO may at any time during the term of the Contract exercise the option to notify Contractor TCCO has elected to renegotiate certain terms of the Contract within the scope of the Contract and as permitted by law. Upon Contractor’s receipt of any notice under this section, Contractor and TCCO will undertake good faith negotiations of the subject terms of the Contract.

B. Reprocurement of the Services or Procurement of Additional Services Notwithstanding anything in the Contract to the contrary, whether or not TCCO has accepted or rejected Contractor’s Services or Deliverables provided during any period of the Contract, TCCO may at any time issue requests for proposals or offers to other potential contractors for performance of any portion of the services covered by the Contract or services similar or comparable to the Services performed by Contractor under the Contract.

C. Termination Rights Upon Reprocurement If TCCO elects to procure the services or any portion of the services from another vendor in accordance with this section, TCCO will have the termination rights set forth in Article

XI.

SECTION 3.14 SOLICITATION ERRORS AND OMISSIONS

Contractor will not take advantage of any errors or omissions in the solicitation or the resulting Contract. Contractor must promptly notify TCCO of any errors or omissions that are discovered.

Failure to notify TCCO of any errors will constitute a waiver of those errors.

SECTION 3.15 ATTORNEYS’ FEES

In the event of any litigation, appeal, or other legal action to enforce any provision of the Contract, Contractor agrees to pay all expenses of such action, including attorneys’ fees and costs, if TCCO is the prevailing or substantially prevailing party.

SECTION 3.16 BUY TEXAS; PREFERENCES UNDER SERVICE CONTRACTS

In accordance with Texas Government Code Section 2155.4441, the State of Texas requires that during the performance of a contract for services, Contractor shall purchase products and materials produced in the State of Texas when available at a price and time comparable to products and materials produced outside the State.

SECTION 3.17 ENSURING TIMELY PERFORMANCE

The Parties acknowledge the need to ensure uninterrupted and continuous performance of the Scope of Work under the Contract; therefore, TCCO may terminate the Contract or apply any other remedy as noted in Article XI Remedies and Disputes if Contractor’s performance is not timely.

SECTION 3.18 FREE EXERCISE OF RELIGION

Contractor is prohibited from substantially and unduly burdening an employee or TCCO client’s Free Exercise of Religion or lack of religion.

SECTION 3.19 STATE USE OF IDEAS

TCCO reserves the right to use any and all ideas presented in Contractor’s proposal unless the Contractor presents a valid legal case that such ideas are trade secret or confidential information and identifies the information as such in its proposal. Contractor may not object to the use of ideas that are not the contractor’s intellectual property and so designated in the proposal that: (1) were known to TCCO before the submission of the proposal; (2) were in the public domain through no fault of TCCO; or (3) became properly known to TCCO after proposal submission through other sources or through acceptance of the proposal.

SECTION 3.20 PROPERTY OF TCCO

Except as otherwise provided in this contract, all products produced by contractor, including, without limitations, the proposal, all plans, designs, software, and other contract deliverables, become the sole property of TCCO.

SECTION 3.21 DELAY OF SERVICES

The Contractor shall meet its obligations to commence services within the time frames defined by the Contract. In the event the Contractor fails to meet those time frames as defined in the Contract, absent extensions from TCCO, TCCO will have the right to obtain the services from another source and charge the cost thereof to the Contractor for each day services are not performed due to delays caused by Contractor’s nonperformance. TCCO will provide written notification to the Contractor by certified mail, return receipt requested, of the charges which will include the date of imposition and the amount that has accrued daily as of the date of the notification.

SECTION 3.22 TECHNICAL GUIDANCE LETTERS

In the sole discretion of TCCO and in conformance with federal and state law, TCCO may issue instructions, clarifications, or interpretations as may be required during work performance in the form of a Technical Guidance Letter (“TGL”). A TGL must be in writing and may be delivered by regular mail, electronic mail, or facsimile transmission. Any TGL issued by TCCO will be incorporated into the Contract by reference herein for all purposes when it is issued.

SECTION 3.23 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.

