ESBD_File_340430_CVCOG Terms & Conditions Rev July 2023.pdf

CONCHO VALLEY COUNCIL OF GOVERNMENTS

PROCUREMENT GENERAL TERMS & CONDITIONS

GENERAL PROVISIONS

1. APPROVAL OF CONTRACT

This contract is subject to the written approval of the Concho Valley Council of Governments (CVCOG) Executive Director and shall not be binding until so approved unless the signing and execution thereof has been expressly delegated to another officer, employee, and/or agent of CVCOG.

2. LEGAL AUTHORITY

The Contractor warrants and assures CVCOG that it possesses adequate legal authority to enter into this Agreement. The Contractor’s governing body, where applicable, has authorized the signatory official(s) to enter into this Agreement to bind the company to the terms of this Agreement and any subsequent amendments hereto.

3. APPLICABLE LAWS

The Contractor agrees to conduct all activities under this Agreement in accordance with all federal laws, executive orders, policies, procedures, applicable rules, regulations, directives, standards, ordinances, and laws, in effect or promulgated during the term of this Agreement, including without limitation, workers’ compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, the Contractor shall furnish CVCOG with satisfactory proof of its compliance therewith.

4. PUBLIC INFORMATION

Except as stated below, all materials submitted to CVCOG, including any attachments, appendices, or other information submitted as a part of a submission or Agreement, are considered public information, and become the property of CVCOG upon submission and may be reprinted, published, or distributed in any manner by CVCOG according to open records laws, requirements of the US Department of Labor and the State of Texas, and CVCOG policies and procedures. In the event the Contractor wishes to claim portions of the response are not subject to the Texas Public Information Act, it shall so; however, the determination of the Texas Attorney General as to whether such information must be disclosed upon a public request shall be binding on the Contractor. CVCOG will request such a determination only if Contractor bears all costs for preparation of the submission. CVCOG is not responsible for the return of creative examples of work submitted. CVCOG will not be held accountable if material from submissions is obtained without the written consent of the contractor by parties other than CVCOG, at any time during the evaluation process.

5. INDEPENDENT CONTRACTOR

The execution of this Agreement and the rendering of services prescribed by this Agreement do not change the independent status of CVCOG or the Contractor. No provision of this Agreement or act of CVCOG in performance of the Agreement shall be construed as making the Contractor the agent, servant or employee of CVCOG, the State of Texas or the United States Government. Employees of the Contractor are subject to the exclusive control and supervision of the Contractor. The Contractor is solely responsible for employee related disputes and discrepancies, including employee payrolls and any claims arising therefrom.

6. TAXES

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

7. ANTI-COMPETITIVE BEHAVIOR

Contractor will not collude, in any manner, or engage in any practice which may restrict or eliminate competition or otherwise restrain trade.

8. SUSPENSION AND DEBARMENT

Debarment and Suspension (Executive Orders 12549 and 12689) – A contract award (2 CFR 180.220) must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1966 Comp. p. 189) and 12689 (3 CFR Part 1989 Comp. p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

Pursuant to the Federal Rule above, Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency or by the State of Texas and at all times during the term of the Contract neither it nor its principals will be debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency or by the State of Texas Contractor shall immediately provide the written notice to CVCOG if at any time the Contractor learns that this certification was erroneous when submitted or has become erroneous by reason of changed circumstances. CVCOG may rely upon a certification of the Contractor that the Contractor is not debarred, suspended, ineligible, or voluntarily excluded from the covered contract, unless the CVCOG knows the certification is erroneous.

9. GOAL FOR CONTRACTING WITH DBE AND HUB VENDORS

CVCOG’s goal is to assure that small and minority businesses, women's business enterprises, and labor surplus area firms are used, when possible, in providing services under a contract. In accordance with federal procurements requirements of 2 CFR §200.321, if subcontracts are to be let, the prime contractor must take the affirmative steps listed below:

a) Placing qualified small and minority businesses and women’s business enterprises on solicitation lists;

b) Assuring that small and minority businesses and women’s business enterprises are solicited whenever they are potential sources;

c) Dividing total requirements, when economically feasible, into smaller task or quantities to permit maximum participation by small and minority businesses, and women’s business enterprises;

d) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises;

e) Using the services and assistance as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce.

