Exhibit A - TDA Standard Terms and Conditions.pdf

Texas Department of Agriculture – Exhibit A

Exhibit A – 02/11/2025 Page 1 of 19

Exhibit A

EXECUTION OF OFFER, AFFIRMATION OF TERMS AND CONDITIONS

AND PROPOSAL PREFERENCES

The acceptances, acknowledgements, averments, certifications, conditions, mandates, provisions, references, requirements, and terms set out in this Exhibit A constitute the general terms and conditions of any contract resulting from this RFP, are and will be incorporated into any contract resulting from this RFP and made a part of such contract for all purposes.

1. Definitions. The following words and terms shall have the following meanings, unless the context clearly indicates otherwise:

a. Agency – the Texas Department of Agriculture, sometimes referred to herein as “TDA.”

b. Contract Manager – the individual designated by Contractor or TDA with overall responsibility for managing any contract resulting from this solicitation. See “Project Manager” below. Either Party may designate one person to be both the Contract Manager and the Project Manager.

c. Contractor – a Respondent selected for an award pursuant to this Solicitation.

d. Include – include, includes and including are terms of inclusion and, where used in this Solicitation or resulting Contract, such terms shall be interpreted in accordance with their dictionary meaning and are deemed to be followed by the words “without limitation.”

e. Key Person or Key Personnel – the employee or employees designated in the Response who are responsible for the overall supervision and management of the activities, projects, services, tasks or work made the subject of this Solicitation and resulting contract, including the timely and satisfactory delivery or completion of the goods, services or work.

f. Parties – all signatories to any contract resulting from this Solicitation. Individual signatories may be referred to herein or a resulting contract as a “Party.”

g. Project Manager – the individual designated by Contractor or TDA with day-to-day responsibility for accomplishing the undertaking(s) made the subject of this Solicitation and resulting contract.

h. Respondent – an entity or person that submits an application, bid, offer, proposal, quote or response in reply to this Solicitation. In the event Respondent is selected for an award of a contract under this Solicitation, this term also includes Contractor, as defined above.

i. Response – an application, bid, offer, proposal or quote submitted in reply to this Solicitation.

j. Solicitation – the purchasing request made by TDA described and identified in this document, whether it be an Invitation for Bids (IFB), Quote Request, Request for Offers (RFO), Request for Proposals (RFP), Request for Qualifications (RFQ), or other form of purchase.

2. References. Unless explicitly stated otherwise, any references to “appendices,” “articles,” “attachments,” “exhibits,” or “sections” are deemed to be references to appendices, articles, attachments, exhibits, or sections of this Solicitation or resulting contract (if any). These General Terms and Conditions shall be automatically incorporated into any contract resulting from this Solicitation without further reference.

3. Order of Precedence. In the event of a conflict or inconsistency among the various documents making up any contract resulting from this Solicitation, such conflict or inconsistency shall be resolved by

Exhibit A – 02/11/2025 Page 2 of 19 reference to the documents in the following order of priority: (a) Signed Contract or Notice of Award;

(b) Appendices, Exhibits or Attachments to the Contract or Notice of Award; (c) the Solicitation document and any questions and official responses; and (d) Contractor’s Response.

4. Entire Agreement. Any contract resulting from this Solicitation shall represent the entire understanding between the Parties with respect to its subject matter and shall constitute the entire agreement between the Parties, superseding and preempting any previous communications or agreements that may exist between the Parties.

5. Federal, State and Local Tax and Withholding Requirements. Contractor shall demonstrate on-site compliance with federal income tax laws including issuance of Form W-2s to employees. Contractor is responsible for federal and state unemployment insurance coverage and standard workers compensation insurance coverage. Contractor shall comply with all federal and state tax laws and withholding requirements. Neither TDA nor the State of Texas shall be liable to Contractor or its employees for any unemployment or workers compensation coverage, or federal or state withholding requirements. Contractor shall indemnify the State of Texas and shall pay all costs, penalties, or losses resulting from Contractor’s omission under or breach of this Section.

