ESBD_File_328783_FY23 IDIQ sample contract.docx

TSSWCB Contract No. ________________

PROFESSIONAL SERVICES CONTRACT

BETWEEN

TEXAS STATE SOIL AND WATER CONSERVATION BOARD AND

TSSWCB CONTRACT NO._________________________

This agreement (“Contract”) is entered into by the Texas State Soil and Water Conservation Board (“TSSWCB”), an agency of the State of Texas, located at 1497 Country View Lane, Temple, Texas 76504, and _______________________ (“Contractor”), located at _______________________, pursuant to the authority of Texas Government Code, Section 2254.004; 16 U.S.C. § 590a; and Watershed Protection and Flood Prevention Act, Public Law 83-566, 16 U.S.C. § 1012, as amended by Section 313 of Public Law 106-472. The term “Party” or, collectively “Parties,” as used in this Contract refer to TSSWCB and Contractor.

Section I. RECITALS Whereas, on _______________________, 2023, TSSWCB issued a Request for Qualifications (“RFQ)” from qualified, independent firms for professional engineering services; and Whereas, Contractor submitted their Qualifications, dated _______________________, 2023, in response to TSSWCB’s RFQ; and Whereas, Contractor will be responsible for Indefinite Delivery Indefinite Quantity Architect-Engineer services.

Now, therefore, TSSWCB and Contractor hereby agree as follows:

Section II. TERM OF CONTRACT A. Initial Term: This Contract shall commence upon being signed by all Parties, or the last signature date, whichever is later, and shall terminate one (1) year after that date, unless renewed or terminated in accordance with the terms of the agreement (“Initial Term”).

B. Renewal Option: TSSWCB has the option to renew the term of this Contract for four (4) successive one (1) year periods upon written notice to Contractor at least sixty (60) days prior to the expiration of the Initial Term or any subsequent term (“Renewal Term”).

C. Completion of Work in Progress: TSSWCB has the option to extend the term of this Contract or any Renewal Term, as necessary for Contractor to complete work on any project approved by TSSWCB prior to the expiration of this Contract, however such extension shall not exceed a total of nine (9) months (“Extension”).

The Initial Term and all Renewal Terms and Extensions, if any, shall collectively become the total duration of the Contract (“Term”).

Section III. SCOPE OF WORK A. In General: Contractor agrees to provide Architect-Engineer Services (“A&E Services”), to be performed on a non-exclusive, indefinite quantity basis, as requested by TSSWCB in accordance with the terms of this Contract for each defined Project Service or Task (“Project”). Contractor represents that it has the knowledge, ability, skills, and resources to provide such services in accordance with the terms and requirements of this Contract and state and federal requirements. These A&E Services are generally described as, but are not limited to, the specific professional services to initiate and complete rehabilitation planning of aging flood control dams, engineering surveys, geotechnical services, dam assessments, engineering designs, and construction services for various flood prevention projects, water resources projects, recreational projects adjacent to reservoirs, and other USDA-Natural Resources Conservation Service (“NRCS”) watershed program projects (collectively and individually “Project Services”) in accordance with Section 3.0 (General Scope of Work) of the particular RFQ # XXX-XX-XXX.

B. Typical Project: The typical Project Services assignment will require knowledge and experience in all aspects of surveying, performing geologic investigation, soil testing and analysis, developing and interpreting geologic and soil mechanics reports, engineering design, and quality assurance activities. Contractor shall conduct planning studies, economic analysis and project-related biological, cultural resource, and environmental concerns, and formulate and evaluate alternatives. Engineering activities may include planning, design, and construction of deep and shallow foundations (bearing capacity, consolidation, seepage, etc.), earth embankments, roller compacted concrete structures, earthwork, reinforced concrete structures, automated and manual water control gates, rock riprap placement, timber structures, steel structures and structural fabrication, timber, steel and concrete piling, sheet piling, and channel bank stabilization measures. Contractor shall perform engineering surveys, geotechnical activities, engineering design, and construction service activities in accordance with NRCS standards and certify that they meet NRCS standards. Contractor shall prepare land rights work maps and cost estimates. The majority of design work will be civil in nature. All drawings will be computer generated in *.dwg format (AutoCAD compatible) with the ability to be provided in a pdf format, or other preapproved format(s).

C. Project Scope: Each individual portion of the Project Services shall be a project task or tasks (“Project Task(s)”). The specific scope of work for each Project Task shall be determined in advance and in writing between TSSWCB and Contractor through an associated Plan of Work, Statement of Work, and Technical Specification for Architect-Engineering services (collectively and individually, “Specifications”). All Project Tasks shall be completed by Contractor, or where not performed by Contractor shall be clearly identified in the approved proposal and/or agreement, to conform to the Specifications applicable to that particular Project Task.

