ESBD_File_336426_RFP Exhibit D Sample Contract Including General Terms and Conditions.pdf

Texas Historical Commission Contract No. 808-24-231609

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CONTRACT TO PERFORM

BETWEEN

TEXAS HISTORICAL COMMISSION

AND

[Awarded Contractor’s Name]

CONTRACT NO. 808-24-231609

This agreement (Contract) is entered into by the Texas Historical Commission (THC), an agency of the

State of Texas, located at 1511 Colorado Street, Austin, Texas 78701, and _____ "Contractor"), located at ______.

The term “Party” or, collectively “Parties,” as used in this Contract, refers to the THC and Contractor.

I. RECITALS

Whereas, on September 13, 2023, the THC issued a Request for Proposals (RFP) from qualified, independent firms to provide completion of fabrication and installation of Gallery Exhibits at Caddo Mounds State Historic Site;

and

Whereas, Contractor submitted a proposal (Proposal), dated [Month XX, 202X, in response to the THC’s RFP Solicitation; and

Whereas, Contractor will be responsible for the fabrication and installation of museum exhibits from comprehensive pre-existing specifications, designs, and as-built drawings, and prior fabrication documents, with minor modifications and additions made by the exhibit designer, for the fabrication and installation of exhibits at Caddo Mounds State Historic Site, located near Alto, Cherokee County, Texas

Now, therefore, the THC and Contractor hereby agree as follows:

II. AUTHORITY

This Contract is entered into pursuant to Section 442.005 of the Texas Government Code.

III. SERVICES, STANDARDS OF PERFORMANCE, AND CONTRACT ADMINISTRATION

3.1 Attachments. The following documents constitute the Standards of Performance for this Contract. All of the following are attached to and incorporated as part of this Contract for all purposes (Attachments):

1. THC’s RFP No. 808-23-231609 (Attachment A)

2. Attachment B Contractor’s Exceptions (Exhibit E-Exceptions Form)

3. Contractor’s submitted Proposal (Attachment C)

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3.2 Order of Precedence. In the event of any conflicts or inconsistencies between this Contract and the Attachments, such conflicts or inconsistencies will be resolved by reference to the documents in the following order of precedence: this Contract prevails over all other documents, and Attachment A (THC’s RFP) prevails over Attachment B (Contractor’s Proposal).

1. This Contract,

2. Attachment A (THC’s RFP),

3. Attachment B Contractor’s Exception (Exhibit E – Exceptions Form)

4. Attachment C (Contractor’s Proposal)

3.3 Contract Administration. Contractor represents and warrants that it has the requisite qualifications, experience, personnel, and other resources to perform in the manner required by this Contract.

The THC will designate a Project Manager for this Contract. The Project Manager will serve as the point of contact between the THC and Contractor. The THC’s Project Manager will supervise the THC’s review of Contractor’s technical work, deliverables, draft reports, the final report, payment requests, schedules, financial budget administration, and similar matters. The Project Manager does not have any express or implied authority to vary the terms of the Contract, amend the Contract in any way, or waive strict performance of the terms or conditions of the Contract.

3.4. Substitutions. Substitutions are not permitted without prior written approval of the THC.

3.5. Changes in Scope. Changes in the scope of services affecting the cost of services provided for in this Contract must be approved by the THC by amendment to this Contract. No compensation will be allowed for work performed without such amendment.

3.6. Public Work Performance and Payment Bonds. Contractor agrees to comply with applicable statutes governing construction contracts, including the provisions of V.T.C.A., Texas Government Code, Title 10, Subtitle F, Chapter 2253 requiring Payment Bonds and Performance Bonds, and all the terms and conditions of this Contract.

IV. FUNDING

The Parties acknowledge and agree that nothing in this Contract will be interpreted to create a future obligation or liability in excess of the funds currently appropriated for this project to the THC by the Legislature of the State of Texas. In the event appropriated funds are not available to continue payments for work under this Contract, The THC will notify Contractor as soon as reasonably possible, and the THC may terminate the Contract at that time or such other date as loss of appropriated funds may require. To the extent funds are available, Contractor will be paid for work that meets the performance standards of this Contract and is completed prior to the date of notice of termination. The THC will not be liable for any damages or any other amounts caused by or associated with such termination.