6. Forms, Assurances, and Reports. Contractor shall timely make and file with the proper authorities all forms, assurances and reports required by federal and state laws and regulations. TDA shall report any failure by Contractor that comes to TDA’s attention and may deny payment or recover payments in the event of noncompliance with this Section.

7. Key Person or Key Personnel. Contractor shall ensure that key persons or key personnel assigned to any contract resulting from this Solicitation shall remain available for the entirety of the project, service or work required by the contract, unless TDA agrees, in writing, to a change in the Key Person or Key Personnel.

8. Federal Rules, Laws, and Regulations. Contractor shall be subject to and shall abide by all federal laws, rules, and regulations pertaining to any contract resulting from this Solicitation, including:

a. Americans With Disabilities Act, 42 U.S.C. §12101, and the regulations effectuating its provisions, as each may be amended from time to time;

b. Title VI of the Civil Rights Act of 1964, as amended (prohibition of discrimination by race, color, or national origin), and the regulations effectuating its provisions;

c. Title IX of the Education Amendments of 1972, as amended (prohibition of sex discrimination in educational institutions) and the regulations effectuating its provisions;

d. Section 504 of the Rehabilitation Act of 1973, as amended (nondiscrimination on the basis of handicapping condition), and the regulations effectuating its provisions;

e. The Age Discrimination Act of 1975, as amended (prohibition of discrimination on basis of age), and the implementing regulations; and

f. The Anti-Lobbying Act, 18 U.S.C. §1913 (prohibition against the use of federal grant funds to influence legislation pending before Congress), and the Byrd Amendment on government lobbying, 31 U.S.C. §1352 (prohibition against the use of federal grant funds to influence certain federal contracting and financial transactions).

9. Protests. Any actual or prospective bidder or contractor who is aggrieved in connection with the solicitation, evaluation or award of this or any other contract by TDA may submit a formal protest to TDA in accordance with Title 4, Part 1, Chapter 1, Subchapter Q of the Texas Administrative Code. The

Exhibit A – 02/11/2025 Page 3 of 19 protest procedures contained in Subchapter Q shall be the exclusive method by which anyone may challenge any aspect of TDA’s contracting process.

10. Insurance. Contractor represents and warrants that it will obtain and maintain for the term of any contract resulting from this Solicitation all insurance coverage required to ensure proper fulfillment of the contract and its liabilities thereunder. Contractor shall insure its motor vehicles used to fulfill its duties under the contract and require its subcontractors do the same. Such insurance shall comply with Texas statutory requirements and cover personnel being picked up or delivered in the performance of the contract. Contractor represents and warrants that all the above coverage will be obtained from companies that are licensed in the State of Texas, have an “A” rating from Best, and are authorized to provide the coverage. Contractor must provide at least 30 days written notice of its intent to cancel any insurance coverage required by the contract and provide immediate notice to TDA of replacement coverage. Further, all insurance required by the contract must include a waiver of all subrogation rights against TDA.

Unless otherwise specified in this Solicitation or a resulting contract, Contractor must maintain insurance in the amounts specified below:

a. Workers Compensation and Employee Liability Contractor must maintain Workers Compensation insurance coverage in accordance with the following statutory limits:

i. Employers Liability – Each Accident $1,000,000

ii. Disease – Each Employee $1,000,000

iii. Disease – Policy Limit $1,000,000

b. Commercial General Liability Coverage

Contractor must maintain the minimum general liability insurance coverage as reflected below:

i. Bodily Injury and Property Damage

ii. Each occurrence limit: $1,000,000

iii. Aggregate limit: $2,000,000

iv. Medical Expense each person: $10,000

v. Personal Injury and Advertising Liability: $1,000,000 per occurrence / $2,000,000 aggregate

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

vii. Damage to Premises Rented to You: $50,000

11. Invoicing. Invoicing should be consistent with the accepted cost proposal. Invoices for goods are to be submitted within thirty (30) days after all ordered goods have been delivered and accepted.

Invoices for services delivered for an hourly rate are to be submitted on the first business day of each month for the number of hours worked the previous month. Each invoice must clearly outline the number of hours worked on each item with a detailed description of the item billed. If the hourly rate varies by staff, the staff assigned to the item must be included. Invoices for services rendered on a flat or project rate are to be submitted within thirty (30) days after all services for the item or project have been delivered and accepted.