Nothing in this provision will be construed to require the utilization of any firm that is either unqualified or unavailable.

NOTE: The term DBE as used in this solicitation is understood to encompass all programs/business enterprises such as:

Small Disadvantaged Business (SDB), Historically Underutilized Business (HUB), Minority Owned Business Enterprise (MBE), Women Owned Business Enterprise (WBE) and Disabled Veteran Business Enterprise (DVBE) or other designation as issued by a certifying agency.

10. EXCUSABLE DELAYS

The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the CVCOG in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the CVCOG of the cessation of such occurrence.

11. WARRANTY, MATERIAL, AND WORKMANSHIP

a) The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

b) Notwithstanding inspection and acceptance by the Government of supplies furnished under this contract, or any condition of this contract concerning the conclusiveness thereof, the Contractor warrants that for 365 calendar days— (i) All supplies furnished under this contract will be free from defects in material or workmanship and will conform with all requirements of this contract; and (ii) The preservation, packaging, packing, and marking, and the preparation for, and method of, shipment of such supplies will conform with the requirements of this contract.

c) When return, correction, or replacement is required, transportation charges and responsibility for the supplies while in transit shall be borne by the Contractor. However, the Contractor’s liability for the transportation charges shall not exceed an amount equal to the cost of transportation by the usual commercial method of shipment between the place of delivery specified in this contract and the Contractor’s plant, and return.

d) Any supplies or parts thereof, corrected or furnished in replacement under this clause, shall also be subject to the terms of this clause to the same extent as supplies initially delivered. The warranty, with respect to supplies or parts thereof, shall be equal in duration to that in paragraph (b)(1) of this clause and shall run from the date of delivery of the corrected or replaced supplies.

e) All equipment, material, and articles incorporated into the work covered by this contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this contract. References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the CVCOG, is equal to that named in the specifications, unless otherwise specifically provided in this contract.

f) The Contractor shall obtain the CVCOG’s approval of the machinery and mechanical and other equipment to be incorporated into the work. When requesting approval, the Contractor shall furnish to the CVCOG the name of the manufacturer, the model number, and other information concerning the performance, capacity, nature, and rating of the machinery and mechanical and other equipment. When required by this contract or by the CVCOG, the Contractor shall also obtain the CVCOG’s approval of the material or articles which the Contractor contemplates incorporating into the work. When requesting approval, the Contractor shall provide full information concerning the material or articles. When directed to do so, the Contractor shall submit samples for approval at the Contractor’s expense, with all shipping charges prepaid. Machinery, equipment, material, and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection.

g) All work under this contract shall be performed in a skillful and workmanlike manner. The CVCOG may require, in writing, that the Contractor remove from the work any employee the CVCOG deems incompetent, careless, or otherwise objectionable.

h) The CVCOG may, by contract or otherwise, correct or replace the nonconforming supplies with similar supplies from another source and charge to the Contractor the cost occasioned to the Government thereby if the Contractor— (A) Fails to make redelivery of the corrected or replaced supplies within the time established for their return; or (B) Fails either to accept return of the nonconforming supplies or fails to make progress after their return to correct or replace them so as to endanger performance of the delivery schedule, and in either of these circumstances does not cure such failure within a period of 10 days (or such longer period as the CVCOG may authorize in writing) after receipt of notice from the CVCOG specifying such failure. (ii) Instead of correction or replacement by the Government, the CVCOG may require an equitable adjustment of the contract price. In addition, if the Contractor fails to furnish timely disposition instructions, the Concho Valley Council of Governments may dispose of the nonconforming supplies for the Contractor’s account in a reasonable manner.

The Government is entitled to reimbursement from the Contractor, or from the proceeds of such disposal, for the reasonable expenses of the care and disposition of the nonconforming supplies, as well as for excess costs incurred or to be incurred.

12. INSPECTION AND ACCEPTANCE

The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Concho Valley Council of Governments (CVCOG) reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The CVCOG may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. The CVCOG must exercise its post-acceptance rights -- (1) Within a reasonable time after the defect was discovered or should have been discovered; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

13. CONTRACT MODIFICATIONS AND CHANGES

a) Change Orders.