D. Deliverables: For the purposes of this Contract, the term “Deliverables” is defined as all reports, statistical analyses, work papers, writings, notes, assessments, surveys, work products, materials, evaluations, programs, approaches, designs, plans, specifications, ideas, systems, software, documentation, methodologies, concepts, flow charts, algorithms, diagrams, drawings, research, materials, intellectual property, or other tangible or intangible property developed, produced, or generated in connection with a Project or otherwise under this Contract, delivered to TSSWCB, or obtained from Contractor by TSSWCB, whether in written, electronic, visual, or other form, and all versions and partially completed portions thereof. Comment by Anastasia Broadfoot: Standalone “Project” is not a defined term, yet it’s used as such throughout the document. Comment by Allen Nash: Added to section III.A to define "Project" and how it would be used in the document.

E. Project RFP: For each individual Project Task for which TSSWCB requires Project Services, TSSWCB will prepare a Project Request for Proposal (“Project RFP”) identifying the Project Task(s) and describing in general the scope of the Project Task(s) and the intended or desired blueprint, or template, for the applicable Specifications for that Project Task(s) to be provided by Contractor.

F. Project Proposal: In response to a Project RFP, Contractor shall provide TSSWCB with a written Project Proposal (“Project Proposal”). The Project Proposal shall include the following:

1. A narrative description of Contractor’s understanding of project scope of work and how the Specifications are to be achieved;

2. A detailed list of Deliverables;

3. A fee proposal for the Project Task(s) detailing a “Not to Exceed Amount” (“Allowable Fee”) for the successful completion of that Project Task(s);

4. A proposed date to commence work and proposed date to complete work;

5. A list of all consultants, persons, and firms (as subcontractors) that Contractor proposes to use in the performance of the Project Task(s);

6. A schedule of hourly billing rates for any consultants, persons, and firms (as subcontractors) that Contractor proposes to use in the performance of the Project Task(s);

7. Any qualifications or conditions applicable to the Project Proposal or other relevant assumptions made by Contractor in developing the particular Project Proposal;

8. A HUB Subcontracting plan (if required); and

9. A summary statement of all previous Project Proposals submitted to TSSWCB under this Contract and whether Contractor was selected by TSSWCB to implement that Project Proposal to accomplish a Project Task.

G. Project Proposal Review: TSSWCB and Contractor shall review Contractor’s Project Proposal and negotiate any changes, clarifications, or modifications thereto. Contractor shall submit a revised Project Proposal incorporating any changes, clarifications, or modifications made in the review process. TSSWCB may accept, reject, or seek modification of any Project Proposal.

H. Notice to Proceed: Upon acceptance and approval of the final, approved version of a particular Project Proposal by TSSWCB, TSSWCB shall issue a written Architect-Engineer Services Work Order, which shall contain a final version of the applicable Specifications. (“Work Order”). The Work Order shall serve as Contractor’s Notice to Proceed for the specified Project Task(s) and will authorize Contractor to begin the work identified in that final, approved version of the Project Proposal on the date specified in the Work Order in accordance with the Specifications. The Work Order shall include a Work Order number specific to the Project Task and will include the final Allowable Fee associated with the Project, which shall be the total compensation available to be paid to Contractor for that Work Order. Parties agree and acknowledge that TSSWCB shall not be responsible to make payment for any A&E Services performed by Contractor unless such A&E Services were authorized by written Work Order, and those Project Task(s) are completed in conformance with the Specifications to the satisfaction to TSSWCB.

I. No guarantees of Services. Contractor acknowledges, agrees, and accepts that TSSWCB makes no representations regarding the amount or type of A&E Services, if any, that Contractor will be asked to provide to TSSWCB during the Term of this Contract. It is expressly understood that TSSWCB is under no obligation to request any A&E Services from Contractor and no minimum amount of work or Work Order issuance is required or contemplated under this Contract. All A&E Service requests will be made by TSSWCB on an as-needed basis, subject to future agreement on a Project Task’s scope of the work, the Allowable Fees associated therewith and the monies appropriated therefor.

Section IV. RESPONSIBILITIES, REPRESENTATIONS, AND WARRANTIES OF CONTRACTOR A. Unapproved Costs. Contractor shall be responsible for all costs and expenses that exceed the Allowable Fee included in the Work Order issued pursuant to the process referenced in Section III Subsection H.

B. Standard of Care. Contractor hereby represents and warrants that it shall perform all A&E Services and Project Services hereunder: (1) with the professional skill and care ordinarily provided by competent engineers practicing under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer. Contractor hereby represents and warrants that each of the employees, consultants, subcontractors, and agents assigned to perform Contractor’s obligations under this Contract shall have the skill and training to perform all A&E Services and Project Services in accordance with the foregoing standard of care, and that all Deliverables shall be produced in a professional and workmanlike manner.

