ESBD_File_346083_Exhibit C- CSP Sample Contract_20230207.pdf

Exhibit C - Sample Contract

CONTRACT

BETWEEN OWNER AND CONTRACTOR

This Contract is made as of , 20XX (the “Effective Date”), by and between:

Texas State University 601 University Drive San Marcos, Texas 78666 and Contractor: _______________________________________ for the Project: _______________________________________

Project Architect/Engineer (A/E):

ARTICLE 1 CONTRACT DOCUMENTS

1.1 The Contract Documents consist of:

a. This Contract and all exhibits and attachments listed, contained or referenced in this Contract;

b. The referenced 2005 version of the Uniform General Conditions for Construction Contracts as published by the Texas Building and Procurement Commission (“Uniform General Conditions” or “UGC”);

c. Owner’s Division 1 Specifications;

d. The Drawings, Specifications, details and other documents developed by Architect/Engineer (A/E) and issued for construction with the Owner’s approval;

e. The Drawings and Specifications developed and issued for construction with the Owner’s approval by

Owner’s other consultants, if any;

f. All Addenda issued and vendor’s responses prior to the Effective Date of this Contract;

g. All other Change Orders issued after the Effective Date of this Contract; and

h. The HUB Subcontracting plan submitted by the Contractor in response to the Request for Proposals issued by the Owner for this Project

1.2 The term “Construction Manager (CM)” is interchangeable with the terms “Contractor” and “General

Contractor” or other similar terms used in the various parts of these Contract Documents.

ARTICLE 2 SCOPE OF WORK

2.1 The Contractor shall furnish all of the materials and perform all of the work shown on the drawings and described in the specifications for the project and the Uniform General Conditions for Construction Contracts entitled . These drawings and specifications are prepared for the Texas State University System by acting as the Architect/Engineer.

The Contractor shall do everything required by this Contract (UGC), the Addenda, Owner’s Division 1 Specifications, the Technical Specifications, the Drawings, any Change Orders issued for this Contract and the Historically Underutilized Business (HUB) Subcontracting Plan submitted by the Contractor and approved by the Owner.

[2.2 ALTERNATES: The Alternate Proposal “ ,” fully described in the

Specifications, is included as a part of this Contract.]

ARTICLE 3 TIME OF COMPLETION

The Owner shall provide a Notice to Proceed in which a date for commencement of the Work shall be stated. The Contractor shall achieve Substantial Completion (UGC Article 12) of the Work within ( ) calendar days after such Commencement Date. The time set forth for completion of the work is an essential element of the Contract.

ARTICLE 4 THE CONTRACT SUM

The Owner shall pay the Contractor for performance of the Contract the sum of:

($ ), and make payments as provided in UGC Article 10 and the Division 1 Specifications.

A 5% retainage fee is established through this Contract between the Contractor and the Owner and a subsequent maximum 5% retainage fee shall be established between the Contractor and any subcontractor(s) who performs work or provides materials for this Project.

ARTICLE 5 LIQUIDATED DAMAGES

Time needed for completion is an important factor in this Contract. The Contractor agrees to perform its services under this Contract in an expeditious and economical manner consistent with good business practices and the interests of Owner. For each consecutive calendar day after the Substantial Completion date, computed using the Commencement Date and the Time for Substantial Completion described in Article 3, that any of the Work is not completed the amount of: ($ ) will be deducted from any money due the Contractor. Any sum so deducted will not be as a penalty but will be as Liquidated Damages that the parties have agreed to be a reasonable estimate of actual Owner damages due to late completion.

ARTICLE 6 HUB SUBCONTRACTING PLAN

The Owner has adopted Exhibit H, Policy on Utilization of Historically Underutilized Business ("Policy"), which is incorporated herein by reference. Contractor, as a provision of the Contract must comply with the requirements of the Policy and adhere to the HUB Subcontracting Plan submitted with Contractor's Proposal. No changes to the HUB Subcontracting Plan can be made by the Contractor without the prior written approval of the Owner in accordance with the Policy.

ARTICLE 7 SAFETY

7.1 In accordance with UGCs and the Division 1 Specifications, Contractor is responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The safety program shall comply with all applicable requirements of the Occupational Safety and Health Act of 1970 and all other applicable federal, state and local laws and regulations and with the requirements of Owner’s project safety specification.