Invoices should be submitted by email to Invoices@TexasAgriculture.gov with the TDA Purchase Order Number clearly indicated on the invoice. For payment in less than 30 days, the invoice must offer a discount for early payment.

12. Payment Approval. No payment can be made for work provided before a Purchase Order is issued.

Payment is contingent upon receipt of all items required for proper invoicing and payment, including:

mailto:Invoices@TexasAgriculture.gov

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a. W-9 – Contractor’s correctly completed W-9 form.

b. Texas Identification Number – Contractor’s State of Texas taxpayer identification number.

c. Delivery of the Goods; Completion of Services – Payment for goods or services described in any contract resulting from this Solicitation is contingent upon delivery and acceptance of the goods or satisfactory completion of the services. Acceptance or satisfaction will be determined by TDA, in its sole discretion. Unless otherwise stated, payment will be made upon submission of an invoice, properly prepared and certified, outlining expenditures and services by cost category.

Invoices must include the contract number (if any), purchase order number, and Contractor’s Texas Comptroller of Public Accounts Texas Identification Number (TIN). The cost categories or services provided in the invoice must correspond with the cost categories or services detailed in the approved budget. The invoice must detail the activities, services or tasks completed during the billing period included in the invoice. Final payment is contingent upon satisfactory performance of all services or work required under the contract, or TDA’s acceptance of the goods made the subject of the contract.

d. Good Standing. In order for TDA to process payment under an invoice, Contractor must be in good standing with the Texas Comptroller of Public Accounts. Contractor may verify its account status at: https://mycpa.cpa.state.tx.us/coa.

e. Direct Deposit. The Texas Comptroller of Public Accounts encourages vendors to receive payment by direct deposit. To receive payments by direct deposit, contact your paying agency to obtain the form applicable to you.

13. Prohibition of Text Messaging While Driving. Federal grant recipients and their personnel are prohibited from text messaging while driving a government owned vehicle or while driving their vehicle during official grant business, or from using government supplied electronic equipment to text message or email while driving. Recipients must comply with these conditions under Executive Order 13513, “Federal Leadership On Reducing Text Messaging While Driving,” effective October 1, 2009.

14. Antitrust Affirmation. Respondent represents and warrants that, in accordance with Section

2155.005 of the Texas Government Code, neither Respondent nor the firm, corporation, partnership, or institution represented by Respondent, or anyone acting for such a firm, corporation or institution has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Chapter 15 of the Texas Business and Commerce Code, or the federal antitrust laws; or (2) communicated directly or indirectly the contents of this Response to any competitor or any other person engaged in the same line of business as Respondent.

15. Buy Texas Affirmation. In accordance with Section 2155.4441 of the Texas Government Code, Respondent 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.

16. Child Support Obligation Affirmation. Under Section 231.006 of the Texas Family Code, the Contractor or Respondent 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 in addition to other remedies set out in Section 231.006(f).

17. Computer Equipment Recycling Program. Respondent certifies its compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety Code and the Texas Commission on Environmental Quality rules in Texas Administrative Code, Title 30, Chapter 328.

https://mycpa.cpa.state.tx.us/coa

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18. Dealing with Public Servants Affirmation. Respondent 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.

19. Debts and Delinquencies Affirmation. Respondent agrees that any payments due under the contract shall be applied towards any debt or delinquency that is owed to the State of Texas.

20. Disaster Recovery Plan. In accordance with Texas Administrative Code, Title 13, §6.94(a)(9), Respondent shall provide to Agency the descriptions of its business continuity and disaster recovery plans.

21. Disclosure of Prior State Employment. In accordance with Section 2254.033 of the Texas Government Code, relating to consulting services, Respondent certifies that it does not employ an individual who has been employed by TDA or another agency at any time during the two years preceding the submission of the Response or, in the alternative, Respondent has disclosed in its Response the following:

(i) the nature of the previous employment with TDA 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 termination.