C. Compliance with Laws. Contractor hereby represents and warrants that it shall perform all A&E Services and Project Services in compliance with all applicable national, federal, state and local laws, regulations, codes, ordinances, and orders and with those of any other body having jurisdiction over the Project Services and any particular Project Task.

D. Existing Conditions: Contractor shall use all reasonable efforts to verify the accuracy and suitability of any drawings, plans, sketches, instructions, information, requirements, procedures, requests for action, and other data supplied to Contractor by TSSWCB, or any other party, that Contractor uses for any Project Task or that is incorporated into any Deliverable.

E. Correction of Work: Contractor’s Project Services and all Deliverables shall be accurate and free from material errors or omissions and shall conform to the Specifications. Upon notice, Contractor shall promptly correct any known or discovered error, omission, or other defect, whether identified by Contractor or TSSWCB, without any additional cost or expense to TSSWCB.

F. Phasing: Contractor shall not proceed beyond any previously authorized phase of the work in a particular Work Order unless authorized by TSSWCB in writing, except at Contractor’s own financial risk. Applicable phases of the scope of work shall be identified in the applicable Work Order.

G. Representative: Contractor shall designate a representative primarily responsible for Contractor’s Project Services under this Contract. The designated representative shall act on behalf of Contractor with respect to all phases of Contractor’s Project Services and shall be available as required for the benefit and performance of any particular Work Order and successful interaction with TSSWCB. The designated representative shall not be changed without prior approval of TSSWCB, which approval shall not be unreasonably withheld. If TSSWCB, in its sole discretion, objects to a designated representative assigned by Contractor to the Project Services and/or a particular Work Order, or during the performance of any Project Services, TSSWCB determines that the designated representative becomes unacceptable to TSSWCB in its sole discretion, TSSWCB shall inform Contractor and Contractor shall remove that person from the Project Services and provide a replacement designated representative, with similar education, training, skill and experience to assume the position. If TSSWCB objects to the replacement, Contractor shall propose other similar individuals in succession to assume the designated representative position until TSSWCB determines that the proposed replacement for the designated representative is acceptable to TSSWCB, which shall be communicated to Contractor in writing.

H. Documentation: Contractor shall fully document its Work Order activities, in drawings, reports or other methods as appropriate to the Scope of Work and as identified in the Work Order for each Project Task. Contractor shall bear the cost and expenses of such documenting effort and the provision of all documents, tools and materials used by Contractor in the performance of each Work Order.

I. Warranty of Deliverables. Contractor hereby represents and warrants that any and all Deliverables provided hereunder or under any applicable Work Order shall be fit for its particular purpose as set forth in the applicable Project Task Specifications. Contractor further represents and warrants that it has the right to develop and assign all ownership rights in the Deliverables to TSSWCB as contemplated under this Contract, including without limitation all patent, copyright, trade secret any other intellectual property rights, free from infringements claims and free from any other third-party rights or claims, free from violations of unfair competition law, and free from violations of any other contract or law.

J. Liens, Claims, and Restrictions of Deliverables. Contractor hereby represents and warrants that all Project Task performance and all Deliverables provided under this Contract are, and will be, free of all liens, claims, or other restrictions, and that TSSWCB’s use and possession of the Deliverables, including reproduction, display, performance, and distribution of any part or portion thereof, will not violate the terms or conditions of any license, confidentiality agreement, non-competition agreement, employment agreement or any other agreement to which Contractor, its agents, officers, employees, or subcontractors may be subject.

K. Survivability of Representations and Warranties. Contractor acknowledges and agrees that all representations and warranties contained in this Contract are essential and material to TSSWCB’s willingness to enter into this Contract, and survive the termination of this Contract.

Section V. RESPONSIBILITIES OF TSSWCB A. Project Program: TSSWCB shall provide each individual Project RFP, in TSSWCB’s sole discretion, setting forth TSSWCB’s description of the Project Task scope; preliminary project budget; schedule; objectives, characteristics and constraints; and a description of the basic services to be provided by Contractor for the Project Task.

B. Special Information: TSSWCB, if required for the specific service, shall furnish available property, boundary, easement, right-of-way, topographic and utility surveys; plans and specifications; and special data and conditions relevant to the project. Contractor shall exercise reasonable care in relying upon this information in the performance of its services under this Contract. TSSWCB makes no warranties or representations as to the accuracy or suitability of information provided to Contractor by TSSWCB or by others.

C. Entry on Land: TSSWCB shall assist Contractor in gaining entry to state owned or controlled property and/or coordinate with Local Water Conservation Districts (“Local Sponsors”) as necessary for Contractor to perform its services under this Contract.