CVCOG may at any time, by written order, and without notice to sureties, if any, make or direct changes within the general scope of this Contract in the services to be performed.

If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the CVCOG shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.

The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order. However, if the CVCOG decides that the facts justify it, the CVCOG may receive and act upon a proposal submitted before final payment of the contract.

If the Contractor’s proposal includes the cost of property made obsolete or excess by the change, the CVCOG shall have the right to prescribe the manner of the disposition of the property.

Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.

b) Contract Modifications. No release, discharge, abandonment, waiver, alteration, or modification of any of the provisions of this Agreement, or any of the Appendices incorporated herein, shall be binding upon any Party unless set forth in a writing signed by authorized representatives of the Parties.

c) Contract Authority. The Executive Director is the CVCOG’s Contracting Officer, and as such, shall be the only authorized representative of CVCOG to approve changes or modifications to this Agreement unless the signing and execution thereof has been expressly delegated to another officer, employee, and/or agent of CVCOG.

14. CONTRACT PRICE ADJUSTMENTS

a) Price Decreases If Contractor’s Direct Cost decreases at any time during the full term of this award, Contractor must immediately pass the decrease on to CVCOG and lower its prices by the amount of the decrease in Direct Cost. (Direct Cost means Contractor’s cost from the manufacturer of any item or if Contractor is the manufacturer, the cost of raw materials required to manufacture the item, plus costs of transportation from manufacturer to Contractor and Contractor to CVCOG. Contractor must notify CVCOG of price decreases in the same way as for price increases set out below. The price decrease shall become effective upon CVCOG’s receipt of Contractor’s notice. If Contractor routinely offers discounted contract pricing, CVCOG may request Contractor accept amended contract pricing equivalent to the routinely discounted pricing

b) Price Increases

Contractors may request a price increase after twelve (12) months from the effective date of this Agreement. The amount of any increase will not exceed actual documented increase in Contractor’s Direct Cost and will not exceed 10% of the previous bid price. Considerations on the percentage limit will be given if the price increase is the result of increased tariff charges, or other economic factors.

c) Price Changes

Any permanent increase or decrease in offered pricing for a base contract item or published option is considered a price change. Temporary increases in pricing by whatever name (e.g., ‘surcharge’, ‘adjustment’, ‘equalization charge’, ‘compliance charge’, ‘recovery charge’, etc.), are also considered to be price changes. For published catalogs and price sheets as part of a CVCOG contract, requests to amend the contract to reflect any new published catalog or price sheet must be submitted whenever the manufacturer publishes a new document. The request must include the new catalog or price sheet.

All Products shall, at time of sale, be equipped as required under any then current applicable local, state, and federal government requirements. If, during the course of any contract, changes are made to any government requirements which cause a manufacturer's costs of production to increase, Contractor may increase pricing to the extent of Contractor’s actual cost increase. The increase must be substantiated with support documentation acceptable to CVCOG prior to taking effect.

d) Requesting Price Increase/Required Documentation

Contractor must submit a written notification at least thirty (30) calendar days prior to the requested effective date of the change, setting the amount of the increase, along with an itemized list of any increased prices, showing the Contractor’s current price, revised price, the actual dollar difference and the percentage of the price increase by line item. Price change requests must include the documentation used to submit pricing in the original Response and be supported with substantive documentation (e.g., manufacturer's price increase notices, copies of invoices from suppliers, etc.) clearly showing that Contractor's actual costs have increased per the applicable line-item bid.

The Producer Price Index (PPI) may be used as partial justification, subject to approval by CVCOG, but no price increase based solely on an increase in the PPI will be allowed. This documentation should be submitted in Excel format to facilitate analysis and updating of the website. The letter and documentation must be sent to the Procurement Department at procurement-dept@cvcog.org.

e) Review/Approval of Requests

If CVCOG approves the price increase, Contractor will be notified in writing; no price increase will be effective until Contractor receives this notice. If CVCOG does not approve Contractor’s price increase, Contractor may terminate its performance upon sixty (60) days advance written notice to CVCOG, however Contractor must fulfill any outstanding Purchase Orders. Termination of performance is Contractor’s only remedy if CVCOG does not approve the price increase. CVCOG reserves the right to accept or reject any price change request.