22. Dispute Resolution (General). 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.

23. Entities that Boycott Israel. Pursuant to Section 2271.002 of the Texas Government Code, Respondent certifies that either

(i) it meets an exemption criterion under Section 2271.002; or

(ii) it does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. Respondent shall state any facts that make it exempt from the boycott certification in its Response.

24. E-Verify Program. Respondent certifies that for contracts for services, Respondent shall utilize the U.S. Department of Homeland Security’s E-Verify system during the term of the contract to determine the eligibility of: (1) all persons employed by Respondent to perform duties within Texas; and (2) all persons, including subcontractors, assigned by Respondent to perform work pursuant the contract within the United States of America.

25. Excess Obligations Prohibited. Any contract resulting from this Solicitation is contingent upon the continued availability of lawful appropriations by the Texas Legislature.

26. Excluded Parties. Respondent certifies that it is not listed on the prohibited vendors list authorized by Executive Order 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.

27. Executive Head of a State Agency Affirmation. Under Section 669.003 of the Texas Government Code, relating to contracting with an executive head of a state agency, Respondent represents that no person who served as an executive of the Agency, in the past four (4) years, was involved with or has any interest in the contract. If Respondent employs or has used the services of a former executive of the Agency, then Respondent shall provide the following information in the Response: name of the former executive, the name of the state agency, the date of separation from the state agency, the position held with Respondent, and the date of employment with Respondent.

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28. False Statements. Respondent 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.

29. Financial Participation Prohibited Affirmation. Under Section 2155.004(b) of the Texas Government Code, Respondent 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.

30. Foreign Terrorist Organizations. Respondent 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.

31. Former Agency Employees.R Respondent 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.

32. 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 conflict of laws provisions. The venue of any suit arising under the contract is fixed in any court of competent jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the contracting Agency.

33. Indemnification. (General). RESPONDENT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND AGENCY, 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 RESPONDENT 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 RESPONDENT WITH THE OFFICE OF THE TEXAS ATTORNEY

GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE

FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL. RESPONDENT AND AGENCY AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

34. Indemnification (IP). RESPONDENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS AGENCY AND THE STATE OF TEXAS FROM AND AGAINST ANY AND ALL CLAIMS, VIOLATIONS, MISAPPROPRIATIONS

OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER

INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY OR PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM: (1) THE PERFORMANCE OR ACTIONS OF RESPONDENT PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (3) AGENCY’S AND/OR RESPONDENT’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO AGENCY BY

RESPONDENT OR OTHERWISE TO WHICH AGENCY HAS ACCESS AS A RESULT OF RESPONDENT’S

PERFORMANCE UNDER THE CONTRACT. RESPONDENT AND AGENCY AGREE TO FURNISH TIMELY

WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. RESPONDENT SHALL BE LIABLE TO PAY ALL

COSTS OF DEFENSE, INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY

RESPONDENT WITH TDA AND THE OFFICE OF THE TEXAS ATTORNEY GENERAL (OAG) WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND RESPONDENT MAY NOT AGREE TO

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ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM OAG. IN ADDITION,

RESPONDENT WILL REIMBURSE AGENCY AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES,

COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF AGENCY DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF RESPONDENT OR IF AGENCY IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, AGENCY WILL BE PERMITTED TO SELECT SEPARATE COUNSEL

AND RESPONDENT WILL PAY ALL REASONABLE COSTS OF AGENCY’S COUNSEL.

35. No Conflicts of Interest. Respondent 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.

36. Prior Disaster Relief Contract Violation. Under Sections 2155.006 and 2261.053 of the Texas Government Code, Respondent 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.

37. 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, Respondent 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.

38. Signature Authority. By submitting the Response, Respondent 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 Respondent and to bind Respondent under any contract that may result from the submission of this Response.

39. 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.

Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit.

40. Suspension and Debarment. Respondent certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

41. Technology Access Clause. Respondent expressly acknowledges that state funds may not be expended in connection with the purchase of an automated information system unless that system meets certain statutory requirements relating to accessibility by persons with visual impairment.