SECTION 3.24 TEXAS BIDDER AFFIRMATION

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

ARTICLE IV: CONTRACTOR PERSONNEL MANAGEMENT

SECTION 4.01 QUALIFICATIONS, RETENTION, AND REPLACEMENT OF CONTRACTOR

EMPLOYMENT

Contractor agrees to maintain the organization and administrative capacity and capabilities to carry out all duties and responsibilities under the Contract. The personnel Contractor assigns to perform the duties and responsibilities under the Contract will be properly trained and qualified for the functions they are to perform. Contractor does not warrant the quality of training for which the State is responsible. Notwithstanding transfer or turnover of personnel, Contractor remains obligated to perform all duties and responsibilities under the Contract without degradation and in accordance with the terms of the Contract.

SECTION 4.02 RESPONSIBILITY FOR CONTRACTOR PERSONNEL

A. Employment and Agency Contractor’s employees and subcontractors will not in any sense be considered employees of TCCO or the State of Texas, but will be considered Contractor’s employees for all purposes. Except as provided in the Contract, neither Contractor nor any of Contractor’s employees or subcontractors may act in any sense as agents or representatives of TCCO or the State of Texas.

B. E-Verify System By entering into this Contract, the Contractor certifies and ensures it uses, and will continue to use for the term of the Contract, the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed to perform duties within Texas during the term of the Contract;

and

2. All persons (including subcontractors) assigned by Contractor to perform work pursuant to the Contract within the United States of America.

C. Liability Contractor’s employees must be paid exclusively by Contractor for all services performed.

Contractor is responsible for and must comply with all requirements and obligations related to such employees under local, state, or federal law, including minimum wage, social security, unemployment insurance, state and federal income tax, and workers’ compensation obligations. Contractor assumes sole and full responsibility for its acts and omissions and the acts and omissions of its personnel and subcontractors.

CONTRACTOR AGREES THAT ANY CLAIM ON BEHALF OF ANY PERSON

ARISING OUT OF EMPLOYMENT OR ALLEGED EMPLOYMENT (INCLUDING,

BUT NOT LIMITED TO, CLAIMS OF DISCRIMINATION AGAINST

CONTRACTOR, ITS OFFICERS, OR ITS AGENTS) ARE THE SOLE

RESPONSIBILITY OF CONTRACTOR AND ARE NOT THE RESPONSIBILITY OF

TCCO, AND CONTRACTOR WILL INDEMNIFY AND HOLD HARMLESS THE

STATE FROM ANY AND ALL SUCH CLAIMS ASSERTED AGAINST THE STATE.

Contractor understands any person who alleges a claim arising out of employment or alleged employment by Contractor will not be entitled to any compensation, rights, or benefits from TCCO (including, but not limited to, tenure rights, medical and hospital care, sick and annual/vacation leave, severance pay, or retirement benefits).

SECTION 4.03 COOPERATION WITH TCCO AND STATE ADMINISTRATIVE AGENCIES

A. Cooperation with TCCO Contractors Contractor agrees to reasonably cooperate with and work with the State’s contractors, subcontractors, and third-party representatives as requested by TCCO. To the extent permitted by TCCO’s financial and personnel resources, TCCO agrees to reasonably cooperate with Contractor and to use its best efforts to ensure TCCO’s other program contractors reasonably cooperate with Contractor.

B. Cooperation with State and Federal Administrative Agencies Contractor must ensure contractor personnel will cooperate with TCCO or other state or federal administrative agency personnel at no charge to TCCO for purposes relating to the administration of TCCO programs including, but not limited to, the following purposes:

1. The investigation and prosecution of fraud, waste, and abuse in TCCO programs;

2. Audit, inspection, or other investigative purposes; and

3. Testimony in judicial or quasi-judicial proceedings related to the services under the

Contract or other delivery of information to TCCO or other agencies’ investigators or legal staff.