15. DISPUTES

Disputes arising in the performance of this Agreement, which are not resolved by mutual agreement of the parties, shall be decided pursuant to the dispute resolution process in Chapter 2260 of the Texas Government Code.

Disputes should be addressed as follows:

Concho Valley Council of Governments Attn: John Austin Stokes, Executive Director 5430 Link Road San Angelo, TX 76904

Performance During Dispute. Unless otherwise directed by the respective Contracting Officer, the Contractor shall continue performance under this Agreement while matters in dispute are being resolved.

16. CONTRACT TERMINATION

a) Termination for Convenience. CVCOG reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the CVCOG using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the CVCOG any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

b) Termination for Cause. CVCOG may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the CVCOG, upon request, with adequate assurances of future performance. In the event of termination for cause, the CVCOG shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the CVCOG for any and all rights and remedies provided by law. If it is determined that the CVCOG improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

17. GOVERNING LAW AND JURISDICTION

The contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the contract is fixed in any court of competent jurisdiction of Tom Green County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the contracting Agency.

18. AVAILABILITY OF FUNDS

If funds are not presently available for this contract from the funding source, the Concho Valley Council of Government’s (CVCOG) obligation under this contract is contingent upon the availability of funds from which payment for contract purposes can be made. No legal liability on the part of the CVCOG for any payment may arise until funds are made available to the CVCOG for this contract and until the Contractor receives notice of such availability, to be confirmed in writing by CVCOG.

19. SUBCONTRACTORS

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

The Contractor shall notify the CVCOG of any subcontractor(s) to be used to perform tasks and/or provide equipment on the project. Contractor shall furnish a full list of all subcontractors to be used to perform tasks and/or provide equipment under this Agreement. CVCOG reserves the right to reject proposed subcontractors.

Contractor agrees that all contracts it awards pursuant to the contract awarded as a result of this Agreement will be bound by the foregoing terms and conditions.

20. INSURANCE REQUIREMENTS

Providing and maintaining adequate insurance coverage is a material obligation of the Contractor and is of the essence of this Contract. All such insurance shall meet all laws and requirements of the State of Texas and CVCOG. Such insurance coverage shall be obtained from companies that are authorized to provide such coverage and that are authorized by the Commissioner of Insurance to do business.

The Contractor shall at all times comply with the terms of such insurance policies, and all requirements of the insurer under any such insurance policies, except as they may conflict with existing Texas laws or this Contract. The limits of coverage under each insurance policy maintained by the Contractor shall not be interpreted as limiting the Contractor’s liability and obligations under the Contract.

Contractor agrees that Contractor and Contractor’s employees and agents have no employer-employee relationship with CVCOG. CVCOG shall not be responsible for the Federal Insurance Contribution Act (FICA) payments, federal or state unemployment taxes, income tax withholding, Workers Compensation Insurance payments, or any other insurance payments, nor will CVCOG furnish any medical or retirement benefits or any paid vacation or sick leave. Contractor is responsible for conduct of business operation, including employee salaries, travel, etc.

21. RISK OF LOSS

Unless the agreement specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Concho Valley Council of Governments upon: (1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or (2) Delivery of the supplies to the Concho Valley Council of Governments at the destination specified in the contract, if transportation is F.O.B. destination.

22. GRATUITIES

a) The right of the Contractor to proceed may be terminated by written notice if, after notice and hearing, the

CVCOG head or a designee determines that the Contractor, its agent, or another representative— (1) Offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of the Concho Valley Council of Governments; and (2) Intended, by the gratuity, to obtain a contract or favorable treatment under a contract.

b) The facts supporting this determination may be reviewed by any court having lawful jurisdiction.

c) If this contract is terminated under paragraph (a) of this clause, the Concho Valley Council of Governments is entitled— (1) To pursue the same remedies as in a breach of the contract; and (2) In addition to any other damages provided by law, to exemplary damages of not less than 3 nor more than 10 times the cost incurred by the Contractor in giving gratuities to the person concerned, as determined by the CVCOG head or a designee. (This paragraph (c)(2) is applicable only if this contract uses money appropriated to the Department of Defense.)

d) The rights and remedies of the Concho Valley Council of Governments provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

23. COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT CONTRACTS

The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C.327, et seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 265 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to procurement integrity.