Accordingly, Respondent represents and warrants to Agency that the technology provided to Agency for purchase is capable, either by virtue of features included within the technology or because it is readily adaptable by use with other technology, of:

• providing equivalent access for effective use by both visual and non-visual means;

Exhibit A – 02/11/2025 Page 8 of 19

• presenting information, including prompts used for interactive communications, in formats intended for non-visual use; and

• being integrated into networks for obtaining, retrieving, and disseminating information used by individuals who are not blind or visually impaired.

For purposes of this Section, the phrase “equivalent access” means a substantially similar ability to communicate with or make use of the technology, either directly by features incorporated within the technology or by other reasonable means such as assistive devices or services which would constitute reasonable accommodations under the Americans with Disabilities Act or similar state or federal laws.

Examples of methods by which equivalent access may be provided include, but are not limited to, keyboard alternatives to mouse commands and other means of navigating graphical displays, and customizable display appearance.

In accordance with Section 2157.005 of the Texas Government Code, the Technology Access Clause contract provision remains in effect for any contract entered into before September 1, 2006.

42. Television Equipment Recycling Program. Respondent certifies its compliance with Subchapter Z, Chapter 361 of the Texas Health and Safety Code, related to the Television Equipment Recycling Program.

43. Terms and Conditions Attached to Response. Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response.

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

45. Agency’s Right to Audit. Respondent will make available at reasonable times and upon reasonable notice, and for reasonable periods, work papers, reports, books, records, and supporting documents kept current by Respondent pertaining to the contract for purposes of inspecting, monitoring, auditing, or evaluating by Agency and the State of Texas.

46. Americans with Disabilities Act. Respondent represents and warrants its compliance with the requirements of the Americans with Disabilities Act (ADA) and its implementing provisions, as each may be amended.

47. Assignment. Respondent 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 Section is void and without effect.

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

49. Change in Law and Compliance with Laws. Any alterations, additions, or deletions to the terms of the contract that are required by changes in federal or state law or regulations are automatically incorporated into the contract without the necessity of a written amendment and shall become effective on the date designated by such law or by regulation.

50. Damage to Government Property. Respondent shall be liable for all damage to government-owned, leased, or occupied property and equipment caused by Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the contract. Respondent shall notify the Agency in writing of any such damage within one (1) calendar day. Respondent is responsible for the removal of all debris resulting from work performed under the contract.

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51. Disclosure of Interested Parties. Respondent represents and warrants that if selected for award of a contract as a result of the Solicitation, Respondent will submit to Agency a Certificate of Interested Parties prior to contract execution in accordance with Section 2252.908 of the Texas Government Code.

52. Discounts. If Respondent at any time during the term of the contract provides a discount on the final contract costs, Respondent will notify Agency in writing ten (10) calendar days prior to effective date of discount. Agency will generate a Purchase Order Change Notice and send a revised Purchase Order to Respondent.

53. Drug-Free Workplace. Respondent represents and warrants that it shall comply with the applicable provisions of the Drug-Free Workplace Act of 1988 (41 U.S.C. §§701 et seq.) and maintain a drug-free work environment.

54. Electrical Items. All electrical items must meet all applicable OSHA standards and regulations and bear the appropriate listing from Underwriters Laboratory (UL), Factory Mutual Resource Corporation (FMRC), or National Electrical Manufacturers Association (NEMA).

55. Equal Employment Opportunity. Respondent represents and warrants its compliance with all applicable duly enacted state and federal laws governing equal employment opportunities.

56. Federal Occupational Safety and Health Law. Respondent represents and warrants that all articles and services shall meet or exceed the safety standards established and promulgated under the Federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Chapter 15).

57. Force Majeure. Neither Respondent nor Agency shall be liable to the other for any delay in, or failure of performance, of any requirement included in the contract caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as: (A) acts of God, acts or failure of government or governmental authorities, war, fires, explosions, hurricanes, tornadoes, floods, extreme weather, strikes, riots, civil disturbance or unrest, failure of transportation, or disruption of supply chain(s); or