7.2 Contractor shall provide recommendations and information to Owner regarding the assignment of responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials, and services for common use of the Subcontractors. Contractor shall verify that appropriate safety precautions and provisions have been included in the Construction Documents.

7.3 The existence or creation of any Owner controlled insurance program in connection with the Work shall not lessen or reduce the Contractor’s safety responsibilities.

ARTICLE 8 CERTIFICATION OF NO ASBESTOS CONTAINING MATERIALS OR WORK

8.1 The Contractor shall provide a certification statement, included with each materials submittal, stating that no asbestos containing materials or work is included within the scope of the proposed submittal.

8.2 The Contractor shall ensure that Texas Department of Health licensed individuals, consultants or companies are used for any required asbestos work including asbestos inspection, asbestos abatement plans/specifications, asbestos abatement, asbestos project management and third-party asbestos monitoring.

8.3 The Contractor shall take whatever measures he deems necessary to ensure that all employees, suppliers, fabricators, material men, subcontractors, or their assigns, comply with this requirement.

8.4 All materials used on this Project shall be certified as not Asbestos Containing Building Materials (ACBM). The Contractor shall ensure compliance with the following acts from all of his subcontractors and assigns:

8.4.1 Asbestos Hazard Emergency Response Act (AHERA—40 CFR 763-99 (7));

8.4.2 National Emission Standards for Hazardous Air Pollutants (NESHAP—EPA 40 CFR 61, National Emission

Standard for Asbestos;

8.4.3 Texas Asbestos Health Protection Rules (TAHRP—Tex. Admin. Code Title 25, Part 1, Ch. 295C, Asbestos Health Protection

8.5 The Contractor shall provide at Substantial Completion, a notarized affidavit to the Owner stating that no asbestos containing materials or work was provided, installed, furnished or added to the Project.

8.6 The Contractor shall provide, in hard copy and electronic form, all necessary material safety data sheets (MSDS) of all products used in the construction of the Project to the Texas Department of Health licensed inspector.

8.7 At Final Completion the Contractor shall provide a notarized certification statement per TAC Title 25 Part 1, Chapter 295.34, paragraph c.1 that no ACBM was used during construction of the Project. Prior to issuing this certification, the Contractor shall cause every subcontractor to provide a notarized statement that no ACBM has been used, provided, or left on this Project.

ARTICLE 9 PRE-EXISTING CONDITIONS

The Contractor acknowledges that it has been provided unrestricted access to the existing improvements and conditions on the Project site prior to signing this contract and that it has thoroughly investigated those conditions. Contractor shall not make or be entitled to any claim for any adjustment to the Contract Sum or the Contract Time for Completion arising from Project conditions that Contractor discovered or, in the exercise of reasonable care, should have discovered in Contractor’s investigation.

ARTICLE 10 BONDS AND INSURANCE

10.1 The Contractor shall provide performance and payment bonds on forms prescribed by Owner and in accordance with the requirements set forth in the UGCs (Article 5). The penal sum of the payment and performance bonds shall be equal to the Contract Sum.

10.2 The Contractor shall not commence work under the Contract until it has obtained all required insurance and until evidence of the required insurance has been reviewed and approved by the Owner’s Designated Representative (see UGC 3.1.2 and 013100, paragraph 2). Contractor shall provide evidence of the insurance coverage for:

Workers’ Compensation insurance coverage for each of Contractor’s employees employed on the project.

Contractor must meet the statutory requirements of the Texas Labor Code, 401.011 (44) and

1. Contractor’s Public Liability and Property Damage Insurance limits of not less than:

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

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

Bodily Injuries (including accidental death) $1,000,000

Property Damage $1,000.000

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

Bodily Injuries (including accidental death) $1,000,000

Property Damage $1,000,000

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

10.4 The Worker’s Compensation and Owners Protective Liability policies shall provide a waiver of subrogation in favor of the University.

10.5 Contractor will deliver to Owner:

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

2. Additional evidence, satisfactory to University, of the continued existence of all insurance not less than thirty (30) days prior to the expiration of any insurance. Insurance policies, with the exception of Workers’ Compensation, will name and evidence will reflect Owner as additional insured and will provide that the policies will not be canceled until after thirty (30) days unconditional written notice to Owner.