24. FEDERAL COMPLIANCE

Contractor agrees to comply with all federal statutes relating to nondiscrimination, labor standards, and environmental compliance. With regards to “Rights to Inventions Made Under a Contract or Agreement,” If the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Contractor agrees to be wholly compliant with the provisions of 2 CFR 200, Appendix II. Additionally, for work to be performed under the Agreement or subcontract thereof, including procurement of materials or leases of equipment, Contractor shall notify each potential subcontractor or supplier of the Contractor’s federal compliance obligations. These may include, but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; (c) the Fair Labor Standards Act of 1938 (29 USC 676 et. seq.), (d) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicaps and the Americans with Disabilities Act of 1990; (e) the Age Discrimination in Employment Act of 1967 (29 USC 621 et. seq.) and the Age Discrimination Act of 1974, as amended (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age; (f) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92255), as amended, relating to nondiscrimination on the basis of drug abuse; (g) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to the nondiscrimination on the basis of alcohol abuse or alcoholism; (h) §§ 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (i) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (j) any other nondiscrimination provisions in any specific statute(s) applicable to any Federal funding for this Agreement; (k) the requirements of any other Page 10 of 13 nondiscrimination statute(s) which may apply to this Agreement; (l) applicable provisions of the Clean Air Act (42 U.S.C. §7401 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. §1251 et seq.), Section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and the Environmental Protection Agency regulations at 40 CPR Part 15; (m) applicable provisions of the Davis- Bacon Act (40 U.S.C. 276a - 276a-7), the Copeland Act (40 U.S.C. 276c), and the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-332), as set forth in Department of Labor Regulations at 20 CPR 5.5a; (n) the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (P.L. 94-163).

25. PROHIBITION ON CONTRACTING WITH INVERTED DOMESTIC CORPORATIONS

a) Definitions. As used in this clause— “Inverted domestic corporation” means a foreign incorporated entity that meets the definition of an inverted domestic corporation under 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c). “Subsidiary” means an entity in which more than 50 percent of the entity is owned— (1) Directly by a parent corporation; or (2) Through another subsidiary of a parent corporation.

b) If the contractor reorganizes as an inverted domestic corporation or becomes a subsidiary of an inverted domestic corporation at any time during the period of performance of this contract, the Government may be prohibited from paying for Contractor activities performed after the date when it becomes an inverted domestic corporation or subsidiary. The Government may seek any available remedies in the event the Contractor fails to perform in accordance with the terms and conditions of the contract as a result of Government action under this clause.

c) Exceptions to this prohibition are located at 9.108-2.

d) In the event the Contractor becomes either an inverted domestic corporation, or a subsidiary of an inverted domestic corporation during contract performance, the Contractor shall give written notice to the Concho Valley Council of Governments and/or CVCOG within five business days from the date of the inversion event.

26. SEVERABILITY

CVCOG and Contractor agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect.

27. FORCE MAJEURE

To the extent that either party to this Agreement shall be wholly or partially prevented from the performance of any obligation or duty placed on such party by reason of or through strikes, stoppage of labor, riot, fire, flood, acts of war, insurrection, accident, order of any court, act of God, or specific cause reasonably beyond the party's control and not attributable to its neglect or nonfeasance, in such event, the time for the performance of such obligation or duty shall be suspended until such disability to perform is removed. Determination of force majeure shall rest solely with CVCOG.

28. OTHER COMPLIANCES

The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this Agreement.

29. PATENT INDEMNITY

The Contractor shall indemnify CVCOG and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

30. INDEMNIFICATION

CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND CVCOG, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR RESULTING FROM ANY ACTS OR OMISSIONS OF CONTRACTOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE SHALL BE COORDINATED BY 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 TEXAS ATTORNEY

GENERAL. CONTRACTOR AND CVCOG AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER

OF ANY SUCH CLAIM.