(B) acts, causes, circumstances, events and matters related to public health, whether local, state, regional, national or worldwide, including, without limitation, disease, epidemic, pandemic, viral or bacterial outbreaks, or contamination of or disruption to food or water supply. To constitute an event of force majeure, the act, cause, circumstance, event or matter must: (i) directly result in damage, loss, harm, destruction, disruption or calamity to the party declaring an event of force majeure of such magnitude that a reasonably competent and prepared entity or individual could not be expected to continue operations or perform services under such circumstances; (ii) be beyond the reasonable control of the party declaring a force majeure; and (iii) be of such a nature that by exercise of due foresight the party declaring a force majeure could not reasonably have been expected to avoid, and which, by the exercise of all reasonable diligence, such party in unable to overcome. The party declaring a force majeure shall provide at least seven (7) days written notice to the nondeclaring party of the force majeure and the actions or remedies it is taking as a result of the force majeure. If either party is unable to continue operations or provide services as a result of a force majeure, only after providing notice of a force majeure as required by this section and making a legitimate effort to continue operations and/or provide services, such party may terminate this contract by providing written notice to the nondeclaring party. If this contract is terminated because of an event of force majeure, TDA shall be responsible for payment of only reasonable and customary charges for necessary services actually provided by Respondent up to the date of termination, not to exceed the sums specified in the contract.

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58. Immigration. Respondent represents and warrants that it shall comply with the requirements of the Immigration and Nationality Act (8 U.S.C. §§1101 et seq.) and all subsequent immigration laws and amendments.

59. Independent Contractor. Respondent acknowledges and agrees that it is furnishing products and services in the capacity of an independent contractor and that Respondent, and its personnel are not employees of the Agency or the State of Texas.

60. Legal and Regulatory Actions. Respondent represents and warrants that it is not aware of and has received no notice of any court or governmental agency actions, proceedings or investigations, etc., pending or threatened against Respondent or any of the individuals or entities included in the Response within the five (5) calendar years immediately preceding the submission of the Response that would or could impair Respondent’s performance under the contract, relate to the solicited or similar goods or services, or otherwise be relevant to Agency’s consideration of the Response. If Respondent is unable to make the preceding representation and warranty, then Respondent instead represents and warrants that it has included as a detailed attachment in its Response a complete disclosure of any such court or governmental agency actions, proceedings, or investigations, etc. that would or could impair Respondent’s performance under the contract, relate to the solicited or similar goods or services, or otherwise be relevant to Agency’s consideration of the Response. In addition, Respondent represents and warrants that it shall notify Agency in writing within five (5) business days of any changes to the representations or warranties in this clause and understands that failure to so timely update Agency shall constitute breach of contract and may result in immediate termination of the contract.

61. License Grant (Simple). Respondent hereby grants to Agency a non-exclusive, perpetual, irrevocable, worldwide, transferable, fully paid, royalty-free, right and license: (a) to reproduce, modify, distribute, store, publicly perform, publicly display, create derivative works of, and otherwise exploit the deliverables, in each case without any restrictions and without accounting to Respondent; and (b) to sublicense any or all such rights to third parties.

62. Limitation on Authority. Respondent shall have no authority to act for or on behalf of Agency or the State of Texas except as expressly provided for in the contract; no other authority, power or use is granted or implied. Contractor may not incur any debt, obligation, expense, or liability of any kind on behalf of Agency or the State of Texas.

63. Lobbying Prohibition. Respondent represents and warrants that Agency’s payments to Respondent and Respondent’s receipt of appropriated or other funds under the contract are not prohibited by Sections 556.005 or 556.0055 of the Texas Government Code.

64. Media Releases. Respondent shall not use Agency’s name, logo, or other likeness in any press release, marketing material, or other announcement without Agency’s prior written approval. Agency does not endorse any vendor, commodity, or service. Respondent is not authorized to make or participate in any media releases or public announcements pertaining to this procurement, the Response, or the services to which they relate without Agency’s prior written consent, and then only in accordance with explicit written instructions from Agency.

65. No Felony Criminal Convictions. Respondent represents that neither Respondent nor any of its employees, agents, or representatives, including any subcontractors and employees, agents, or representative of such subcontractors, have been convicted of a felony criminal offense or that if such a conviction has occurred Respondent has fully advised Agency in writing of the facts and circumstances surrounding the convictions.