V. PERSONNEL

Contractor must assign only qualified personnel to this Contract. On the date of the THC’s execution of this Contract, the THC’s Project Manager must authorize the key personnel listed in Attachment B of this Contract to provide services under this Contract. Contractor reserves the right to substitute appropriate key personnel to accomplish its duties so long as the substituted personnel are equally qualified and skilled in the tasks necessary to accomplish the tasks and services required. Contractor must provide to the THC prior written notice and

3 | P a g e obtain written approval from the THC prior to any change in key personnel involved in providing services under this Contract.

Subcontractors providing services under the Contract must meet the same requirements and level of experience as required of Contractor. No subcontract under the Contract will relieve Contractor of responsibility for ensuring the requested services are provided. If Contractor uses a subcontractor for any or all the work required, the following conditions will apply:

1. Contractor planning to subcontract all or a portion of the work to be performed must identify to the THC any proposed subcontractors and the portion of work to be completed by the subcontractor at least ten

(10) business days prior to executing any subcontract;

2. Subcontracting must be solely at Contractor’s expense;

3. The THC retains the right to check subcontractor’s background and approve or reject the use of submitted subcontractors; and

4. Contractor must be the sole contact for the THC. Contractor must list a designated point of contact for all THC inquiries.

VI. PAYMENTS

Prior to authorizing payment to Contractor, The THC will evaluate Contractor’s performance using performance standards set forth in all documents constituting this Contract. Contractor must provide invoices to the THC for commodities/services provided/performed. No payment whatsoever will be made under this Contract without the prior submission of detailed, correct invoices. Subject to the foregoing, the THC must make all payments in accordance with the Texas Prompt Payment Act, Texas Government Code Chapter 2251. Payments under this Contract are subject to the availability of appropriated funds. Contractor acknowledges and agrees that payments for services provided under this Contract are contingent upon the THC’s receipt of funds appropriated by the Texas Legislature.

Travel: It is the responsibility of Contractor to pay for expenses incurred while traveling. Travel expenses are to be included in the final cost of the Response and not to exceed GSA rate. GSA travel rates may be located at https://www.gsa.gov/travel/plan-book/per-diem-rates.

Payments to Contractor. Contractor must submit itemized monthly, or by milestone, invoices for all services completed, delivered to and accepted by the THC, per the Contract requirements. All invoices must be submitted to invoices@thc.texas.gov and include the contract number 808-24-231609.

Payments to Subcontractor(s). For all services rendered, Contractor’s payment to subcontractor(s) is due within ten (10) days after receipt of payment from the THC and, when appropriate, the THC will issue joint checks to Contractor and subcontractor(s).

VII. AMOUNT OF CONTRACT

The total amount of this contract shall not exceed $401,063.32 (FOUR HUNDRED AND ONE THOUSAND AND SIXTY-THREE DOLLARS AND .32/100) payable in accordance with the terms and conditions in the RFP.

In the event of termination of the Contract, no payment will be made for services not received prior to the date of termination.

https://www.gsa.gov/travel/plan-book/per-diem-rates mailto:invoices@thc.texas.gov

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VIII. TERM AND TERMINATION

This Contract will commence on the last signature date of the Contract, and will end on October 31, 20241, unless otherwise sooner terminated as provided in this Contract. The THC, at its sole option and only by written amendment, may extend the Contract for up to two (2) additional years.

Following the base term and any allowable renewals or extensions, the THC may extend any resulting Contract for not more than one additional option period of 180 days to address immediate operational or service delivery needs.

Notwithstanding the termination or expiration of this Contract, the provisions of this Contract regarding confidentiality, indemnification, transition, records, right to audit, right to independent audit, property rights, dispute resolution, invoice and fee verification, and default will survive the termination or expiration dates of this Contract.

Convenience

The THC reserves the right, in its sole discretion, to terminate the Contract, in whole or part, provided fourteen

(14) calendar days has been given by the THC to Contractor with written notice. Such notice may be provided by facsimile or certified mail return receipt requested and is effective upon Contractor’s receipt. In the event of such termination, Contractor must, unless otherwise mutually agreed upon in writing, cease all work immediately upon receipt of the notice of termination. The THC will be liable only for payments for any goods or services ordered by the THC and completed by Contractor prior to Contractor’s receipt of the notice of termination.