10.6 The insurance policies required in this Contract will be kept in force for the periods specified below:

1. Commercial General Liability Insurance and Commercial Automobile Liability Insurance will be kept in force until receipt of final payment by Owner to Contractor.

2. Workers’ Compensation Insurance and Owner’s Protective Liability Insurance will be kept in force until the work has been fully performed and accepted by Owner in writing.

ARTICLE 11 SPECIAL WARRANTIES

11.1 Notwithstanding anything to the contrary contained in this Contract, Owner and Contractor agree and acknowledge that Owner is entering into this Contract in reliance on Contractor's represented expertise and ability to provide construction services. Contractor agrees to use its best efforts, skill, judgment, and abilities to perform its obligations and to further the interests of Owner in accordance with Owner’s requirements and procedures.

11.2 The Contractor represents, and agrees that it will perform its services in accordance with all applicable national, federal, State of Texas, municipal, laws, regulations, codes, ordinances, orders and with those of any other body having jurisdiction over the Project. Contractor is to incorporate the latest version of Texas State University Construction Standards, as applicable, into all design documents unless alternatives are approved in writing and in advance by Owner. The use of “canned Specifications” will not be allowed if they are in conflict with the Construction Standards. These Construction Standards are hereby incorporated into this Contract as a reference and can be located at https://www.facilities.txst.edu/pdc/construction-standards/construction-standards-list.html

11.3 Contractor agrees that services provided shall be reasonably accurate and free from material errors or omissions. Upon notice, Contractor shall promptly correct any known or discovered error, omission, or other defect without any additional cost or expense to Owner.

11.4 The Contractor's duties shall not be diminished by any approval by Owner nor shall the Contractor be released from any liability by any approval by Owner, it being understood that the Owner is ultimately relying upon the Contractor’s skill and knowledge in performing the services required hereunder.

11.5 The Contractor agrees to obtain, at Contractor’s expense, any and all approvals, licenses, filings, registrations and permits required by federal, state or local laws, regulations or ordinances for the performance of the Work.

11.6 The Contractor agrees to advise Owner of anything of any nature in any drawings, specifications, plans, sketches, instructions, information, requirements, procedures, and other data supplied to the Contractor under the provisions of this Contract that the Contractor considers unsuitable, improper, or inaccurate for the purposes intended.

11.7 Contractor represents and agrees that there are no obligations, commitments, or impediments of any kind that will limit or prevent performance of its obligations under this Contract.

11.8 Contractor represents and agrees that the individual executing this Contract on behalf of Contractor has been duly authorized to act for and to bind Contractor to its terms.

11.9 Except for the obligation of Owner to pay Contractor certain fees, costs, and expenses pursuant to the terms of this Contract, Owner shall have no liability to Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Contract. Notwithstanding any obligation or liability of Owner to Contractor, no present or future partner or affiliate of Owner or any agent, officer, director, employee, or regent of Owner, the Texas State University System, or of the component institutions comprising Texas State University System, or anyone claiming to be affiliated with Owner has or shall have any personal liability to Contractor or to anyone claiming through or under Contractor by reason of the execution or performance of this Contract.

https://www.facilities.txst.edu/pdc/construction-standards/construction-standards-list.html

ARTICLE 12 INDEMNITY

12.1 SEE ARTICLE 3 OF THE UNIFORM GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS FOR CONTRACTOR’S GENERAL

INDEMNIFICATION OBLIGATIONS.

12.2 CONTRACTOR SHALL AND DOES HEREBY AGREE TO INDEMNIFY PROTECT, DEFEND WITH COUNSEL APPROVED BY OWNER, AND HOLD HARMLESS OWNER AND THE TEXAS STATE UNIVERISTY SYSTEM AND THEIR REGENTS , OFFICERS, DIRECTORS, ATTORNEYS, EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY “INDEMNITEES”) FROM AND AGAINST ALL DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, EXPENSES, AND OTHER CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION BY ANY PERSON OR ENTITY INCLUDING REASONABLE ATTORNEY FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY “CLAIMS”) ARISING OUT OF, CAUSED BY, OR RESULTING FROM CONTRACTOR’S PERFORMANCE UNDER OR BREACH OF THIS CONTRACT AND THAT ARE CAUSED IN WHOLE OR IN PART BY ANY NEGLEGENT ACT, NEGLIGENT OMISSION OR WILLFUL MISCONDUCT OF COTNRACTOR, ANYONE DIRECTLY EMPLOYED BY CONTRACTOR, OR ANYONE FOR WHOSE ACTS CONTRACTOR MAY BE LIABLE. THE PROVISIONS OF THIS SECTION WILL NOT BE CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT, WHICH ANY INDEMNITEE HAS, BY LAW OR EQUITY. IN THE EVENT OF LITIGATION, OWNER AGREES TO COOPERATE REASONABLY WITH CONTRACTOR. ALL

PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUSEL AT THEIR OWN EXPENSE.