SECTION 4.04 CONDUCT OF AND RESPONSIBILITY FOR CONTRACTOR PERSONNEL

A. Conduct While performing the Services or Deliverables, Contractor’s personnel and subcontractors must:

1. Comply with applicable Contract terms, State and Federal rules, regulations, TCCO policies and TCCO requests regarding personal and professional conduct; and Contractor shall comply, and shall require its subcontractor(s) to comply, with the requirements set forth in this Contract and the Department’s rules of general applicability and other applicable state and federal statutes and rules as such statutes and rules currently exist and as they may be lawfully amended.

2. Otherwise conduct themselves in a businesslike and professional manner.

B. Removal

If TCCO determines in good faith a particular employee or subcontractor is not conducting himself or herself in accordance with this Section, TCCO may provide Contractor with notice and documentation concerning such conduct. Upon receipt of such notice, Contractor must promptly investigate the matter and, at TCCO’s request, take appropriate action that may include:

1. Removing the employee from the project;

2. Providing TCCO with written notice of such removal; and

3. Replacing the employee with a similarly qualified individual acceptable to TCCO.

Nothing in the Contract will prevent Contractor, at the request of TCCO, from replacing any personnel TCCO determines are not adequately performing their assigned responsibilities or who, in the reasonable opinion of TCCO, after consultation with Contractor, are unable to work effectively with the members of TCCO’s staff. In such event, Contractor will provide replacement personnel with equal or greater skills and qualifications as soon as reasonably practicable. Replacement of key personnel will be subject to TCCO review and approval. The parties will work together in the event of any such required replacement so as not to disrupt the overall project schedule.

C. Sole Control Contractor agrees anyone employed by Contractor to fulfill the terms of the Contract is an employee of Contractor and remains under Contractor’s sole direction and control.

Contractor agrees to be responsible for the following with respect to its employees:

1. Any and all employment taxes or other payroll withholding;

2. Damages caused by Contractor’s employees acting within or outside the scope of their duties under the Agreement; and

3. Determination of the hours to be worked and the duties to be performed by Contractor’s employees.

Contractor agrees and will inform its employees and subcontractor(s) there is no right of action against TCCO for any duty owed by Contractor under the Contract. Contractor understands TCCO does not assume liability for the actions of, or judgments rendered against, the Contractor, its employees, agents, or subcontractors. Contractor agrees it has no right to indemnification or contribution from TCCO for any judgments rendered against Contractor or its subcontractors. TCCO’s liability to the Contractor’s employees, agents, and subcontractors, if any, will be governed by the Texas Tort Claims Act, as amended or modified (Tex. Civ. Prac. & Rem. Code § 101.001 et seq.).

SECTION 4.05 RESPONSIBILITY FOR SUBCONTRACTORS

A. The Contractor shall assume full responsibility for all deliverables under the contract.

TCCO shall consider the Contractor to be the sole point of contact with regard to contractual matters, including payment of any and all charges under the contract. If any part of the deliverables is planned to be subcontracted, the Contractor shall include a list of all subcontractors, including the firm name, address, and contact person of each subcontractor, a complete description of the deliverables to be subcontracted, financial statements for each subcontractor, and descriptive information concerning each subcontractor's qualifications.

B. Subcontractors providing services under the contract shall meet the same requirements and level of experience as required of the Contractor. No subcontract under the contract shall relieve the Contractor of the responsibility for ensuring the requested services are provided.

Contractors planning to subcontract all or a portion of the work to be performed shall identify the proposed subcontractors.

C. The Contractor shall not delegate any duties under the contract to a subcontractor unless TCCO has given written consent to the delegation. TCCO shall approve all subcontractors and require the Contractor to replace any subcontractor found, in the opinion of TCCO, either initially or based on performance, to be unacceptable.

D. The management of any subcontractor shall be the sole responsibility of the Contractor and failure by a subcontractor to perform shall be deemed to be failure of the Contractor. The Contractor shall make all payments to subcontractors and suppliers. TCCO shall not direct payments for deliverables acquired in connection with the contract other than to the Contractor, nor shall TCCO release the Contractor from having to perform any obligations under the contract, notwithstanding the fact a subcontractor may have been engaged by the Contractor to perform those obligations.

E. The Contractor shall furnish to TCCO copies of all subcontracts. All subcontracts shall include all applicable provisions contained in the contract and any provisions required by law.