Cause/Default

If Contractor fails to provide the goods or services contracted for according to the provisions of this Contract or fails to comply with any terms or conditions of the Contract, the THC may, upon written notice of default to Contractor, terminate all or any part of this Contract. Termination is not an exclusive remedy but will be in addition to any other rights and remedies as provided in equity, by law or under the Contract. The THC 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 the THC notifies Contractor in writing prior to the exercise of such remedy. Contractor will be liable for all costs and expenses, including court costs and attorneys’ fees, incurred by the THC with respect to the enforcement of any of the remedies listed herein.

Rights upon Termination or Expiration

In the event that this Contract is terminated for any reason, or upon its expiration, the THC will retain ownership of all associated work products and documentation obtained from Contractor under the Contract.

1 The Contract term in Section VIII, Term and Termination, prevails over Section 2.2.2, Contract Term, of THC’s RFP 808-23-231666 (Attachment A)

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Survival of Terms

Termination of this Contract for any reason will 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 the provisions regarding confidentiality, indemnification, transition, records, right to audit, right to independent audit, property rights, dispute resolution, invoice and fee verification, and default.

IX. CONFIDENTIALITY AND PUBLIC INFORMATION

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

X. INSURANCE AND OTHER SECURITY

Contractor represents and warrants that it will, within seven (7) business days of executing this Contract, provide the THC with current certificates of insurance or other proof acceptable to the THC of the following insurance coverage:

Workers’ Compensation & Employers’ Liability. Contractor must maintain Workers’ Compensation insurance coverage in accordance with statutory limits:

Workers’ Compensation: Statutory Limits

Employers’ Liability: Each Accident $1,000,000

Disease: Each Employee $1,000,000

Disease: Policy Limit $1,000,000

Commercial General Liability. Personal injury and advertising injury with, at a minimum, the following limits:

Bodily Injury and Property Damage: Each occurrence limit $1,000,000

Aggregate Limit: $2,000,000

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Medical Expense: $5,000 each person

Personal Injury and Advertising Liability: $1,000,000

Products / Completed Operations Aggregate Limit: $2,000,000

Damage to Premises Rented to You: $50,000

Contractor represents and warrants that all coverages are with companies licensed in Texas, with an “A” rating from A.M. Best Co., and authorized to provide the required coverages. Contractor also represents and warrants that all of the above policies and bonds contain endorsements prohibiting cancellation exception upon at least thirty (30) days prior written notice to the THC. Contractor must, within the time provided above, furnish proof to the THC of such coverage in the form of a Certificate of Insurance from Contractor’s insurance carrier or carriers indicating the above coverages. The Certificate must be addressed to the THC as the Certificate holder.

Contractor represents and warrants that it must maintain the above insurance coverage during the term of this Contract, and must provide the THC with an executed copy of the policies immediately upon request.

XI. INDEMNIFICATION

Acts or Omissions

Contractor must defend, indemnify and hold harmless the State of Texas and the THC, AND/OR

THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, SUBCONTRACTORS,

ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS,

DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES

arising out of or resulting from any acts or omissions of Contractor or its agents, employees, subcontractors, order fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any purchase orders (POs) issued under this Contract. THE DEFENSE WILL 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 THE THC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO

EACH OTHER OF ANY SUCH CLAIM.

Infringements

a) Contractor must indemnify and hold harmless the State of Texas and t h e THC, AND/OR

THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, ASSIGNEES,

AND/OR

DESIGNEES from any and all third-party claims involving infringement of United States patents, copyrights, trade or service marks, and any other intellectual or intangible property rights in connection with the

PERFORMANCES OR ACTIONS OF CONTRACTOR PURSUANT TO THIS CONTRACT.