ARTICLE 13 PARTY REPRESENTATIVES

13.1 The Owner’s Designated Representative (see UGC 3.1.2 and 013100, paragraph 2) authorized to act in the Owner's behalf to change the scope, cost, completion time or to represent the Owner in any disputes of the Project is:

TBD

601 University Drive San Marcos, Texas 78666 {Phone} {email}

13.2 The Owner’s Designated Site Representative (see 013100, paragraph 2) authorized to act in the Owner's behalf with respect to all other aspects of the Project other than those listed in 13.1, and to approve single construction contract change order(s) less than $25,000.00, is:

Name, Address, Phone, Email

13.3 The Contractor’s designated representative authorized to act on the Contractor’s behalf and bind the Contractor with respect to the Project is:

Name, Address, Phone, Email

13.4 The parties may make reasonable changes in their designated representatives upon advance written notice to the other party.

13.5 Contractor shall designate a representative primarily responsible for the Project under this Contract. The designated representative shall act on behalf of Contractor with respect to all phases of Contractor’s services and shall be available as required for the benefit of the Project and the Owner.

ARTICLE 14 NOTICES

Notices of claims or disputes or other legal notices required by this Contract shall be sent to the following persons at the indicated locations.

If to Owner: Facilities Procurement & Contracting

Physical Plant Bldg.

151 E. Sessom, Warehouse San Marcos, Texas 78666 512-245-8488 Fac Contracts@txstate.edu

With Copies to: Name, Address, Phone, Email

If to Contractor: Name, Address, Phone, Email

The parties may make reasonable changes in the person or place designated for receipt of notices upon advance written notice to the other party.

ARTICLE 15 COMPENSATION FOR SERVICES RENDERED

15.1 Owner’s Approval Required. Owner agrees paying Contractor for those services rendered at Owner’s specific request. Approval must be obtained in advance and in writing.

15.2 The Contractor will only be paid for completed work. Application for final payment shall be submitted once all work and the punch list (if applicable) are completed. If the performance period exceeds thirty (30) days, partial payment is authorized, based on the percentage of completion minus a 10% retainage of work completed to date. Partial and final payments shall be submitted to Facilities Procurement and Contracting using the standard AIA G702 “Application and Certification for Payment” form and AIA G 703 “Continuation Sheet for AIA G 702 (or equivalent) form.

15.3 The University may withhold or, on account of subsequently discovered evidence, nullify the whole or part of any payment certificate to such extent as may be necessary to protect the Owner from loss.

ARTICLE 16 INVOICING

16.1 Monthly Invoices: Contractor shall submit a monthly record or invoice of services performed under this Contract identifying all fees and reimbursable expenses incurred in the previous month. Invoices shall be submitted in a format approved by the Owner and must contain the following information:

• Project name

• Contractor’s Employer Identification Number (EIN), Contractor’s name, remit to address and telephone number

• Owner Contract/Purchase Order Number

• Identification of billing period by calendar month to which the invoice applies

• Itemized description of services provided

• Completion status of project by percentage, categorized reflective of line items indicated in project

• Total amount of contract

• Total amount of invoice

• Copy of all receipts in support of any reimbursable expenses invoiced

• All required close-out documents must be provided with final payment

16.2 Limited To Allowable Fee Amount. Services provided and/or expenses incurred that exceed the established fee mailto:Fac%20Contracts@txstate.edu amount for the project, without Owner’s written consent, will be at Contractor’s financial risk and Owner shall not be obligated to pay for any such services or expenses.

16.3 Prompt Payment. For purposes of Texas Government Code §2251.02 (a) (2), the date the performance of service is completed is the date when the Owner’s representative approves the invoice. Payment of invoices shall be made within 30 days of Owner’s approval.