F. Contractor must not disclose Confidential Information of TCCO or the State of Texas to a subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information in the manner required of Contractor under the Contract.

G. Contractor must identify any subcontractor that is a newly-formed subsidiary or entity, whether or not an affiliate of Contractor, substantiate the proposed subcontractor’s ability to perform the subcontracted Services, and certify to TCCO no loss of service will occur as a result of the performance of such subcontractor. The Contractor will assume responsibility for all contractual responsibilities whether or not the Contractor performs them. Further, TCCO considers the Contractor to be the sole point of contact with regard to contractual matters, including payment of any and all charges resulting from the Contract.

H. At least 30 days prior to executing a Material Subcontract or other agreement with a third party with a value greater than $100,000.00, Contractor must submit a copy of the agreement to TCCO for TCCO’s review. TCCO reserves the right to: (1) reject the agreement or require changes to any provisions that do not comply with the requirements or duties and responsibilities of the Contract or create significant barriers for TCCO in monitoring compliance with the Contract; (2) object to the selection of the subcontractor;

or (3) object to the subcontracting of the Services and Deliverables proposed to be subcontracted.

SECTION 4.06 TCCO’S ABILITY TO CONTRACT WITH SUBCONTRACTORS

The Contractor may not limit or restrict, through a covenant not to compete, employment agreement or other contractual arrangement, TCCO’s ability to contract with subcontractors or former employees of the Contractor.

ARTICLE V: GOVERNING LAW AND REGULATIONS

SECTION 5.01 GOVERNING LAW AND VENUE

Regarding all issues related to contract formation, performance, interpretation, and any issues that may arise in any dispute between the Parties, the Contract shall be governed by, and construed in accordance with, the laws of the State of Texas. In the event of a dispute between the Parties, venue for any suit shall be 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.

All Contractors shall ensure the location where services are provided is in compliance with all applicable local, state, and federal zoning, building, health, fire, and safety standards.

Contractor must comply with all laws, regulations, requirements, and guidelines applicable to a Contractor providing services to the State of Texas as these laws, regulations, requirements, and guidelines currently exist and as they are amended throughout the term of this Contract. TCCO reserves the right, in its sole discretion, to unilaterally amend this Contract throughout its term to incorporate any modifications necessary for TCCO’s or Contractor’s compliance with all applicable State and federal laws, and regulations.

Contractor shall provide services to TCCO that are in compliance with all applicable, local, state, and federal laws, rules and regulations now in effect or that become effective during the term hereof including but not limited to: the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973; the Age Discrimination in Employment Act; The Immigration Reform and Control Act of 1986; Code of Federal Regulations, Title 42, Part 2 (regarding information about drug and alcohol abuse); Environmental Protection Agency Rules and Regulations; Texas Health and Safety Code Chapters 85, 595, and 611; the Americans with Disabilities Act of 1990; the Civil Rights Act of 1991; Occupational Safety and Health Act of 1970; Texas Family Code Section 231.006; Texas Government Code Chapters 783, 2254, 2259, and 2260; Health and Safety Code Chapter 841;

Texas Administrative Code Title 37, Part 16, Chapter 810; any and all relevant federal and state financial cost principles and audit requirements; and any and all rules, policies, and procedures established from time to time by the TCCO regarding the operations of CRF facilities.

SECTION 5.02 CONTRACTOR RESPONSIBILITY FOR COMPLIANCE WITH LAWS AND

REGULATIONS

Contractor is responsible for compliance with all laws, regulations, and administrative rules that govern the performance of the Services including all State and Federal tax laws, State and Federal employment laws, State and Federal regulatory requirements, and licensing provisions.

Contractor is responsible for ensuring each of its employees, agents, or subcontractors who provide Services or Deliverables under the Contract are properly licensed, certified, or have proper permits to perform any activity related to the Services.