D. Time for Response: TSSWCB shall furnish required information and shall render approvals and decisions as expeditiously as reasonably necessary for the orderly progress of Contractor’s Project Services in the particular Work Order.

Section VI. ACCEPTANCE OF WORK A. TSSWCB's Satisfaction: All Project Services and other work performed under this Contract shall be completed to the satisfaction of TSSWCB. TSSWCB shall decide all questions and standards regarding Contractor’s performance under a particular Work Order and such decisions shall be final and conclusive.

B. Correction of Work: Should Contractor’s Project Services or Deliverables not conform to the requirements of this Contract, the applicable Specifications and/or the Project Proposal as determined by TSSWCB, TSSWCB may order Contractor to re-perform such Services and/or re-create the Deliverables at no additional expense to TSSWCB or deduct the fees for such deficient Project Services and/or Deliverables from any other fees payable to Contractor.

C. Liability: TSSWCB’s approval or acceptance of Contractor’s Project Services will not release Contractor from any liability for such Project Services because TSSWCB is, at all times, relying upon Contractor’s skill and knowledge in performing the Project Services.

Section VII. PAYMENT FOR SERVICES A. TSSWCB’s Approval Required: TSSWCB agrees to pay Contractor for those Project Services rendered at TSSWCB’s specific request on a particular Work Order, and in writing pursuant to the terms of that Work Order as defined in Section III, Subsection H.

B. Contract Amount: The total amount of this Contract will vary depending on the Allowable Fee of each Project Task(s) awarded by Work Order pursuant to Section II during the Term. Nevertheless, the Allowable Fee for each individual Project Task(s) and Work Order issued under this Contract shall not exceed the agreed upon amount for each respective Work Order, except by mutual written consent of TSSWCB and Contractor, if at any time during the Term, and prior to performance of any Project Services work associated with such amended amount, TSSWCB and Contractor sign a Work Order amendment. Any addition to the total amount of any Allowable Fee is contingent upon the availability of funds and allocation of available funds by TSSWCB for performance of this Contract.

C. Scheduled Billing Rates: Attached as Exhibit A, and incorporated by reference herein, is Contractor’s Schedule of Billing Rates, (“Billing Rates”) including hourly billing rates, per quantity billing rates, and/or per service billing rates, as applicable. The Billing Rates include all costs for any identified Project Services and Contractor shall not be entitled to any additional compensation for providing those Project Services. The Billing Rates shall remain in full force for the one (1) year Initial Term of the contract. At least ninety (90) days before the expiration of the Initial Term or any Renewal Period exercised by TSSWCB, Contractor shall submit any changes to its Billing Rates that would apply to the subsequent Renewal Term to TSSWCB in writing. All rate increases require TSSWCB’s approval prior to the exercise of any renewal option. The increased rates, if approved by TSSWCB, shall apply only to work performed pursuant to Work Orders issued after the effective start date of any Renewal Term. The approved Billing Rate provided will be the actual salary rates and approved travel for individuals working on any of the Projects. Purchase of supplies for a Project is allowable only to the extent explicitly requested in a Project Proposal and approved by TSSWCB within an applicable Work Order or with prior written approval by TSSWCB.

D. Overtime Rate: Where overtime rates were not explicitly identified and approved in the IDIQ, Exhibit A, for any documented non-exempt hourly employee AND is documented that the employee actual workweek hours exceed what is allowed by the Fair Labor Standards Act, then the overtime rate (e.g. time and a half) shall be applied to the employees base hourly rate identified in Exhibit A.

1. Exception: If Contractor can demonstrate the overtime factor should be applied to additional hourly rate variables, then Contractor shall provide this upon request by TSSWCB. This information will be used to review and make an agreeable determination to an employee’s overtime rate.

E. Hourly Rate Escalation Clause: If a Work Order was issued at a minimum of one (1) year and Contractor has not been able to or allowed to start performing on the main task identified in the SOW AND the industry market conditions can be shown to have reasonably changed unpredictably, the following conditions, but not limited to, will be used to evaluate and provide a determination to amend the work order effective hourly work rates:

1. Contractor makes a formal written request to TSSWCB Executive Director and program administrator.

2. Additional state funding sources have been identified and can be used to add the additional funding required to an unexpired work order OR have the ability to create a supplemental work order.

3. All evidence presented supporting that industry market conditions have changed in the respective industry related to the SOW task.

4. There are no performance issues identified or unresolved with contractor.

5. Contractor can effectively demonstrate and/or quantify the negative effect to Contractor’s performance and show how it would potentially limit or prevent them from completing the task identified in the SOW, if there were no changes to the work order.