16.4 Invoice Submittal. Invoices shall be submitted electronically to payables@txstate.edu or via mail to Texas State

University, Accounts Payable, Attn: Facilities Procurement and Contracting, PO Box 747, San Marcos Texas 78666.

16.5 Exceptions to Payment. Regardless of any other provision of this Contract, Owner shall not be obligated to make any payment requested by Contractor under this Contract if any of the following conditions precedent exists:

• Contractor is in breach or default under this Contract

• Requested payment includes services not performed in accordance with this Contract, provided however, payment shall be made for the balance of the services that are performed in accordance with this Contract

• The total of Contractor’s invoices exceeds the maximum contract sum

• Contractor has failed to make payments promptly to consultants/sub-contractors or other third parties used in connection with the services for which Owner has made payment to Contractor

• Contractor becomes insolvent, makes a general assignment of its rights or obligations for the benefit of its creditors, or voluntarily or involuntarily files for protection under the bankruptcy laws

• If Owner, in its good faith judgment, determines that the balance of unpaid compensation is insufficient to complete the services required under this Contract

16.6 Partial Payment. No partial payment by Owner shall constitute or be construed as final acceptance or approval of any services or as a release of any of Contractor’s obligations or liabilities with respect to such services.

16.7 Sub-consultant/Subcontractor Payment. Contractor shall promptly pay all bills for labor and material performed and furnished by others in connection with the performance of the services.

16.8 Final Payment and Release. The acceptance by Contractor or Contractor’s successors of final payment under this

Contract, shall constitute a full and complete release of Owner from any and all claims, demands and causes of action whatsoever that Contractor or Contractor’s successors have or may have against Owner pursuant to this Contract, except those claims specifically identified in writing by Contractor as unsettled at the time of the final request for payment.

ARTICLE 17 OWNERSHIP AND USE OF DOCUMENTS

17.1 All documents prepared by the Contractor are instruments of service and shall remain the property of the

Contractor. The Owner shall be permitted to retain copies, including reproducible copies of all documents prepared by the Contractor for information and reference in connection with the Owner’s use and occupancy of the project. Owner shall have an irrevocable, fully paid-up perpetual license and right, which shall survive the termination of this Contract, to use the documents, including the originals thereof, and the ideas and designs contained therein, for the completion of, and in connection with the project, regardless of the Contractor involvement. The documents shall not be used by the Owner or the Contractor on other projects, except by agreement in writing.

17.2 Submission or distribution to meet official regulatory requirements or for other purposes in connection with the project is not to be construed as publication in derogation of the Contractor’s rights.

ARTICLE 18 TERMINATION OF CONTRACT

18.1 Termination for Cause. This Contract may be terminated by either party upon ten days written notice should the mailto:payables@txstate.edu other party fail substantially to perform in accordance with its terms through no fault of the terminating party and such failure is not fully cured prior to the expiration of the notice period.

18.2 Termination for Convenience. This Contract may be terminated for convenience by the Owner in whole or in part, upon at least ten (10) days written notice to the Contractor.

18.3 Compensation. In the event of termination not the fault of the Contractor, the Contractor shall be entitled to compensation for all services satisfactorily performed to the termination date, together with approved reimbursable expenses then due, provided Contractor delivers to Owner statements, accounts, reports and other materials as required for payment along with all reports, documents and other materials prepared by Contractor prior to termination.

ARTICLE 19 DISPUTE RESOLUTION

Government Code Chapter 2260 Controls. Contractor’s claims for breach of this Contract that are not resolved informally are governed by Texas Government Code, Chapter 2260, as it may be amended from time to time, unless preempted by other applicable law. The submission, processing and resolution of Contractor’s claims are governed by rules adopted by the Texas Attorney General in Title 1, Part 3, Chapter 68 of the Texas Administrative Code, as currently effective or subsequently amended.

ARTICLE 20 CONTRACT ADMINISTRATION

The Owner will monitor the Contractor’s progress and performance and ensure services conform to the established specifications and requirements. At the conclusion of the project, the Owner will complete a Contractor/Vendor Evaluation (See attachment XX). The evaluation is based on assessment of the output and outcome measures and compliance with the terms and conditions of the Contract. Contract monitoring and performance evaluations will be performed by the Contract Administrator or the Contract Manager.