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66. No Implied Waiver. No provision of the contract shall constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to Agency as an agency of the State of Texas or otherwise available to Agency. The failure to enforce or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities detailed in the contract or otherwise available to Agency by law will not constitute a waiver of said privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel.

67. No Quantity Guarantees. Agency makes no express or implied warranty whatsoever that any minimum compensation or minimum quantity will be guaranteed under the contract.

68. No Third-Party Beneficiaries. The contract is made solely and specifically among and for the benefit of the parties named herein and their respective successors and assigns, and no other person shall have any right, interest, or claims hereunder or be entitled to any benefits pursuant to or on account of the contract as a third-party beneficiary or otherwise.

69. Permits, Certifications, and Licenses. Respondent represents and warrants that it has determined what licenses, certifications and permits are required under the contract and has acquired all applicable licenses, certifications, and permits.

70. Prompt Payment. Payment shall be made in accordance with Chapter 2251 of the Texas Government Code, commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas Government Code shall govern remittance of payment and remedies for late payment and non-payment.

71. Property Rights. For purposes of the contract, the term “Work” is defined as all work papers, work products, materials, approaches, designs, specifications, systems, software, programs, source code, documentation methodologies, concepts, intellectual property or other property developed, produced or generated in connection with the services provided under the contract. Agency and Respondent intend this agreement to be a contract for services and each considers the Work and any and all documentation or other products and results of the services to be rendered by Respondent to be a work made for hire. Respondent and Respondent’s employees will have no rights in or ownership of the Work and any and all documentation or other products and results of the services or any other property of Agency. Respondent acknowledges and agrees that the Work (and all rights therein) belongs to and shall be the sole and exclusive property of Agency. If for any reason the Work would not be considered a work-for-hire under applicable law, Respondent does hereby sell, assign, and transfer to Agency, its successors and assigns, the entire right, title and interest in and to the copyright in the Work and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Work, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing.

Respondent agrees to execute all papers and to perform such other property rights, as Agency may deem necessary to secure for Agency or its designee the rights herein assigned. In the event that Respondent has any rights in and to the Work that cannot be assigned to Agency, Respondent hereby grants to Agency an exclusive, worldwide, royalty-free, irrevocable, and perpetual license to directly and indirectly reproduce, distribute, modify, create derivative works of, publicly perform and publicly display, such rights to make, have made, use, sell and offer for sale any products developed by practicing such rights, and to otherwise use such rights, with the right to sublicense such rights through multiple levels of sublicenses. No later than the first calendar day after the termination or expiration of the contract or upon Agency’s request, Respondent shall deliver to Agency all completed, or partially completed, Work and any and all documentation or other products and results of the services. Failure to timely deliver such Work or any and all documentation or other products

Exhibit A – 02/11/2025 Page 12 of 19 and results of the services will be considered a material breach of the contract. Respondent will not make or retain any copies of the Work or any and all documentation or other products and results of the services without the prior written consent of Agency.

72. Records Retention. Respondent shall maintain and retain all records relating to the performance of the contract including supporting fiscal documents adequate to ensure that claims for contract funds are in accordance with applicable State of Texas requirements. These records will be maintained and retained by Respondent for a period of seven (7) years after the contract expiration date or until all audit, claim, and litigation matters are resolved, whichever is later.

73. Refund. Respondent will promptly refund or credit within thirty (30) calendar days any funds erroneously paid by Agency which are not expressly authorized under the contract.

74. Restricted Employment for Certain State Personnel. Pursuant to Section 572.069 of the Texas Government Code, Respondent certifies that it has not employed and will not employ a former state officer or employee who participated in a procurement or contract negotiations for Agency involving Respondent within two (2) years after the date that the contract is signed, or the procurement is terminated or withdrawn. This certification only applies to former state officers or employees whose state service or employment ceased on or after September 1, 2015.

75. Secure Erasure of Hard Disk Capability. All equipment provided to Agency by Respondent that is equipped with hard disk drives (i.e., computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability to securely erase data written to the hard drive prior to final disposition of such equipment, either at the end of the equipment’s useful life or the end of the related services agreement for such equipment, in accordance with Texas Administrative Code, Title 1, Chapter 202.