6. That there are no other options that could be implemented to maintain the contracted hourly rates.

F. Quarterly Invoices: At a minimum, Contractor will submit to TSSWCB quarterly invoices that itemize the actual hours of Project Services provided, the hourly rate, and total cost for the billing period. Travel including transportation, lodging, and meal expenses will be reimbursed at a rate not to exceed the State of Texas Standard Per Diem rates, to the extent such expenses were contemplated by the associated Work Order or with prior written approval by TSSWCB. Due the potential increase in staff invoice review time, in the event invoices are submitted beyond three (3) month intervals, then Contractor forfeits the minimum statutory timeframe in payment, due to the potential increase in review time. However, every effort will be made to maintain the States minimum payment timeframe.

G. Invoice Submission Minimum Requirements: Invoices shall be submitted in a format approved by TSSWCB, be completely legible, be organized in a logical and rational structure, for efficient review, and must contain at least the following information:

1. Unique invoice number or identifier, Project Name, Work Order Number and Project Task(s) completed and accepted by TSSWCB;

2. Associated NRCS Project Agreement number, if available

3. Professional Services Contract Number;

4. State of Texas Contractor’s Tax Identification Number;

5. Performance or billing period covered by the invoice;

6. Itemized description of the Project Services provided including the names, billing rates and amount of time per task expended by all persons who performed Project Services during the billing period;

7. Completion status of the Project Services by percentage;

8. Total amount of invoice;

9. Total amount of prior invoices and Allowable Fee as indicated in agreed Work Order;

10. Legible copy of supporting documents for all approved expenses invoiced for payment and reimbursement. Include any tables that may expedite invoice review where multiple receipts exist. Provide reference notation(s) of itemized expenses to aid expediting invoice reviews;

11. HUB Subcontracting Plan (“HSP”) Form Progress Assessment Report (“PAR”), latest revision, for any subcontractor(s) used;

12. A certification statement signed and dated by the project manager identifying he/she has reviewed the invoice for completeness, accuracy, and is organized effectively. This may be added to the invoice summary or summary of work document (see next item); and

13. A written summary of work completed since last invoice, upcoming planned work, and any issues that need to be addressed.

H. Limited to Allowable Fee Amount: It is the responsibility of Contractor not to provide Project Services or submit invoices that exceed the Allowable Fee amount established for any specific Project Task(s) in the Work Order issued by TSSWCB. Services provided, and/or expenses incurred that exceed the established Allowable Fee for any specific Project Task(s) without TSSWCB’s written consent will be at Contractor’s financial risk and TSSWCB shall not be obligated to pay for any such services or expenses.

I. Evaluation of Performance: Prior to authorizing payment to Contractor, TSSWCB shall evaluate Contractor’s performance of each Project Task and all Deliverables using the performance standards set forth in all documents constituting this Contract, including without limitation the Specifications. No payment whatsoever shall be made under this Contract for administratively incomplete submissions and without the prior submission of detailed and/or correct invoices.

J. Prompt Payment: Subject to the Subsection F above, TSSWCB shall make all payments in accordance with the Texas Prompt Payment Act, Chapter 2251 of the Texas Government Code. Payments under this Contract are subject to the availability of appropriated funds. Contractor acknowledges and agrees that payments under this Contract are contingent upon receipt of funds appropriated by the Texas Legislature. TSSWCB and Contractor agree that Contractor may perform additional Project work which is necessarily incidental to the work described in the plan only at the prior written request of TSSWCB. TSSWCB agrees to compensate Contractor for said additional TSSWCB-approved Project work at approved rates.

SECTION VIII. CONTRACT SUSPENSION, TERMINATION, AND CLOSEOUT

A. Suspension: TSSWCB may, on reasonable notice to Contractor, suspend this Contract and/or any particular Project, withhold further payments, and prohibit Contractor from incurring additional obligations under the Contract, pending corrective action by Contractor, or a decision by TSSWCB to terminate the Contract.

B. Availability of Funds: This Contract is contingent upon the continued availability of funding. If funds become unavailable through lack of appropriations, legislative or executive budget cuts, amendment of the Appropriations Act, state agency consolidations, or any other disruptions of current appropriations, this Contract is subject to Termination by TSSWCB without penalty or further obligation of TSSWCB, either in whole or part.

C. Termination for Cause: This Contract may be terminated for cause, by either Party upon written notice to the other Party, if the other Party commits a material breach of any term of this Contract.

Additionally, if Contractor fails to provide the goods or services contracted for according to the provisions of this Contract, fails to comply with any terms or conditions of the Contract, submits falsified documents or fraudulent billings, or makes false representations concerning this Contract, TSSWCB may, upon written notice to Contractor, immediately terminate all or any part of the Contract.