ARTICLE 21 U.S. PRODUCED STEEL

21.1 Construction Contracts entered into on or after September 1, 2017, shall contain the provisions mandated by SB

1289 as follows:

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

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

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

a. Produced in sufficient quantities

b. Reasonably available

c. Of a satisfactory quality

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

20%

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

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

ARTICLE 22 UNDOCUMENTED WORKERS

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

ARTICLE 23 NON-BOYCOTT VERIFICATION

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

ARTICLE 24 PROHIBITION OF CONTRACT WITH COMPANIES DOING BUSINESSS WITH IRAN, SUDAN, OR A FOREIGN

TERRORIST ORGANIZATION

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

ARTICLE 25 CONTRACTOR’S ACCOUNTING RECORDS

Contractor shall maintain records of costs, expenses, billings and Worker Wage Rate or Monthly Salary Rate pertaining to services performed under this Contract in accordance with generally accepted accounting principles. Such records shall be available to Owner or the Owner’s authorized representative at mutually convenient times for a period of at least three

(3) years after expiration or termination of this Contract. Owner shall have the right to audit and to verify the details set forth in Contractor’s billings, certificates and statements, either before or after payment. The terms of this paragraph shall survive any termination of the Contract.

ARTICLE 26 PARKING PERMITS

All individuals including contractors, subcontractors, service providers and vendors operating a vehicle on property owned and operated by Texas State University shall comply with the Traffic and Parking Regulations for the University. All vehicles parked on University property must obtain and display a valid parking permit paid for and purchased at their own expense. Contractors should make every effort to carpool when possible.

ARTICLE 27 MISCELLANEOUS PROVISIONS

27.1 Assignment. The Owner and the Contractor, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to the terms and conditions of this Contract. This Contract is a personal service contract for the services of the Contractor and Contractor’s interest in this Contract, duties hereunder and/or fees due hereunder may not be assigned or delegated to a third party without written consent of Owner. The benefits and burdens of this Contract are, however, assignable by Owner.

27.2 Family Code Child Support Certification. Pursuant to Section 231.006, Texas Family Code, Contractor certifies that it is not ineligible to receive the award of or payments under this Contract and acknowledges that this Contract may be terminated and payment may be withheld if this certification is inaccurate.

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

27.4 Contractor is responsible for acts of its Employees, Subcontractors and Agents while on University's premises.

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

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

27.6 Franchise Tax Certification. A corporate or limited liability company Contractor certifies that it is not currently delinquent in the payment of any Franchise Taxes due under Chapter 171 of the Texas Tax Code, or that the corporation or limited liability company is exempt from the payment of such taxes, or that the corporation or limited liability company is an out-of-state corporation or limited liability company that is not subject to the Texas Franchise Tax, whichever is applicable.

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

27.8 Entire Contract; Modifications. This Contract constitutes the sole and only contract between the parties with respect to the services contracted for and supersedes any prior understandings, written or oral. No modification, alteration or waiver of this Contract or any of its provisions shall be effective unless in writing and signed by both parties. No course of prior dealings, no usage of trade, and no course of performance shall be used to modify, supplement or explain any terms used in this Contract.

27.9 Captions. The captions of paragraphs in this Contract are for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.

27.10 Governing Law and Venue. This Contract and all of the rights and obligations of the parties and all of the terms and conditions shall be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas without reference to its conflicts of law provisions. The county where the Project is located shall be the sole place of venue for any legal action arising from or related to this Contract or the Project in which the Owner is a party. This supersedes any interpretation otherwise of UGC Section 2.3.

27.11 Waivers. No delay or omission by either party in exercising any right or power arising from non-compliance or failure of performance by the other party with any of the provisions of this Contract shall impair or constitute a waiver of any such right or power. A waiver by either party of any covenant or condition of this Contract shall not be construed as a waiver of any subsequent breach of that or of any other covenant or condition of the Contract. Nothing in this Contract shall be construed to waive the constitutional, statutory, or common law rights or immunities of either party to this Contract.

27.12 Appointment. Owner hereby expressly reserves the right from time to time to designate by notice to Contractor a representative(s) to act partially or wholly for Owner in connection with the performance of Owner's obligations. Contractor shall act only upon instructions from the designated representative(s) unless otherwise specifically notified to the contrary.

27.13 Severability. Should any term or provision of this Contract be held invalid or unenforceable in any respect, the remaining terms and provisions shall not be affected, and this Contract shall be construed as if the invalid or unenforceable term or provision had never been included.