CONTRACTOR AND THE THC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH

OTHER OF ANY SUCH CLAIM. CONTRACTOR WILL BE LIABLE TO PAY ALL COSTS OF

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DEFENSE INCLUDING ATTORNEYS’ FEES. THE DEFENSE WILL BE COORDINATED BY THE

THC WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE

NAMED DEFENDANTS IN ANY LAWSUIT AND THE THC MAY NOT AGREE TO ANY

SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE

ATTORNEY GENERAL.

b) Contractor will have no liability under this section regarding intellectual property infringement if the alleged infringement is caused in whole or in part by: (1) use of the product or service for a purpose or in a manner for which the product or service was not designed, (2) any modification made to the product or service without Contractor’s written approval, (3) any modifications made to the product or service by Contractor pursuant to the THC’s specific instructions, (4) any intellectual property right owned by or licensed to the THC, or (5) any use of the product or service by the THC 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 the THC provides Contractor with notice of an actual or potential claim, Contractor may (or in the case of an injunction against the THC, will), at Contractor’s sole option and expense; (1) procure for the THC the right to continue to use the affected portion of the product or service, or (2) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that the THC’s use is non-infringing.

Taxes/Workers’ Compensation/Unemployment Insurance – Including Indemnity

a) CONTRACTOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF

THIS CONTRACT, CONTRACTOR WILL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND

PAYMENT OF CONTRACTOR’S AND CONTRACTOR’S EMPLOYEES’ TAXES OF WHATEVER

KIND, ARISING OUT OF THE PERFORMANCES OF 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. THE THC AND/OR THE STATE OF TEXAS WILL NOT BE LIABLE TO

CONTRACTOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE

PROVISION OF UNEMPLOYMENT OF ANOTHER GOVERNMENTAL ENTITY.

b) CONTRACTOR AGREES TO INDEMNIFY AND HOLD HARMLESS THE THC, THE STATE OF

TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS,

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 WILL BE LIABLE TO PAY ALL COSTS

OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE DEFENSE WILL 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 THE THC AGREE TO FURNISH

TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

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XII. DISPUTE RESOLUTION

The dispute resolution process provided for in Texas Government Code Chapter 2260 will be used by the THC and Contractor to attempt to resolve any dispute arising under the Contract.

If Contractor’s claim for breach of Contract cannot be resolved by the Parties in the ordinary course of business, it will be submitted to the negotiation process provided in Chapter 2260. To initiate the process, Contractor must submit a written notice, as required by Chapter 2260, to the THC Executive Director or his or her designee. The notice must also be given to accounts payable for receipt of notices. Compliance by Contractor with Chapter 2260 is a condition precedent to the filing of a contested case proceeding under Chapter 2260.

The contested case process provided in Chapter 2260 is Contractor’s sole and exclusive process for seeking a remedy for an alleged breach of Contract by the THC if the Parties are unable to resolve their disputes as described above.

Compliance with the contested case process provided in Chapter 2260 is a condition precedent to seeking consent to sue from the Legislature under Chapter 107, Civil Practices and Remedies Code. Neither the execution of the Contract by the THC nor any other conduct of any representative of the THC relating to the Contract will be considered a waiver of sovereign immunity to suit.

For all other specific breach of Contract claims or disputes under this Contract, the THC and Contractor must first attempt to resolve them through direct discussions in a spirit of mutual cooperation. If the Parties’ attempts to resolve their disagreements through negotiations fail, the dispute will be mediated by a mutually acceptable third party to be chosen by the THC and Contractor within fifteen (15) days after written notice by one of them demanding mediation under this Section. Contractor must pay all costs of the mediation unless the THC, in its sole good faith discretion, approves its payment of all or part of such costs. By mutual agreement, the THC and Contractor may use a non-binding form of dispute resolution other than mediation. The purpose of this section is to reasonably ensure that the THC and Contractor will, in good faith, utilize mediation or another non-binding dispute resolution process before pursuing litigation. The THC’s participation in, or the results of, any mediation or other non-binding dispute resolution process under this section or the provisions of this section will not be construed as a waiver by the THC of (1) any rights, privileges, defenses, remedies, or immunities available to THC as an agency of the State of Texas or otherwise available to the THC; (2) the THC termination rights; or

(3) other termination provisions or expiration dates of this Contract.

Notwithstanding any other provision of this Contract, unless otherwise requested and approved in writing by the THC, Contractor must continue performance and will not be excused from performance during the period any breach of Contract claim or dispute is pending under either of the above processes; however, Contractor may suspend performance during the pendency of such claim or dispute if Contractor has complied with all provisions of Texas Government Code § 2251.051, and such suspension of performance is expressly applicable and authorized under that law.