Termination is not an exclusive remedy but will be in addition to any rights or remedies as provided in equity, or by law or under the Contract. TSSWCB may exercise any other right, remedy, or privilege which may be available to it under applicable law of the state and any other applicable law or may proceed by appropriate court action to enforce the provisions of the Contract. The exercise of any of the foregoing remedies will not constitute a termination of the Contract unless TSSWCB notifies Contractor in writing prior to the exercise of such remedy. Contractor shall be liable for all costs and expenses, including court costs, incurred by TSSWCB with respect to the enforcement of any of the remedies listed herein.

D. Termination for Convenience: TSSWCB may, in its sole discretion, terminate this Contract upon thirty (30) days’ written notice to Contractor. Such notice may be provided by facsimile or certified mail return receipt requested and the termination is effective upon the expiration of thirty (30) days after Contractor’s receipt. In the event of such termination, Contractor shall, unless otherwise mutually agreed upon in writing, cease all work immediately upon the effective date of termination. TSSWCB shall be liable only for payments for any goods or Project Services required under this Contract and provided by Contractor and accepted by TSSWCB prior to the termination date.

E. Negotiation Prior to Termination: If Contractor gives notice of its intent to terminate this Contract in accordance with Paragraph 3 above, Contractor and TSSWCB shall try to resolve in good faith any issues related to the anticipated termination during the thirty (30) days following TSSWCB’s receipt of Contractor’s notice of intent to terminate. During this time, Contractor will continue to have the responsibility to provide Services under this Contract and TSSWCB will continue to have the responsibility to pay for the Services in the manner specified in this Contract.

F. Effect of Termination: Upon termination of this Contract, Contractor and TSSWCB will be discharged from any further obligation created under the terms of this Contract, except for the equitable settlement of the respective accrued interests or obligations incurred prior to termination and any obligations of warranty and indemnification. Termination does not, however, constitute a waiver of any remedies for breach of this Contract. Termination for convenience shall not be construed as a waiver of any right or remedy of TSSWCB that may apply. In addition, the obligations of Contractor to retain records and maintain the confidentiality of information shall survive any termination of this Contract for any reason.

G. Rights upon Termination or Expiration: In the event this Contract is terminated for any reason, TSSWCB shall retain ownership of all associated work and Deliverables. In such an event of termination, Contractor shall immediately deliver to TSSWCB all Deliverables, in whatever form, as they exist as of the date of termination.

H. Survival of Terms: Termination of the Contract for any reason shall not release Contractor from liability or obligation set forth in the Contract that is expressly stated to survive any such termination or by its nature would be intended to be applicable following any such termination, including without limitation the provisions regarding confidentiality, indemnification, transition, records, audit, ownership of Deliverables and other property rights, dispute resolution, invoice and fees verification.

I. Closeout Procedure: Contractor shall submit final billing and other reports that are required under the Contract, within forty-five (45) days after the Contract end date. TSSWCB shall not be liable for any costs incurred by Contractor in the performance of the Contract which have not been received by TSSWCB within forty-five (45) days following the close of the Contract Term.

IX. MISCELLANEOUS

A. Retention and Custodial Requirements for Records

1. Records Retention. Contractor agrees to maintain and retain financial records, supporting documents, statistical records, and all other records relating to the performance of this Contract. These records shall be maintained and retained by Contractor for a period of seven (7) years after the contract expiration date or until all audit, claim, and litigation matters are resolved, whichever is later.

2. Inspection. Upon request of the Texas State Auditor’s Office or any authorized representative of TSSWCB, Contractor shall make all records, books, papers, documents, or recordings prepared pursuant to this Contract available for inspection, audit, or reproduction during normal business hours.

3. State Auditor’s Authority. Pursuant to Section 2262.154 of the Texas Government Code, the state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under any contract or indirectly through a subcontract under the contract. Contractor understands that acceptance of state funds by Contractor or any other entity or person directly under this Contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the State Auditor’s Office, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Contractor further agrees to cooperate fully with the State Auditor’s Office in the conduct of the audit or investigation, including providing all records requested. Contractor will ensure that this clause, concerning the State Auditor’s Office authority to audit state funds and the requirement to cooperate fully with the State Auditor’s Office is included in any subcontract it awards. Additionally, the State Auditor’s Office shall at any time have access to and the rights to examine, audit, excerpt, and transcribe any pertinent books, documents, working papers, and records of Contractor relating to any of the Project Services under this Contract.