27.14 Illegal Dumping. The Contractor shall ensure that it and all of its Subcontractors and assigns prevent illegal dumping of litter in accordance with Title 5, Texas Health and Safety Code, Chapter 365.

27.15 Environmentally Sensitive Area. Texas State University is located in an environmentally sensitive area, therefore care must be taken to prevent contamination by spills or disposal of debris or residue into the storm sewers or natural watercourses in and around the campus. The University contact must be notified immediately of any spillage entering or occurring in a storm sewer or watercourse.

27.16 Phasing. Contractor shall not proceed beyond any previously authorized phase of the work unless authorized by the Owner in writing, except at the Contractor’s own financial risk.

27.17 Documentation. Contractor shall fully document the Project activities in drawings, reports or other methods as appropriate to the scope of work and as identified in the Project Proposal. The Contractor shall bear the cost of providing all plans, specifications and other documents used by the Contractor and its consultants and subcontractors.

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

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

27.16.2 Criminal history and credit history background checks here the above individuals will be handling money, information technology or other security-sensitive areas as determined by Owner;

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

27.16.4 Contractor will provide Owner a letter signed by an authorized representative of Contractor certifying compliance with this section. Contractor will provide Owner an updated certification letter each time there is a change in the individuals assigned to perform Work on University campus.

27.17 Independent Contractor. For all purposes of this Contract and notwithstanding any provision of this Contract to the contrary, Contractor is an independent contractor and is not a state employee, partner, joint venture, or agent of

University. Contractor will not bind nor attempt to bind University to any agreement or contract. As an independent contractor, Contractor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including workers’ compensation insurance. Contractor shall observe and abide by all applicable laws and regulations, policies and procedures, including but not limited to, those of the University relative to conduct on its premises. Contractor is notified that the following University policies shall apply to its employees and subcontractors whole on Texas State property:

• On campus driving and parking;

• Prohibition on smoking and tobacco use;

• Fire Safety;

• Hazardous Material;

• Drug-free workplace; and

• Prohibition on sexual harassment or harassment or discrimination based on race, color, national origin, age, sex, religion, disability or sexual orientation.

27.18 Confidentiality. The Contractor shall treat any Owner supplied information, or information pertaining to Owner's business, as confidential and shall not disclose any such information to others except as necessary for the performance of this Contract or as authorized by the Owner in writing.

27.19 Loss of Funding. Performance by Owner under this Contract may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of the Texas State University System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then Owner shall issue written notice to Contractor and Owner may terminate this Contract without further duty or obligation hereunder, Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of Owner.

27.20 Open Records. University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney

General with respect to disclosure of public information under the Texas Public Information Act, Chapter 552, and Texas Government Code.

27.20.1 Contractor is required to make any information created or exchanged with the state pursuant to this contract, and not otherwise exempted 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.

27.20.2 Information provided to Contractor by the University, including information from representatives of The Texas State University System (TSUS) or any of its components, and information provided to Contractor by members of the public or any other third party shall belong to the University.

27.20.3 Information created or otherwise produced by Contractor shall remain the exclusive property of

Contractor. Contractor acknowledges any final report or papers will be provided in accordance with this Contract, and that any information contained in any report or papers, which Contractor believes is confidential under Texas law will be clearly designated as such by Contractor.

27.20.4 If the University receives a request for public information for any portion of any final report or papers that have been designated by Contractor to be confidential, the University will provide notice to Contractor and Contractor may submit a brief to the Office of the Attorney General, as provided by Chapter 552, Tex. Govt. Code.

27.21 Safeguarding of University Records. Contractor represents, warrants, and agrees that it will: (1) hold University

Records in strict confidence and will not use or disclose University records except as (a) permitted or required by this Contract, (b) required by law, or (c) otherwise authorized by University in writing; (2) safeguard University records according to reasonable administrative, physical and technical standards that are no less rigorous than the standards by which Contractor protects its own confidential information; (3) continually monitor its operations and take any action necessary to assure that University records are safeguarded and the confidentiality of University records is maintained in accordance with all applicable federal, state and local, laws, regulations, and ordinances, including FERPA and the Gramm-Leach Bliley Act, and the terms of this Contract;

and (4) comply with the University’s rules, policies, and procedures regarding access to and use of University’s computer systems. At the request of University, provided Contractor agrees to provide University with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University records.

If an impermissible use or disclosure of any University records occurs, Contractor will provide written notice to

University within one (1) business day after Contractor’s discovery of that use or disclosure. Contractor will promptly provide University with all information requested by University regarding the impermissible use or disclosure.

If Contractor discloses any University records to a subcontractor or agent, Contractor will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor by this Section.

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

27.22 Taxes. Texas State University is a tax-exempt State of Texas Agency under Chapter 151, Texas Tax Code and an institution of higher education. Contractor shall avail itself of all tax exemptions applicable to Contractor’s work or expenses.

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

27.24 Force Majeure. No party shall be liable or responsible to the other for any loss or damage or for any delays or failure to perform under this Contract due to causes beyond its reasonable control, including, but not limited to, acts of God, employee strikes, epidemics, war, riots, flood, fire, sabotage, terrorist acts or any other circumstances of like character.

27.25 Products and Materials Produced in Texas. If Contractor will provide services under this Contract, Contractor covenants and agrees that in accordance with Section 2155.4441, Texas Government Code, in performing its duties and obligations under this Contract, Contractor shall purchase products and materials produced in Texas when such products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.

27.26 Authority to Act. If Contractor is a corporation or a limited liability company, Contractor warrants, represents, and agrees that (1) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization; (2) it is duly authorized and in good standing to conduct business in the State of Texas; (3) it has all necessary power and has received all necessary approvals to execute and deliver this Contract; and (4) the individual executing this Contract on behalf of Contractor has been duly authorized to act for and bind Contractor.

27.27 Tobacco and Smoke Free Campus. As of August 1, 2011, all Texas State property is a tobacco and smoke free campus. Contractors or service providers are notified that they are expected to inform all employees and subcontractors assigned to work at Texas State of the “Texas State Tobacco Policy” and enforce compliance.

27.28 Right to Audit. Contractor understands that acceptance of funds under this Contract constitutes acceptance of the authority of the State Auditor's Office, or any successor agency (collectively, “Auditor”), to conduct an audit or investigation in connection with those funds pursuant to Section 51.9335(c), Texas Education Code.

Contractor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including providing all records requested. Contractor will include this provision in all contracts with subcontractors.

27.29 Limitations. THE PARTIES ARE AWARE THAT THERE ARE CONSTITUTIONAL AND STATUTORY LIMITATIONS ON

THE AUTHORITY OF UNIVERSITY (A STATE AGENCY) TO ENTER INTO CERTAIN TERMS AND CONDITIONS THAT MAY BE A PART OF THIS CONTRACT, INCLUDING THOSE TERMS AND CONDITIONS RELATING TO LIENS ON UNIVERSITY’S PROPERTY; DISCLAIMERS AND LIMITATIONS OF WARRANTIES; DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES; WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS, REMEDIES, REQUIREMENTS AND PROCESSES; LIMITATIONS OF PERIODS TO BRING LEGAL ACTION; GRANTING CONTROL OF LITIGATION OR SETTLEMENT TO ANOTHER PARTY; LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES;

PAYMENT OF ATTORNEYS’ FEES; DISPUTE RESOLUTION; INDEMNITIES; AND CONFIDENTIALITY (COLLECTIVELY, THE “LIMITATIONS”), AND TERMS AND CONDITIONS RELATED TO THE LIMITATIONS WILL NOT BE BINDING ON UNIVERSITY EXCEPT TO THE EXTENT AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS.

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

27.31 Conflict of Interest. By signature hereon, Contractor certifies that no member of the Board of Regents of the Texas

State University System, or Executive Officers, including component institutions, has a financial interest, directly or indirectly, in the transaction that is the subject of this contract.

27.32 COVID-19/Pandemic Procedures. The Contractor will follow all rules and regulations set forth by the Center for

Disease Control (CDC), OSHA, Texas Government, Texas State University System, and University with regards to the current COVID-19 pandemic and any subsequent pandemics in the future. This includes but is not limited to testing of employees and reporting of positive COVID-19 cases within the Contractor’s organization.

BY SIGNING BELOW, the Parties have executed and bound themselves to this Contract as of the day and year first above written.

(Contractor) (University)

By: By: _____________________________ (Signature) (signature)

(print name and title) (print name and title)

Date: ______________________________ Date: ______________________________