76. Severability. If any provision of the contract is construed to be illegal or invalid, such construction will not affect the legality or validity of any of its other provisions. The illegal or invalid provision will be deemed severable and stricken from the contract as if it had never been incorporated herein, but all other provisions will continue in full force and effect.

77. Sovereign Immunity. The parties expressly agree that no provision of the contract is in any way intended to constitute a waiver by the Agency or the State of Texas of any immunities from suit or from liability that the Agency or the State of Texas may have by operation of law.

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

79. Survival. Expiration or termination of the contract for any reason does not release Respondent from any liability or obligation set forth in the contract: (a) that is expressly stated to survive any such expiration or termination; (b) that by its nature would be intended to be applicable following any such expiration or termination; or (c) that is necessary to fulfill the essential purpose of the contract, including without limitation the provisions regarding warranty, indemnification, confidentiality, and rights and remedies upon termination.

Exhibit A – 02/11/2025 Page 13 of 19

80. Taxes. Purchases made for State of Texas use 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 Respondent or its employees.

Agency shall not be liable for any taxes resulting from the contract.

81. TDA Graduated Remedies Schedule and Liquidated Damages. TDA may utilize the following remedies in the event Respondent fails to perform under a contract resulting from this Solicitation:

a. Upon initial breach or failure to perform, TDA will provide Respondent with written notice of same and give Respondent fourteen (14) calendar days to provide TDA with a corrective action plan (CAP) and cure the breach or failure to perform. At a minimum, the CAP must include the following items: (i) the cause of the breach or failure to perform; (ii) an outline of actions that will be taken to cure the breach or failure to perform; (iii) the expected outcome for each action; (iv) the date for completion of each action; (v) the individuals responsible for completion of each action; and

(vi) all steps Respondent will take to ensure that there are no further breaches of Contract or failures to perform under the contract. TDA will provide Respondent with written acceptance or rejection of Respondent’s CAP and cure within fourteen (14) calendar days after Respondent’s completion of the cure. Failure to provide a CAP, or fully or properly complete a cure, as required by this Section 81.a, is a material breach of contract.

b. Upon a second breach or failure to perform, TDA will provide Respondent with written notice of same and give Respondent seven (7) calendar days to provide TDA a CAP that meets the requirements of Section 81.a above and cure the breach or failure to perform. Additionally, TDA will withhold up to ten (10%) of all future payments due Respondent as liquidated damages for Respondent’s breach, and as security for proper and timely performance of the contract. If Respondent fully and faithfully provides full, complete, and timely performance under the contract following said breach, TDA will release all sums withheld under this Section 81.b within thirty (30) days of closing out and winding up the contract. Further, TDA will provide Respondent with written acceptance or rejection of Respondent’s CAP and cure within fourteen

(14) calendar days after Respondent’s completion of the cure. Failure to provide a CAP, or fully and properly complete a cure, as required by this Section 81.b, is a material breach of contract.

c. If Respondent fails to cure the breach or fails to perform within the designated cure period specified in Sections 81.a or 81.b above, or upon a third or subsequent breach or failure to perform, TDA may immediately terminate the contract upon written notice to Respondent.

Further, all sums withheld by TDA under Section 81.b above will be retained by TDA as liquidated damages to offset TDA’s costs and damages resulting from Respondent’s breach or failure to perform.

d. Notwithstanding the graduated remedies schedule and liquidated damages specified above, in the event Respondent commits a material breach of contract, TDA reserves the right to immediately terminate the contract upon written notice to Respondent. A breach is material if: (i) Respondent completely fails to perform an activity, service or task required by the contract; or (ii) the breach is substantial and prevents the contract from being completed or defeats the purpose of the contract.

82. Termination for Cause or Convenience. Agency reserves the right to terminate the contract for cause pursuant to Section 81(c) or (d) above. Agency reserves the right to terminate the contract at any time, in whole or in part, without cost or penalty, by providing thirty (30) calendar days’ advance

Exhibit A – 02/11/2025 Page 14 of 19 written notice, if Agency determines that such termination is in the best interest of the state.