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XIII. REPRESENTATIONS, WARRANTIES, AND GENERAL PROVISIONS

13.1 Family Code

Under Texas Family Code § 231.006(d), regarding child support, Contractor certifies that the individual or business entity named in this Contract is not ineligible to receive the specified payment and acknowledges that this Contract may be terminated, and payment may be withheld if this certification is inaccurate. Furthermore, any Contractor subject to § 231.006 must provide names and Social Security numbers of each person with at least 25% ownership of the business entity prior to award.

13.2 Financial Participation Prohibition

Under Texas Government Code § 2155.004(a), Contractor certifies that neither Contractor nor any person or entity represented by Contractor has received compensation from the THC to participate in the preparation of the specifications or solicitation on which this Contract is based. Under Texas Government Code § 2155.004(b), Contractor certifies that the individual or business entity named in this Contract is not ineligible to receive this Contract and acknowledges that this Contract may be terminated and payment withheld if this certification is inaccurate.

13.3 Liability for Taxes

Contractor represents and warrants that it will pay all taxes or similar amounts resulting from this Contract, including, but not limited to, any federal, State, or local income, sales, or excise taxes of Contractor or its employees. The THC will not be liable for any taxes from this Contract.

Contractor represents and warrants that it is not delinquent in the payment of any franchise taxes owed the State of Texas.

13.4 Equal Employment Opportunity Practices

In accordance with the Texas Government Code §§ 2161.181–182, state agencies will make a good faith effort to utilize Historically Underutilized Businesses (HUBs) in contracts for construction, services (including professional and consulting services), and commodities purchases. The Texas Comptroller of Public Accounts (CPA) HUB Rules, specifically Title 34, § 20.284 of the Texas Administrative Code, encourages the use of HUBs by implementing these policies through race-ethnic-and gender-neutral means.

The purpose of the HUB Program is to promote full and equal business opportunities for all businesses in State contracting in accordance with the THC projected goals:

1. 11.2 percent for heavy construction other than building contacts,

2. 21.1 percent for all building construction, including general contractors and operative builders’ contracts,

3. 32.9 percent for all special trade construction contracts,

4. 23.7 percent for professional services contracts, 10 | P a g e

5. 26.0 percent for all other services contracts, and

6. 21.1 percent for commodities contracts.

Each state agency will make a good faith effort to assist HUBs in receiving a portion of the total contract value of all contracts that the agency expects to award in a fiscal year. It is the policy of the THC to achieve the annual program goals by contracting directly with HUBs or indirectly through subcontracting opportunities in accordance with Chapter 2161 of the Texas Government Code and the Texas Comptroller of Public Accounts (CPA) HUB Rules, 34 TAC §§ 20.281–20.298.

The THC identifies HUB vendors from the CPA Centralized Master Bidders List (CMBL). This is a list of vendors that may perform the subcontract opportunities. The class code is 946-20. This list is located at https://comptroller.texas.gov/purchasing/vendor/cmbl/.

The THC’s HUB coordinator is Melissa Ramos at (512) 463-5979 or Melissa.Ramos@thc.texas.gov.

13.5 Amendments

Except as provided in Section 13.13 of this Contract, this Contract may be amended only upon written agreement between the THC and Contractor. However, any amendment of this Contract that conflicts with the laws of the State of Texas will be void ab initio.

13.6 Applicable Law; Venue

This Contract will be governed by and construed in accordance with the laws of the State of Texas. The venue of any suit arising under this Contract is fixed in any court of competent jurisdiction of Travis County, Texas.

13.7 Strict Compliance

Time is of the essence in the performance of this Contract. Contractor must strictly comply with all deadlines, requirements, and standards of performance for this Contract.

13.8 Assignments

Without the prior written consent of the THC, Contractor may not assign this Contract, in whole or in part, and may not assign any right or duty required under it. Any attempted assignment in violation of this provision is void and without effect.

13.9 Partially Completed Work

No later than the first calendar day after the termination of this Contract, or at the THC’s request, Contractor must deliver to the THC all completed, or partially completed, work and any and all documentation or other products and results of these services. Failure to timely deliver such work or any and all documentation or other products and results of the services will be considered a material breach of this Contract. Contractor must not make or retain any copies of the work or any and all documentation or other products and results of the services without the prior written consent of the THC.

https://comptroller.texas.gov/purchasing/vendor/cmbl/ mailto:Melissa.Ramos@thc.texas.gov.

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13.10 Federal, State, and Local Requirements

Contractor must demonstrate on-site compliance with the Federal Tax Reform Act of 1986, § 1706, amending § 530 of the Revenue Act of 1978, dealing with issuance of Form W-2’s to common law employees. Contractor is responsible for both federal and State unemployment insurance coverage and standard Workers’ Compensation insurance coverage. Contractor must comply with all federal and State tax laws and withholding requirements. The State of Texas will not be liable to Contractor or its employees for any Unemployment or Workers’ Compensation coverage, or federal or State withholding requirements. Contractor must indemnify the State of Texas and will pay all costs, penalties, or losses resulting from Contractor’s omission or breach of this Section.

13.11 Nondiscrimination

The THC will comply with the regulations of the U.S. Department of Transportation relating to nondiscrimination in federally-assisted programs, including 49 CFR, Part 21; 23 CFR, Chapter I, Subchapter C;

and 41 CFR, Part 60–74 (the Regulations).

The THC, with regard to the work performed during this Contract, will not discriminate on the basis of race, color, sex, national origin, age, religion, or disability in the selection and retention of contractors, including procurements of materials and leases of equipment.

The THC will provide all information and reports required by the Regulations and directives issued under the Regulations and will permit access to its books, records, accounts, other sources of information and facilities as may be determined by the Texas Department of Transportation or the U.S. Department of Transportation to be pertinent to ascertain compliance with the Regulations or directives. If any information required of the funding agency is in the exclusive possession of another who fails or refuses to furnish this information, the THC will so certify to the Texas Department of Transportation or the U.S. Department of Transportation, whichever is appropriate, and will set forth what efforts the THC has made to obtain the requested information.

13.12 Severability Clause

If any provision of the Contract is construed as 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 this Contract will 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.

13.13 Applicable Law and Conforming Amendments

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. The THC reserves the right, in its sole discretion, to unilaterally amend this Contract throughout its term to incorporate any modifications necessary for the THC or Contractor’s compliance with all applicable State and federal laws and regulations.

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13.14 No Waiver of Sovereign Immunity

Nothing in this Contract will be construed as a waiver of the THC’s or the state’s sovereign immunity. This Contract will not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the THC or the State of Texas. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to the THC or the State of Texas under this Contract or under applicable law will not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. The THC does not waive any privileges, rights, defenses, or immunities available to the THC by entering into this Contract or by its conduct prior to or subsequent to entering into this Contract.

13.15 No Liability upon Termination

If this Contract is terminated for any reason, the THC and the State of Texas will not be liable to Contractor for any damages, claims, losses, or any other amounts arising from or related to any such termination. However, Contractor may be entitled to the remedies provided in Chapter 2260 of the Texas Government Code.

13.16 Independent Contractor

Contractor or Contractor’s employees, representatives, agents, and any subcontractors, suppliers, and third-party service providers must serve as an independent contractor in providing the services under this Contract.

Contractor or Contractor’s employees, representatives, agents, any subcontractors, suppliers, and third-party service providers must not be employees of the THC or the State of Texas. Neither Contractor nor the THC is an agent of the other and neither may make any commitments on the other Party’s behalf. Should Contractor subcontract any of the services required in this Contract, Contractor expressly understands and acknowledges that in entering into such subcontract(s), the THC is in no manner liable to any subcontractor(s) of Contractor. In no event will this provision relieve Contractor of the responsibility for ensuring that the services rendered under all subcontracts are rendered in compliance with this Contract. This Contract does not create any joint venture, partnership, agency, or employment relationship between Contractor and the THC.

13.17 Limitation on Authority; No Other Obligations

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

13.18 Retention

Contractor must maintain and retain all records relating to the performance of this Contract, including supporting fiscal and any other documents relevant to showing that any Contract funds were expended in accordance with the laws and regulations of the State of Texas, including but not limited to, requirements of the Comptroller of the State of Texas and State Auditor. Contractor must maintain all such documents and other records relating to this Contract and the State’s property for a period of seven (7) years after the expiration date of this Contract or until all audit, claim and litigation matters are resolved, whichever is later.

Contractor must make available at reasonable times and upon reasonable notice, and for reasonable periods, all

13 | P a g e documents and other information related to the “Work” as defined in paragraph 13.30 of this Contract.

Contractor must retain all work and other supporting documents pertaining to this Contract, for purposes of inspecting, monitoring, auditing, or evaluating by the THC and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor.

Contractor must cooperate with any authorized agents of the State of Texas and must provide them with prompt access to all such State’s work as requested. Contractor’s failure to comply with the Section will constitute a material breach of this Contract and will authorize the THC and the State of Texas to immediately assess appropriate damages for such failure.

13.19. State Auditor’s Right to Audit

Pursuant to Section 2262.154 of the Texas Government Code, the State Auditor may conduct an audit or investigation of any entity receiving funds from the state directly under this Contract or indirectly through a subcontract under this Contract. The acceptance of funds by Contractor or any other entity or person directly under this Contract or indirectly through a subcontract under this Contract acts as acceptance of the authority of the State Auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, Contractor or other entity that is the subject of an audit or investigation by the State Auditor must provide the State Auditor with access to any information the State Auditor considers relevant to the investigation or audit. Contractor shall ensure that this language concerning the authority to audit funds received indirectly by subcontractors through this Contract and the requirement to cooperate is included in any subcontract it awards.

13.20 Deceptive Trade Practices; Unfair Business Practices

Contractor represents and warrants that it has not been the subject of allegations of Deceptive Trade Practices violations under Chapter 17 of the Texas Business and Commerce Code, or allegations of any unfair business practice in any administrative hearing or court suit and that Contractor has not been found to be liable for such practices in such proceedings. Contractor certifies that it has no officers who have served as officers of other entities who have been the subject of allegations of Deceptive Trade Practices violations or allegations of any unfair business practices in an administrative hearing or court suit and that such officers have not been found to be liable for such practices in such proceedings.

13.21 Equal Opportunity

During the performance of this Contract, Contractor agrees as follows:

1. Contractor will not discriminate against any employee or applicant for employment because of race, ethnicity, color, religion, sex, or national origin. Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, ethnicity, color, religion, sex, or national origin. Such action must include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment, or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

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2. Contractor will, in all Solicitations or advertisements for employees placed by or on behalf of Contractor, state that all qualified applicants will receive considerations for employment without regard to race, color, religion, sex, or national origin.

3. Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other Contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of Contractor’s commitments under this section, and must post copies of the notice in conspicuous places available to employees and applicants for employment.

4. Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

5. Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

6. In the event of Contractor’s noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions as may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

7. Contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to § 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency Contractor may request the United States to enter into such litigation to protect the interests of the United States.

13.22 Antitrust

Contractor represents and warrants that, in accordance with Section 2155.005 of the Texas Government Code, neither Contractor nor any firm, corporation, partnership, or institution represented by Contractor, or anyone acting for such firm, corporation, or institution has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Chapter 15 of the Texas Business and Commerce Code, or the federal antitrust laws; or

(2) communicated directly or indirectly the contents of this Contract to any competitor or any other person engaged in such line of business as Contractor.

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13.23 No Conflicts of Interest

Contractor represents and warrants that the provision of goods and services or other performance under this Contract would not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety.

13.24 Financial Interests; Gifts

Pursuant to Section 2155.003 of the Texas Government Code, Contractor represents and warrants that it has not given, offered to give, and does not intend to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to any public servant or employee in connection with this Contract.

13.25 Felony Criminal Convictions

Contractor represents and warrants that neither Contractor nor any of its employees, agents, or representatives, including subcontractors and employees, agents, or representatives of such subcontractors, have not been convicted of a felony criminal offense, or that, if such conviction has occurred, Contractor has fully advised the THC in writing of the facts and circumstances surrounding the conviction.

13.26 Notices

In accordance with this Contract, all written notices must be delivered to the THC's office address indicated on Page 1 of the Contract, or sent via certified U.S. Mail with return receipt requested to the THC at PO Box 12276, Austin, TX 78711-2276. Notice will be effective on receipt by the affected Party. Either Party may change the designated notice address by written notification to the other Party.

13.27 False Statements; Breach of Representation

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

13.28 Force Majeure

Neither Contractor nor the THC will be liable to the other for any delay in, or failure of performance, of any requirement resulting from this Contract caused by force majeure. 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. The existence of such causes of delay or failure will extend the performance period until after the causes of delay or failure have been removed provided the non-performing Party exercises all reasonable due diligence to perform.

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Each Party must inform the other in writing, with proof of receipt, within three (3) business days of the existence of such force majeure, or otherwise waive this right as a defense.

13.29 Debts and Delinquencies to State

The Texas Comptroller of Public Accounts is prohibited from issuing any payment to a person or entity reported as having an indebtedness or delinquency to the state. Contractor acknowledges and agrees that, to the extent Contractor owes any debt including, but not limited to, delinquent taxes, delinquent student loans, and child support owed to the State of Texas, any payments or other amounts Contractor is otherwise owed under this Contract will be applied toward any debt Contractor owes the State of Texas until the debt or delinquent taxes are paid in full. Contractor agrees to comply with all applicable laws regarding the satisfaction of debts or delinquencies to the State of Texas. These provisions are effective at any time Contractor owes any such debt or delinquency.

13.30 Buy Texas

In accordance with § 2155.4441 of the Texas Government Code, Contractor agrees that during the performance of a Contract for services, Contractor must purchase products and materials produced in the State of Texas when they are available at a price and time comparable to products and materials produced outside the state.

13.31 Work Made for Hire, Property Rights

For the purposes of this Contract, the term “Work” is defined as all reports, statistical analyses, work papers, work products, materials, approaches, designs, specifications, systems, documentation, methodologies, concepts, research, materials, intellectual property, or other property developed, produced, or generated in connection with the services provided under this Contract. All work performed pursuant to this Contract is made the exclusive property of the THC. All rights, titles, and interests in and to said property will vest in the THC upon creation and will be deemed to be a work for hire and made during the services rendered pursuant to this Contract. To the extent that title to any such work may not, by operation of law, vest in the THC, or such work may not be considered a work made for hire, all rights, title, and interest therein are hereby irrevocably assigned to the THC.

The THC will have the right to obtain and to hold in its name any and all patents, copyrights, registrations, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.

Contractor must give the THC and/or the State of Texas, as well as any person designated by the THC and/or the State of Texas, all assistance required to perfect the rights defined herein without any charge or expense beyond those amounts payable to Contractor for the services rendered under this Contract.

All materials and content produced as a result of this contract and the related services provided will become the property of the THC.

13.32 Electronic and Information Resources Accessibility Standards (Applicable to State Agency and Institution of Higher Education Purchases Only)

1. Effective September 1, 2006, state agencies and institutions of higher education shall procure products which comply with the State of Texas Accessibility requirements for Electronic and Information Resources specified in Title 1, Chapter 213 of the Texas Administrative Code when such products are available in the

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2. Vendor must provide Department of Information Resources (DIR) with the URL to its Voluntary Product Accessibility Template (VPAT) for reviewing compliance with the State of Texas Accessibility requirements (based on the federal standards established under § 508 of the Rehabilitation Act), or indicate that the product/service accessibility information is available from the General Services Administration “Buy Accessible Wizard” (http://www.buyaccessible.gov). Vendors not listed with the “Buy Accessible Wizard” or supplying a URL to their VPAT must provide DIR with a report that addresses the same accessibility criteria in substantively the same format. Additional information regarding the “Buy Accessible Wizard” or obtaining a copy of the VPAT is located at http://www.section508.gov/.

13.33 Abandonment or Default

If Contractor is found to be in default under any provision of this Contract, the THC may cancel this Contract without notice and either re-solicit or award the contract to the next best responsive and responsible contractor.

In the event of abandonment or default, Contractor will be responsible for paying damages to the THC including but not limited to re-procurement costs, and any consequential damages to the State of Texas or the THC resulting from Contractor’s non-performance.