B. Indemnification.

1. Acts or Omissions. CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND AGENCIES, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED DAMAGES, COSTS, ATTORNEY FEES, AND EXPENSES CAUSED BY, ARISING OUT OF, OR RESULTING FROM ANY ACTS OF NEGLIGENCE, INTENTIONAL TORTS, WILLFUL MISCONDUCT, PERSONAL INJURY OR DAMAGE TO PROPERTY, AND/OR OTHERWISE RELATED TO CONTRACTOR’S PERFORMANCE, AND/OR FAILURES TO PAY A SUBCONTRACTOR OR SUPPLIER BY CONTRACTOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, CONSULTANTS UNDER CONTRACT TO CONTRACTOR, OR ANY OTHER ENTITY OVER WHICH CONTRACTOR EXERCISES CONTROL, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT, AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. CONTRACTOR AND TSSWCB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

2. Infringements.

a. CONTRACTOR SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE STATE OF TEXAS AND TSSWCB, AND/OR THEIR OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST ANY AND ALL CLAIMS, VIOLATIONS, MISAPPROPRIATIONS, OR INFRINGEMENT OF UNITED STATES PATENTS, COPYRIGHTS, TRADE SECRETS, TRADE AND SERVICE MARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY, OR PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM (1) THE PERFORMANCE OR ACTIONS OF CONTRACTOR PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (3) TSSWCB’S ’S AND/OR CONTRACTOR’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO TSSWCB BY CONTRACTOR, OR OTHERWISE TO WHICH TSSWCB HAS ACCESS AS A RESULT OF CONTRACTOR’S PERFORMANCE UNDER THE CONTRACT. CONTRACTOR AND TSSWCB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. CONTRACTOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE, INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE Texas ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT, AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. IN ADDITION, CONTRACTOR WILL REIMBURSE TSSWCB AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES, COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF TSSWCB DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF CONTRACTOR OR IF TSSWCB IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, TSSWCB WILL BE PERMITTED TO SELECT SEPARATE COUNSEL AND CONTRACTOR WILL PAY ALL REASONABLE COSTS OF TSSWCB’S COUNSEL.

b. Contractor shall have no liability under this section if the alleged infringement is caused in whole or in part by: (i) use of the product or service for a purpose or in a manner for which the product or service was not designed unless Contractor has approved such other use, (ii) any modification made to the product without Contractor’s written approval, (iii) any modifications made to the product by Contractor pursuant to TSSWCB’s specific instructions, (iv) any intellectual property right owned by or licensed to TSSWCB by another contractor, or (v) any use of the product or service by TSSWCB that is not in conformity with the terms of any applicable license agreement.

c. If Contractor becomes aware of an actual or potential claim, or TSSWCB provides Contractor with notice of an actual or potential claim, Contractor may (or in the case of an injunction against Customer, shall) at Contractor’s sole expense (i) procure for TSSWCB the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that TSSWCB’s use is non-infringing.

3. Taxes/Workers’ Compensation/Unemployment Insurance

a. CONTRACTOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, CONTRACTOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF CONTRACTOR’S AND CONTRACTOR’S EMPLOYEES’ TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. CONTRACTOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS’ COMPENSATION. TSSWCB AND/OR THE STATE OF TEXAS SHALL NOT BE LIABLE TO CONTRACTOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES, THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION, OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY OR AGENCY.

b. CONTRACTOR AGREES TO INDEMNIFY AND HOLD HARMLESS AGENCIES, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS’ FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE, AND/OR WORKERS’ COMPENSATION IN ITS PERFORMANCE UNDER THIS CONTRACT. CONTRACTOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY CONTRACTOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT, AND CONTRACTOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. CONTRACTOR AND TSSWCB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

C. Administrative Provisions and Affirmations

1. Independent Contractor. It is the intent of TSSWCB and Contractor that Contractor or Contractor’s employees, representatives, agents, suppliers, subcontractors, and third-party service providers shall serve as an independent contractor in providing the services required under this Contract. This Contract shall not create any joint venture, partnership, agency, or employment relationship between Contractor and TSSWCB.

Contractor or Contractor’s employees, representatives, agents, and subcontractors shall observe all TSSWCB rules and procedures, including any applicable security procedures.

Should Contractor subcontract any of the services required in this Contract, Contractor expressly understands and acknowledges that, in entering into such subcontract(s), TSSWCB is in no manner liable to any subcontractor(s) of Contractor, and that Contractor shall be solely responsible for payment due to such subcontractor(s). In no event shall this provision relieve Contractor of the responsibility for ensuring that the services rendered under all subcontracts are rendered in compliance with this Contract, and any specific Specifications, including without limitation, the performance standards set forth in Section IV.

Contractor shall have no claim against TSSWCB for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Contractor and TSSWCB agree that: (a) TSSWCB will not withhold or pay on behalf of Contractor any sums for income tax, unemployment insurance, social security, or any other withholding pursuant to any law or requirement of any governmental body, or make available to Contractor any of the benefits, including workers’ compensation insurance coverage, afforded to employees of TSSWCB and (b) all such withholdings, payments, and benefits, if any, are the sole responsibility of Contractor.