Contractor warrants the Services and Deliverables comply with all applicable Federal, State, and County laws, regulations, codes, ordinances, guidelines, and policies. CONTRACTOR WILL

INDEMNIFY AND HOLD HARMLESS TCCO FROM AND AGAINST ANY LOSSES,

LIABILITY, CLAIMS, DAMAGES, PENALTIES, COSTS, FEES, OR EXPENSES ARISING

FROM OR IN CONNECTION WITH CONTRACTOR’S NEGLIGENCE OR CONTRACTOR’S

FAILURE TO COMPLY WITH OR VIOLATION OF ANY SUCH LAW, REGULATION,

CODE, ORDINANCE, OR POLICY.

SECTION 5.03 CHANGE IN LAW AND COMPLIANCE WITH LAWS

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

SECTION 5.04 FORMER TCCO EMPLOYEES

In accordance with Texas Government Code Section 2252.901, Contractor represents and warrants none of its employees, including, but not limited to, those authorized to provide services under the contract, were former employees of TCCO during the twelve (12) month period immediately prior to the date of execution of the contract.

SECTION 5.05 DISCLOSURE OF PRIOR STATE EMPLOYMENT

In accordance with Texas Government Code Section 2254.033 relating to consulting services, Contractor certifies it does not employ an individual who has been employed by TCCO or another agency at any time during the two years preceding the start of the contract or, in the alternative, Contractor has disclosed to TCCO the following: (i) the nature of the previous employment with TCCO 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.

SECTION 5.06 COMPLIANCE WITH IMMIGRATION LAWS

Contractor must comply with the requirements of the Immigration and Nationality Act (8 U.S.C.

§ 1101 et seq.) and all subsequent immigration laws and amendments.

SECTION 5.07 COMPLIANCE WITH ANTI-DISCRIMINATION LAWS, REGULATIONS, AND RULES

Contractor shall provide services for TCCO that are in compliance with all applicable local, state, and federal laws, rules, and regulations now in effect or that become effective during the term hereof including but not limited to, Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973; the Age of Discrimination in Employment Act; the Immigration Reform and Control Act of 1986; Code of Federal Regulations, Title 42, Part 2 (regarding information about drug and alcohol abuse); Environmental Protection Agency (EPA) Rules and Regulations; Texas Health and Safety Code Chapters 85, 595, and 611; the Americans with Disabilities Act of 1990; the Civil Rights Act of 1991; Occupational Safety and Health Act (OSHA) of 1970; Texas Family Code Section 231.006; Texas Government Code Chapters 783, 2254, 2259, and 2260; Health and Safety Code Chapter 841; Texas Administrative Code, Title 37, Part 16, Chapter 810; any and all relevant federal and state financial cost principles and audit requirements; and any and all rules, policies, and procedures established from time to time by TCCO.

The Contractor shall not deviate in any material respect from applicable TCCO Policies in the provision of services without the prior written approval of TCCO. Contractor’s written request for deviations from said policies shall originate from the Authorized Representative of the Contractor and shall be forwarded to TCCO. The Contractor's written requests for deviation shall contain language which details the specific deviation with reference to the policy number, section, paragraph, etc., as well as the justification for such deviation.

Contractor must comply with all amendments to the above-referenced laws, and all requirements imposed by the regulations issued under these laws. These laws provide in part that no persons in the United States may, on the grounds of race, color, national origin, sex, age, disability, political beliefs, or religion, be excluded from participation in or denied any aid, care, service or other benefits provided by Federal or State funding, or otherwise be subjected to discrimination.

Contractor must comply with Title VI of the Civil Rights Act of 1964, and its implementing regulations at 45 C.F.R. Part 80 and 7 C.F.R. Part 15 prohibiting a contractor from adopting and implementing policies and procedures that exclude or have the effect of excluding or limiting the participation of clients in its programs, benefits, or activities on the basis of national origin.

Applicable state and federal civil rights laws require contractors to provide alternative methods for ensuring access to services for applicants and recipients who cannot express themselves fluently in English. Contractor must ensure its policies do not have the effect of excluding or limiting the participation of persons in its programs, benefits, and activities on the basis of national origin.

Contractor also must take reasonable steps to provide services and information, both orally and in writing, in appropriate languages other than English in order to ensure persons with limited English proficiency are effectively informed and can have meaningful…