STATE OF TEXAS REQUIRED CONTRACT CLAUSES

1. ANTITRUST AFFIRMATION

The undersigned affirms under penalty of perjury of the laws of the State of Texas that (1) in connection with this Response, neither I nor any representative of the Contractor have violated any provision of the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Comm. Code Chapter 15; (2) in connection with this Response, neither I nor any representative of the Contractor have violated any federal antitrust law; and (3) neither I nor any representative of the Contractor have directly or indirectly communicated any of the contents of this Response to a competitor of the Contractor or any other company, corporation, firm, partnership or individual engaged in the same line of business as the Contractor.

2. ASSIGNMENT

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

3. BUY TEXAS AFFIRMATION

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

4. CHILD SUPPORT OBLIGATION AFFIRMATION

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

5. CLOUD COMPUTING STATE RISK AND AUTHORIZATION MANAGEMENT PROGRAM

Pursuant to Section 2054.0593(d)-(f) of the Texas Government Code, relating to cloud computing state risk and authorization management program, Contractor represents and warrants that it complies with the requirements of the state risk and authorization management program and Contractor agrees that throughout the term of the contract it shall maintain its certifications and comply with the program requirements in the performance of the contract.

6. COMPUTER EQUIPMENT RECYCLING PROGRAM

Contractor certifies its compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety Code and the Texas Commission on Environmental Quality rules in 30 TAC Chapter 328.

7. CONTRACTING INFORMATION RESPONSIBILITIES

In accordance with Section 552.372 of the Texas Government Code, Contractor agrees to (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the Agency for the duration of the contract, (2) promptly provide to the Agency any contracting information related to the contract that is in the custody or possession of the Contractor on request of the Agency, and (3) on termination or expiration of the contract, either provide at no cost to the Agency all contracting information related to the contract that is in the custody or possession of the Contractor or preserve the contracting information related to the contract as provided by the records retention requirements applicable to the Agency. Except as provided by Section 552.374© of the Texas Government Code, the requirements of Subchapter J, Chapter 552, Government Code, may apply to the contract and the Contractor agrees that the contract can be terminated if the Contractor knowingly or intentionally fails to comply with a requirement of that subchapter.

8. COVID-19 VACCINE PASSPORT PROHIBITION

Contractor certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Contractor’s business.

Contractor acknowledges that such a vaccine or recovery requirement would make Contractor ineligible for a state-funded contract.

9. CRITICAL INFRASTRUCTURE AFFIRMATION

Pursuant to Government Code Section 2274.0102, Contractor certifies that neither it nor its parent company, nor any affiliate of Contractor or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Government Code Section 2274.0103, or (2) headquartered in any of those countries.

10. CYBERSECURITY TRAINING

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

11. DATA MANAGEMENT AND SECURITY CONTROLS

In accordance with Section 2054.138 of the Texas Government Code, Contractor certifies that it will comply with the security controls required under this contract and will maintain records and make them available to Agency as evidence of Contractor’s compliance with the required controls.

12. DEALINGS WITH PUBLIC SERVANTS AFFIRMATION

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

13. DEBTS AND DELINQUENCIES AFFIRMATION

Contractor agrees that any payments due under the contract shall be applied towards any debt or delinquency that is owed to the State of Texas.

14. DISASTER RECOVERY PLAN

In accordance with 13 TAC § 6.94(a)(9), Contractor shall provide to Agency the descriptions of its business continuity and disaster recovery plans.

15. DISCLOSURE OF PRIOR STATE EMPLOYMENT

In accordance with Section 2254.033 of the Texas Government Code, relating to consulting services, Contractor certifies that it does not employ an individual who has been employed by Agency or another agency at any time during the two years preceding the submission of the Response or, in the alternative, Contractor has disclosed in its Response the following: (i) the nature of the previous employment with Agency or the other agency; (ii) the date the employment was terminated; and

(iii) the annual rate of compensation for the employment at the time of its termination.

16. DISPUTE RESOLUTION

The dispute resolution process provided for in Chapter 2260 of the Texas Government Code must be used to attempt to resolve any dispute arising under the contract.

17. ENERGY COMPANY BOYCOTTS

If Contractor is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Contractor verifies that Contractor does not boycott energy companies and will not boycott energy companies during the term of the Contract. If Contractor does not make that verification, Contractor must so indicate in its Response and state why the verification is not required.