2. Taxes. Contractor certifies by execution of this Contract that its payment of franchise taxes is current or, if Contractor is exempt from payment of franchise taxes, that it is not subject to the State of Texas franchise tax. A false statement regarding franchise tax status will be treated as a material breach of this Contract and may be grounds for termination at the option of TSSWCB. If franchise tax payments become delinquent during the Contract term, payments under this Contract will be held by TSSWCB until Contractor’s delinquent franchise tax is paid in full.

Purchases made for State of Texas use are exempt from the State Sales Tax and Federal Excise Tax. TSSWCB will furnish Tax Exemption Certificates upon request.

Contractor represents and warrants that it shall pay all taxes or similar amounts resulting from the contract, including, but not limited to, any federal, State, or local income, sales or excise taxes of Contractor or its employees.

TSSWCB shall not be liable for any taxes resulting from this Contract.

3. U.S. Department of Homeland Security E-Verify System. By entering into this Contract, Contractor certifies that it utilizes and will continue to utilize for the term of this Contract, the U.S. Department of Homeland Security 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.

4. Compliance. Contractor shall comply with applicable local, state, and federal laws, rules and regulations in effect, or that become effective during the term of this Contract, including the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Age Discrimination in Employment Act, and the Immigration Reform and Control Act of 1986, as amended.

5. Certification Concerning Employment. Contractor certifies that none of its employees including, but not limited to, those authorized to provide services under the contract, were former employees of TSSWCB during the twelve (12) month period immediately preceding the date of execution of this Contract.

6. Certifications, Registrations, Licenses, and Permits. Contractor will maintain all certifications, registrations, licenses, and permits required by law to remain in good standing in the profession during the term of this Contract. In addition, Contractor will inform TSSWCB immediately of any changes to such certifications, registrations, licenses, and permits during the term of this Contract.

7. Severability. If any provision of this Contract is construed to be illegal, invalid, or unenforceable, such construction will not affect the legality, validity or enforceability of any of its other provisions. It is the intent and agreement of the parties to this Contract that the contract shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is valid, legal, and enforceable and that achieves the same objective. All other provisions of this contract will continue in full force and effect.

8. Assignment and Subcontracting. Without prior written consent of TSSWCB, Contractor may not assign its rights under this Contract, in whole or in part, or delegate the performance of its duties under the contract. Contractor may not enter into agreement with subcontractors without prior written approval of TSSWCB. Subcontracts, if any, entered into by Contractor will be in writing and subject to the requirements of this Contract.

9. Force Majeure. Neither Contractor nor TSSWCB shall be liable to the other for any delay in, or failure of performance, of any requirement included 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. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome. Each party must inform the other in writing, with proof of receipt, within three (3) business days of the existence of force majeure, or otherwise waive this right as defense.

10. Entire Agreement. This Contract constitutes the entire agreement between TSSWCB and Contractor and supersedes any prior understandings or oral or written agreements between TSSWCB and Contractor on matters contained herein.

11. Waiver. In no event shall any payment by TSSWCB to Contractor, or any act or omission of TSSWCB, constitute or be construed in any way to be a waiver by TSSWCB of any breach or default of this Contract which may then subsequently be committed by Contractor. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to TSSWCB to enforce its rights hereunder, as such rights, powers, privileges, and remedies are specifically preserved. No employee or agent of TSSWCB may waive the effect of this provision.

12. Notice. Except as expressly provided herein, any notice required or permitted to be given under this Contract must be in writing and delivered in person or by registered or certified mail, return receipt requested, postage prepaid, to the individuals and addresses shown below:

Texas State Soil and Water Conservation Board 1497 Country View Lane Temple, Texas 76504

13. Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, and the laws of the State of Texas shall govern the validity, construction, enforcement, and interpretation of this Contract, without regard to the conflicts of law provisions. The venue of any suit arising under this Contract is fixed in any court of competent jurisdiction of Travis County, Texas.

14. Accommodations. TSSWCB agrees to make working space, desks, and chairs at its offices available to Contractor, and to provide Contractor access to outlets for portable computers and other electronic equipment as necessary for performance of this Contract.

15. Dispute Resolution Process. Subject to Texas Government Code, Section 2260.002, the dispute resolution process provided for Chapter 2260 of the Texas Government Code and set forth below in subsections a-d shall be used by the parties to attempt to resolve all disputes arising under this Contract. In accordance with the Texas Civil Practice and Remedies Code, Section 114.005, the parties agree claims encompassed by Texas Government Code, Section 2260.002(3) and Texas Civil Practice and Remedies Code, Section 114.002 shall be governed by the dispute resolution process set forth below in subsections a-d.

a. Notwithstanding Texas Government Code, Chapter 2260.002(3) and Chapter 114.012 and any other statute or applicable law, if Contractor’s claim for breach of Contract cannot be resolved by the parties in the ordinary…