18. ENTITIES THAT BOYCOTT ISRAEL

If Contractor is required to make a certification pursuant to Section 2271.001 of the Texas Government Code, Contractor certifies that Contractor does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. If Contractor does not make that certification, Contractor must indicate that in its Response and state why the certification is not required.

19. E-VERIFY PROGRAM

Contractor certifies that for contracts for services, Contractor shall utilize the U.S. Department of Homeland Security’s E- Verify system during the term of the contract to determine the eligibility of:

• all persons employed by Contractor to perform duties within Texas; and

• all persons, including subcontractors, assigned by Contractor to perform work pursuant the contract within the

United States of America.

20. EXCESS OBLIGATIONS PROHIBITED

The contract is subject to termination or cancellation, without penalty to Agency, either in whole or in part, subject to the availability of state funds.

21. EXCLUDED PARTIES

Contractor certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets Control.

22. EXECUTIVE HEAD OF A STATE AGENCY AFFIRMATION

Under Section 669.003 of the Texas Government Code, Contractor certifies that it does not employ, or has disclosed its employment of, any former executive head of the Agency. Contractor must provide the following information in the Response.

Name of Former Executive: ______________________________________ Name of State Agency: __________________________________________ Date of Separation from State agency: _______________________________ Position with Contractor: __________________________________________ Date of Employment with Contractor: ________________________________

23. FALSE STATEMENTS

Contractor represents and warrants that all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a Response with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted Response and any resulting contract.

24. FINANCIAL PARTICIPATION PROHIBITED AFFIRMATION

Under Section 2155.004(b) of the Texas Government Code, Contractor certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that the contract may be terminated and payment withheld if this certification is inaccurate.

25. FIREARM ENTITIES AND TRADE ASSOCIATIONS DISCRIMINATION

If Contractor is required to make a verification pursuant to Section 2274.002 of the Texas Government Code, Contractor verifies that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. If Contractor does not make that verification, Contractor must so indicate in its Response and state why the verification is not required.

26. FOREIGN TERRORIST ORGANIZATIONS

Contractor represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government Code.

27. FORMER AGENCY EMPLOYEES

Contractor represents and warrants that none of its employees including, but not limited to, those authorized to provide services under the contract, were former employees of the Agency during the twelve (12) month period immediately prior to the date of execution of the contract.

28. GOVERNING LAW AND VENUE

The contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the contract is fixed in any court of competent jurisdiction of

Tom Green County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the contracting Agency.

29. HUMAN TRAFFICKING PROHIBITION

Under Section 2155.0061 of the Texas Government Code, the Contractor certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

30. NATIONAL ANTHEM VERIFICATION

Contractor will play the United States national anthem at the beginning of each team sporting event held at the Contractor’s home venue or other venue controlled by Contractor for the event. Failure to comply with this obligation constitutes a default of this contract, and immediately subjects Contractor to the penalties for default, such as repayment of money received or ineligibility for additional money. In addition, Contractor may be debarred from contracting with the State. The Agency or the Attorney General may strictly enforce this provision.

31. NO CONFLICTS OF INTEREST

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

32. PRIOR DISASTER RELIEF CONTRACT VIOLATION

Under Sections 2155.006 and 2261.053 of the Texas Government Code, the Contractor certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

33. PUBLIC INFORMATION ACT

Information, documentation, and other material in connection with this Solicitation or any resulting contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the “Public Information Act”). In accordance with Section 2252.907 of the Texas Government Code, Contractor is required to make any information created or exchanged with the State pursuant to the contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the State.

34. SIGNATURE AUTHORITY

By submitting the Response, Contractor represents and warrants that the individual submitting this document and the documents made part of this Response is authorized to sign such documents on behalf of the Contractor and to bind the Contractor under any contract that may result from the submission of this Response.

35. STANDARD OF CARE FOR ARCHITECTURAL AND ENGINEERING CONTRACTORS

Pursuant to Section 2254.0031 of the Texas Government Code, which incorporates by reference Section 271.904(d) of the Texas Local Government Code, Contractor shall perform services (1) with professional skill and care ordinarily provided by competent engineers or architects 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 or architect.

36. STATE AUDITOR’S RIGHT TO AUDIT

The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds.